PROTECTING HUMAN RIGHTS AND AUTONOMY OF SEX WORKERS: INDIA LEAPING TOWARDS LIBERAL BREAKTHROUGH

By – Mayukh Parial (Author)

University of Engineering and Management, Kolkata 

Contact No. 7439445758

Email: mayukhparial@gmail.com

3rd Semester, 2022-27 Batch, BBA LLB (H)

                                                                                                                 & 

Sanchari Das (Co-author)

University of Engineering & Management, Kolkata

Contact No.  89675 70078

Email: dastitli168@gmail.com

3rd Semester, 2022-27 Batch, BBA LLB (H)

ABSTRACT

A profession is something that is practised by a person for a longer period of time without any discontinuance. Sex work is indeed a profession since time immemorial. Sex workers are people who sell sex as a service in return of monetary payment. Such people are not aliens or foreign when it comes to enforcing their fundamental Human Rights. Reiteration has been made of the fact that sex workers have their right to dignity and autonomy and they have equal protection under the legal framework under Article 21 of the Indian Constitution. Upholding the basic human rights of sex workers and advocating for the same is a sine qua non in India’s democracy. Sex workers are as much human as persons of other professions are and in all ways are inclusive of the society and its way of living. Turning a blind eye on them, cornering them in social strata or not letting them fend for themselves is indeed inhuman in view of the modern liberalistic approach. Human Rights violation is not a hot news to us, as it has been there but what is significant and has come to vogue is the recognition of rights of individuals dwelling in the sex industry. Sex workers not only in India, but also across the globe face a constant risk of abuse and marginalisation. The recent legal developments propose consensual sex work as nothing illegal and looks at it from a commercial business point of view devoid of any stigmatization or immoral taint to the profession. 

This paper therefore brackets the evolution of sex work as a profession and pinpoints crucial human rights of sex workers and how the same is jeopardized. It proposes discourses to eradicate social stigmas relating to prostitution. A comparative study of protective/preventive laws for ensuring rights of sex workers in India with contrast to the rest of the world has been detailed. The roles of Human Rights commission, NGOs and other authorities on this regard has been duly highlighted. The primary objective of this paper is to empower sex worker’s niche in society, their health, education and all basic human rights which needs to be addressed and if violated, redressed. Overall, in the research we concisely conclude on identifying curatives for upliftment of sex workers and their representation in the mainstream society.

Key words- human rights of sex workers, laws for ensuring rights of sex workers, roles of Human Rights commission, curatives for upliftment of sex workers

  1. INTRODUCTION

Adults who regularly or frequently receive goods or money in exchange for consensual sexual services or erotic performances are known as sex workers. In order to earn livelihood, sex workers choose this profession. This very profession, in the fast-growing world is considered as a taboo. And thereby withstanding a lot of hatred, these sex workers face numerous challenges in the society in order to survive. However, the sex work industry is flourishing just like other industries on the basis of demand. In the modern world where human rights have become an integral part of survival for any human, sex workers are somehow deprived of it. Human rights are those very essential rights which guarantees all the aspects of human survival, regardless of sex, culture, race, cast, creed etc. It is incorporated in the Constitution of India as well as in the Universal Declaration of Human Rights, to which India is a signatory. As the law progresses with the society, laws in India have developed accordingly to provide a better life to these sex workers. Earlier “prostitution” was criminalised and for that the health of sex workers had been compromised not only that, it was more difficult for prostitutes to bargain with customers, collaborate with other prostitutes for protection, and carry condoms without worrying that they’ll be used as proof of prostitution. They suffered violence and harassment in connection with their work. De-criminalisation of prostitution and naming it as “sex work” has created a healthy environment and safety for sex workers. But is the mere presence of laws helping out these sex workers in living a dignified life with experiencing all the benefits of the Rights they have? Sex workers are deprived of their human rights despite the enumeration of laws.

  1. EVOLUTION OF SEX-WORK

The British began to impose their own social constraints on some women, transforming the concepts of femininity, sexual liberation, art, and culture into concepts of devotion, bhakti, etc. Additionally, as colonialism and feudalism declined, these women began to be mistreated by temple priests. Consequently, they become more susceptible to poverty and sexual exploitation. This is among the most traditional forms of prostitution that exist in India. During the Mughal era kings and ministers used women simply as a sex object. This even continued during the British reign where women were mere objects to fulfil their desires related to sex. There were separate group of women for this purpose and their heirs continued this sex work. Because prostitution was their only option for earning money and they were impoverished, this eventually led to the exploitation of women. Under the head, known as devdasis, were prostitutes who were raped and used for sex while being devoted to the gods and abandoned at temples. Eventually, men even began to trade their wives and kids for money or sex, which paved the way for human trafficking. Even at one point of time, there were a lot of brothels with a group of girls who were willing to entice men to have sex, and the owners were either men or women.

  1. DIVERGENCE BETWEEN SEX WORK AND SEX TRAFFICKING 
  2. Sex work

Sex work is something where a person indulges in the same willingly for sale of sex services which is not forced. Sex trafficking is the term used to describe the sale of sex through coercion, abduction, or threats of violence. To some women sex work is something by which they can earn money in an easiest way and most quick way. To them it is a way of earning livelihood and not a forced occupation.  

  1. Sex trafficking

Sex trafficking on the other hand is the term used to describe the sale of sex through coercion, abduction, or threats of violence. Human trafficking forcefully turns human beings into commodities. When someone else’s rights and dignity are violated, someone benefits. The victim of human trafficking has no agency; they are merely a commodity in a multibillion-dollar market. In one study of women who were prostitutes in nine different countries, researchers discovered that 89 percent of the women expressed an urgent desire to leave prostitution, due to trafficking, and 70–95 percent of the women had experienced physical abuse and 60–75 percent had been raped. Since sex work is not accepted as legal employment in India, over 800,000 sex workers are unable to receive this benefit. Sex trafficking is a severe issue which actually is a major reason for the violation of human rights of the sex workers. Over 8 lakh women work as prostitutes in India, according to the National AIDS Control Organisation (NACO). The National Crimes Records Bureau Report 2020–21 shows that over 6000 of these women have experienced physical violence and other forms of abuse. Trafficking takes place through coercion, false promises, marriage bondage etc. Many girls are sold by their own family members like husband or parents for money and forced to indulge themselves in sex trade. Marriage bondage is another form of coercion forced to traffic women in sex trade. Traumatic bonding is another technique, in which the victim is made to feel both profound fear and thankfulness for their continued existence. At $32 billion a year, the world’s sex trade is the fastest-growing industry in terms of commerce. Actually, after the sale of weapons and drugs, human trafficking is the segment of organised crime with the quickest rate of growth and generates the third-highest revenue. Unlike the profits made from drugs and other narcotics that are sold and used only once, the profits earned by women and girls sold into sex trafficking are earned over a long period of time for their pimps and traffickers, which is what makes this business unique.

  1. THE HUMAN RIGHTS FRAMEWORK

As per both international and national aspect, it ensures respect for everyone’s right even for the sex workers. Sex workers are entitled to all human rights, which States are obligated to uphold, defend, and enforce. The enjoyment of the specific rights to one’s health, the ability to support oneself through employment, and safe working conditions—while acknowledging that all rights are “indivisible, interdependent, and interrelated”—without discrimination is crucial for the welfare of sex workers. The most fundamental liberties and rights, which form the basis of all human rights, are especially pertinent here. The particular liberties stem from the classical conception of liberty, which includes consent and respect for individual autonomy. Consent is fundamental to all rights, but its definition has been thoroughly explored in the context of the right to health and the right not to be subjected to torture. Sex discrimination policies reinforce negative stereotypes about women, such as the belief that no woman wants to sell sex and that those who do should be discouraged, and that women are passive and in need of protection. These liberties constitute the cornerstones of a system that upholds human rights, along with rights like affected communities’ involvement in decision-making and access to remedies for rights violations. The basic human rights are necessary for all human beings and even for sex workers too. According to one count, the prostitution industry generates $8 billion annually, with 275,000 brothels and more than two million prostitutes. There are as many as 10 million commercial sex workers in all of India, according to another count. Truck drivers, migrant labourers, and other men who have spent extended periods of time apart from their families have historically made up the majority of their clientele. Criminalisation of sex work results in violation of their rights and it makes them face a lot of abuse and humiliation. Despite the increased risk of sexual and physical abuse, theft, human trafficking, and murder for sex workers, police frequently show little concern for their reports of crimes against them. When attempting to assert their rights as parents, workers, tenants, immigrants, victims of crime, or defendants, sex workers encounter discrimination from the legal system. When sex workers lack the protection of safety by law, they become afraid and by no choice are left to be the victim of trafficking. The most vulnerable people are further away from aid and the commercial sex industry is driven underground by aggressive campaigns to arrest and convict sex workers. Street labourers who fear police violence will start working in more remote areas where client or stranger assaults are more likely to happen. Sexual labourers who are dependent on traffickers or other abusive third parties for protection are more likely to associate with these groups of people. Children who reside in Red Light Areas also have difficult lives. They are mistreated and subjected to discrimination as a result of the stigma associated with their mothers’ occupations. The rights of sex workers need to be protected because they are one of the most stigmatised and marginalised groups in the country. Fear of the police prevents sex workers from reporting crimes they witness or experience, such as human trafficking and that’s when they are deprived of their basic human rights.

  1. Health is a basic human right

 As per the Universal declaration of human rights, “the highest attainable physical and mental health standards” are basic human rights. Sex workers being humans should be able to access comprehensive health care with reproductive care. Sex workers are one of the major patients of HIV/AIDS and STDs due to negligence of their health care. Article 21 of the Indian Constitution guarantees ‘Right to life’ where health is a crucial aspect, and as per Article 19 of the Constitution of India which secures ‘Equality’ sex workers are guaranteed with the same to. Under Article 25 of the Universal Declaration of Human Rights, everyone has the right to standard of living which includes health as a prime concern. Sex workers are deprived of their right to health due to the society which treats them inhuman as well as by some aspect of law which however leaping towards a liberal break-through. Lack of non-stigmatizing programmes for syringe and needle exchange, as well as treatment, increases the burden of common HIV comorbidities like hepatitis B and C for sex workers who also inject drugs. In addition, there is a higher chance of poor mental health, social exclusion, and violence—including homicide, which is an all-too-common cause of death for those in the sex industry. Given these health hazards, sex workers’ lives and health need to be supported and protected. Compared to those who had not experienced repressive policing, sex workers who had experienced it were 1.5 times more likely to have sex with a client without a condom, twice as likely to have HIV or another STI, and three times more likely to have incidents of violence (sexual or physical, by any party). Based on a review of 14 studies conducted between 1987 and 2013, which examined the prevalence of HIV in 3975 adult female sex workers overall. Out of the 14 studies, only two were carried out in the previous ten years. HIV prevalence was estimated pooled to be 17.3% (95 % CI 13.5–21.9 %), in US. 1.6% of Indian female sex workers were thought to be HIV positive in 2017, however state-by-state variations exist (for example, 7.4% of sex workers in Maharashtra were estimated to be HIV positive). Sex workers are, in fact, considered to be among the groups most at risk for HIV. Compared to adults who do not work in the sex industry, sex workers have an average 13-fold increased risk of HIV infection. Avoiding health care services and having less access to HIV testing and services have been related to police presence and fear. Moreover, when The Universal Declaration of Human Rights as Well as The Constitution of India guarantees such right, sex workers are still deprived of the same.

  1. Education of sex workers 

Education is the means of eradicating all types social evils, unethical thinking, superstitious beliefs etc. It is a means by which people gets aware of the happenings around them. Sex workers being naturally human, umbrellaed under the constitution deserves to be treat equal and are ought to have right to education. By education, they could learn about the basic alphabets and laws protecting them. They could know about their rights and provisions and claim relief against any distress they suffer. According to study many women are trafficked unknowingly and they are not aware due to lack of education. 

Children are considered to be the future of the upcoming generation. The children of the sex workers face a lot of struggles in life including in the field of education, health or social status. People see them in a different way, treats them in a different way and sometimes they are the victims of trafficking and abuse. As per human rights organisations, nearly half of the indentured servants in Bombay are trafficked from Nepal, accounting for approximately 90% of the prostitutes in the city. Daughters of certain families are sold into prostitution. Children are also provided by prostitution rings in India to clients abroad, especially in the Middle East. Between 5,000 and 7,000 new girls, typically between 10 and 20, arrive every year, adding to the estimated 200,000 to 300,000 Nepalese women who have been sent to India as sex slaves and prostitutes. Traffickers who sell the girls for as little as $1,000 apiece bring many of them. The majority of the time, prostitutes lack the funds to cover their school fees; if they do, they are instructed to make alternative payments, and the children suffer for the same reason. Giving them access to free education and skill-building opportunities will be a helpful step in helping them escape this cruel situation and improve their standing in society. As already discussed, that the constitution of India enumerates fundamental rights to every citizen of the country and under Article 21if the Constitution of India right to live with dignity and personal liberty is applicable for each and every human. Under Article 15, the Government may make special accommodations for children (3). Additionally, Article 24 forbids children from working in any hazardous industry, while Article 23 attempts to shield children from abuse and human smuggling. Part IV of the Indian Constitution contains the Directive Principles of State Policy (DPSP), which state that the State must protect children from material and moral abandonment and offer opportunities and resources for their healthy development. As per Article 15(3), children born in the red right area are considered to be in a different category and require mainstreaming to safeguard their childhood. Although the State has the authority to undertake this task, it has not been carried out thus far. Because of the social boycott of children born in red light areas (i.e., the children of prostitutes), traditional thinking views “prostitution” as a criminal act that violates Article 17’s guarantee against untouchability. Natural justice principles are violated by untouchability, which aims to degrade human dignity and cultivate feelings of inferiority. Untouchability also includes denying and depriving children of prostitutes of their fundamental rights and classifying them as illegitimate and unfit to remain in society.

  1. NAVIGATING THE CAUSES FOR SEX WORK IN INDIA

No one is born with the tag of sex worker from the inception of life. A child when born never decides that he/she would become a sex worker. Due to various stigmatic reasons and socio-economic conditions he or she is induced and imposed with this business. When we do a comparative study, we come to observe 94.6% of sex workers are Indians out of the total sex worker count in the world. 60% of them come from SC/ST/OBC strata of the society and 70% of all sex workers are illiterate. The rest come from privileged families and society. The causes for sex work continues to be an ambiguous topic for discussion and the reasons for the profession to be carried on is quite complex and abstract. Economic crisis, poverty and debt are the key driving factors majorly attracting women in this profession as they’re born and brought up in brothels and due to lack of educational facilities, they adopt the tradition of the family. Several women are kidnapped, caged and forced into this business by criminal organisations and politicians, whom we so worship as figurines of the society play a corrupted role in the furtherance of prostitution industry. One might have been deceived by their lover, couldn’t find any more option to support the needs of their poor family and in the fear of getting back to the mainstream society they carry on revolving in the vicious cycle. If we look at this from a different perspective, we’ll find many sex workers are voluntarily agreeing to offer services as the industry is quite lucrative. An elevated class of sex workers, often girls coming from opulent societies, actresses and models termed as ‘escorts ‘literally work in expensive hotels and they sign contracts for the same. Majority of sex workers try to leave the flesh trade and leave the industry but they are unable to do so as they lose their alternative sources of income, livelihood and criteria to be appointed for a different career. Moreover, last but not the least cause of sex work, is the ignorance and lack of stringent legislation for the upliftment and rehabilitation of sex workers. The Government seems to turn a blind eye on them and merely sympathizes with them, instead of playing it ‘ Parens patriae ‘ role with efficacy.

  1. Sex work as a profession in India

In India, when the subject of sex work is brought forward, it hits the ethical implications first rather the legal prospectus. In almost all the cultures in India, sex work is considered to be an insult, most vulnerable work, and believed to be a taboo. Flipping to the world scenario and development of thoughts towards modernisation, sex work is to be considered as a profession like other profession. Proponents of sex workers’ rights argue that legalising prostitution would protect women from harm, halt the spread of sexually transmitted diseases, and give sex workers greater security and control. The topic of prostitution has recently gained attention due to a ruling by the Indian Supreme Court. In 2018, the court called on the government to intervene in order to end the mistreatment of women who work as prostitutes. The court also recommended that the government consider legalising prostitution in some areas while upholding strict regulations. As a result, the government has moved to reduce the mistreatment of female prostitutes. The Indian government has recently moved to legalise prostitution. The Ministry of Women and Child Development released a policy in 2016 to protect and govern the legal rights of sex workers. However, the legislation is still not a law.

The moral ramifications of prostitution in India will surely come up for discussion for some time to come. Whatever one’s opinion on the matter, it is clear that protecting women and girls from enslavement requires upholding anti-trafficking laws.

  1. Challenges faced by sex workers in India

During a six-month period, 92,838 incidents of sexual, emotional, and physical violence against women were reported by 24,815 women, or 22.7% of the total. The survey was conducted in five states: Maharashtra, Andhra Pradesh, Telangana, Tamil Nadu, and Karnataka. With 39,832 incidents recorded, physical violence is the most common type of violence, followed by emotional (35,887) and sexual (17,119).

  1. Health of sex workers in India

Sex workers in India live in worst environment and indulges themselves into various health problems. The data indicates that because Indian sex workers are less likely to get tested, they are more likely to contract STIs, including HIV-AIDS. As per the Department of AIDS Control’s annual report for 2013–14, among key risk groups, female sex workers in India have the third highest HIV prevalence.

  1. LEGAL FRAMEWORK IN INDIA PERTAINING TO SEX WORK & WORKERS   

Safeguarding the human rights of sex workers is the prerogative of our State. There’s a plethora of laws present in India concerning the welfare regulation of sex worker and prostitution profession in India. But most of the time they are used against the sex workers and even if that is not so, implementation of such laws is open to speculations and is has ambivalence intrinsic in its execution. The primary legislation in our country regarding the sex work profession is The Immortal Trafficking Prevention Act ,1986 which itself stipulates that sex work professed privately and without solicitation in open public is not an illegal activity per se. Section 2(f) of the Act defines sex work as exploitation of a person sexually or abuse whereby the person providing such services is commercially benefitted. Even though the profession practiced independently is not illegal but ITPA, 1986 criminalises several attached activities tied up with it such as the following:

Maintaining a brothel or permitting property to be used as a brothel is punishable under Section 3 of the act.  Anybody who relies on their earnings from prostitution is subject to penalties under Section 4 of the act. The family members are not even excluded from this section. The act’s Section 5makes it illegal to obtain, coerce, or take someone for the purpose of prostitution. Anyone who detains a sex worker in a brothel or any other location where prostitution is practised is subject to penalties under Section 6 of the act. Prostitution that occurs in or close to public areas is prohibited by Section 7 of the act. Any heavily populated area, hostel, place of public worship, school, hospital, assisted living facility, or any other location that receives notification from the state government, commissioner of police, or magistrate is considered a public place. Sex workers who seduce or solicit someone with the intention of prostitution are subject to penalties under Section-8 of the act.

The Indian Penal Code, 1860 prohibits kidnapping and child prostitution in addition to dealing with prostitution. Sections 372 and 373 of it make it illegal to import, buy, or sell minors for the purpose of prostitution. The IPC’s Sections 366A, 366B, and 370A address the penalties for the offences of using a minor girl for sexual purposes, importing a girl for sex, and exploiting a person who has been trafficked, respectively. 

Article 23(1) of the Indian Constitution forbids the trafficking of persons, the use of beggars, and other comparable forms of forced labour; any infringement of this clause will be punished under Article 23(2). The laws in our nation make it difficult for sex workers to live lives free from the worry of being caught. It has made prostitution far worse rather than lessening it. Sex workers are constantly in danger of getting involved in dangerous situations. Every human being has fundamental rights, as stated in Articles 14 and 19-21. In that sense, sex workers are not aliens. Sex workers are human too and should live with dignity, the Supreme Court ruled in the case of Budhadev Karmakar v. State of West Bengal

The ITPA is more focused on outlawing prostitution than it is on reducing the unethical trafficking of persons. The police, who are primarily corrupt, mostly ignore moral policing in the prostitution industry, and the government lacks the initiative to assist sex workers.

  1. MORAL IMPLICATIONS OF THE “SEX TRADE” AND SEQUEL REPERCUSSIONS ON THE SEX WORKERS & THE SOCIETY:

India is a country with high moral scruples and tenets deeply envisaging virtuous beliefs. Sex Trade in today’s world scenario and liberalisation of thought coming along with it, vests us with the duty to weigh the pros and cons of the profession without attaching any significant tenets of the precedent era. A woman has her right to bodily autonomy and it’s a matter of freedom and privacy of her decisions pertaining to how she’d use her body for sexual desires to be met [ Lawrence V. Texas]. No sex worker can be harassed taking the defences of religious conservatism as long as derogation of the morality, cultural values and novelty of the State is at stake. A distinction needs to be made between trafficked prostitutes and sex workers. The former is coerced into the game while the latter consents to do what she thinks would suit her as an apt profession. Doctrines of natural law and sacramental texts have considered prostitution as evil and defiled in nature. But this needs to change. Our parent legislature itself vests fundamentals rights under Articles 19,21 and grants liberty to sex workers. Adjudging the metric of moral assessment of sex trade carried on as a profession is not our duty. Morality has no aesthetic criterions, its subjective and opinionated in nature. The very society which doubts the sanctity, purity and verity of normal life of sex workers never fend for them or for their betterment. It’s crucial to realise everyone entering the profession is not a victim of rape and incest or abusive treatment in family or are psychological patients of greed, dejection or lustful physical pleasure seekers. The conventional thought of the society revolving around sex workers should change. The abuse that sex workers face should be abjured and eliminated and no legislation can do so until and unless we, the society renounce malicious mentality and treat sex workers as humans and not toys to be played with. Ensuring the sex workers safety, dignity and security is an inalienable duty of the community and the latter should toil for it. If sex workers are considered as polluted and the profession to be degenerated by the society, then it is quite contradictory and dichotomous when such “torchbearers of morality “knock the gates of the butcher for meat and then resort to the Churches and Temple to confer religious duties and obligations to God.

  1. CONCLUSION: MAKING A DIFFERENCE IN LIVES OF SEX WORKERS 

India has been leaping towards success and it paces forward to become one of the most progressive nations of the world but the battle to recognise the human rights of sex workers continues. Even though the various rights have been unveiled, their implementation hasn’t been quite to the mark. Sex industry is not always controlled by pimps and criminals. The vulnerability of sex workers is due to the impotency of the government to provide for the resources they need for reintegration in the society. The epitome of patriarchy is the root cause of the continuance of violence against sex workers and leaving them socially marginalized. Sensitization of law enforcement officers and judiciary to check against the abusers and pay heed to the unheard voice of the sex workers is necessary. Focusing on targeted schemes for the betterment of sex workers and their profession starting from safety and health schemes to violence rescue schemes can be crucial for their upliftment. Sex industry is not how it has been portrayed grotesquely in movies. Support of psychologists, different women NGOs in educating sex workers and counselling them, National Human Rights Commissions in assisting molested sex workers to enforce their rights is instrumental to serve the ends of welfare. Technology is at its peak of proliferation and should be exploited in a good way so as to make helpline services and emergency numbers available to sex workers, frequent raids to brothels by the police to ensure its security and employing more surveillance over red light areas can make it safer for sex workers to operate. Exclusion of sex workers is not an option. They are as much humans as we are. The society should strive in bringing them at par with the mainstream community and make them feel belonged. There have been multiple instances where women coming out of Kamathipura and other red-light areas have achieved major success in life in professions other than sex work. The Government not only should bring up legislations but also should ensure policies and brainstorm strategies by collaborating with sex workers to come up with ways to represent them in Governmental office, in the Parliament as members and reserve offices for them in governmental jobs and posts of public service.