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Author: Kajal Arora, Advocate practising in Punjab Haryana High Court

Co-author: Komal Arora, Advocate practising in Punjab Haryana High Court

I did not bring this upon myself,

I had to escape the hell or I would lose myself.

I was 14 when I first felt the pain,

Today, this job leaves me everything to gain.

When he touched me, it felt so wrong,

And every time, I wondered for how long?

Open me up for the world to see

And still, I’ll scream I’m free! I’m free! I’m free![i]

Sex work is normal work. It is a fact of life that we need to acknowledge and accept as the chances that it is going to fade away in nearfuture are grim. The origin of prostitution and sex work is as long as time. It is considered to be the oldest occupation in the world, yet it had a challenging and arduous journey. Unlike any other occupation which comes with its own labour rules and regulations, sex work was allowed to be tossed in open and it was left hanging in cold and dry with no regular benefits and protections. The debates surrounding sex work has been intermittent but to no avail. It never reached a consensus.

Let’s consider all the germane factors weighing in debate of legalising sex work.

1. Question of consent

Sex work is not made a criminal activity in our law, but it is regulated by Immoral Trafficking Prevention Act, 1986. Women engaged in these actsare treated as ‘victims’ and those who exploitthem are ‘perpetrators’. The problem is that this Act makes no distinction between consensual and non-consensual acts and equally punishes all.

Instead of punishing and attempting to take away source of livelihood from those consenting to sex work, the act should be focused only on non-consensual acts which due to denial of consent fall in the definition of rape under Section 375 IPC. Also, it needs to be made explicitly clear that not everyone in this occupation needs to be rescued. Some of these women voluntarily enter this profession and cannot be forced to quit and settle in shelter homes.

Legalising sex work will end the debate on legality of consensual acts.

2. Survival Sex prostitution

For some of these workers sex work is a mode of survival, a means to earn livelihood as the fact remains that it is business. It exists despite efforts to limit it.

It is a practice where women offer their bodies in return of basicnecessities like food, shelter. For them sex work is a way out of their homeless, deprived lives.Intimidating and coercing them out of their methods to survive doesn’t seem to be an appropriate way to show our disapproval and objection to their occupation. Legalising sex work will license survival sex prostitution.

3. Labour rights

The rights and provisions for labour are concrete. It includes all rights of safe working conditions, fair income, reasonable working hours, right to protection against unemployment, freedom of association etc. As sex work is not legally recognised as legal work none of these rights are provided to these workers. That is an argument for legalising of sex work that they will be entitled to hygienic working conditions, protection from sexual violence and physical violence, right to be respected. In cases of violation they will be able to report it to police as if it is not recognised as legal work they are hesitant to approach the authorities which in return questions their choice of occupation and claim that they are not entitled to legal protection as what they do is an act not legally accepted. Legalising of sex work will allow workers to content against abrogation of their legal rights.

4. Social stigma

The ignominy of being attached to sex work makes it gruelling to assert thefundamental rights. The ostracization leads to mental stress and depression. Legalising sex work will enable them to receive psychological care and support.

5. Independence in occupation

For every person independence in occupation is important. It allows them to choose and select their course of employment. Choice gives meaning to profession. Similarly, sex workers should have option to decide their clients. Traditionally, the way sex work functions workers have nil bargaining powers. Legalising it will allow them to advertise their business and acquire medical histories of their clients. They will have the power to refuse sex work if client comes from history of sexual violence. Maintenance of records can be uncomplicated and straight forward.They can overtly enter into negotiations of their work with clients.

Spread of chronic infectious health diseases like AIDS in these workers is at risk as they are vulnerable and in no position to prevent these infections. Chances of acquiring and transmitting diseases during sex trade escalate as there is minimum societal, economic and legal factors to redeem their position.

In addition to these considerations various organisations have come out to support sex work as legal work

I. Universal declaration of human rights (UDHR)

The preamble simply provides that recognition of inherent dignity and equal and inalienable rights of all members of human family is foundation of freedom, justice and peace in this world.

Article 1 guarantees the right to dignity and equal rights whereas Article 23 gives us right to work without discrimination, get reasonable remuneration and to form unions.

II. Convention on elimination of all forms of discrimination against women (CEDAW)

The convention affirms that right to work is inalienable right. It provides choice of employment, access to work related benefits, occupational health and safetyprovisions.[ii]

III. International Labour organisation (ILO)

Ratification of recommendation 200 was widely appreciated as it is recognised as first step towards legalising sex work. ILO Decent work and 2030 agenda for sustainable development has four pillars as its agenda: employment creation, social protection, rights at work and social dialogue.[iii]Concept of decent work includes provision for fair income, productive opportunities and social protection.

IV. Human rights watch

In 2014, HRC gave its support to decriminalising of sex work. It even defined sex work as buying and selling of sexual acts including stripping, pornography, phone sex etc.[iv]

V. Budhadev karmaskar v. State of West Bengal[v]

In 2011 committee was appointed to advise and decide on issues of sex workers. But even after a decade the affair has not reached a consensus.The bench of J. Nageshwara Rao, J. A.S Bopanna and J. B.R Gavai critically examined that sex workers are not even treated as human beings and it is inhumane. The court directed UIDAI to issue aadhaar cards to sex workers without proof of residence. Also directions were given to police authorities to not abuse sex workers and to prohibit media from publishing their pictures during raid and rescue operations. The court noted that right to dignity is a fundamental right guaranteed to every citizen.

Bombay High court also held that prostitution is not an offence, adult woman has every right to choose her vocation.

In case of Manoj Shaw v State of west Bengal[vi]Calcutta High court held that sex workers should not be arrested, instead they are victims of crime.Before arrest notice under Section 41A crpc is a must. In another case Delhi High court sentenced accused to ten years imprisonment and gave a powerful judgment that occupation of victim is irrelevant to offence. Simply, because victim worked as sex worker doesn’t confer any right to anyone to violate her dignity.

Some argue that illegality of occupation keeps demand and supply in check, it allows them to be not subjected to governmental regulations and may lead to loss of independence. But firm belief is that legalising sex work will allow government to regulate the profession and control the criminal elements like sexual violence, drug abuse, compulsory labour, exploitation. System should provide better working conditions for those who are engaged in voluntary sex work.

In the end we hope that the intense debate sparked with a slew of judgments of Apexcourt will unfold into protection of human rights of sex workers and will not be quenched easily without any final decision of government. Fingers crossed that unlike past time’s damp squib this time these discussion will befructuous.

[i] Anjali Paul [ii]United Nations Human Rights Office of the High Commissioner, “Convention on the Elimination of all Forms of Discrimination against Women” available at ProfessionalInterest/Pages/CEDAW. [iii]International Labour Organization, “Decent Work and the 2030 agenda for sustainable development” available at [iv]“Human Rights Watch Affirms Support for Decriminalisation.” NSWP, 21 January 2014. human-rights-watch-affirm-support-decriminalisation. [v] [vi]


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