Rights of Sex Workers

In 1978, an activist by the name of Carol Leigh coined the term ‘sex worker’. From
then onwards, it became a popular term and gained currency in referring to various
types of services that are in existence in the sex industry.
UNAIDS and the World Health Organisation define sex workers as “female, male and
transgender adults aged over 18 years who sell consensual sexual services in return
for cash or payment in kind, and who may sell sex formally or informally, regularly or
occasionally.”
Further,According to the Preamble of the UN Convention for the Suppression of the
Traffic in the persons and the Exploitation of the Prostitution of others, 1949:
“Prostitution and the accompanying evils of trafficking of persons for the purpose of
prostitution are incompatible with the dignity and worth of the human person and
endanger the welfare of the individual, the family, and the community.” From
ancient to modern times, Prostitution or Sex Work has been in existence in one form
or the other. It has been prevalent in all societies and states across the World in
almost all periods. It is one of the worst forms of violation of rights of women and
girls. In spite of the evil affects that are associated with sex work, in the
contemporary era of globalization it has assumed different dimensions and included
many types of activities that form part of sex work. Though there are instances of
men performing sex work for a variety of reasons, the number is comparatively less
to that of the women and girls. The term sex worker is a broad term and covers a
number of sexual services. Traditionally, the sex workers were referred to by a
number of names in each society such as whore, prostitute, harlot etc. However,
these terms are very derogatory in nature.
Sex Workers and International Efforts
Because of the social reform movement of the 19th century throughout the world, the
international community adopted a number of international agreements in order to
eradicate the illegal acts that were targeting women. They are :

 An International Agreement on Suppression of the White Slave Traffic came

into existence in 1904. The United Nations in 1948 amended this agreement
in order to cover all types of traffic of human beings.
 International Agreement for the Suppression of the White Slave Traffic in
1910.
 The League of Nations adopted an International Convention in 1921 for the
Suppression of the Traffic in Women and Children. This was approved by the
United Nations in the year 1947 through a Protocol.
 International Convention in 1933 for the Suppression of the Traffic in
Women of Full Age
 The UN Committee on the Elimination of Discrimination against Women has
expressed concern over the mandatory character of health tests for sex
workers in Austria, which are carried out by public health officials and have
to be paid for in some provinces.
 CEDAW
The efforts of the international community and the League of Nations led the United
Nations, to adopt a convention for the Suppression of Traffic in Persons and of the
Exploitation of Prostitution and Others 1949. The Convention contains 28 articles.
These articles empowers the national Governments to enact specific legislations to
eradicate the evil of prostitution and other aspects relating to it and declare any
activity that affects the modesty, dignity, life and liberty of a person especially that of
women and children. In the Convention on the Elimination of Discrimination
Against Women, 1979 (CEDAW) the World Conference on Human Rights 1993 and a
number of international forums condemned violence in any form against women and
urged the nation-states to eradicate all the evils associated with prostitution and
other related aspects. These efforts of the International Community, led many
countries to enact specific legislations to prevent trafficking and even to ban sex work
in some countries.
A number of International Organizations, such as the Economic and Social Council,
International Labor Organization, United Nations Scientific, Education and Cultural
Organization (UNESCO) , the International Human Rights Council etc., are working
closely with the nation-states and these organisations have adopted a number of
resolutions to eradicate all types of evils that are associated with sex work and to
uphold the rights of these people.

CEDAW:
The Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW) is one of the world’s major human rights treaties. The convention
was created in 1979 by the Commission on the Status of Women (CSW), the principal
global intergovernmental body exclusively dedicated to the promotion of gender
equality and the empowerment of women. It is often described as “an international
bill of rights for women”. CEDAW established a number of different obligations that
States must comply with in order to combat discrimination against women. While
people of all genders sell sex, the majority of sex workers are women and sex work is
often regarded in international law and policy discourses as a ‘women’s rights issue’.
All women sex workers deserve the protections offered by CEDAW and are as
entitled as any other group of women to the rights enshrined in the treaty. Sex work,
and the rights of women sex workers as a group, are not specifically addressed in
CEDAW. Article 6 of the Convention is, however, often discussed in debates about
sex work. Article 6 states: “State Parties shall take all appropriate measures,
including legislation, to suppress all forms of traffic in women and exploitation of
prostitution of women.”

The vagueness of the language used in Article 6 of CEDAW and the potential for the
Convention to be used to advance fundamental feminist and abolitionist groups’
perspectives on sex work means it is essential for sex workers and sex workers’ rights
activists to engage with the Convention and shape the CEDAW Committee’s
recommendations on sex work.

Not only can sex workers’ rights activists challenge the harmful interpretations of
Article 6 that are proposed by fundamentalist feminists and abolitionist groups but
they can also play an active role in claiming CEDAW as a human rights treaty that
protects women sex workers rather than one that is used to support harmful policies
and interventions. Activists can do this by documenting the human rights violations
experienced by cis- and trans-gender women sex workers and explaining how these
violate the obligations of states set out in CEDAW.

3.Indian Scanerio:
In India, prostitution has been prevalent since ancient periods. Among the various
works, the work of Arthasastra of Kautiyala comprehensively dealt with the position
of prostitutes in the ancient periods. In ancient India, for the word prostitute, nearly
250 synonyms were employed. Among all the words, the word Ganika received a
wide spread recognition. In ancient India, Prostitution was recognized officially as an
economic activity and these women were paid by the State. In their old age, they
were taken care of by the State and pensions were also paid by the State. In the
middle ages, the profession was named after a traditional customary name called
devadasi (Temple Servant) which was widely prevalent in many parts of the country.
During the Muslim reign, prostitutes were recognized as dancing and singing girls.
The initiation of legal measures to regulate sex work and its eradication, during the
British period, could not bring about the desired results. After independence, the
Government of India and the State Governments have taken a number of steps to
eradicate prostitution and the evils associated with it. In 1956, the Government of
India enacted the Suppression of Immoral Traffic in Women and Girls Act. This Act
was extensively amended in 1986 and renamed as the Immoral Traffic (Prevention)
Act 1956 based on the Recommendations of the National Law Commission of India
and This act was made in the spirit of the 1950 New York Convention against the
trafficking of people. As to the status of the legality of sex work in India, sex work or
prostitution itself is legal however certain activities around the same, such as
pimping are not. An interesting point to note here is that this act defines prostitution
as the sexual exploitation of a person done for monetary and commercial purposes.
Though the Act empowers the various organs of the state, especially the police to
curb the menaces associated with the profession of prostitution in any form, nowhere
the profession of sex work or prostitution is explicitly banned nor officially
recognized. rights are also enshrined in the Indian Constitution under Article 12, 14,
15, 21 and 32.1 They have been formulated in a manner similar to that of the U.S.
Constitution’s Bill of Rights. Article 15 establishes that individuals will not be
discriminated on the basis sex, caste, class, religion and other such attributes.
Trafficking is prohibited under Article 23 of the constitution. Article 24 bans the
practice of employing minors in hazardous occupations. These fundamental rights
under the Indian constitution are inalienable as well as positive in nature and are
strictly enforceable. Some other objectives that the constitution lists down are the
right to livelihood for all individuals, protection of women and children against all
forms of abuse, right to practice any occupation in a free and fair manner and under
humane and just work conditions.
In addition to that, protection is available by way of legislation to marginalised
groups, namely religious and ethnic minorities, women and children, who are facing
issues concerning discrimination, exploitation, denial of livelihood, etc. under
legislation, such as the National Human Rights Commission (NHRC), National
Commission for Protection of Child Rights (NCPCR), National Commission for
Women (NCW), are also involved in the process of administering justice in cases of
human rights violation. They function in a speedy, inexpensive and effective manner
and investigate from the grass root level.3
Public Interest Litigation is another way in which the Indian judicial system has
become accessible and approachable to the citizens. In the case of a PIL, all it takes
for a person to move the Supreme Court is a written application of an issue that is of
public interest.4
Point being, even though India is signatory to several international agreements, has
an excess of associated legislation and has set up ample national and state human
rights commissions and other related bodies, it has failed to protect the human rights
of its citizens. There are several reasons as to why India has not done a satisfactory
job in safeguarding human rights, inspite of taking all the necessary steps. One of
them can be the general lack of accountability in national and state commissions and
the police force.

The Immoral Traffic (Prevention) Act, also known as ITPA, 1956

One of the most important laws in India that addresses the issue of preventing prostitution or
the sex trade is the Immoral Traffic (Prevention) Act, which was passed in 1956 and is also
referred to as ITPA. Both in 1986 and in 2018, the act was changed in order to broaden its
applicability. Its main goal is to prevent the exploitation of women and children in
prostitution or human trafficking.1 According to this act, if someone is found guilty of
recruiting, abducting, transporting, harbouring, or convincing others to engage in prostitution,
they can be sentenced to imprisonment for a period of seven to ten years, in addition to being
fined. However, the law differentiates between sex work that is done willingly and sex
trafficking that is done under force or coercion. As long as a sex worker is 18 years or older
and chooses to engage in sex work, it is not considered a crime. So, basically, sex work is not
technically against the law, but things like trying to find customers and running brothels are
not allowed. Furthermore, the act also includes provisions for the creation of rehabilitation
centres to support victims of sexual exploitation or trafficking.

Recently, there has been a proposed amendment to the ITPA that suggests making
prostitution legal and treating it as a legitimate profession. Nevertheless, the modifications
that have been offered must first be authorised by the parliament. People who operate in the
sex industry will continue to face the possibility of being imprisoned, harassed, and exploited
so long as these laws remain unchanged.

The Prevention of Immoral Trafficking Act (PITA), 1956

1
Rai, D. (2020). All you need to know about the Immoral Traffic (Prevention) Act, 1956. [online] iPleaders.
Available at: https://blog.ipleaders.in/need-know-immoral-traffic-prevention-act-1956/ [Accessed 03 April.
2024].
There are a number of various facets of sex labour that are addressed under the Prevention
of Immoral Trafficking Act (PITA), which was passed in 1956 in India. In comparison to the
ITPA, the structure that it provides is the most complete of the two. Among the phrases that
are defined in this document are "prostitution," "trafficking," and "sexual exploitation." The
PITA also includes more severe penalties for those who kidnap or coerce women and
children into engaging in prostitution on their behalf. 2 However, it's worth noting that PITA
focuses solely on criminalising sex work, without offering any protection or legal recognition
to sex workers. When women are left out, they become more susceptible to being taken
advantage of and mistreated by clients, pimps, and even law enforcement. Furthermore,
according to PITA, sex workers are not allowed to own property, run businesses, or receive
important services like healthcare, education, and social security benefits.

State-Specific Legislation

The Immoral Traffic (Prevention) Act (ITPA) is a federal law, but its enforcement differs
from state to state. Certain state governments have passed extra laws to regulate the practice
of sex work in their area. In Maharashtra, the Prevention of Prostitution Act, 1986 makes it
illegal to engage in prostitution in public places or areas close to them. 3The Karnataka
Police Act, 1963 in Karnataka makes it illegal to solicit or engage in prostitution. On the
other hand, in Tamil Nadu, sex workers are required to register with the police, and brothels
are monitored by the police.4

THE JUVENILE JUSTICE (CARE AND PROTECTION) ACT OF 2015

The Juvenile Justice (Care and Protection of Children) Act, 2015, aims to improve the well-
being of children involved in prostitution. One of the goals of this piece of law is to provide
assistance and protection to children who have become victims of sexual exploitation or
trafficking. As a result of this statute, juveniles are not considered to be criminals but rather
victims of the situations in which they find themselves.

2
Centre, J. (2023). Legal Status of Sex Work in India. [online] Juris Centre. Available at:
https://juriscentre.com/2023/07/17/legal-status-of-sex-work-in-india/ [Accessed 12 Apr. 2024].
3
The Prevention of Prostitution Act, 1986
4
The Karnataka Police Act, 1963.
THE TRAFFICKING OF PERSONS (PREVENTION, PROTECTION,
REHABILITATION) BILL, 2021

A significant step forward in the fight against sex trafficking is the introduction of the
Trafficking of Persons (Prevention, Protection, and Rehabilitation) Bill, 2021. A
comprehensive approach to addressing the issue of sex trafficking is the goal of the law that
is now being considered. In addition to preventing trafficking and protecting victims, it also
involves efforts to provide rehabilitation for individuals who have been harmed by it.
Furthermore, in order to ensure that the provisions of the law are adequately implemented,
the bill proposes the establishment of a National Anti-Trafficking Bureau as well as an Anti-
Trafficking Fund. By offering victims of human trafficking protection and rehabilitation, the
proposed legislation intends to give priority to the needs and well-being of those who have
been victimised by trafficking.

THE INDIAN PENAL CODE, 1860

The Indian Penal Code (IPC) has sections 372 and 373 that make it illegal to engage in
human trafficking for the purpose of prostitution. In particular, Section 370 addresses the
issue of trafficking in persons, which encompasses the activity of exploiting people in the sex
business. As a result of these provisions, those who are involved in trafficking for the purpose
of sexual exploitation, such as pimps, clients, and proprietors of brothels, will be subject to
further penalties. However, laws that are associated with the International Patent
Classification (IPC) particularly target sex work as a criminal activity. These laws do not
provide any legal safeguards or acknowledgement for persons who are engaging in this
sector. "Obscenity" in public places is expressly addressed under Section 294 of the Indian
Penal Code (IPC), which is included in the Indian Penal Code. Surprisingly, this rule is
frequently abused in order to harass and threaten those who operate in the sex industry. The
execution of this law frequently results in circumstances in which sex workers are subjected
to extortion and are pushed even further to the outskirts of society.

The consequences of these rules are detrimental to those who work in the sex industry
because they make it more difficult for them to gain access to essential services like
employment, education, and healthcare. This further marginalises them in terms of both
social as well as economic status. Due to the circumstances, they continue to be susceptible to
being exploited, living in poverty, and being victims of violence. The Indian Penal Code, also
known as the IPC, establishes a legal framework for dealing with issues of sexual
exploitation and trafficking. On the other hand, it also plays a role in the marginalisation and
stigmatisation of people who work in the sex industry. After acknowledging the significance
of providing sex workers with legal protection and support, it is of the utmost necessity to
give priority to their rights. This includes making sure that they have access to education,
basic necessities, and social security so that they can live their lives with dignity and without
the continual worry of being persecuted because of their existence.

Apart from the above, the Government constituted the National Commission of
Women, 1990 to study the issue relating to women and to suggest the remedies to
eradicate all the evils and inimical activities targeting the modesty of women. The
National Human Rights Commission also undertook a number of studies and
suggested various measures to prevent prostitution. The Government of India along
with the State Governments constituted a number of committees based on the
Judgment of the Supreme Court of India in 1997 in Gaurav Jain V Union of India
(AIR 1990 SC) to protect the prostitutes and their children. In spite of the best
efforts of the state, prostitution is rampant in India for a variety of reasons. Among
the various reasons, poverty, social customs, blind beliefs existing in villages, bad
company, massive urbanization, misuse of science and technology are some of the
reasons for the widespread increase of the number of women and children entering
into the flesh trade against their will. Considering the magnitude of the problem, a
number of social activist organization and sex workers organisations are demanding
that the state recognize and protect the rights of these people. In a number of cases,
the courts admonished the law enforcing authorities for excesses in dealing with sex
workers. In Vishal Jeet V Union of India in 1990, the Supreme Court of India laid
down a number of stiff norms and directed the Union and the States to submit
detailed reports in protecting the rights and the rehabilitation activities employed by
the state. In Budhadev Karmskar V State of West Bengal in 2011 In a recent order,
given by the Apex Court in the case of Budhadev Karmaskar v. State of West Bengal
And Ors. (2010),

In this case, a sex worker named Chhaya Rani, alias Buri, was beaten to death by the
accused, Budhadev. In light of all the evidence presented before the Court, he was
convicted by the trial court and the High Court. He further appeared before the
Supreme Court in a criminal appeal, and his conviction was withheld. The Supreme
Court, in its judgement and order dated February 14, 2011, took into consideration
the social position of sex workers.

The Court declared prostitution to be a legal profession and also said that sex
workers are entitled to their fundamental rights as any other citizen of the country.
The Court order said that every citizen of the country, irrespective of their profession,
has the right to a dignified life, and the same is guaranteed to every citizen by Article
21 of the Constitution of India. The Court’s direction in this order was based on the
recommendations made by the Pradip Ghosh panel constituted by the Supreme
Court in the case. The Court had previously held that the central and state
governments should prepare schemes for rehabilitation for physically and sexually
abused women, commonly known as prostitutes, through social welfare boards in the
same case.

The report submitted by the Pradip Ghosh panel stated that the sex workers were
finding it difficult to get their proofs of identity and other important documents. Due
to this, they were not able to avail benefit of most of the government schemes. The
panel suggested amendments to the Immoral Trafficking Prevention Act, 1956. The
government agreed to make such amendments, but due to the non-fulfillment of the
same, the Supreme Court ordered the states and the union territories to implement
the recommendations by exercising its special powers granted by Article 142 of the
Indian Constitution.

There are six key changes that will stand until a new law is enacted. They are as
follows-

1. Protection, support and medical assistance must be provided to the sex

workers who are the victims of sexual assault as per Section-357C of Code
of Criminal Procedure, 1973.
2. State governments can be called on to release adult sex workers who are
detained against their will in “protective homes,” and can also be asked to
investigate these rehabilitative institutions.
3. The Police force should be sensitised about the rights of sex workers to
curb the violence and abuse often levied by the force on sex workers.
4. The Press Council of India must develop media guidelines to protect the
privacy and confidentiality of sex workers, which is their right as per Article
21. If any privacy breach takes place, then the accused will be charged
under Section-354C of the Indian Penal Code, 1860.
5. The possession of condoms cannot be considered as an offence or be seen
as evidence of soliciting or brothel-keeping, both of which are illegal in
India as per the provisions of the Immoral Trafficking Prevention Act,
1956.
6. The national and state legal services should ensure access to legal aid to the
sex workers and should also educate them about their rights.
Suggestions

Legislation should be enacted to decriminalize and regulate the sex business, focusing on sex
workers' rights and dignity. Social programs should be adapted to their needs, such as identity
documentation, financial aid, and healthcare access. Lobbying and education programs can dispel
social stigma. Cooperation between governmental, nonprofit, and community organizations can
address structural issues, promoting a just society for sex workers. Addressing the complex
challenges faced by sex workers during and beyond the COVID-19 pandemic requires a
multifaceted approach that prioritizes their rights, dignity, and well-being. First and foremost,
there is an urgent need for comprehensive policy reforms aimed at decriminalizing and regulating
the sex industry. Legalizing prostitution, coupled with stringent regulations to protect against
exploitation and abuse, can provide sex workers with greater autonomy and legal protections
while also ensuring their access to essential services and support mechanisms.

In addition to legal reforms, concerted efforts are needed to strengthen support mechanisms and
welfare schemes tailored to the unique needs of sex workers. This includes improving access to
healthcare services, financial assistance, and identity documentation, which are essential for
safeguarding their health and socio-economic stability. The collaboration of government,
organizations, and community members can bridge service gaps, support sex workers, and combat
public stigma, fostering a more inclusive environment.

Education and advocacy initiatives can help challenge stereotypes and misconceptions, promoting
greater understanding and empathy toward sex workers' experiences. By empowering sex workers
to advocate for their rights and challenging the systemic inequalities that perpetuate their
vulnerability, society can move towards a more equitable and just future for all.