The Lost ‘Republic’: The ‘Sex-Work’ is “not Illegal”

Note:The views is of the author, not of Sikkim Chronicle 

By Dr Dinesh Kumar Ahirwar. The author is a Assistant Professor in the department of Peace and Conflict Studies and Management,Sikkim University

Hon’ble Supreme Court has, in a landmark judgment, given the nod for the ‘sex work’ and clearly warned police not to harass persons “voluntarily” involved in the profession. The order also stated that the ‘sex-work’ is “not illegal” now and “dignified” as others. It gives recognition and restores the self-respect for sex-workers as told. Hon’ble Supreme Court of India also asked the Central Government to bring the Bill in the Indian Parliament to address the issues and give protection for the sex-professionals. It appears quite satisfying for the NGOs people who were working for the welfare of these people by getting some legal safeguards against police intervention. It has been a long-standing demand and met with the given historical judgment of the apex court. Nevertheless, it raises some moral and ethical concern of the society, and antagonized with the objectives and the spirit of a “Republic”. This article is covering only the moral aspects of a republic and not the contextual one.

The “Republic” stands for the ‘virtue’ and ‘social good’. The modern republican states, practised democracy, promised all the citizen equality, liberty, fraternity and dignity; these were the objectives but, of course, without time limits. One of the objectives of the “Republican state” was to provide a decent livelihood for all, to deliver justice and regain lost dignity for the communities which faced structural injustices historically. Therefore, marching on that road to achieve these objectives were agreed upon in the Indian Constitutions too. Why a republican state should legalize the ‘sex work’ is the fundamental question, and a “republic” remains no longer a ‘republic’ if it does not have an absolute moral end to aspire for. The protection of the ‘right to live’ under the article 21st of the Indian Constitution is secured; and right to live, and live with dignity, are two different things. Nevertheless, instead of giving shelter and moving ‘sex-workers’ from the category ‘outside’, has been given the recognition to remain ‘outside’. The reclaiming the dignity of an ‘identity’ which is not adopted voluntarily but forced by the structure. The problem does not lie with the recognition, but with the moral encompass of the state to end the spirit of the absolute “end” of ‘human dignity’.

Can a “Republican” state have any rightful moral claim over a citizen who, in compromise of dignity, does ‘sex work’ for his survival? State loses it ethical right to control those who are forced to do sexual activities for the survival. A citizen whose ‘right to dignity’ is not protected has the right to break the “social contract”. Or if he does not have capacity to break the “social contract” he is in the state of slavery. The “social contract” replaced the “might is right” with ‘rule of law’; which is now being replaced with “buying the consent.” The legalization of the ‘sex-work’ based on the consent, in other words, make it “money buys the consent.” The “consent” which is also the result of the consequences of the structure is named after the freedom. The ‘sati’ was based on the “consent” and ‘devadasi’ system was also an exercise of once’ agency to choose the service of the God. Only the Enlightenment philosophy which try to penetrate in all the traditional societies made an attempt to universalize the contextual ethics to absolute morality. Opposition to the move would be in the sphere of conservatism. Scruton argued, ‘to be a conservative is not a big deal , but being a conservative intellectual is.’ The rationalists have to reach to the consensus where right and wrong is fixed in the absolute moral sphere and independent of the particular context. The freedom which goes against the universal morality and eternal God needs to pay attention to the fact that there cannot be freedom to commit suicide or do “immorality” for the contextual profit and gains.

Dostoevsky said, if God is dead, everything is permitted”? It seems to be true; without a lawgiver, how can there be a law?  God remains the absolute end for theists and rationality for atheists. However, absolute moral end is never achieving goal, but that is the hope to be upheld. To form a universal consensus among theists and atheists to make sense what is just and unjust has to be searched in the sphere of metaphysical outside where God exists for theist, and morality for atheists.

As now Capitalist ethics taking over universal framework of the morality. The legalization of the sex work, can protect the rights of the individuals involved into it but cannot restore them dignity in the society is already seen globally. “Perversion could be the distant dream of all the civilizations”, but it should remain the distant dream and should never aspire for the realization. Free ‘consenting’ sex is possible in the democracy but not in a “Republic”. ‘Sexual work’ cannot be “illegal” but not moral in the conscience of the society. The moral objective of the state is already lost in the new liberal logic of the profit.

The separation of legal from moral is driven from the misuse of “enlightenment logic” in the favour of “anarchist freedom”; it can be driven by the two into two aspects; freedom to break the existing paradigm called revolution; second, freedom to repeat the irrational as reaction. In the Hegelian sense, mind only objective remains in the sphere of “freedom” to maximize the moral and ethical encompass of the “mind and spirit”.

The pre-modern states which were consequence of the “enlightenment logic”, after industrial revolution, attacked the “feudal values” of the society, expected to fulfil the promise at that time. Now, these states transformed themselves into “new-liberal” states after two hundred years later. The declaration of “voluntary sex-work” “not illegal” by hon’ble SC shows that the “Republic” lost it path. Hon’ble Supreme Court Judges must be knowing that judiciary is not only the manifestation of ‘pure reason’ but it retains people’s belief only through reflection of universal form of morality. The Separation of the freedom from morality and rationality is set in the trend by pushing the choice of market and “consumerist culture”, which also contradict with the idea of the “Republic”. In the famous quote, Kant said “dignity cannot be legislated”; hence, ‘sex-work’ can be legalized but cannot be dignified. There could be two important reasons to know whether the state entered into the “state of anarchy” where right and wrong does not matter, but only survival.

Hon’ble Supreme Court has power to legalize any profession , but does not have power to make it recognizable in the eyes of “civilized society.” The freedom to use once’s agency and act , but the recognition is given only by others. Freedom is an individual affair, whereas “dignity” is a community one. The society recognizes the act as good as moral but not the act how free it is. The dignity is the end of an individual, and not the free individual in itself. There can be no human being without setting the “moral end”? Any profession cannot become “end” in itself. The end action should be compatible with moral and reasoned, not with sensual inclination.

One of the major developments in the present societies to take such move is the advancing science and technology. The objective of the science and its instrument technology meant to replace humans from hazardous working condition, had played a revolutionary role, in rising the status of human civilizations in history. All the early modernist and rationalists thought that advancing technology would do the “welfare” of the all and play crucial role in building a “welfare society”, rather it has been used for making private profits and replacing human being, left unemployed and option left to choose the job which society considers “less respectful.” And now, the displaced human being, without work, downgraded to the level where they are useful only for ‘sexual activity’. The move is only a cover-up of the state which is losing it moral encompass to make the difference in the right and wrong.

Note: Views in the article are personal.

SC Bureau

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