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SEX WORKERS AND CRIMINAL LAW

Introduction

“Sex work is different from trafficking and it is a form of self-employment that is stigmatized,” said Ms. Nalini Jameela, a coordinator of the Sex workers’ Forum of Kerala.[1] Under the Immoral Trafficking Prevention Act of 1986[2], India has legalized sex work, but still, people look down upon sex workers. Sex work is legal in India but according to the immoral trafficking act running brothels, trafficking, soliciting is illegal in India.[3] The act says that it depends upon the consent of the worker, whether the person is willingly choosing this profession or someone is coercing or forcing them to do so, or if there’s some undue influence upon them who is influencing them to profess it as their profession. But still, society does not recognize sex work as a profession. Sex workers are constantly exposed to harassment and discrimination by society. People don’t feel that a thing like sex work should be given some light, they don’t consider it as a topic to be discussed among each other in society. Earlier only females were used to be sex workers but now not only females but males and transgender people are also working as sex workers to earn for themselves and their families. According to BBC news, it is said that male sex workers are increasing at a very faster pace.[4]

Sex Work in context to Indian Constitution

According to the Indian Constitution, everyone who is a citizen of India has a right to enjoy the fundamental rights that are entitled to them. But still, sex workers are deprived of many basic fundamental rights like the Right to Life[5], Right to Equality[6], Right against Exploitation[7], Right to Profession[8], not only fundamental rights but also, they are deprived of basic human rights too. These are the very basic rights that every Indian citizen is obliged to have. As we know article 15[9] protects the citizens from any kind of discrimination, it treats every individual equally in the eyes of law without discriminating among them based on caste, color, religion, or sex. But still, sex workers are discriminated against a lot of things. As mentioned above, sex work is legal in India but still, sex workers face so much discrimination in the fields of health care, grocery stores, the financial creditor in between the public, most probably everywhere.

Problems faced by Sex workers in India

Many times, the courts have said that sex workers do not carry out this profession because they found joy in doing so but because of poverty, but everyone in our society does not look at this point and tries to interpret things in their manner. It is not easy for sex workers to do whatever they wish to do, because no one wishes to consider them as their employees. It becomes really difficult for the women to emerge out from the sexual exploitations they face, people treat them as individuals who are powerless and belong to the underclass part of the society and thus try to over-power them. In many scenarios, they are very easily overburdened by the norms of society and thus, are unable to do what they wanted to do. Moreover, sex workers face continuous detention, abuse, and harassment by the police or even by government officials. Police don’t consider their complaints seriously, they try to illegally detain them, and hence, due to lack of knowledge of their rights, sex workers don’t know what all remedies are available to them and therefore, get trapped into all the torture. In a survey of 3000 sex workers, it was found that around 50% of the workers were subject to abusive language by the police, 37% of them were threatened by the officials, 20% were forced to bribe.[10] They are subject to violation of the right to privacy, information, and security. When a woman goes to a hospital for a check-up, the doctors over there take their blood samples, without even telling them the reason behind it. The Contagious Diseases Act[11], which ‘legislates mandatory testing of sex workers for venereal disease and restricted their movement and practice to specifically allocated areas, offers one example of conferring a “legal” status on sex work.’[12]

Judicial Precedent

In the landmark judgment of Vishaka[13], the Supreme Court brought up a law that protects women from sexual harassment at workplaces. As said above, if the sex worker willingly consents to work, then only she should be allowed to work otherwise not, and if she is forced to work as a sex worker then she will face humiliation and harassment at her workplace and thus leading to infringement of her right to live her life with dignity.

Rights of a Sex Workers

Even a sex worker has the right to life. Right to life does not merely mean the right to live, but the right to live with dignity, right to the profession, right to health care. If a sex worker is humiliated, assaulted, then her right to life is infringed. Sex workers are even objecting to human trafficking, many women all around the world are forcefully transported from one country to another. Over here women do are getting indulged under a profession but forcefully so this will be illegal in front of the eyes of the law. But if they want to profess it wilfully and people are not allowing her to profess it then she can bring into the right to the profession in between. It was said in the Budhadev Karmaskar case that Article 21 is available to a sex worker too so the accused that was Budhadev Karmaskar was held to be liable because he murdered a sex worker.  But this does not happen with sex workers in India.

If a sex worker goes to a hospital and is denied health care, then her right to life is infringed because if she is not healthy then how will she work for her living. If her work as a sex worker is not considered a legal profession then her right to life is infringed because if her work is not recognized then how will she earn her basic needs. In a case, Justice Katju said, “Society must have sympathy towards the sex workers and must not look down upon them. They are also entitled to a life of dignity given Article 21 of the Constitution.”[14]

Legitimization of Sex Work

The legalization of sex work or prostitution will help society in many ways. It will stop humiliations against the ones who profess sex work as their day-to-day job. They will have full right to go to the courts or police station if their basic fundamental rights are infringed. People in society will start looking at them with respect and their profession will also be considered as a respectful profession. Further will be fewer sexual assaults, rapes, or trafficking in the country and many more such advantages.

Conclusion

In India, sex as a word is considered to be taboo, people don’t talk about it, sex education is not imparted in schools. I think not talking about sex leads to cases like sexual assault, sexual harassment, rape, etc. Sex workers are highly in demand, people want it, more in numbers but if asked to them, whether sex workers should be given a position in the society, whether sex workers are equal to other people, whether they will allow their daughter to become a sex worker, they will clearly say a big NO to all the above questions. They want it, but will not say a YES to it, they will go and book a sex worker but when talking about it, they will not be in favor of them. They don’t consider sex work to be someone about whom society should talk about. Women who are sex workers are looked very down upon, and not only them, their daughters, their family everyone is looked down upon. So, at the last, I think the courts should come up with stricter laws and punishments so that people should think twice before they try to misbehave with any sex worker.

Author(s) Name: Kavya Shukla (OP Jindal Global University, Sonipat)

References:

[1]Staff Reporter, Include sex work in informal sector: Activist Return to frontpage (2021), https://www.thehindu.com/news/cities/Kochi/include-sex-work-in-informal-sector-activist/article34031193.ece (last visited Feb 14, 2022).

[2] IMMORAL TRAFFICKING PREVENTION ACT OF 1986, (1986).

[3] Diva Rai, Legal aspects related to prostitution in India iPleaders (2022), https://blog.ipleaders.in/legal-aspects-related-to-prostitution-in-india/ (last visited Feb 12, 2022).

[4] South Asia | gigolos speak out in Conservative India, BBC News (2008), http://news.bbc.co.uk/2/hi/south_asia/7159759.stm (last visited Feb 11, 2022).

[5] CONSTITUTION OF INDIA, (1949). Article 21

[6] CONSTITUTION OF INDIA, (1949).

[7] CONSTITUTION OF INDIA, (1949).

[8] CONSTITUTION OF INDIA, (1949). Article 19 (1) (g)

[9] CONSTITUTION OF INDIA, (1949).

[10] Joint Stakeholders Submission, Violations faced by Sex Workers in India (2016), https://www.upr-info.org/sites/default/files/document/india/session_27_-_may_2017/js9_upr27_ind_e_main.pdf (last visited Feb 14, 2022).

[11] THE CONTAGIOUS DISEASES ACT OF 1864, (1864)

[12] Geetanjali Misra, Ajay Mahal & Rima Shah, Protecting the Rights of Sex Workers: The Indian Experience (2000), https://www.jstor.org/stable/4065224 (last visited Feb 14, 2022).

[13] Vishaka & Ors vs State of Rajasthan & Ors, (1997).

[14] Express News Service, Sex workers also human beings, entitled to a life of dignity, says SC, The Indian Express, 2011, https://indianexpress.com/article/news-archive/web/sex-workers-also-human-beings-entitled-to-a-life-of-dignity-says-sc/ (last visited Feb 11, 2022).