Context
- In a significant order recognising sex work as a “profession”, the Supreme Court has directed that police should neither interfere nor take criminal action against adult and consenting sex workers.
- A recent Bollywood movie is also nowadays perceived as an ode to sex workers honouring their struggle and spirit.
Sex Work in India
- It is said that sex work is the oldest profession in the world.
- In India, their presence can be dated back to ancient times with scriptures mentioning their presence.
- In later times, such women were considered the wives of a temple deity or a Devdasi, who saw their god in all their lovers.
So, where does India stand?
- Prostitution is not illegal in our country, but soliciting and public prostitution are.
- Owning a brothel is also illegal, but because places like GB Road are already in place, these laws are rarely enforced.
Legality check
- According to the Indian Penal Code (IPC), prostitution in its broader sense is not really illegal per se.
- But there are certain activities which constitute a major part of prostitution that are punishable under certain provisions of the act, which are:
- Soliciting prostitution services in public places
- Carrying out prostitution activities in hotels
- Indulging in prostitution by arranging for a sex worker
- Arrangement of a sexual act with a customer
Sex Work, not Prostitution: Making the difference
- Sex workers are adults who receive money or goods in exchange for consensual sexual services or erotic performances, either regularly or occasionally.
- The term “sex worker” recognizes that sex work is work.
- Prostitution, on the other hand, has connotations of criminality and immorality.
- Many people who sell sexual services prefer the term “sex worker” and find “prostitute” demeaning and stigmatizing, which contributes to their exclusion from health, legal, and social services.
How did the term ‘Prostitution’ materialized in India?
- In the 1800s, it is reported that the British military established and maintained brothels for its troops to use across India.
- A report by the BBC states that the girls, many in their early teens from poor, rural Indian families, were recruited and paid directly by the military, which also set their prices.
- The British have long gone, but the earned infame continues in the country at prime locations of major cities such as GB Road (New Delhi), Budhwar Peth (Pune), Kamathipura (Mumbai) etc.
- While some estimate that there are around 8,00,000 sex workers in India, the actual number could be as high as 20 lakh across the country.
Perspectives on Sex Work
Perspectives on sex workers’ rights generally fall into two categories.
(1) Feminist perspective
- It assumes that all people involved in sex work have been coerced, bribed, blackmailed or forced into the trade.
- No woman could “choose” to be in sex work, and making money from sex thus becomes synonymous with sexual exploitation.
- Following this perspective, the only approach to giving sex workers their rights is to “free” them from the flesh trade.
(2) Legal-rational (Modern) perspective
- It perceives sex work as legitimate business and expects to be treated as such.
- Viewing sex as business provides a basis for organizing to solve many of the problems associated with commercial sex work.
- They constitute an integral part of India’s informal sector economy.
Various issues faced by Sex Workers
(1) Various violence faced
- Physical violence: They are often subjected to physical force such as- being slapped, pushed, shoved, hit, being kicked, dragged, beaten up and mutilation of genitals.
- 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.
- Psychological violence: Being insulted by labelling derogatory names; being humiliated or belittled in front of other people; being confined or isolated from family or friends; being threatened with harm to oneself or someone one cares about; verbal abuse etc.
(2) Lifetime issues
- Stigma and Marginalization: Sex work is not treated as work, but as a dirty and immoral lifestyle threatening to taint the “innocent” public.
- Lack of access to justice: Their uncertain status in law result in judgments that often mark sex-workers as criminals and repeat offenders.
- Social and civil exclusion: For sex workers, the State is an instrument of violence; feared, rather than seen as protectors of rights.
- Identity crisis: Most sex workers hide their identity and origin. They are often raided from their premises and are unable to return to their residences.
- Denial of basic amenities: Due to this discrimination, women in sex work have been denied safety, proper healthcare, education and, most importantly, the right to practice the business of making money from sex.
- Risks of violence: People in sex work are not only at a higher risk for violence, but they are also less likely to get protection from the police—often the very perpetrators of this violence.
- Marginalization: Illiteracy, ignorance and fear of the medical establishment make it difficult for women to access healthcare.
(3) Human-rights abuses
Human-rights violations that should be considered in conjunction with violence against sex workers are:
- Money extortion by Police and Goons
- Denied or refused food or other basic necessities
- Refused or cheated of salary, payment or money that is due to the person
- Forced to consume drugs or alcohol
- Arbitrarily stopped, subjected to invasive body searches or detained by police
- Arbitrarily detained or incarcerated in police stations, detention centres and rehabilitation centres without due process
- Refused or denied health-care services
- Subjected to coercive health procedures such as forced STI and HIV testing, sterilization, abortions
- Deprived of sleep by force
Why is it a vicious trap?
- The stigma against a woman in sex work is not limited to the woman herself; it carries down to her children, regardless of their own professions or lifestyles.
- Children of sex workers repeatedly report discrimination, ostracization and isolation felt on account of their mothers’ work.
- Many are embarrassed by their home lives.
- This has had significant effects on their education, as the drop-out rate in this community is particularly high.
- Children abandon school for myriad reasons, ranging from exam performance to harassment by teachers and classmates.
- Undoubtedly this harassment leads to lower self-esteem and a lack of motivation in school.
Debunking myths about Sex Work
Popular media fuels the image of women as either overly sexual outcastes who threaten the very structure of Indian family life. Indian laws and policies regarding sex work are crafted from a moralistic standpoint and people involved in sex work are defined by—and treated as— their “immoral” profession.
In fact, women in sex work cannot be put into a box.
- While there are certainly victims of trafficking in sex work today, the majority of women in sex work consent to doing it.
- They have decided that making money from sex is a lucrative option for them and their families.
- But traditionalists cannot divorce sex from its sacred and religious implications. Tawaif and Devdasi system is a testimony to this.
Why sex work is not recognized/promoted in India?
- A victimless crime: Prostitution creates a setting whereby crimes against men, women, and children become a commercial enterprise. It is an assault when he/she forces a prostitute to engage in sex scenes.
- Evils of institutionalizing: Even with the decriminalization of prostitution, women and even children can still suffer from violence and physical abuse. People who are into this profession are prone to rape.
- Sexually transmitted diseases: Even if a worker is being tested every week for HIV, she will test negative for at least the first 4-6 weeks and possibly the first 12 weeks after being infected. This means that she can be a silent vector of the deadly virus.
- Encourage human trafficking: Human trafficking, especially of girl children, is rampant in our country. With poverty driving some parents to sell their kids to sexual predators is alarming and if prostitution will be legal, more children will be coerced to be sex workers.
Various policy moves
(1) Ujjwala Scheme
- The Ministry of Women and Child Development implements the Ujjawala Scheme.
- It is a comprehensive scheme for prevention of trafficking and rescue, rehabilitation and re-integration of victims of trafficking for commercial sexual exploitation.
- The protective and rehabilitative homes provide basic amenities such as food, clothing, medical care, legal aid, education for rescued children and vocational training to provide them alternate livelihood options.
(2) Protection against forceful sex work
- The Immoral Traffic (Prevention) Act, 1986 is an amendment of the original act.
- As per this act, prostitutes are to be arrested if they are found soliciting their services or seducing others.
- Furthermore, call girls are prohibited from making their phone numbers public.
- They can be punished for up to 6 months along with penalties if found doing so.
(3) Constitutional safeguard
Article 23 of the Indian Constitution, amended in 2014, includes the following provisions:
- Prohibition of human trafficking and forced labour.
- Traffic in human beings and bears and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with the law.
- Nothing in this article precludes the State from imposing compulsory service for public purposes, and the State shall not discriminate solely on the basis of religion, race, caste, or class, or any combination thereof, in imposing such service.
Why they are still excluded in India?
- No documentation of socio-economic status: Stigma related to their work and identity and the migratory nature of work prevents sex workers from accessing identification documents, essential to accessing entitlements. They are yet to have Aadhaar Cards.
- Denial of formal education: Residence proof, father’s name and caste, and the ration card are some documents required for getting their children registered in schools.
- Food insecurity: The Public Distribution System (PDS), meant for people below the poverty line to access food items cheaply, needs supporting proof of sex workers being below poverty line.
- Denial of safe environment and labour protection: Sex work happens in informal settings and is an occasional form of income or a long term occupation. This includes access to benefits, legal redress for workplace grievances, adequate health and safety regulations.
Recent Supreme Court Directive: Key Takeaways
(1) Recognition to profession and personal dignity
- Sex Work is a profession whose practitioners are entitled to dignity and equal protection under law.
- Criminal law must apply equally in all cases, on the basis of ‘age’ and ‘consent’.
- It need not be gainsaid that notwithstanding the profession, every individual in this country has a right to a dignified life under Article 21 of the Constitution, the court observed.
- The order was passed after invoking special powers under Article 142 of Constitution.
(2) Cautions to Police
- It is clear that the sex worker is an adult and is participating with consent, the police must refrain from interfering or taking any criminal action.
- The Bench ordered that sex workers should not be “arrested or penalised or harassed or victimised” whenever there is a raid on any brothel.
- Since voluntary sex work is not illegal and only running the brothel is unlawful.
- Basic protection of human decency and dignity extends to sex workers and their children, the court noted.
- A child of a sex worker should not be separated from the mother merely on the ground that she is in the sex trade, the court held.
- Further, if a minor is found living in a brothel or with sex workers, it should not be presumed that the child was trafficked.
(3) Taking cognisance of sexual crimes against sex workers
- The court ordered the police to not discriminate against sex workers who lodge a criminal complaint of offence committed against them is of a sexual nature.
- Sex workers can also be victims of sexual assault should be provided every facility including immediate medico-legal care.
- The court said media should take “utmost care not to reveal the identities of sex workers, during arrest, raid and rescue operations.
What will change if the Policymakers endorse the Court’s direction?
- Sex workers will be accorded equal legal protection.
- If a sex worker reports a criminal/sexual or other type of offence, the police will take it seriously and act in accordance with the law.
- If a brothel is raided, the sex workers involved will not be arrested, penalised, harassed, or victimised.
- Any sex worker who is a victim of sexual assault will be given all of the same services as a survivor of sexual assault, including immediate medical attention.
- Provisions similar to those of Transgenders will be extended to sex workers.
Sex work in other countries
Some countries choose to outright ban the practice, while others have attempted to regulate prostitution and provide health and social benefits to sex workers.
Here are a few examples of countries where prostitution is legal:
- New Zealand: Prostitution has been legal since 2003. There are even licenced brothels operating under public health and employment laws, and they get all the social benefits.
- France: Prostitution is legal in France, though soliciting in public is still not allowed.
- Germany: Prostitution is legalised and there are proper state-run brothels. The workers are provided with health insurance, have to pay taxes, and they even receive social benefits like pensions.
- Greece: The sex workers get equal rights and have to go for health checkups as well.
- Canada: Prostitution in Canada is legal with strict regulations.
Way forward
- Decriminalization: It is a prerequisite to ensure the physical and emotional inviolability of sex workers, their right to life, right to freedom of labour, health and reproductive and sexual rights.
- Trafficking and should not be conflated with sex work: Trafficking of Adult Persons and Trafficking of Children should be dealt with under two separate laws to ensure that consenting adults are not infantilised and children are given justice.
- Rehabilitation with consent: Shut down compulsory detention or rehabilitation centres for people involved in sex work. Instead, provide sex workers with evidence-based, voluntary, community empowerment services.
- Participation in policy making: Ensure participation of sex work organisations in drafting/ amending laws, policies and programs relevant to them and in its eventual implementation process as the govt did for Transgenders.
- Policing reforms: Sensitivity to issues faced by sex workers should be made a part of training for police personnel, public prosecutors and the judiciary in partnership with community organisations of sex workers.
- Human rights protection: Strengthen National Human Rights Commission (NHRC) and increase their accountability to respond to complaints or initiate suo moto action reports of violence against sex workers.
- Access to justice: Ensure Free Legal Services are available in rural areas for sex workers and offered by lawyers who have been trained in issues faced by sex workers.
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