By Kunal and Rishabh
In this blog, the authors argue for decriminalising solicitation to treat sex-work as legitimate employment under India’s Code on Social Security (2020). It brings out the social and legal compulsions that sex-workers are subjected to because of the law and social stigma, draws comparisons with international models, and suggests integrating sex-workers into the unorganised sector for better social security benefits.
“When it is clear that the sex-worker is an adult and participating with consent, the police must refrain from interfering or taking any criminal action”. This was decreed by a 3-judge bench of the Supreme Court in the 2022 landmark case of Budhadev Karmaskar v. State of W.B. The court directed that the recommendations from a panel constituted in its earlier order of 2011 be implemented by all the states/UTs. One of the recommendations was for various governments to involve sex-workers while making policies concerning them. Two years since the ruling, the legislature is yet to act.
Since 2020, India has had one umbrella legislation focussing on social security, the Code on Social Security, 2020 (“CSS”). It was enacted to provide social security to all workers, whether organised or unorganised. While the Code is yet to be notified, its relevant provisions are pari materia to those of the Unorganised Workers’ Social Security Act. However, when it comes to sex-work, there is a caveat. Only individual sex-work is allowed in India. And even that is subject to significant restrictions under the Immoral Traffic (Prevention) Act (“ITPA”), which criminalises most activities surrounding sex work. It bars anyone from (i) running or managing a brothel; (ii) living with two or more sex-workers (co-habitation); (iii) living off the wages of a sex-worker or sexual exploitation of another (pimping); (iv) sex-work close to a public place (public decency) (v); and publicly approaching clients (solicitation).
Under the CSS, an unorganised worker can be understood to be a self-employed worker. However, as is quite visible, every aspect of sex-work has been criminalised, practically barring the activity itself. Consequently, whether sex-work is considered to be a form of “employment” is a grey area of law. Through this paper, we propose the decriminalisation/legalisation of solicitation, enabling the recognition of sex-work as employment, allowing for the application of the CSS to sex workers.
Law and society have several reasons to not recognise sex-work as employment, as is also apparent from the 64th Law Commission Report. It consistently refers to sex-workers as fallen women, and their work as a vice. The reasons for this non-employability, inter alia, are that sex-work does not involve job satisfaction, is a compulsion, not a vocation, has no social utility, and that sex-workers need to be “protected”. This is important because for all their flaws, anti-sex-work laws truly represent what society thinks about sex-work. It is not stigmatised because the law criminalises it. The law criminalises it and considers it unemployable because it is stigmatised. Understanding these laws would be incomplete unless we also understand the social factors underlying them.
Sex-workers often assert that their work is not limited to sex, and other aspects of their work are not that different from other caregiving services like household and care work. Differentiating between how much of it is a physical exercise and how much emotional is a futile exercise. Sex-workers feel they are on par with other unorganised workers in terms of their plight, like manual scavengers, street vendors, or more recently, bar dancers.
Jameela, a sex-worker, engages the above-mentioned reasons head-on in her autobiography. She argues that professions are not always enjoyable, citing construction work as an example. Yet, they are considered legitimate. Similarly, Jameela views sex work as essential, likening it to manual scavenging in maintaining public hygiene, as sex workers help manage the behaviour of sexually deprived men, reducing harassment toward women. This forms her basis for questioning why sex-work should not be considered employable like any other work.
Despite such utility, sex-workers rarely reap the benefits of their work. Rather, they form part of the informal economy in the unorganised sector, bearing the brunt of an increasingly globalised economy. Martha Nussbaum highlighted stigma as the key distinction between sex workers and other professionals providing bodily services like domestic helpers.
The Durbar Mahila Samanway Committee (“DSMC”), a collective of 60,000 sex workers from Sonagachi, urged PM Manmohan Singh against limiting sex workers’ resources through patronizing welfare policies. India’s anti-sex-work laws claim to uphold morality and protect sex workers while enabling harassment and rent-seeking against those voluntarily engaged in the profession. The biggest struggle for the DSMC is to have sex-workers recognised as women working for their livelihood rather than fallen women that need state patronage. This societal recognition of sex-workers’ rights as labour rights will go a long way in destigmatising them. Thus, they seek societal recognition as well as legal recognition, of sex-work as an employable vocation, rather than the overarching trafficking-centred idea that the ITPA gives it.
Prabha Kotiswaran has covered the subject extensively in her work, assessing the sex-markets of Sonagachi and Tirupati in great detail. She analyses how the 90s were a lost decade where a lot of progress could have been made for sex-work legal reform. She refers to proposed laws that never saw the light of day, like the Sexual Workers Bill, and the Empowerment Bill. She advocates for a calibrated liberalisation of individual sex-work, especially in light of the Madras HC judgement in Ratnamala. The HC held that where a single woman practices prostitution for her own livelihood her residence will not amount to a brothel. The purpose of law was to strike down commercialised vice, and not to treat an unfortunate prostitute like a criminal.
Kotiswaran also analyses partial decriminalisation, decriminalisation and legalisation in the sex markets, which we elaborate upon in the next section. She concludes that partial decriminalisation would be a mere smokescreen. It would permit sex-work but make everything associated with it on the demand side prohibitive, punishing customers of sex-workers . Such a regime would also go against a recent judgement of the Orissa HC.
Budhadev was a series of SC orders, culminating in the recognition of individual sex-work as legal. It started with the Apex Court recognising that sex-workers have the right to live with dignity under Art. 21. Consequently, it directed the Centre and States to formulate schemes for the rehabilitation of women trafficked into prostitution, to provide them with vocational training for finding alternate careers. The Court formed a committee to recommend measures on preventing trafficking, rehabilitating willing sex workers, and ensuring dignity for those continuing sex work.
The Court acknowledged sex workers’ choice to continue but adopted a patronising tone, claiming no self-respecting woman would sell her body for money. The court, however, recognised the role social stigma plays. It also recognised the right of sex-workers to government documentation like Aadhar and ration cards, voter IDs, etc., and their right to various government welfare schemes during COVID.
Nevertheless, the progress so far was piecemeal. The longest leap came in 2022, when laying down various guidelines, the court held that when a sex-worker is participating with consent, the police must not take criminal action. The Court finally recognised that individualised sex-work is legal. To that end, whenever there is a raid on a brothel, since individual sex-work is legal, the sex-worker should not be arrested or victimised in any manner.
Budhadev marked a pivotal shift toward recognising sex work, but challenges remain as ancillary activities are illegal, and sex work lacks labour rights. By framing it as employment, sex workers could access benefits under the CSS.
The next section explores integrating them into the CSS framework.
For varied aspects of sex-work to be understood, certain terms like legalisation, criminalisation, decriminalisation, and selective criminalisation have to be referred to. Legalisation of sex-work is the process of accepting or permitting certain activities. For example, the UK permits escorting but prohibits running a full-fledged brothel. Criminalisation entails a prohibition on both the purchase as well as the sale of sex-work. This policy is widespread across the world, especially in Asia, the U.S., and numerous countries in Africa. There is another form of criminalisation, widely known as the Swedish/Nordic model, which penalises customers but not the sex-workers. This model is predominant especially in the Nordic region, but also in Canada, Northern Ireland, and France. Contrarily, the Netherlands and Germany have a comparatively liberal regime, permitting brothels to run. Decriminalising sex-work involves removing all penalizing measures, against the purchase and sale of sex. This is only the case in a few countries, which includes New Zealand and a few regions of Australia.
Having considered these fundamental terminologies, in this blog, we will be limiting our analysis to partial decriminalisation, drawing references to the regulatory policies in first, Canada and the Nordic Model and second, the selective approach model vis-à-vis Netherlands.
The Swedish/Nordic model was introduced first in Sweden in 1999, amid tremendous concerns surrounding sex trafficking and its ardent commercialisation. To prevent this, Sweden made purchasing sex illegal while selling it permissible. The goal was to keep sex workers safe while preventing and eliminating sex trafficking. In 1972, Canada’s “VAG C” legislation forbade prostitution, with §195.1 making any solicitation for sex work criminal. This statute was heavily criticised for not being able to “effectively regulate” the sex industry. Post the Bedford case, wherein the Supreme Court decreed that the statutes completely criminalising prostitution were unconstitutional, the Protection of Communities and Exploited Persons Act, 2014 (“PCEP”) was introduced in 2014. PCEP’s mandate was to “protect” sex-workers by criminalising sale, advertisement or communication of sexual services. Thus, the Nordic model was introduced.
Reference to Canadian jurisprudence has been drawn, due to similar legislative intentions. The ITPA has clearly stipulated in its objects and purpose that its sole intention is to prevent “immoral traffic”. This intent is akin to the original legislation of VAG C as well as PCEP, both enacted to “rescue or protect” sex-workers. However, these laws have caused more harm than good. The PCEP is criticized for imposing high costs, forcing individuals to leave the profession. Legalizing solicitation in India, as suggested by the Nordic model, could improve sex workers’ lives, attract better clients, and reduce harmful interactions with authorities, fostering safer, more positive conditions.
Sex-work was partially decriminalised in the Netherlands in 2000. Brothels and independent sex workers could accept clients with local government registration. Around 75% of towns have sex-work regulations, and 40% host registered companies providing prostitution services. There are varied types of sex-work that are followed, ranging from brothels to escort agencies and more. The Netherlands introduced WRP (it is written in Dutch, and hence, the English abbreviation has been given) legislation to regulate prostitution and prevent abuse in sex work. WRP established national regulations, allowing local municipalities additional regulatory control. With this, the screening process was made more stringent, preventing any exploitative practices. However, the partial decriminalisation model has been strongly critiqued. After brothels were legalised in 2000, the amount of actual legal sex-workplaces has reduced by 40%. This was due to the tight laws, which made it practically hard to be legally involved in this industry. As a result, even licensed sex workers were driven to operate illegally.
We refer to the Netherlands’ regulation of sex work as it decriminalizes the profession, but imposes stringent compliance, worsening sex workers’ conditions. India’s ITPA currently prohibits solicitation, but we propose its legalisation. Whether decriminalised or legalised, India should avoid the Netherlands’ overly burdensome regulations that hinder legal sex work. Legalising solicitation would help recognize sex work as legitimate employment, ensuring better protection and rights for those in the profession.
Thus far, we have covered bringing sex-workers within the ambit of unorganised workers by means of legalising solicitation. But the actual social security benefits that the sex-workers should be entitled to can be understood better, drawing a parallel with Germany. Two laws govern sex-workers in Germany: (i) The Prostitution Act (“PA”) and; (ii) The Prostitution Protection Act, 2017 (“PPA”). While the PA legalised sex-work, introducing access to social security (like health and unemployment insurance), the PPA imposed greater regulations. It required that sex workers be registered with their respective municipal authorities, with further stipulations for foreign citizens. While these additional requirements were introduced with the intent to “protect” sex-workers rather than their autonomy, the legislation failed to have its intended effect.
Based on a recent study, and other sources, benefits provided under the ambit of “social security” is far from available to the sex-workers. Health insurance is inaccessible to a vast majority of sex-workers due to its prohibitive cost. Furthermore, bureaucratic procedures are complex and time-taking. As a result, access of sex-workers to healthcare is impeded rather than improved. Other concerns, such as mobility, especially for migrant sex-workers, were also not considered by the legislation, making long-term treatment difficult.
The German regime has significant compliance burdens, putting real-life access to benefits beyond the reach of an already stigmatised section of society, making “social security” tokenistic. Clause 109, CSS, is comprehensive insofar as benefits to unorganised workers. In that light, and learning from the German experience, the Government would be advised to frame schemes with minimal regulatory requirements, easing access to them, legally and financially. To that end, we propose that the Government bring sex-workers under the CSS by recognising them as unorganised workers.
The CSS defines an unorganised worker as “…a home-based worker, self-employed worker or a wage worker in the unorganised sector…”, and the unorganised sector as “…an enterprise owned by individuals or self-employed workers…”. Clause 109 of the Code obligates the Centre and various state governments to formulate schemes for these unorganised workers pertaining to insurance, maternity benefits, education for their children, housing, provident fund, etc. Sex-workers are traditionally not within the ambit of this definition because most of what they do is illegal under the ITPA, and is not considered to be a form of employment. Sex-work is considered, in a way, to be res extra commercium, an activity beyond the protections of free enterprise. That obstacle needs to be urgently addressed.
The demand for bringing sex-workers within the ambit of unorganised workers is neither new nor illegitimate. Strengthen and Harmonise Research and Action on Migration in the Indian Context (“SHRAMIC”) is an initiative supported by the Tata Trusts which has worked significantly to further the interests of migrant and other workers as part of its CSR obligations. Its National Advisory Council on Social Security for Unorganised Workers recommended that to make laws more efficient, the definition of unorganised workers needs to be broadened, inter alia, to bring sex-workers within its ambit. During the COVID Lockdown in 2020, the NHRC issued an advisory on informal workers, recommending that sex-workers may be recognised as informal workers so that they are able to get the benefits that other workers in the category are entitled to. The same proposal has also been made by the Centre for Feminist Legal Reform. This demonstrates that there is widespread consensus across the public and private sector, even if implicit, that sex-work is work.
Most importantly, as late as 2020, when the COVID-induced lockdown was at its peak, the Maharashtra Government issued a Government Resolution for providing essential services to sex-workers. It referred to sex-workers as people who had “lost their source of livelihood”. The resolution was also hailed by sex-worker welfare-oriented NGOs, which referred to it as the first time when sex work was being recognised as a source of livelihood.
When a State Government recognises sex-work as an activity that can be a source of livelihood, it implies that that government believes, at least implicitly, that sex-work is an ‘employment.’
With the moralistic arguments for not recognising sex-work already addressed by Jameela and Kotishwaran, the authors believe it is high time that sex-work be given the recognition of an ‘employment’, as an activity that is dignified and respectful, rather than an activity conducted by “fallen women” that need to be protected by the State.
And to that end, to bypass this barrier of being res extra commercium, and to bring sex-workers under the CSS, we contend that the legalisation of solicitation is the pathway to be adopted. Sex workers would then fall within the definition of unorganised workers under the CSS. However, as we have already discussed, the regulatory compliances to be eligible for the schemes of various governments should not be so heavy that makes life difficult rather than easier for sex-workers. Once that is accomplished, the benefits under the code, including life and disability cover, health and maternity benefits, housing, education schemes for children, etc. would consequently flow. While that would not undo the prejudice and hardships sex-workers have had to endure for centuries, it would go a long way in ensuring that the future is not as bleak as the past.
The authors, Kunal and Rishabh, are undergraduate law students at The West Bengal National University of Juridical Sciences, Kolkata. Kunal, when not in the library, can be found reading a random book on international relations, policy and politics, or the evergreen Harry Potter series. He is also an avid tennis fan and follows various international tournaments regularly. Rishabh, an aviation geek at heart, loves losing himself in gripping thrillers and exploring the world through food and travel shows. Always up for a new adventure, his interests soar far beyond the courtroom!
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See Part III(B).
See Part IV.
The Code on Social Security, 2020, Clause 109.
In this blog, the authors argue for decriminalising solicitation to treat sex-work as legitimate employment under India’s Code on Social Security (2020). It brings out the social and legal compulsions that sex-workers are subjected to because of the law and social stigma, draws comparisons with international models, and suggests integrating sex-workers into the unorganised sector for better social security benefits.
Introduction
“When it is clear that the sex-worker is an adult and participating with consent, the police must refrain from interfering or taking any criminal action”. This was decreed by a 3-judge bench of the Supreme Court in the 2022 landmark case of Budhadev Karmaskar v. State of W.B. The court directed that the recommendations from a panel constituted in its earlier order of 2011 be implemented by all the states/UTs. One of the recommendations was for various governments to involve sex-workers while making policies concerning them. Two years since the ruling, the legislature is yet to act.
Since 2020, India has had one umbrella legislation focussing on social security, the Code on Social Security, 2020 (“CSS”). It was enacted to provide social security to all workers, whether organised or unorganised. While the Code is yet to be notified, its relevant provisions are pari materia to those of the Unorganised Workers’ Social Security Act. However, when it comes to sex-work, there is a caveat. Only individual sex-work is allowed in India. And even that is subject to significant restrictions under the Immoral Traffic (Prevention) Act (“ITPA”), which criminalises most activities surrounding sex work. It bars anyone from (i) running or managing a brothel; (ii) living with two or more sex-workers (co-habitation); (iii) living off the wages of a sex-worker or sexual exploitation of another (pimping); (iv) sex-work close to a public place (public decency) (v); and publicly approaching clients (solicitation).
Under the CSS, an unorganised worker can be understood to be a self-employed worker. However, as is quite visible, every aspect of sex-work has been criminalised, practically barring the activity itself. Consequently, whether sex-work is considered to be a form of “employment” is a grey area of law. Through this paper, we propose the decriminalisation/legalisation of solicitation, enabling the recognition of sex-work as employment, allowing for the application of the CSS to sex workers.
Charting the journey of sex-workers: Budhadev and Beyond
A. The ‘Work’ in Sex-Work
Law and society have several reasons to not recognise sex-work as employment, as is also apparent from the 64th Law Commission Report. It consistently refers to sex-workers as fallen women, and their work as a vice. The reasons for this non-employability, inter alia, are that sex-work does not involve job satisfaction, is a compulsion, not a vocation, has no social utility, and that sex-workers need to be “protected”. This is important because for all their flaws, anti-sex-work laws truly represent what society thinks about sex-work. It is not stigmatised because the law criminalises it. The law criminalises it and considers it unemployable because it is stigmatised. Understanding these laws would be incomplete unless we also understand the social factors underlying them.
Sex-workers often assert that their work is not limited to sex, and other aspects of their work are not that different from other caregiving services like household and care work. Differentiating between how much of it is a physical exercise and how much emotional is a futile exercise. Sex-workers feel they are on par with other unorganised workers in terms of their plight, like manual scavengers, street vendors, or more recently, bar dancers.
Jameela, a sex-worker, engages the above-mentioned reasons head-on in her autobiography. She argues that professions are not always enjoyable, citing construction work as an example. Yet, they are considered legitimate. Similarly, Jameela views sex work as essential, likening it to manual scavenging in maintaining public hygiene, as sex workers help manage the behaviour of sexually deprived men, reducing harassment toward women. This forms her basis for questioning why sex-work should not be considered employable like any other work.
Despite such utility, sex-workers rarely reap the benefits of their work. Rather, they form part of the informal economy in the unorganised sector, bearing the brunt of an increasingly globalised economy. Martha Nussbaum highlighted stigma as the key distinction between sex workers and other professionals providing bodily services like domestic helpers.
The Durbar Mahila Samanway Committee (“DSMC”), a collective of 60,000 sex workers from Sonagachi, urged PM Manmohan Singh against limiting sex workers’ resources through patronizing welfare policies. India’s anti-sex-work laws claim to uphold morality and protect sex workers while enabling harassment and rent-seeking against those voluntarily engaged in the profession. The biggest struggle for the DSMC is to have sex-workers recognised as women working for their livelihood rather than fallen women that need state patronage. This societal recognition of sex-workers’ rights as labour rights will go a long way in destigmatising them. Thus, they seek societal recognition as well as legal recognition, of sex-work as an employable vocation, rather than the overarching trafficking-centred idea that the ITPA gives it.
B. Sex-work from Kotiswaran’s Lens
Prabha Kotiswaran has covered the subject extensively in her work, assessing the sex-markets of Sonagachi and Tirupati in great detail. She analyses how the 90s were a lost decade where a lot of progress could have been made for sex-work legal reform. She refers to proposed laws that never saw the light of day, like the Sexual Workers Bill, and the Empowerment Bill. She advocates for a calibrated liberalisation of individual sex-work, especially in light of the Madras HC judgement in Ratnamala. The HC held that where a single woman practices prostitution for her own livelihood her residence will not amount to a brothel. The purpose of law was to strike down commercialised vice, and not to treat an unfortunate prostitute like a criminal.
Kotiswaran also analyses partial decriminalisation, decriminalisation and legalisation in the sex markets, which we elaborate upon in the next section. She concludes that partial decriminalisation would be a mere smokescreen. It would permit sex-work but make everything associated with it on the demand side prohibitive, punishing customers of sex-workers . Such a regime would also go against a recent judgement of the Orissa HC.
C. Budhadev and the Beginning of a Journey
Budhadev was a series of SC orders, culminating in the recognition of individual sex-work as legal. It started with the Apex Court recognising that sex-workers have the right to live with dignity under Art. 21. Consequently, it directed the Centre and States to formulate schemes for the rehabilitation of women trafficked into prostitution, to provide them with vocational training for finding alternate careers. The Court formed a committee to recommend measures on preventing trafficking, rehabilitating willing sex workers, and ensuring dignity for those continuing sex work.
The Court acknowledged sex workers’ choice to continue but adopted a patronising tone, claiming no self-respecting woman would sell her body for money. The court, however, recognised the role social stigma plays. It also recognised the right of sex-workers to government documentation like Aadhar and ration cards, voter IDs, etc., and their right to various government welfare schemes during COVID.
Nevertheless, the progress so far was piecemeal. The longest leap came in 2022, when laying down various guidelines, the court held that when a sex-worker is participating with consent, the police must not take criminal action. The Court finally recognised that individualised sex-work is legal. To that end, whenever there is a raid on a brothel, since individual sex-work is legal, the sex-worker should not be arrested or victimised in any manner.
Budhadev marked a pivotal shift toward recognising sex work, but challenges remain as ancillary activities are illegal, and sex work lacks labour rights. By framing it as employment, sex workers could access benefits under the CSS.
The next section explores integrating them into the CSS framework.
Solicitation and the Reason Why it is Fundamental to Make Self-Employed Sex-Work Feasible
For varied aspects of sex-work to be understood, certain terms like legalisation, criminalisation, decriminalisation, and selective criminalisation have to be referred to. Legalisation of sex-work is the process of accepting or permitting certain activities. For example, the UK permits escorting but prohibits running a full-fledged brothel. Criminalisation entails a prohibition on both the purchase as well as the sale of sex-work. This policy is widespread across the world, especially in Asia, the U.S., and numerous countries in Africa. There is another form of criminalisation, widely known as the Swedish/Nordic model, which penalises customers but not the sex-workers. This model is predominant especially in the Nordic region, but also in Canada, Northern Ireland, and France. Contrarily, the Netherlands and Germany have a comparatively liberal regime, permitting brothels to run. Decriminalising sex-work involves removing all penalizing measures, against the purchase and sale of sex. This is only the case in a few countries, which includes New Zealand and a few regions of Australia.
Having considered these fundamental terminologies, in this blog, we will be limiting our analysis to partial decriminalisation, drawing references to the regulatory policies in first, Canada and the Nordic Model and second, the selective approach model vis-à-vis Netherlands.
A. Canada and the Nordic Model
The Swedish/Nordic model was introduced first in Sweden in 1999, amid tremendous concerns surrounding sex trafficking and its ardent commercialisation. To prevent this, Sweden made purchasing sex illegal while selling it permissible. The goal was to keep sex workers safe while preventing and eliminating sex trafficking. In 1972, Canada’s “VAG C” legislation forbade prostitution, with §195.1 making any solicitation for sex work criminal. This statute was heavily criticised for not being able to “effectively regulate” the sex industry. Post the Bedford case, wherein the Supreme Court decreed that the statutes completely criminalising prostitution were unconstitutional, the Protection of Communities and Exploited Persons Act, 2014 (“PCEP”) was introduced in 2014. PCEP’s mandate was to “protect” sex-workers by criminalising sale, advertisement or communication of sexual services. Thus, the Nordic model was introduced.
Reference to Canadian jurisprudence has been drawn, due to similar legislative intentions. The ITPA has clearly stipulated in its objects and purpose that its sole intention is to prevent “immoral traffic”. This intent is akin to the original legislation of VAG C as well as PCEP, both enacted to “rescue or protect” sex-workers. However, these laws have caused more harm than good. The PCEP is criticized for imposing high costs, forcing individuals to leave the profession. Legalizing solicitation in India, as suggested by the Nordic model, could improve sex workers’ lives, attract better clients, and reduce harmful interactions with authorities, fostering safer, more positive conditions.
B. The Dutch Selective Approach Model
Sex-work was partially decriminalised in the Netherlands in 2000. Brothels and independent sex workers could accept clients with local government registration. Around 75% of towns have sex-work regulations, and 40% host registered companies providing prostitution services. There are varied types of sex-work that are followed, ranging from brothels to escort agencies and more. The Netherlands introduced WRP (it is written in Dutch, and hence, the English abbreviation has been given) legislation to regulate prostitution and prevent abuse in sex work. WRP established national regulations, allowing local municipalities additional regulatory control. With this, the screening process was made more stringent, preventing any exploitative practices. However, the partial decriminalisation model has been strongly critiqued. After brothels were legalised in 2000, the amount of actual legal sex-workplaces has reduced by 40%. This was due to the tight laws, which made it practically hard to be legally involved in this industry. As a result, even licensed sex workers were driven to operate illegally.
We refer to the Netherlands’ regulation of sex work as it decriminalizes the profession, but imposes stringent compliance, worsening sex workers’ conditions. India’s ITPA currently prohibits solicitation, but we propose its legalisation. Whether decriminalised or legalised, India should avoid the Netherlands’ overly burdensome regulations that hinder legal sex work. Legalising solicitation would help recognize sex work as legitimate employment, ensuring better protection and rights for those in the profession.
Access to Social Security: The German Experience and a Different Case for India
Thus far, we have covered bringing sex-workers within the ambit of unorganised workers by means of legalising solicitation. But the actual social security benefits that the sex-workers should be entitled to can be understood better, drawing a parallel with Germany. Two laws govern sex-workers in Germany: (i) The Prostitution Act (“PA”) and; (ii) The Prostitution Protection Act, 2017 (“PPA”). While the PA legalised sex-work, introducing access to social security (like health and unemployment insurance), the PPA imposed greater regulations. It required that sex workers be registered with their respective municipal authorities, with further stipulations for foreign citizens. While these additional requirements were introduced with the intent to “protect” sex-workers rather than their autonomy, the legislation failed to have its intended effect.
Based on a recent study, and other sources, benefits provided under the ambit of “social security” is far from available to the sex-workers. Health insurance is inaccessible to a vast majority of sex-workers due to its prohibitive cost. Furthermore, bureaucratic procedures are complex and time-taking. As a result, access of sex-workers to healthcare is impeded rather than improved. Other concerns, such as mobility, especially for migrant sex-workers, were also not considered by the legislation, making long-term treatment difficult.
The German regime has significant compliance burdens, putting real-life access to benefits beyond the reach of an already stigmatised section of society, making “social security” tokenistic. Clause 109, CSS, is comprehensive insofar as benefits to unorganised workers. In that light, and learning from the German experience, the Government would be advised to frame schemes with minimal regulatory requirements, easing access to them, legally and financially. To that end, we propose that the Government bring sex-workers under the CSS by recognising them as unorganised workers.
Sex-workers as Unorganised Workers
The CSS defines an unorganised worker as “…a home-based worker, self-employed worker or a wage worker in the unorganised sector…”, and the unorganised sector as “…an enterprise owned by individuals or self-employed workers…”. Clause 109 of the Code obligates the Centre and various state governments to formulate schemes for these unorganised workers pertaining to insurance, maternity benefits, education for their children, housing, provident fund, etc. Sex-workers are traditionally not within the ambit of this definition because most of what they do is illegal under the ITPA, and is not considered to be a form of employment. Sex-work is considered, in a way, to be res extra commercium, an activity beyond the protections of free enterprise. That obstacle needs to be urgently addressed.
The demand for bringing sex-workers within the ambit of unorganised workers is neither new nor illegitimate. Strengthen and Harmonise Research and Action on Migration in the Indian Context (“SHRAMIC”) is an initiative supported by the Tata Trusts which has worked significantly to further the interests of migrant and other workers as part of its CSR obligations. Its National Advisory Council on Social Security for Unorganised Workers recommended that to make laws more efficient, the definition of unorganised workers needs to be broadened, inter alia, to bring sex-workers within its ambit. During the COVID Lockdown in 2020, the NHRC issued an advisory on informal workers, recommending that sex-workers may be recognised as informal workers so that they are able to get the benefits that other workers in the category are entitled to. The same proposal has also been made by the Centre for Feminist Legal Reform. This demonstrates that there is widespread consensus across the public and private sector, even if implicit, that sex-work is work.
Most importantly, as late as 2020, when the COVID-induced lockdown was at its peak, the Maharashtra Government issued a Government Resolution for providing essential services to sex-workers. It referred to sex-workers as people who had “lost their source of livelihood”. The resolution was also hailed by sex-worker welfare-oriented NGOs, which referred to it as the first time when sex work was being recognised as a source of livelihood.
When a State Government recognises sex-work as an activity that can be a source of livelihood, it implies that that government believes, at least implicitly, that sex-work is an ‘employment.’
With the moralistic arguments for not recognising sex-work already addressed by Jameela and Kotishwaran, the authors believe it is high time that sex-work be given the recognition of an ‘employment’, as an activity that is dignified and respectful, rather than an activity conducted by “fallen women” that need to be protected by the State.
And to that end, to bypass this barrier of being res extra commercium, and to bring sex-workers under the CSS, we contend that the legalisation of solicitation is the pathway to be adopted. Sex workers would then fall within the definition of unorganised workers under the CSS. However, as we have already discussed, the regulatory compliances to be eligible for the schemes of various governments should not be so heavy that makes life difficult rather than easier for sex-workers. Once that is accomplished, the benefits under the code, including life and disability cover, health and maternity benefits, housing, education schemes for children, etc. would consequently flow. While that would not undo the prejudice and hardships sex-workers have had to endure for centuries, it would go a long way in ensuring that the future is not as bleak as the past.
The authors, Kunal and Rishabh, are undergraduate law students at The West Bengal National University of Juridical Sciences, Kolkata. Kunal, when not in the library, can be found reading a random book on international relations, policy and politics, or the evergreen Harry Potter series. He is also an avid tennis fan and follows various international tournaments regularly. Rishabh, an aviation geek at heart, loves losing himself in gripping thrillers and exploring the world through food and travel shows. Always up for a new adventure, his interests soar far beyond the courtroom!
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