How The Supreme Court Has Failed India’s Already Marginalised Sex Workers

Posted by Shikha Sharma in News, Sex Work
December 17, 2016

On October 12 this year, the Supreme Court passed a ruling saying that a sex worker cannot file a case alleging she was raped if her customer refused to pay her. The bench of judges, consisting of Pinaki Chandra Bose and Amitava Roy, also added that though evidence given by a woman alleging sexual assault should be given significance, it shouldn’t be treated as ‘gospel truth’.

As per official figures, there are around 800,000 sex workers in India. When it comes to legal policies and legislation though, the group continues to remain in the dark zone getting absolutely no attention from our lawmakers. This silence on the part of law has not only resulted in increased exploitation of sex workers over the years, but also made them extremely vulnerable to violence in both public spaces by law enforcement agencies, and private spaces by clients and pimps.

The recent ruling is only one among the many passed in independent India against basic rights a woman should have in the country. Based more on morality than on legal reasoning, they reveal not only the bias held against sex workers by our justice system, but also reflects the good woman/bad woman prism through which we still judge women in 21st century India.

In this episode, the judgement came in a case that was more than 20 years old. The three men who were accused of raping the woman had moved the Supreme Court in appeal after the Karnataka High Court had convicted them of raping the woman. The woman who used to work as a maid for the three men had charged the three men of sexual assault and rape in a garage in Bangalore after being kidnapped. The Supreme Court, in the case, however, observed that, “the woman’s conduct during the alleged ordeal is is unlike a victim of rape and betrays somewhat submissive and consensual disposition.”

In an earlier case in 1972, referred to as the Mathura Case – in which a 16-year-old girl had been raped by two policemen in a police station, the Court had ruled that no rape had taken place since the woman’s body bore no outward signs of said violence, suggesting that it was all a ‘peaceful affair’. The ruling, however, sparked a series of protests, which led to criminal law amendments in 1983 in cases that dealt with rape, in which if sexual intercourse by the accused is proved, the question before the Court should be if it was with or without the woman’s consent. If the woman says she did not consent, the Court must assume that she did not consent.

Clearly, the recent court rulings suggest the case to be otherwise for sex workers. Consent, for sex workers, in fact, has always been a grey area. When it comes to issues faced by sex workers, the truth is, the Indian legal system has little to say about their rights. In 2013, when the Justice JS Verma Committee came up with a set of recommendations for the protection of women and girls from gender-based violence, the report addressed a plethora of issues, including issues of police reform and marital rape, but only briefly touched upon issues of sex workers talking about the horrors of prostitution. The Committee’s recommendations said nothing about on the issue of consent when it comes to sex workers, thus, leaving the thousands of sex workers in the country with no legal recourse for protection against sexual violence.

One of the few commendable judgements related to sex workers rights was given by Justice Markanday Katju in 2011 when he stated that sex workers too have a right to a dignified life under Article 21 of the constitution. Such rulings have been few and far between, and it is clear that when it comes to the rights of the sex workers, our justice system is still stuck in an archaic patriarchal mode.

Until this attitude changes and sex workers are given an unprejudiced access to the justice system, and safe working conditions, violent crimes against them will continue to go unreported, unaddressed and unpunished in the country. It is high time that the country recognises rights of sex workers, and devises policies to systematically address the problem of growing sexual violence against them instead of brushing the issue under the carpet.

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