The Delhi High Court stayed a prohibition on cross-gender massage services in the city stating that there was no reasonable nexus between their ban and preventing prostitution at spas.
The High Court was hearing petitions filed by owners of numerous spa centres and therapists challenging the Arvind Kejriwal-led government’s policy guideline forbidding cross-gender massages. According to the interim order, Justice Rekha Palli pulled up the Delhi police and municipal corporations for being unsuccessful in keeping a check on prostitution rackets operating in the backdrop of spas. And she added that there was no concrete link between the absolute ban and preventing prostitution at spas.
“I am, however, of the prima facie view that merely because the corporations and Delhi Police have not been able to take effective steps to ensure that no illegal spas are operated in Delhi and the ones holding licenses do not indulge in any illegal activity whatsoever, this kind of absolute ban on cross-gender massages cannot be said to have any reasonable connection with the aim of the policy which purpose thereof seems to be regulation of the spas and ensure that no illegal trafficking or prostitution takes place in the city,”
-the Court emphasised.
The Court further stated that the decision to implement a complete ban was framed without consulting any professionals involved in the spa services division. It added that the livelihood of individuals was getting affected by this new rule and such a ban could not be continued.
At the same time, it also urged the three municipal corporations and Delhi police to scrutinise areas under their jurisdiction in seven days and take all necessary action to shut down unlicensed spas. The Court was told that while 5,000 spas were functioning in Delhi, only about 400 had the licences to offer their services. The Court asserted that during any instances of illegality, the city police would need to register appropriate cases and instantly pass the information for action to the municipal bodies.
The petition stated that there were no legal rights available to policemen to stop a health spa from being operated even if the services /therapies were being provided and received by opposite sexes. In fact, it shows the narrow mindset of the government and how it is abusing the powers vested in it, it said. The petition further stated that such guidelines were nothing but a reflection of the colonial mindset of the government, where they tend to ban spa centres and massage therapies.
The new guidelines allowed policemen and municipal officers the license to walk into a massage/spa centre anytime they wished in order to keep a check and causally outrage the modesty of women taking the spa/massage therapies. This would in turn tarnish the reputation of professional therapists in the capital, the petition said. The petitioners were aggrieved by the unlawful and discriminatory treatment that authorities were meting out to them.
Senior advocate Rahul Mehra, while appearing for the Delhi government, informed the High Court that the ban was to protect children and women from the danger of prostitution at spas.
It is true that India has a bad image in human trafficking. “Traffickers exploit millions of people in commercial sex within India,” according to the 2020 Trafficking in Persons Report by the US State Department. “In addition to traditional red-light districts, dance bars, spas and massage parlours, traffickers increasingly exploit women and children in sex trafficking in small hotels, vehicles, huts, and private residences.” But not all spas or their employees are guilty of exploitation.
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In 2019, the Madras High Court while dealing with the same issue had observed that the police have no legal right to prevent a health spa from being operated by anyone even if the therapy was done by persons of one sex to those belonging to the opposite sex. Justice N Anand Venkatesh made this observation while quashing cases filed against spa therapists and owners of health spas in the state.
Such a ban is hardly a guaranteed way to stop illegal activity, as the Madras High Court order noted. Instead, it said it was time “to evolve and start looking at things in a right perspective…. It’s time we get out of that conditioning and look at the science and real purpose behind massage and spa centres”.
In countries, such as the US, Britain, France and the UAE, running cross-gender spas is a normal activity and well-managed. Human trafficking in spas is rare. Their governments’ approach towards this issue is innovative and technologically advanced. They usually try to identify the main culprit and then take action. They don’t ban all spas on the mere presumption that they indulge in illegal activities.
Like the Maharashtra ban on dance bars, the Delhi government’s guidelines to check sexual abuse and trafficking at spas are well-intentioned but not well-thought-out. A blanket ban on “cross-gender massage” is regressive, will hurt employment prospects of women and push seedy operators underground. Tougher, non-corrupt regulation will protect women, not bans.
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Spas and wellness centres are part of a growing industry in India. According to a 2019 report by the Federation of Indian Chambers of Commerce and Industry and accounting firm Ernst & Young, in India the industry was valued at $1.7 billion in 2017 and is expected to employ 2,13,000 people by 2022. So any move that will hurt this industry should be carefully thought-out.
In India, cross-gender treatment has been part of traditional massage practices from ancient times. So why this hullabaloo now?
—By Abhilash Kumar Singh and India Legal Bureau