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Understanding Legal Frameworks of Sex Work in India

Sex work in India has had a plethora of legalisation framework issues till date. While the de facto criminalization  is precarious for  both policy and legislation, decriminalization  of sex work is necessary for the physical and emotional inviolability of sex  workers, their rights to life, labour, health, and their reproductive and  sexual rights. According to the National  AIDS Control  Organization,  there  exist 8,00,000  documented sex workers in  India-unofficial figures run  to further staggering amounts- enough  to populate a small state alone. Yet the expansive  numbers speak little of their rights.

Where Does The ITPA Get It Wrong?

The ITPA may not penalize sex workers directly but it severely restricts the practice of their trade. For instance, brothels are all but illegal, leaving sex workers in a savagely compromised position-they cannot operate from a single premise  as it is illegal, and they cannot solicit individually as it leaves them vulnerable to violence and attacks. The Act penalizes individuals who live off the earnings of a sex worker, completely denigrating  the choice of sex work as a profession, and targeting children, senior citizens, invalid family members of the worker who may be dependent on such sources of income.

The rescue and rehabilitation provisions of the ITPA often lead the police to conduct raids in red light areas without bothering to differentiate between sex workers who are unwillingly trafficked and sex workers who may be working of their own volition. These women are remanded to rehabilitation homes without any consideration for the economic or employment  rights.

The ITPA provides for the constitution of  rehabilitation homes without placing any adequate checks upon the authorities running such homes- indeed  there is no mention of such authorities themselves. Similarly the ITPA calls  for the  establishment of a corrective institution without really defining who would be detained there. The offender might mean the sex worker or the client. Given the stringent provisions for punishing the clients and the middlemen for engaging in commercial sex, it is conceivable that offenders in this context can only mean sex workers. The provisions of the Act impact the social stigma sex workers face, the healthcare and legal aid available to them and deny them adequate legal representation and documentation.

Tackling Social Stigma & Social Exclusion

Social  stigma is  often perpetrated  by authorities- government  and private alike. The biggest  hurdle for sex workers in reorganizing their  lives comes from the opposition they face by any entity unconnected with their community. Banks, brokers and clinics all disregard sex workers which makes it intrinsically difficult for them to claim loans, insurance or any kind of substantial healthcare. Schooling becomes an issue for their children as does any kind of stability or security that may help them reconfigure a better organized life.

Social exclusion disproportionately increases the violence against and abuse of sex workers. Police brutality is an all too familiar evil, with officers routinely extorting sexual favours, or targeting local sex workers, or even charging them with petty crimes. According to a pan India survey of 3000 sex workers, 24.7% affirmed facing abuse by their local rickshaw drivers, grocery vendors and local goons, while an overwhelming 55.9%  reported abuse from clients and employees alike. There is no sense of moral depravity accorded to the clients who come seeking sexual attention, it is reserved only for the workers who are trying to make a living of it.

The Denial of Social Security & the Dilemma of Documentation

Sex workers have reiterated their demand to be included  in the Social Security for the Unorganized Sector, 2008, a legislation enacted by the Government of India, on countless occasions  without achieving any major results. Similar calls have come from the CEDAW to alleviate the plight of women who work as sex workers. It is imperative for sex workers to be considered under social protection schemes as evidenced by the aforementioned subsections alone, as well as be given their place in forums which mobilize for  the collective rights of the unorganized sector. Often income generation schemes are made conditional on the relinquishing of sex  work- a request that is both unfair to the individual concerned as well as sees as contravening the basic spirit of trade and enterprise. For instance, this was evidenced when the Veshya Anyay  Mukti Parishad  (VAMP),  in  Maharashtra  in accessing  schemes was put  forth by the Ministry of Rural Development and the Ministry of Women and Children.

A UNDP  survey  found  that barely  20% of sex workers in Delhi owned a voters ID. While enrolling their children in schools, several documents are listed as  pre-requisites. Yet often, sex workers find themselves hard-pressed to provide them- details such as residence proof and ration cards may simply be unavailable to the sex worker while father’s name and caste may be impossible to provide in the case of single sex workers. Lack of such concrete documentation effectively renders the lives of  sex workers void and with no discernable proof it becomes all the more difficult for them to reorganize their lives. It also leaves them vulnerable to increasingly dangerous gender-based violence.

Legal Representation and Access to Justice

Legal  remedies  are often  a dead-end solution  to most sex workers because of their lack of knowledge, or the moral  and societal repercussions attached, or due to a mistrust of authority in general. The CEDAW committee, urged the State party to provide free legal services to poor and marginalized women in rural and tribal areas in addition to urban areas and to monitor the quality and impact  of such services in regard to ensuring women’s access to justice. A similar sentiment was expressed by the Supreme Court of India  which  clarified  in the case of sex workers, that under the Victim Compensation Provision of the Criminal Procedure Code, victims of any kind of crime or discrimination, may apply to the Legal Services Authority directly for immediate relief.

Sex workers are often evicted from their housing premises and barred from returning- often a means of petty police harassment but requiring legal intervention, as seen by the Dombarwada raid in Kohlapur, Maharashtra.  A major dilemma that needs to be addressed is the question of consent in sex work. The Justice Verma Commission  in 2013, amended Section 370 under the Criminal  Law Amendments to define the offence of trafficking, without really considering the state of sex workers who acted of their own volition.

Conclusion

The key to enacting a fair legislation for sex workers begins with combatting the stigma and exclusion they face. Bringing them into the mainstream taskforce of the country is a crucial step to restoring normalcy to their lives. Decriminalization ensures that they can move forward without  holding anyone back, it ensures that the exploitative layers which essentially corrupt the trade are obliterated and it ensures that the corruption that spreads through the rungs of authority be it the police, the parliament or the judiciary is weeded out.  The fight for sex workers’ rights is no contemporary miracle, salvaged from a medieval world.

Priyanshi Vakharia is a Research Associate, Feminist Justice at One Future Collective.

Featured image source: Narratively

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