June 4, 2022

Good morning. Every Saturday, we write about one specific right that you possess as a citizen in our country. In today’s edition of “Know Your Rights”, we look at the rights of sex workers in India.


Rights of Sex Workers in India

It is widely understood that sex work is supposed to be the “oldest profession”. Believe it or not, this is because of Rudyard Kipling’s short story, On the City Wall, about an Indian prostitute. This might explain India’s natural hesitancy toward the job at this point. While the practice might be looked down upon by most, it is still a very real thing. And more often than not, sex workers are wildly exploited due to the hush-hush nature of the work.

According to a 2008 survey carried out by the Ministry of Women and Child Development, about 3 million women are estimated to be involved in some form of sex work in the country. While there are people of other genders involved in sex work as well, the law, unfortunately, turns a blind eye towards them.

In India, prostitution does have legal status, but with a massive asterisk right next to it. Basically, our legal framework gives several rights to those willingly practising sex work within the country. But, any form of pimping, soliciting services in public areas, running a brothel, pandering and obviously, underage solicitation are all strictly prohibited. Now hold this thought.

First, let’s look at the rights of a prostitute in India. Fortunately, the Supreme Court has time and again made it clear to the country that sex workers in the country have just as many rights as regular citizens. This includes all the fundamental rights, and it extends to their families as well. A major ruling from the Supreme Court regarding this can be seen in the verdict of the Budhadev Karmaskar vs State of West Bengal case of 2010.

The top court basically reformed the nation’s views on sex work with this verdict. They said that a prostitute who is unwilling to continue in the line of work will be rehabilitated and given proper vocational training. She has the right to refuse clients, and thus, the court reaffirmed their Right to Dignity of Life as per Article 21 of the Constitution.

So if prostitution is legal in India and the workers have all the rights of any other citizen, what’s with all the secrecy? This is where that held thought will come in handy. While the laws in the country do technically recognise sex work as a profession, the Immoral Traffic (Prevention) Act (ITPA), 1956, makes everything around it a crime. The following points go over some important sections:

  • Section 3 makes running a brothel a crime. It also defines a brothel as any space, room or house used for prostitution.
  • Section 4 penalises anybody living off the earnings of prostitution, including the sex workers’ family members.
  • Section 5 calls out pimps, traffickers and brothel owners as it disallows anybody from procuring or inducing someone to partake in sex work.
  • Section 7 penalises sex work when carried out in public spaces or in their vicinity, i.e. within 200m of public space. This includes any densely populated area, places of worship, hospitals, educational institutes, etc.
  • Section 8 penalises the sex workers for soliciting or “seducing” someone for prostitution. Basically, a prostitute cannot publicly invite someone in for work.

Even here, the women get twice the punishment for a crime under the ITPA compared to men convicted of the same offence. Since every act attached to sex work is considered a crime, sex workers in India have to conduct their business under the radar. This puts them in a very vulnerable position in front of the cops and rough clients.

This is exactly why the recent Supreme Court ruling has been making headlines across the world. Though it did not legalise sex work, it has made an incredible leap toward protecting the human rights of sex workers in India. On 19 May, they reiterated that sex workers need to be treated with decency and called out the police for mistreating the community.

Given that a lot of the harassment sex workers have to face comes from law enforcement itself, the top court directed the police to stop interfering as violently as they are. The court said that, from now on, law enforcement cannot interfere when a consenting adult engages in sex work. Since it falls under an individual’s right to lead a dignified life, no criminal action can be taken against consenting adults.

Of course, there still is a lot to do in terms of protecting sex workers and the stigma around their profession. But this does push their status in the eyes of the law, at least.