The uncertain legal framework of sex workers in India
“Emerging from the darkness”
In India, prostitution is an ancient profession. There is a general misconception in India that prostitution is illegal, rather prostitution is legal but pimping, owning and managing a brothel is illegal. Sex work is generally portrayed by images of coercion, poverty and discrimination, but researches reflect that sex work in India is more diverse than these representations. There are approximately 12,00,000 sex workers in India, where every hour four women or girls enter into prostitution in which 3 of them against their will.
People in sex work face discrimination and violence due to their criminalized status and persistent conflation of trafficking. They are intrinsically trafficked under ‘sexual exploitation and viewed with suspicion. They are denied the right to fight the violence and exploitation against them that they experience every day.
This will force them to more clandestine and vulnerable situations. They are deprived of the benefits of citizenship although they are born in the country where they work. They are particularly vulnerable to violence because of their sexual stigma which is unlawful and leads them to marginalization.
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Main-streaming rights of the sex workers:
To date, the women who are involved in sex work are treated as aliens and as someone who brings disgrace to society. Essentially, they are deprived of all necessities and are not even treated as human beings. They are often removed from the premises they reside. The uncertain legal structure had made their lives dark and meaningless.
Many countries across the world had legalized the sex trade and decriminalized sex workers. But India remains silent when it comes to sex work and their rights. It impliedly portrays that owning a brothel is illegal but prostitution is legal. Yet, if they find a sex worker, she is arrested and subjected to sexual abuses.
It sounds sarcastic right? Yes, we are in modern India and could get anything in a single tap but even today, people assume that discussing the rights of sex workers is a shame. However, we need to understand that though sex work is a less privileged job and a sensational one, sex workers are also human beings and they are equally entitled to the fundamental rights guaranteed by the Constitution of India.
Being born a woman shouldn’t be an obstacle, but these women in sex work are subjected to continuous discrimination in their daily life such as violence, lack of social justice, criminalization, marginalization, the conflation of trafficking and lack of safety and security.
- Violence: In India violence against sex workers led to an impression where sex workers are criminals and not citizens. Often many of them are beaten ruthlessly as they did not admit prostitution. Thus, violence is used as a technique of asserting sexual control, it is generalized as a punishment for having sex with another man.
- Lack of social justice: The unstable status of law, mark sex workers as criminals and repeat offenders. Access to justice for women in sex work is restrained by social barriers ranging from denial of human rights, relying on assistance and resources and threat to sanction. The stigma and moral lens connected to them further highlights the barriers to accessing justice.
- Criminalization, stigma and social marginalization: For sex workers, the state is a factor of violence rather than the protector of rights. People in authority demand sexual favors from sex workers regularly. Police abuse them by illegally detaining them and torture them in custody. They are arrested even when they are not soliciting. Marginalized communities are always affected most during the crisis. In COVID-19 pandemic sex workers are struggling to make end meets. They are risking their lives to obtain the basic needs of daily life.
- The Conflation of trafficking: There is an immediate need to differentiate between sex work and migration. Although poverty and social exclusion are the reasons for women to enter into sex work, there are certain women with voluntary migration. Thus, all women in sex work cannot be trafficked. These women lack family support and nowadays the sex workers’ children are discriminated in schools and colleges, which is inhuman. Most of them are single women supporting their family, but still identified as victims of exploitation.
- Safety and security: Sex work has become an increasingly unsafe profession, wherein all aspects of sex workers are exposed to abuse. They are women first, so instead of judging them through the lens of social morality, we should respect them as human beings. They should be protected from all forms of exploitation and several health programs have to be initiated by the government to prevent them from vulnerable diseases such as HIV/AIDS.
- Child prostitution: Another factor that requires immediate attention is child prostitution. Rehabilitation and rescue provisions have to be made effective to protect children from sexual abuses. However, what measures the state has taken to remedy the historical discrimination faced by sex workers remains an unanswered question
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Responsibility of the State:
Considering the above hurdles faced by the sex workers, the State should primarily undertake two measures to rescue and rehabilitate them. It is to initiate health programs and to protect their rights.
- Health programs:should focus solely on the sexual health of sex workers to reduce the vulnerability of HIV/AIDS among adult female sex workers. Surveys show that female sex workers are exposed to a higher risk of having HIV/AIDS than other women. These women risk their lives to meet their end needs. The state should also provide rehabilitation for sex workers who wish to leave sex work of their own will. Therefore, frequent medical analysis and awareness about these vulnerable diseases are mandatory for all sex workers.
- To protect their rights: 21 of the Indian Constitution guarantees the right to live with human dignity. Every citizen has the right to live a dignified life without any discrimination. Human dignity has a Constitutional value. Thereby, discriminating, abusing or ill-treating sex workers amounts to a violation of Constitutional provisions. Thus, it is necessary to provide them with equal protection of laws against rape and other forms of violence. “Sex worker’s rights are also human rights”, they are also entitled to the right to life.
Loopholes in society:
Though they were various ways to protect the women in prostitution, the state has not come forward to stop the abuses against them. This is because of the conservative beliefs existing in our country that portrays women as a mere “sex object”. Further, it made that talking about sex workers and their problems is a sin and that is why no one considers the problems faced by the marginalized people.
Every time, while advocating about the multiplicity of prostitution various questions come into our mind whether it is good or bad, necessary or unnecessary or why should we protect their rights when we have other important things to do than this? The truth is, we are unaware of how to approach the hurdles faced by them. It is because we do not have a clear-cut legal framework for prostitution and sex workers in India.
Only if we get an answer to it, we could be able to solve the problems related to them. Besides all these questions, we can’t let them suffer just like that. Be it a sex worker or not, at the end of the day a woman is being abused. Remember, if we let them suffer, we end up slut-shaming, abusing and exploiting a woman.
Due to several reasons, women step into sex work such as coercion, to meet their end needs or some of them could even be immigrants. Everyone has their own story behind this dangerous job. But remember all of them are aware of the risks involved in the job. Just because they are ready to go to any extent, we could not belittle them and let them suffer.
To conclude, failure to justify the rights of millions of women who deliberately engage themselves in sex work leaves them subject to discrimination, exploitation and prohibits public health policies. Therefore, we should move towards a clear legal structure that ensures and protects the sex worker’s health and does not violate human rights.
This article is written by D.ILAVENIL, a 3rd-year law student of B.C.A.LLB.(Hons.) from Dr. Ambedkar Law University, School of Excellence in Law, Chennai.
-Edited by Rudraksi Sharma
(Editor, The Legal State)