On the Fundamental Rights of the Sex Workers and Others in India Pradip Baksi BACKGROUND It is for about one

and a half decades now that our Sex Workers are raising the issues related to their lack of professional, legal and social rights before the members of the Other Sections of our society. Throughout this period, they are trying to get governmental recognition for their legal, civil and social rights, as people who have voluntarily chosen to be engaged as workers in the sector of sexual services. They belong to a profession which is about 10, 000 year old, in the least. One often hears from the supporters, activists and leaders of our Sex Workers’ Rights Movement that they wish to live with equal rights just like the Other People of the society. They wish to be treated as equals of the Other professionals and workers in the eyes of the law. Such desires are very natural and just. A minimum of common sense, sensitivity and human empathy is enough for understanding their desires for equality and justice. It is only our partially western and partially Indian evil policy oriented government, its police, administrative, and judicial bureaucracy and, their social guardians – our dominant patriarchal intelligentsia born, raised and submerged within a decadent system of castism – who fail to understand and appreciate the just demands of the millions of our sex workers. Our sex workers will have to go a long way to overcome the combined strength of these forces of opposition. It is a path of learning through agitation, mobilization, litigation and, education. We shall have to change the laws of our land and, do something more than that. Time and again we shall have to prune, cleanse and change our long cherished stereotypical ideas about ourselves and about the rest of the society. When the sex workers of our land demand ‘Equal’ rights available to the Other people of the society, then it is assumed that the ‘Fundamental Rights’ enshrined in The Constitution of India [Part III: Articles 12-35] are indeed ‘Rights’ of Indians as human beings. Those who are born and raised among the ruling castes of the land often do not even notice, that even today the hegemony of their birth-related social rights happen to be far more powerful than the

constitutional and legal rights ‘available’ to the rest of the population. The powerful and the educated members of the ruling castes do not even feel the need to verify the truth or falsity of the claims about our constitutional rights. At the other end of the social spectrum, people like our sex workers, ‘exiled’ to the periphery of our society, bereft of all social rights – are trying to stand up with their heads held high, only by clinging to the hopes created by the dominant rhetoric of our constitutional and legal rights. Having been born to the privileges of ruling caste social rights, I was never even bothered about the truth or falsity of the claims about the constitutional rights of the Indians. I never even felt the need to look up the pages of The Constitution of India. My acquaintance with DMSC <http://www.durbar.org/> gradually changed all that. The first major jolt came in 2002. In that year DMSC organized a Peace Festival. In course of that festival the then Sports Minister of West Bengal, late Subhash Chakraborti hosted a dinner in honor of the sex workers who organized the festival. There were some introductory ritual speeches too. One of the guest speakers, the then Special Director of the Central Bureau of Investigations <http://www.cbi.nic.in/>, Kolkata Zone, said that he will be in the front ranks, in the struggle of the sex workers for obtaining the Fundamental Rights enshrined in The Constitution of India. I was vexed. Our police still empowered by the colonial Indian Penal Code of 1860, torment and torture our sex workers day in and day out; and, here I hear a very high ranking official of that police force expressing his desire to fight for securing the constitutional rights of our sex workers! I thought: either the person was just speaking for the sake of form without meaning anything or, there exists no real guarantee for basic human rights in The Constitution of India. I decided to find out for myself. A second jolt arrived within a few months. On 28 March 2003 DMSC organized a workshop aimed at increasing the rights awareness of its activists and leaders. In the process of preparation for that workshop it was noticed that the sense of duty of the leaders of our sex workers was comparatively more developed than their awareness of rights. To be frank their awareness of their various rights was very much repressed, rather feeble. In many cases it was found that they have no idea about their personal rights as sex

workers, women and human beings. That which they thought to be their right, often turned out to be their duty. For instance, they considered their duty to look after their young children and old parents to be their “rights”. The rights awareness among the college/university educated employees of the sex sector NGOs was similarly poor. Why the situation is so bad? Is it because of a long preponderance of the ethos of communal landownership in India? Is it also because of the corresponding long history of caste-cum-gender based oppressions? Is it the case that in India only the male members of the ruling castes are permitted to have some kind of rights awareness? Is the governing elite of India still implicitly guided by the dictums of The Kautiliya Arthasastra [1|3.1.14-17; 4.16] that the maintenance of Varnashrama Dharma by the use of Danda is the cardinal duty of the ruler? [In the context of military strategic relevance of this text for India today, see: Michael Liebig 2012.] The aspiring architects of the future civil societies of India must find out their answers to these questions. FUNDAMANTAL RIGHTS DMSC published a booklet on the occasion of the above indicated workshop. It contained, among other things, some excerpts from The Constitution of India, Part III: Fundamental Rights. Let us now consider what is there in that part of our Constitution. There, under the heading of Right to Freedom, it is written in Article 19 (1) (g) that: all citizens shall have the right to practise any profession, to carry on any occupation, trade or business1. Sex work is a profession or occupation or trade or business. In ancient India it was called ‘Ganikavritti’ *‘Profession of the Courtesan’+. Some people engage in this profession full time; some others - part time, over and above their main profession, to earn some extra money. Here, this or that kind of sexual services are exchanged for some amount of money; hence it is a trade or a business. Thus it may seem that the profession or occupation of the sex worker is approved by The Constitution of India. It may seem so, but it is not the case; because, a little later in the same Article 19 (2) (6) it has been stated the government can put “reasonable restrictions” on the rights conferred in 19 (1) (g) on the basis of “any existing law”, in the “interests of the general public”2. That is to say, the government and its bureaucrats can obstruct the transaction of, or

close down, any business in accordance with their views of “reason” and “public interests”, if they so desire. Our sex workers know from their daily experience, how the police operates from behind the veils of “existing laws” of The Indian Penal Code of 1860, conduct raids on some pretext or the other, terrorize and extort money from the customers and, negotiate weekly or monthly quotas of graft. What our Sex Workers and many Other Subjects of our land do not know is this: that if the officers of the government so desire they can and do conduct such raids against Others engaged in Other professions for collecting graft, staying protected behind Article 19 (2) (6) indicated above. So much, for the present, on the “Fundamental Rights” of Indians to practise any profession or occupation or trade or business. Now let us take a look at the other Rights to Freedom enshrined in our Constitution. Sex Workers and Other subject people of India may think that even if they do not have any right to follow a desirable and possible profession or occupation here, then at least the fundamental human rights to live and to move freely are permitted in our Constitution. This is also an incorrect notion. Article 21 of our Constitution states that: the government can kill [that is, terminate the right to life] or arrest [that is, restrict the freedom of movement] of any person according to the procedures established by the existing laws3. A large part of the laws of The Indian Penal Code dates back to the year 1860; it is a code that was enacted immediately after the suppression of The Great Indian Revolt of 18571859. Our present rulers indulge in nothing but hypocrisy, when they declare us to be Citizens of free India and, simultaneously oppress us as Subjects, according to the laws enacted during the days of the British Raj. Article 22 of our Constitution is about our right to get arrested and, about the rights of the parliament, the government and its police to arrest us4. The experience of getting arbitrarily arrested under any pretext is a common experience of our sex workers and their customers. However, our Sex Workers and Other ordinary Subjects of the land do not know that some Indians get spared of this common experience of arbitrary detention, only on account of their social rights as members of the ruling castes. In the extreme of cases, the parliament of our rulers and their Advisory Boards decide who can be arbitrarily detained for a period of more than three

months without showing any reason and, without any trial. The upper limits of detention for such cases have been left open. Further, our sex workers and their friends may be pleased to learn, that under the heading of Right against Exploitation, the Article 23 (2) of our Constitution confers upon our government, the sole and exclusive right to indulge in indiscriminate traffic in human beings for “public purposes”5. As a text, The Constitution of India: Part III: Fundamental Rights is perhaps a peerless instance of passing off the real, arbitrary and, absolute rights of the members of our parliament, legislatures, governments and, all sorts of local authorities – that is, of our most powerful political bosses, their police and sundry other bureaucrats, who are still empowered by the colonial laws of the British Raj, as the “fundamental rights” of the Subjects of India. We have spent about 62 years of our lives with such matchless “fundamental rights”. Those of us who were born with the social rights and privileges of the ruling castes and, additionally picked up the jargons of the English, American, French, Russian, Chinese and other revolutions, not only did not propose a fundamental critique of this Constitution during all these years but, and this is more shameful, some of our “liberals”, “socialists” and, “Marxists” were all praise, since the days of the Constituent Assembly, about the unquestionable “superiority” of our Constitution. Some of them did some minor fault finding exercises here and there and, some even bragged about how we have amended the longest written Constitution of the world some 97 times since it came into effect. Some specialists have spoken some home truths from time to time but, no great commotion was ever born around those critiques. An eminent expert on our Constitution, Dr. Subhash C. Kashyap, who is a former Secretary-General of the Loksabha [the lower house of the Indian Parliament] wrote: that about 75 percent of our constitution is nothing but a paraphrased repetition of the British Imperial Government of India Act of 1935 [Subhash C. Kashyap 1998: 4]. Dr. Bhimrao R. Ambedkar, who was the Chairman of the Drafting Committee of the Indian Constitution, lamented that: on the 26th of January 1950, the day of promulgation of our Constitution, we have entered into

a self-contradictory world; in politics we have adopted the principle of one person one vote but, we will continue to violate this adopted principle in our socioeconomic life, due to the social and economic structures of our society [ibid: 52]. All Constitutions and all laws, in the main, reflect the perceived self-interests and prejudices of the ruling elite of a given space and time. Now some turmoil and uncertainty has gripped our ruling castes. This is a good time to test the limits of their legal and constitutional confusions by proposing some fundamental critiques and alternative drafts.

References The Constitution of India [amended up to the 1st of December 2007]; available at: <http://lawmin.nic.in/coi/coiason29july08.pdf> The Code of Criminal Procedure, 1973; See: <http://en.wikipedia.org/wiki/Criminal_Procedure_Code,_1973_(India)> The Indian Penal Code, 1860; available at: <http://trivandrum.gov.in/~trivandrum/pdf/act/THEINDIAN%20PENALCODE.pdf> The Kautiliya Arthasastra [4th Century B C E]: Text, Glossary, English translation, Notes and, a Study in III parts by R.P.Kangle. Delhi: Motilal Banarsidass, Reprint 2000. Michael Liebig [2012], Endogenous Politico-Cultural Resources: Kautilya’s Arthashastra and India’s Strategic Culture. Available at: <http://www.idsa.in/event/KautilyasArthashastraandIndiasStrategicCulture> Subhash C. Kashyap [1998], Aamaader Sangbidhaan [Bengali translation of Our Constitution, 1994]. New Delhi: National Book Trust.

Notes GENERAL REMARKS In the endnotes that follow, the texts under sub-heading [A] of the Articles, Clauses and, Sub-Clauses of The Constitution of India will be followed by their synonymous transformed readings under sub-heading [B] given below. The texts of the Articles, Clauses and Sub-Clauses of our Constitution [and those of many other Constitutions] are often written as negative sentences and/or clauses. If these sentences and/or clauses are transformed into the corresponding synonymous affirmative sentences and/or clauses, then it becomes clear that they constitute nothing but a shameful effort to pass off the rights of the government and its officials as the rights of the people. It becomes clear then that the Fundamental Rights of the Indians, enshrined in our Constitution are nothing but their rights to remain unemployed without any occupation, to remain in some government run prison, to get trafficked and/or, to get killed by the government. The parliament and government of India, its police and other bureaucracy sincerely help the Indians to gain and consolidate these Fundamental Constitutional Rights in very many ways. [A]

Article 19. Protection of certain rights regarding freedom of speech, etc. - (1) All citizens shall have the right – * * * *

(g) to practice any profession, to carry on any occupation, trade or business.

Article 19. (2) (6): Nothing in the sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State* from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the rights conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State* from making any law relating to, -

(i) the professional or technical qualifications necessary for practicising any profession or carrying on any occupation, trade or business, or (ii) the carrying on by the State*, or by a corporation owned or controlled by the State*, of any trade, business, industry or service, whether to exclusion, complete or partial, of citizens or otherwise. *State: Article12. Definition. – In this part, unless the context otherwise requires, “the State” includes the Government and Parliament of India and the Government and Legislature of each of the States [= Provinces] and all local or other authorities within the territory of India or under the control of the Government of India.

Article 21. Protection of life and personal liberty. – No person shall be deprived of his life or personal liberty except according to procedure established by law.

Article 22. Protection against arrest and detention in certain cases. – * * *


(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless – (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention: Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or (b) such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7). * * * *

(7) Parliament may by law prescribe –

(a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4); (b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and (c) the procedure to be followed by an Advisory Board in an inquiry under subclause (a) of clause (4).

Article 23. Prohibition of traffic in human beings and forced labour. - (1) Traffic in human beings and begar [= unpaid work] and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law. (2) Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them.


The government and parliament of India and, the government and legislature of each of the states/provinces and all local or other authorities/bureaucrats within the territory of India or under the control of the government of India, on the strength of The Indian Penal Code of 1860 or, by enacting any new law [such as The Code of Criminal Procedure, 1973] and, according to their understanding of reasonableness and of public interest, can restrict or cancel the right of any Indian to practise any profession or occupation or trade or business.

Any Indian can be killed/deprived of life or, arrested/deprived of personal liberty according to due procedure established by law, such as the Indian Penal Code of 1860.


Any Indian can be preventively detained by the government, for any period of time beyond three months, either with the support of government appointed Advisory Boards composed of Judges of High Courts or similarly competent persons or, even without such support, on the strength of some Act passed by the parliament.

Traffic in human beings is solely a monopoly business of the government of India; private competition is prohibited in this sector.

First published in Bengali: “Bharater Jounakarmider O Anyader Moulik Adhikar Prasange”, Namaskar (Kolkata), 2005, Vol.7, No.1: 66-71. Revised English version uploaded on 26 June 2012. <pradipbaksi@gmail.com>

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