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Context

A recently launched Bollywood film is facing legal trouble after individuals claiming to be family members of the main protagonist, Gangubai Kathiawadi, have objected to her portrayal in the film.

This issue has brought a long slated debate of legalizing sex work in India. In this context let us know about various dimensions of the issue.

Who are sex workers?

Sex worker means a female, male or a transgender over the age of eighteen years who receives money or goods in exchange for sexual services, either regularly or occasionally.

What is the status of sex workers in India?

Three million women are engaged in commercial sex activity (CSA) in India, a 50% rise from 1997.
Over 60% of those trafficked into sex work are adolescent girls in the age group of 12-16 years. More than 35% girls in India enter CSA before 18 years of age.
India has three lakh brothels in 1,100 identified red-light areas, housing nearly five million children in addition to commercial sex workers.
More than 25 percent women in commercial sex activity in India are in Maharashtra (14.20 percent) and West Bengal (13 percent).
Despite increasing public outcry about violence against women in India, systematic large scale abuse in the name of commercial sex work remains socially acceptable.
The report aims to draw attention to the growing victimization of women, highlights high impact non-profits working on the issue and the outlines the role of philanthropy in scaling their efforts.

Forms of violence faced by sex workers

(1) Physical violence

Being subjected to physical force which can potentially cause death, injury or harm.
It includes, but is not limited to: being slapped, pushed, shoved, hit with the fist or with something else that could hurt, being kicked, dragged, beaten up, choked, deliberately burnt, etc.
These acts are operationally defined and validated in WHO survey methods on violence against women.

(2) Sexual violence

Rape, gang rape, sexual harassment, being physically forced or psychologically intimidated to engage in sex or subjected to sex acts against one’s will or that one finds degrading or humiliating.

(3) Emotional or psychological violence

Being insulted or made to feel bad about oneself; being humiliated or belittled in front of other people; being threatened with loss of custody of one’s children; being confined or isolated from family or friends; being threatened with harm to oneself or someone one cares about, etc.

(4) Human-rights violations that should be considered in conjunction with violence against sex workers are:

having money extorted
being denied or refused food or other basic necessities
being refused or cheated of salary, payment or money that is due to the person
being forced to consume drugs or alcohol
being arbitrarily stopped, subjected to invasive body searches or detained by police
being arbitrarily detained or incarcerated in police stations, detention centers and rehabilitation centers without due process
being arrested or threatened with arrest for carrying condoms
being refused or denied health-care services
being subjected to coercive health procedures such as forced STI and HIV testing, sterilization, abortions
being publicly shamed or degraded (e.g. stripped, chained, spat upon, put behind bars)
being deprived of sleep by force

Covid-19 pandemic and sex workers

The pandemic has hit millions of people and caused a great deal of suffering across communities. But there is one community that is especially hard hit and that is sex workers.
Owing to the non-recognition of sex work as “legitimate work”, sex workers have mostly been kept at arm’s length from the government’s relief programmes.
COVID-19 has thus provided more reason to consider a long-pending demand of sex workers in India — decriminalisation of sex work and a guaranteed set of labour rights.

What are the current legal protections?

The legislation governing sex work in India is the Immoral Traffic (Prevention) Act.
The Suppression of Immoral Traffic in Women and Children Act was enacted in 1956.
Subsequent amendments were made to the law and the name of the Act was changed to Immoral Traffic (Prevention) Act.
The legislation penalises acts such as:
1. keeping a brothel,
2. soliciting in a public place,
3. living off the earnings of sex work and
4. living with or habitually being in the company of a sex worker.
Article 23(1) of the Constitution prohibits traffic in human beings and beggars and other similar forms of forced labor.
Article 23(2) declares that any contravention of this provision shall be an offense punishable in accordance with the law.

What are the issues with the Immoral Traffic Act?

This act represents the archaic and regressive view that sex work is morally wrong and that the people involved in it, especially women, never consent to it voluntarily.
After all, in popular depiction, entry into sex work is involuntary, forced, and through deception.
As a consequence, it is believed that these women need to be “rescued” and “rehabilitated”, sometimes even without their consent.
While this is a valid argument for minor girls, for many consenting adult sex workers, it has been a problem.

What are the consequences of the ‘archaic belief system’ on sex workers?

This is what has led to the classification of ‘‘respectable women” and “non-respectable women”.
This view is based on the belief that sex work is “easy” work and no one will or should choose to practise it. It thus perpetuates the prejudice that women who do practise sex work are morally devious.
The Act has not only criminalised sex work but also further stigmatised and pushed it underground thus leaving sex workers more prone to violence, discrimination and harassment.
The Act denies an individual their right over their bodies. Moreover, it imposes the will of the state over adults articulating their life choices.
It gives no agency to the sex workers to fight against the traffickers and in fact, has made them more susceptible to be harassed by the state officials.
The Act fails to recognise that many women willingly enter into agreements with traffickers, sometimes just to seek a better life as chosen by them.
Evidence shows that many women choose to remain in sex work despite opportunities to leave after ‘rehabilitation’ by the government or non-governmental organisations.

Major judicial observations

(1) Justice Verma Commission

Itacknowledged that there is a distinction between women who are trafficked for commercial sexual exploitation and adult, consenting women who are in sex work of their own volition.

(2) Budhadev Karmaskar v. State of West Bengal (2011)

The judiciary is moving in the direction of recognising sex workers’ right to livelihood.
The Supreme Court opined that sex workers have a right to dignity.

Intended benefit sought from legalization

If prostitution is legalized, the State will acquire responsibility to manage brothels and it can fulfil this obligation by issuing a license to authorized persons.
It shall also formulate guidelines regarding the age of prostitutes, database on clientele, adequate remuneration and medical facilities to the prostitutes.
By this method, the prostitutes can acquire some rights such as the right to medical care, the right to education of their children, right against exploitation and rape, etc.
This method can facilitate the eradication of sex racquet operations, hidden and street prostitution, abuse of prostitute, etc.
There shall be protection houses established for those prostitutes who have lost their livelihood, or those who were forced into prostitution but do not want that lifestyle anymore.
Also, the government can impart training and basic education to these prostitutes so that they find other means to earn money and sustain their livelihood.

Threats posed by legalization

On the flipside, legalization of prostitution could be misinterpreted as the promulgation of prostitution.
This could pave the way for easy money for prostitutes and could encourage more women to practice prostitution.
There is a great possibility that this could be a revenue-generating industry for the Government.

National scheme for rehabilitation of sex workers

A panel constituted by the Supreme Court of India to look into the rehabilitation of sex workers has submitted a rehabilitation scheme to the Supreme Court.
The scheme is first of its kind and provides rehabilitation to sex workers as well as victims of commercial sexual exploitation.
Some of the important high lights of the scheme are –
- Provision for shelter – institutional & non institutional.
- Scheme provides various kinds of options – education, vocational training, job, economic enterprise, etc.
- Support for education of children of sex workers
- Victim can be referred for the scheme by any one –social work organization, department of women & child development, self-group, police, sex work collective, etc.
- Victims can themselves make an application for the scheme
- Introducing, the concept of “Mentor”, a person to assist the victim in her rehabilitation and he will be paid for providing services
- A monitoring team consisting of victims, district collector, social workers, and representatives from department of women and child development, police, district chambers of commerce and industries
- Provision of assisting the sex worker to get voting card, ration card, Aadhar card, etc. to get benefits from government schemes

Values and principles for addressing violence against sex workers

Promote the full protection of sex workers’ human rights: This includes the rights to: nondiscrimination; security of person and privacy; recognition and equality before the law; due process of law and the highest attainable standard of health; employment, and just and favorable conditions of employment; etc.
Rescue and Rehabilitation: Reject interventions based on the notion of rescue and rehabilitation. Even when supposedly focused on minors, such raids deprive sex workers of their choice, control and power to act for themselves and increase the likelihood that they will experience violence.
Promote gender equality: Intervention strategies should aim for more equitable power relationships between sex workers and others in the wider community.
Respect the right of sex workers to make informed choices about their lives, which may involve not reporting or seeking redress for violence, not seeking violence-related services, or continuing in an abusive relationship.
Use participatory methods: Sex workers should be in decision-making positions where they can engage in processes to identify their problems and priorities, analyses causes and develop solutions.
Use an integrated approach in designing interventions: Holistic programmes that include provision of health services, work with the legal and justice sectors and are community-based so that it can have a greater impact on violence against sex workers and the risk of HIV.
Evaluate programmes to identify strategies that reduce risk factors and levels of violence faced by sex workers, in order to build the evidence base and ensure that resources are directed to the most beneficial strategies.
Provide necessary infrastructure: This may include local mobile phone numbers and/or hotlines staffed by trained community members. The availability of support services may need to be advertised through word of mouth, fliers and other communication channels.
Providing health services to sex workers who experience violence

Way Forward

The Supreme Court, in Budhadev Karmaskar v. State of West Bengal (2011), opined that sex workers have a right to dignity.
Parliament must also take a re-look at the existing legislation and do away with the ‘victim-rescue-rehabilitation’ narrative.
The country must thus rethink sex work from a labour perspective and guarantee basic labour rights to sex workers.