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Aarti Ashwin writes about why India needs to legalize sex work and how legalization will help sex workers in India

Sex work and sex workers’ rights in India is primarily regulated under the Suppression of Immoral Traffic in Women and Girls Act, 1956 (“the Act”). The Act was amended in 1986, resulting in the Immoral Traffic (Prevention) Act (PITA). Many agree that the Indian law in general and particularly PITA, remains vague and fails to provide adequate rights to sex workers. Certain aspects of the law curtail fundamental rights of sex workers. Moreover, the law misses out on including important clauses such as socio-economic and rights related to consent that are essential for sex workers to live a life of dignity. There have been debates over legalization of sex work, and this would require not only a change in law, but also a social change of society’s mindset at large.

Consequently, this article argues that a new attitude in law and society towards sex work and sex workers’ rights is the need of the hour. It seeks to adopt a feminist approach to sex work and hopes to inspire a re-vamped outlook towards sex work in India.

PITA does not find sex work as illegal per se. Theoretically, barring brothels and pimping, sex work is legal, as long as it is kept away from public spaces. It would be fair to say that PITA permits sex work but criminalizes other aspects necessary for the work to be carried on. It portrays sex work to be immoral and fails to view sex workers as human beings with independent minds. It also fails to make a distinction between consensual sex work and trafficking.

It is important to point out the language used in PITA. Language is an important battle ground in the fight for social equality. The terms ‘prostitution’ and ‘prostitute’ have been used to denote ‘sex work’ and ‘sex worker’ respectively. The latter are the preferred terms to be used by those who sell sexual services. Carol Leigh, an American author and activist, first used the term ‘sex worker’ in the late 80’s and wrote that the usage of the words ‘sex work’ and ‘sex worker’ acknowledges the work the community does. In this light, it is essential that PITA adopts the preferred language as well.

Section 7 of PITA criminalizes ‘prostitution in or in the vicinity of public places’ and further states that ‘prostitution carried on in any premises which are in the distance of 200 meters of any place of public religious worship, educational institution, hotel, hospital, nursing home or such other public place of any kind, shall be punishable with imprisonment.’

This clause evidently suggests that sex work must take place in areas away from society, as all the above mentioned public places are found at every nook and corner in society, and it would be practically impossible to find an area that does not come within 200 meters of any of the above mentioned public places. This would lead to the work being forced to go underground and this is precisely what has happened in India, even in large metropolitan cities such as Mumbai and Kolkata. The clause encourages marginalization and alienation of sex workers by pushing them further away from society.

The belief that sex work is immoral has led PITA to consider all sex work to be trafficking. Rescue operations are carried out to curb trafficking. Section 16 of PITA lays down provisions for rescue of a person. It states that where a magistrate has a reason to believe that any person in their jurisdiction is living, carrying on, or being made to carry on sex work in a brothel, they may direct a police officer to remove such a person from their jurisdiction. Evidently, PITA believes that every sex worker needs to be “rescued”, and this “rescue” can take place without consent. After such rescue operations, sex workers are usually sent to protective homes. PITA prescribes protective custody for them, and a magistrate’s evaluation of their guardian’s “suitability” is what determines the duration of their placement in a protective home. It would be fair to say that anything, but their consent or choice determines their future.

The horrors of protective homes are an entirely different story. Protective homes for women in India are carceral institutions that confine women rescued from the sex trade. Tied to a moralistic agenda of reform, protective homes restrict women’s freedom in multiple ways. Most protective homes do not provide adequate economic rehabilitation to sex workers and do not align with their socio-economic realities. For example, at a Mumbai protective home, NGOs provided tailoring, nursing, and beautician training, as well as classes in paper bag-making, spice-making, henna application and other low-paying options presented as “decent” work. The purpose of protective homes seems to be more to do with moral cleansing of society. There are no precise or strict provisions in PITA that can effectively regulate the facilities and management of protective homes. Moreover, majority of women return to sex work after leaving a protective home.

Consent of the sex worker, in practically any situation, is not mentioned in PITA. This has also led sex workers to be victims of rape and sexual violence, with no legal aid thereafter. It is also upsetting to note that the majority of arrests that take place under PITA are of sex workers, again, due to lack of consent and insistence of the law that all sex work is trafficking.

These problematic aspects of the law and their unfair consequences can only be done away with by legalization of consensual sex work and other relevant measures. Legalization of consensual sex work (hereinafter referred to as consensual sex work or merely sex work) in India is the only way to guarantee the protection of sex workers’ rights. The law must start by making a clear distinction between consensual sex work and trafficking or sexual exploitation, which it has not been able to do as yet. This will protect both sex workers and victims of trafficking.

Legalization will make sex work a recognized form of occupation and will enable a certain amount of regulation over the industry. Sex workers will be able to demand a mandatory payment of proper amount and structure from their customers, as there have been cases where customers do not pay up and have even been let off by the Court for the same. Sex workers will also be able to demand provisions for safe sex, such as the mandatory use of a condom if a sex worker desires.

Legalization will facilitate planned interventions for improving their conditions of work and life such as healthcare facilities. Legalization will also enable sex workers to avail educational opportunities as a majority of sex workers remain illiterate. It will empower sex workers to avail credit facilities.

Legalization will make consent necessary, and this will prevent forced rescue, rehabilitation and sexual violence against sex workers. Further, sex workers will be able to demand adequate rehabilitation policies and proper alternate fields of work, if they desire.

However, a mere change in law is only the beginning in the quest to end a history of entrenched marginalization and stigmatization of sex workers. A law can prescribe change but can rarely change deep-rooted mindsets on its own. A re-vamped, progressive law for sex workers’ rights must be accompanied by a change in mindset of the society at large. It is essential that society does away with age-old moral codes that only further harm already marginalized sex workers. The correct education about sex work and sex workers’ rights is essential. The correct and respectful portrayal of sex work and sex workers in films and media is also essential.

The Indian moral fabric that entangles the threads of sex work in ways that cause grave harm and injustice to innocent women is redundant and must be scrapped. In 2021, it is fair to expect law and society to be progressive about women’s rights and choices.

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