Decriminalising Sex Work in India: Steps and Solutions

Sex work in India is problematic to say the least. In signing the International Convention,  the Trafficking Protocol, the International Covenant on Civil and Political Rights as  well as the Convention for Elimination of All Kinds of Discrimination Against Women, India  has evidenced the legislative motive of the Immoral  Traffic (Prevention)  Act, 1956,  which  does not  expunge sex workers  for their contribution  to the sex trade. Yet it fails to preserve their rights or protect their persons as sex workers continue to remain replaceable pawns in a vicious network of organized crime.

The essence of combatting sex work lies in focussing on the ground realities that sex workers face and in assuaging them of these issues. Sex workers cannot continue to remain replaceable pawns in a network of organized crime where “…victims of the trap are the poor, illiterate and ignorant sections of the society who are the target group in the flesh trade; rich communities exploit them and harvest at their misery and ignominy in an organized gangsterism,”

De facto criminalization is precarious for both policy and legislation, necessitating the decriminalization of sex workers in accordance with the ground realities the community faces. This is necessary for the physical and emotional inviolability of sex workers, their rights to life, labour, health, and their reproductive and sexual rights. As a matter of legislation, decriminalization of sex work cannot go ignored, simply because, “…a measure of our progress in freedom…is shown by our straightforward legal approach to present-day exploitation of the masses…”

In light of these circumstances, these are a few legislative recommendations to improve the conditions of sex work in India:

• Decriminalization can only work when there is a distinct line drawn between trafficking and  sex work. Trafficking must be combatted with the intent of abolishing it completely.  It is important to note that decriminalization in no way complicates the severity with  which trafficking must be handled. Human traffickers must be punished strongly for infringing the basic humanitarian rights of individuals.

• Sex  work is  a voluntary  profession- sex  workers are in the  profession willingly, most often. Therefore not only is the establishment of rehabilitation centers and corrective homes in poor  taste, it is also singularly unhelpful in safeguarding the rights of sex workers. Instead, much more plausible  is the institution of community based empowerment services which serve to de-stigmatise sex work.

• Decriminalizing  sex work is not  feasible when the rights  to work remain restricted for sex work. They must be permitted to operate openly in areas, subject to codes of public decency,  but without the interference of police personnel and the threat of illegality hanging over their heads.

• One  of the  best alternatives  to collectively ensure  sex workers rights is to  increase government parlay with  sex worker groups and encourage  the formation of a labour union for the benefit of the sex workers. Not only will this help in establishing free and fair  areas of work and trade for sex workers but also unions can go a long way in opening corridors of communication with the clients.

• The  labour  union themselves  can constitute a wing  that looks out at the abuse  of sex workers at the hands of  the client. By vesting the legal  interests together, it becomes easier  for sex workers to find themselves legal  representation should the need to do so ever  arise. Furthermore, labour unions can formalize  a basic code of conduct for potential clients to  follow during their infraction with a sex worker. Any  client found violating such terms, or blatantly abusing the worker in any manner that causes distress, can  be held duly liable for contravening the standards of care within the confines of a client-agent  relationship, thus effectively rendering sex work to a contract between consensual parties.

• Labour  Unions are  also a major  resource for sourcing  loans, mortgages, insurance  and healthcare for sex workers who may need it.

• The biggest policy change that could profit the progress of decriminalization in India is the removal of the exploitative middle layer of pimps, touts and kothi malkins. The real gangsterism  stem from this level without which international trafficking rings would collapse (or more plausibly re-route their rings outside of India), police nexus would hold no value  and most importantly, sex workers could regain control of their own business.

• Another  legislative  advantage that  decriminalization  brings is that of  documentation. It would be prudent to constitute temporary authorities to ensure that as many sex workers are  comfortably documented with the details they posses, without being badgered for their husband, father,  or brother’s details. In keeping with the Supreme Court of India’s recommendations, sex workers should be issued Voter IDs on their own merit.

• Special  attention  must be paid  to the education  and schooling of sex  workers and their children in order to de- stigmatize them from the profession.

Priyanshi Vakharia is a Program Officer, Feminist Justice at One Future Collective.     

Featured image source: Rolling Stone