This article is written by Manya Ahuja.

Introduction

Sex work in India is regarded as one of the oldest professions to have been practiced in the country. Even then, it is still associated with taboo and is not accepted as a respectable career. While there are millions of sex workers who are forced into sex work through large human trafficking networks, there are also many women who take up sex work to escape abject poverty, or even due to marginalization. For this reason, the law in place must be designed to protect both, victims of trafficking and those who voluntarily choose to do sex work. 

In India, sex work is governed by the Immoral Traffic (Prevention) Act, 1956. Although, according to the Act, sex work is not illegal, aiding in activities like soliciting customers or maintenance of brothels are punishable by law. Under the Act, any sex work near a public place is a criminal offence. The Act also penalises any person who knowingly supports or owns a brothel in their premises, as well as any person over eighteen years of age, living on the earnings of a sex worker. All in all, it was aimed at preventing women and minors from being coerced into sex work by criminalising acts like pimping and detaining workers at brothels. The reality of most sex workers in India, however, does not reflect this aims.

Brothels include two or more sex workers working together to make a living. Its criminalization implies that if women want to carry out sex work legally, they must do it alone. Seclusion from public spaces also forces sex workers to work in only isolated areas, as a result of which they become vulnerable to exploitation and abuse, and those who are victim to any exploitation by brothel owners or pimps are unable to act against them legally because the law makes all of brothel work punishable. Criminalising the act of soliciting customers also interferes with the right of sex workers to legitimately carry out work. Being one of the oldest professions to exist, abolition of sex work in India is unimaginable. However, the taboo surrounding it rejects it as a respectable career choice, aside from being viewed as a threat to the institution of marriage and other foundations of the Indian society. It is imperative that the government offers sex workers and children of sex workers more protection as they are vulnerable to increased exploitation and harassment from authorities. Identity formation is an output of social, political and legal construction. Through the ITPA, the State is contributing to social exclusion of individuals based on gender, work and sexuality.

The motivation behind this paper lies in the stigma associated with sex and sex work, and how it leaves sex workers vulnerable to abuse. The legality of sex work in India is not a topic of broad discussion as it is assumed at large that all of sex work is illegal. There are loopholes and grey areas in the ITPA which need to be brought into light. By studying the various journal reports and policy debates regarding sex work in India, this paper aims to highlight the marginalisation of sex workers as a result of the ITP Act specifically, and cover all the issues mentioned above in light of this Act.

Assumptions made by the Immoral Traffic (Prevention) Act, 1956

It is a common mentality that sex work has a direct role to play in modern-day sex slavery and slave trade, and that is inherently demeaning and exploitative in nature. Sex work is largely seen as an act of violence, and not something that could possibly be taken up as a career by choice, even if that choice arises from compelling circumstances. The possibility that even victims of trafficking might adjust to the field of sex work as their only way of earning and survival is ignored by law and society. 

The provisions under the ITPA are based on the understanding that women who are involved in sex work must be removed from it, as although, she may not essentially be doing something criminal, she may be a victim of exploitation and should therefore, be removed from sex work and put into rehabilitative care. It is finally the operation of these provisions which makes the Act eventually criminalise even individual sex workers in a way, by victimising them, and placing them in state care. 

A brothel as an institution is assumed to have a brothel keeper, leading to a labour relationship between the keeper and the sex worker, however, according to the Immoral Traffic Prevention Act, any two women working together as sex workers under the same roof can constitute a brothel, and a labour arrangement is not necessary for the same. The aim of the Act is not to abolish prostitution, but to forbid and prevent trafficking in girls and women taking place for the purpose of organised sex work and prohibit acts like soliciting or promoting sex work in or near public spaces to avoid “contamination” of these spaces. It is therefore, a foundational agenda of the law in place to protect public spaces from such “contamination” rather than helping out women who choose to earn a livelihood through sex work or even actual victims of trafficking.

Sex work exists because there exist men who want to satisfy their needs by visiting brothels. The ITPA is a glaring illustration of gender bias as the male counterparts (i.e. the clients) are rarely ever questioned or arrested. It is the female sex workers who in the name of rehabilitation are made to be the guilty party and punished. In 2018, the Karnataka High Court, after taking into account provisions of the ITPA, allowed a petition in which the bench had stated that any customer or client approaching the services of a sex worker could not be held liable for prosecution after a police raid had been conducted in a brothel in Bangalore wherein the customer had also been arrested. Because there is a lack of ground level awareness, during brothel raids, both customers and brothel workers are arrested, however customers are let off easy after they cough up some money because there is no provision in the ITPA that allows for arrest of customers after a brothel raid.

Due to discrimination within workforce, poverty (especially in third world countries), marginalization, migration and trafficking, women are forced into sex work. While this assertion is true for many sex workers, sex work’s association with the general labour force as real work is negated at large – the workers are classified as victims and sex work is viewed as violent, and in a bid to “protect” them, the law strips them off of their financial stability by criminalising organised sex work. This is where the difference between “choice” and “coercion” come into play, for just like how women are categorized as either “good” or “bad”, sex workers are also pushed into a “good prostitute – bad prostitute” narrative. This perceived difference between voluntary and coerced sex work plays a vital role in legalization and decriminalization. 

Consequences of the ITPA on Sex Workers 

A field of work which once used to be socio-culturally accepted and sanctified, has now undergone a form of reconstruction and is being represented as an undignified profession. This has led to marginalization of women in sex work not only from all public spaces but also in society generally. The power that culture and social morality holds in terms of instrumentalising women’s bodies ends up denying women in sex work the most basic of human rights as they are considered to be indulging in shameful activity. The kind of shame that is constructed through this form of social morality has the power to make sex workers subservient to male desires. 

The ITPA criminalizes activities essential for sex work, rendering sex workers helpless. The Act results in a bad faith bias, as because of common nexuses between external and internal stakeholders like the police, politicians and brothel keepers, the Act may not be enforced efficiently against brothel keepers in cases of trafficking or abuse. Law reforms focus on treating sex work as a law and order problem by viewing it as a moral issue and treating sex workers as either victims or criminals. These reforms/policies do not offer to the sex workers any “positive” reinforcement or even access to health care or education without discrimination. The ITPA grants police officers and magistrates the power to rescue and rehabilitate sex workers, and there is thus an ineffective implementation of legal norms and this power is thus often misused by the police – brothel raids are conducted in a very insensitive and abusive manner, leaving brothel workers at the mercy of the authorities. There is a “spiral of exploitation” as more and more trafficked women become even deeply enslaved because of the flawed criminal justice system.

The anti-trafficking laws in India and their poor implementation have given more power to the authorities and also the general public to harass and shame women they believe are encouraging immorality in the society. The motive behind these laws was to essentially rescue victims of trafficking, but it just ends up legitimizing the stigma attached to sex work as a whole by criminalizing organised sex work. An effective decriminalization of organised sex work can not only help uplift the status of sex workers in the society, but it can also help offer more security to single women against such harassment by diluting the stigma around sex work in general.

Rescue and Rehabilitation

It cannot be denied that the idea around rescue and rehabilitation within sex work arises from a lack of public understanding and asserts that being poor is better than doing sex work. The ITPA provides for rescue and rehabilitation in its provisions – it paves way for rescue of sex workers on the order of the magistrate, orders for protection of rescued women from harassment and mandates the presence of women officers during interrogation and search procedures in cases of raids.

The Act also provides for provisions to place the woman, child or the child of a sex worker in custody to remove them from an environment that might affect them adversely. Rescue and rehabilitation, however, do nothing to aid victims, except providing them with temporary shelter. There also does not exist a comprehensive migration policy in India, and the laws concerning migrant workers only cater to documented and skilled workers. The anti-trafficking measures taken by this government follow a law and order approach, rather than a human rights approach: flaws within the provisions assume that children of sex workers are victims of trafficking, which forces sex workers to constantly keep establishing the identity of their children to the authorities, making them vulnerable to harassment. The Juvenile Justice Act refers to these children as “neglected children” and the judicial system has asserted time and again that sex workers should not have custody of their children as they create an unfit social environment for their growth.

Approaches taken by Feminists

There are essentially three approaches taken by feminists with regards to sex work and laws related to sex work in India: the abolitionist view, the sex advocacy view and a middle ground between these two. The abolitionist view, as a subset of radical feminism, states that all sex work is abuse. According to scholars like Jean D’Cunha, in a country like India, all sex work is forced unlike the West wherein a very small portion of the sex workers are actually victims of coercion. While she uses poverty of the developing world as a tool to distinguish a non-western feminist approach, other abolitionists use it to deem Indian women as moral and non-consenting to trafficking. The other approach is the sex advocacy approach, in which scholars like Ratna Kapur have criticised the anti-trafficking laws in India and analysed how they have adversely affected sex workers, and the third approach lies somewhere in the middle, wherein feminist scholars like Rajeswari Sunder Rajan, support the idea of sex work and empowerment of sex workers, but stand with the abolitionists on the argument that sex work in a capitalist society only results in exploitation, and has no real social usefulness or any labour process mediating it. 

It is the sex advocacy approach that sex workers’ organisations resonate with the most, globally. In an interview with the American author, Megan Abott, former porn star, Mia Khalifa, opened up about her experience with the porn and sex industry. She claimed that these corporations involved in the porn industry exploit young and vulnerable women, and later make it impossible for them to try and forget their past. While there were many sex workers who recognized that certain sectors within the industry, most of which are run by large corporations, do exploit their porn actors and create an environment which is toxic and abusive, and supported Khalifa on these claims by advocating sex positivism and encouraging consumption of ethical porn, there was also a section of sex workers who did not agree with the way she spoke about the issue, claiming that her expression of regret in which she painted all sex workers as victims created a “whorephobic rhetoric” which is often used by sex work abolitionists to further their arguments and erases the experience of sex workers who are or have been in the industry by choice and do not mind working there.

Scholars like Kapur call for a complete repeal of the ITPA in a bid to decriminalize sex work. There are four possible policy options in India regarding sex work: complete criminalization, complete decriminalization, partial decriminalization, and legalization. For the purpose of this paper, it is important to distinguish between ‘decriminalization’ and ‘legalization’. The legalization approach considers sex work as lawful but also imposes heavy regulation and state control on such activity through zoning and licensing laws, and mandatory health check-ups. This leads to a form of ghettoization of sex workers which is merely another form of marginalisation from the rest of the labour force. The decriminalization approach acknowledges sex work as a choice that is personal to two consenting adults, and removes it from the ambit of criminal laws to place it under general laws. The only difference between ‘complete’ and ‘partial’ decriminalization is that in the latter, all aspects of the industry, including customers are criminalised, while sex workers themselves are not.

In a country like India, wherein corruption is widespread and common, legalization or partial decriminalization of sex work would only end up giving more power to the authorities and law enforcement to raid brothels and harass sex workers and brothel owners alike. Indian sex workers all over the country are, therefore, not demanding a legalization of sex work, but a complete decriminalization by calling for a repeal of the ITPA and removal of sex work from the ambit of criminal laws, and asking for sex work to be governed by general laws. 

Conclusion

The first step to be taken by the state to achieve solidarity with sex workers’ organisations is to ensure complete decriminalization of sex work in India, for they are citizens first and workers second. There is an added benefit of decentralization of trade in case of decriminalization as it frees sex workers from the shackles of red light areas and ghettos which are often so secluded that they become hubs for exploitation, violation of rights, and physical and mental abuse. Allowing for this kind of agency to exist with sex workers is the only way to respect the work they do and let them associate themselves with the general labour force. Inclusion in the labour market would not only give uplift the social status of sex workers in the society, but also ensure them the rights and security they are entitled to as the citizens of this country. Just like any other labour force in India, sex workers should also have the right to form unions, work in groups so as to not feel marginalised, be safe from exploitation and have the same opportunities as others to earn a living in a manner that is respected by law as well as the society. 

Effective preventive measures against trafficking can only be achieved by promoting human rights based policies, offering a broader range of rehabilitation services which actually benefit the victims, trafficking prevention initiatives which focus on importance of public awareness, analysis of underlying causes of trafficking – like poverty levels, and cooperation with other South Asian States. Children born to sex workers or in red light districts are more prone to exploitation as well. Removing them from their mothers is never a viable solution as it does no good to the child due to there being a lack of a foster care system in the country. It should be the government’s responsibility to rehabilitate the mothers and their children efficiently, and ensure better healthcare and access to education for the children of these sex workers by creating institutions exclusively for them near their homes to avoid discrimination. At the end of the day, it is the law that can eventually protect and elevate the social status of sex workers. The constant stigmatization by our own society and government is what leads to marginalization of children.

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