Law On Sex Work In India ‘Silent’ While Sex Workers Face Abuse; How Can We Change This?

On May 25, the Supreme Court passed a verdict that was rejoiced by a section of society while others condemned it. The court directed that the police must not use violence against, harass or detain adult sex workers while carrying out business. How is it wrong for a person’s dignity to be upheld? Why did the verdict get such polarised reactions?

The ones condemning the Supreme Court order constantly either took a moral high ground and dismissed sex workers as someone who does not need to be treated with dignity because they consented to the commercial sexual transactions or they assumed that all women in the sex trade were trafficked and forced.

What does the law say about the legality of sex work? Priti Patkar, Founder of Prerna, an NGO that works to safeguard women and children vulnerable to commercial sexual exploitation, opined that the law is “silent” on sex work’s legality.

Sex Work Conflated With Trafficking

The legality of sex work in India is vague. According to the Immoral Traffic (Prevention) Act, sex workers can practise their profession, however, anyone making a livelihood from sex work is to be punished. And the law further states that sex workers have to maintain a distance of at least 200 meters from public places. Procuring, abducting or inducing a person for sex work is also punishable under the law.

Additionally, under the Indian Penal Code, several activities of sex work—pimping, renting property for running brothels, etc.—is criminalised.

Things did not improve with the Anti-trafficking bills that were subsequently tabled in 2018 and 2021. After much backlash the bill received in 2018, the lawmakers decided to improve it and tabled another one in 2021.

However, activists were upset with the 2021 Bill since terms like “prostitution” under the bill were vague. They believed it took agency away from the adult consenting sex workers. A coalition of activists and organisations working for the welfare of sex workers wrote the same in their statement last year when they filed their opposition to the bill with the parliament.

In the statement, Ayeesha Rai from the National Network of Sex Workers had written, “Adult sex workers, already a vulnerable section, will be adversely impacted since the basic problem with the Bill is that it treats victims of human trafficking on par with adult persons in sex work. Trafficking of persons into forced or coerced labour (including sexual exploitation) should not be equated with sex work undertaken by consenting adults. This conflation could lead to misuse and over-broad application of the provisions in the Bill.”

Moral High Ground

Historically, the law and lawmakers showed tendencies to cater to subjective moralistic attitudes of what is ‘right’ or ‘wrong’ and it was highlighted time and again in verdicts like the Apex Court judgement in Raja vs State of Karnataka where four rape accused were acquitted on the basis of unsubstantiated allegations that the survivor was a sex worker.

The acknowledgement that sex workers also face violence has been routinely absent, moreover, the attitudes of law enforcement personnel like police do not help them when they raise grievances.

Legalisation A Solution?

While some vouch for the legalisation of sex work and giving it recognition as a profession, some activists have also shown concern regarding the nuances of legalising sex work.

Patkar says that while legalising sex work one needs to understand what will happen to the women who have been trafficked and forced into the sex work.

“Even if sex work is consensual, who are the women that will be in the profession? Let’s look at all legalised systems, who are these women who are into the sex trade? Moreover, it won’t legalise soliciting in public spaces, will it? What would happen to the foreign nationals who were forced into the sex trade? One needs to explore all these areas,” she argues.

“All the sex workers must be made aware of their rights, and their choices and also explain the effects legalisation of sex work will have on them. The decision must be theirs to make,” she adds.

Nordic Model Does More Harm Than Good

The Nordic Model of approaching sex work is based on the theory that the way to “free” sex workers is to criminalise the clients and third parties. Reportedly, the theory assumes sex workers are survivors.

Nordic Model does not recognise the existence of a spectrum of choice, circumstance and coercion under which an individual may choose to turn to sex work. Moreover, laws based on the Nordic Model criminalise the clients who try to avail services of sex workers.

However, activists argue that this abolitionist approach only pushes sex work into the dark, jeopardizing the harm reduction strategies sex workers may use to keep themselves safe and leaving them more vulnerable to predators or criminals.

A lawyer told SheThePeople that the approach, as stated, will push the sex workers further into the dark and could make legal remedies inaccessible since it completely penalises buying sexual services. She further added that accessing healthcare, especially sexual and reproductive health issues, will become a problem for them.

Countless studies have also proved the loopholes in the Nordic Model approach which puts sex workers at a disadvantage rather than helping them.

What Must Change?

Firstly, the policymakers and law enforcement agencies need to adopt a holistic approach and consider local issues before creating policies. They need to listen to the sex workers and their needs.

Secondly, as per the directions issued by the Supreme Court in their May 2022 verdict, the sex workers must be treated with dignity and should have access to facilities as any survivor of assault and must not be discriminated against. The ruling further states that policymakers must have sex workers’ involvement if they are discussing policy changes and more.

Priti, speaking about the Supreme Court order, points out the section where the court directs the sex workers to not be held in shelter homes indefinitely. “Court’s suggestion that community-based rehabilitation will be better suited for the women,” she says lauding the decision.

Feature image is representative

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