The recent use of the Vagrants Ordinance against four women for “idling” at night caused a social media backlash against police for targeting women who are on the streets during late hours.

But police do not apply the Vagrants Ordinance against women in general, a spokesman insisted, and the four arrests recently made were of sex workers. The legislation permits police to arrest sex workers. Fort Magistrate Priyantha Liyanage closed the case after fining each of them Rs 50.

Section 3 of the Vagrants Ordinance pertains to persons who are deemed “idle or disorderly”. It allows action against “every common prostitute wandering in the public street or highway, or in place of public resort, and behaving in a riotous or indecent manner”.

Police usually conduct 12-hour surveillance on people suspected of soliciting sex, Police spokesman and Deputy Inspector General Ajith Rohana said. If suspicious behaviour is detected, they gather evidence and make the arrests. These are not done “out of the blue”, he pointed out, and officers are required to make surveillance entries followed by an investigation.

After the arrests, however, there was an outcry on social media with women expressing concern about their safety and security. One reason was that initial reports did not specify that the arrests were of sex workers.

“After this incident, when I encountered a policeman at night, I felt the urge to tell them that I am not doing anything wrong,” said Sarah Hettiarachchi, a performer who returns home late at night after musical gigs.

Others pointed out that the police do stop women travelling at night, even for legitimate purposes. “Early in the a.m., post-gigs, going home, I have got stopped and questioned,” said another performer. “Sometimes, the conversations have seemed unnecessarily long, and I haven’t felt safe in that situation because there is a certain tension that builds up when you get stared down for how you dress and your makeup.”

Women who work during the night often feel uncomfortable at such checks because they fear the police will arrest them. Society has a negative image of females who work and travel at night, Ms Hettiarachchi said. They tend to be characterised as women who do “bad things”. There is now a surge of panic among women as they feared that arrests would further stigmatise those who work at night.

The Vagrants Ordinance is an archaic law that charges people who are seen to be behaving riotously or disorderly in the public, said Thishya Weragoda, a lawyer. Section 3(b) allows sex workers to be charged for behaving in a riotous or disorderly manner in public. The vague definition of terms such as “riotous” and “indecent” has allowed police to interpret the law in an unrestricted manner. It also lets police make such arrests without a warrant.

It should be clear, however, that the police “will” not arrest a woman for simply walking on a road at night, DIG Rohana said. Often, the police use this provision to take in sex workers.

They were previously arrested under the Brothels’ Ordinance but this was brought to a halt by Fort Magistrate Ranga Dissanayake who ruled in February 2020 that it was not an offence in Sri Lanka for a woman to engage in prostitution.

Magistrate Dissanayake acquitted a woman arrested in a brothel on charges of prostitution, saying it was not considered an offence in Sri Lanka for a woman to earn a living through sex work but that it was an offence to operate a brothel.

Citing two major Superior Court judgments (Saibo vs Chellam and Coore vs James Appu), he said, “prostitution is not an offence per se under our law” and that the Vagrants Ordinance and the Brothel Ordinance are the laws that govern prostitution in Sri Lanka.

Since colonial times, there have been no prevailing laws in Sri Lanka against a woman who independently engaged in prostitution as a means of earning a living.

Such arrests are meant to act as deterrence, lawyer Weragoda pointed out. There is an implied message for people to avoid behaving in ways that are deemed illegal.

But while Vagrants Ordinance might be used mainly against sex workers, police have also deployed it against couples and people in the lesbian, gay, bisexual and transgender community as well as women in general. Its ambiguity has allowed police to legally make such arrests.

“The Vagrants Ordinance should be repealed,” said Thiyagaraja Waradas, a Director of the Community Welfare and Development Fund and Colombo University lecturer. “It is beyond outdated.”

“This is a colonial law that theoretically applies to everyone. Yet the application of it is mainly gendered to women,” said Sharanya Sekaram, Co-Founder of Everystory Sri Lanka. Despite the law stating that “any person” can be arrested for acting in a “riotous or disorderly manner”, a majority of these convictions tend to be of women.

The subtle discrimination by the police is an imperative issue as many women feel their freedom is restricted by societal norms, she pointed out.

The Sunday Times

Click here to subscribe to ESSF newsletters in English and/or French.