What’s illegal about sex work?

Legalisation and decriminalisation are the two standard approaches to sex work in India. The third approach – of sex work as a human right – has been advocated by sex workers themselves over the last decade, as they negotiate with the state to recognise and guarantee their right to full and equal citizenship


Debates on sex work in India have been fraught with either conservative or moralistic arguments, with policy responses invoking criminal law or the need to check the spread of the HIV/AIDS pandemic. These approaches are premised on faulty assumptions and don’t capture the many realities of the lives of women in prostitution and the nature of their rights claims. The popular myths around sex work need to be busted, the confusion that persists around the debate about sex work needs to be addressed.

Prostitution is not illegal in India

One of the most popular debates on sex work is whether or not the practice should be legalised. What is ignored is the fact that legalising prostitution arises only when the practice is illegal. Under Indian laws -- the Indian Penal Code, the Immoral Traffic (Prevention) Act (ITPA) and a gamut of state-level laws – prostitution per se is not illegal. The law does not prohibit an individual from engaging in sex for money. What the law makes criminal, inter alia, is trafficking in women and children for the purpose of sex work, soliciting in public for sex work, and living off the income of a sex worker.

There are different positions within the discourse on sex work about its engagements with the law. We generally tend to assume that two such approaches -- legalisation and decriminalisation -- are one and the same.

Decriminalisation refers to getting rid of the criminal law when it comes to sex work. However, human rights violations like coercion, violence or abuse by the brothel-keeper, pimp or client must be addressed by the criminal law, as is the case in any other situation of harm to an individual. Decriminalising does not legitimise the role of the brothel-keeper or pimp, but it recognises the right of the woman to be in the practice of sex work and to be free of violence and stigma.

Legalisation is similar to decriminalisation insofar as it asks that criminal law be kept out of prostitution. But it falls back on the state to recognise prostitution officially and regulate it through zoning, licensing and mandatory health check-ups. While legalisation at one level looks like it is supporting the rights of sex workers, in fact it is not. The shortcomings are that the state becomes the ultimate arbiter of the rights of sex workers and can withdraw licences any time it wants to. Such a step only strengthens state control over the lives of sex workers. Further, legalisation would lead to bureaucratising the entire system of licensing, where some sex workers might not even have or be granted licences on grounds that the state deems fit. Such sex workers can then be arrested on the basis of not possessing a licence. It is the police raj that threatens the lives of sex workers perpetually; legalisation would compound that with the imposition of a licence raj, allowing a free hand to both the police and government officials to oppressively regulate the lives of sex workers.

A third and widely accepted position within the discourse on sex work is the human rights approach which holds that one should get rid of the criminal law completely from sex work and have a permanent human rights standard, that is the right to free speech, the right to liberty, the right to retain custody of your children, minimum remuneration and, most importantly, the right to sex work as a human right, to protect you from police and state harassment. The significance of this approach is that it entitles sex workers to basic and fundamental human rights as every other woman, in addition to special rights like the right to solicit, the right to recognition of your family as a family. And, it entitles you to state benefits regardless of whether there is a man or not.

Trafficking is not the same as sex work

Trafficking and sex work are often conflated categories. Governmental, international as well as civil society responses have imagined that all trafficked women are forced into sex work, and if someone is a sex worker she must have been trafficked. This is a popular misconception and such a conflation is detrimental to any step towards securing the rights of sex workers.

Trafficking is a process of ‘illegally’ transporting people within and across state boundaries. The process of trafficking is coerced and those being trafficked, especially women and children, face grave forms of human rights violations in transit and beyond. Trafficking of all kinds and for all reasons should be made criminal.

Trafficking and sex work, however, are wrongly conflated. This understanding progresses on an assumption that if women get trafficked, they are always forced into sex work. This has three major fallouts: one, it invisibilises the many other occupations that trafficked people, especially women, might take up; it denies women the agency that they can exercise to move on their own; and it does not address the violence and abuse women might face in the process of being trafficked.

Unfortunately, the anti-trafficking laws regime does not address the reasons why people are forced/coerced to move illegally -- it only restricts people’s right to move in the hope of stopping trafficking in people. Such a move weighs heavily on the rights of women through the imposition of protectionist measures. It has made states impose minimum age limits for women workers going abroad for employment. In 1998, Bangladesh banned women from going abroad to work. The Nepal Foreign Employment Act 1985 prohibits employment licences for women to work overseas without the consent of the woman’s husband or male guardian. The consent of women who move or are moved across borders is largely considered irrelevant by the United Nations Protocol on Trafficking 2001 and the South Asia Convention on Trafficking 2002. As pointed out by feminist legal scholar Ratna Kapur: “Such measures conflate women’s movement or migration with trafficking, where even women moving, illegally or legally, to seek higher wage work are suspected of being trafficked.”

Consensual or coerced?

The most contentious debate surrounding sex work is whether women can ever consent to engaging in sex work. The argument raised by many is that the act of taking up sex work has two binaries: either the woman was coerced and therefore trafficked, or, even if she has exercised choice, it would hardly be considered a choice because it would always be exercised under duress -- of extreme poverty or deprivation.

This argument is used in the case of Third World countries where there has been an unprecedented increase in the ‘feminisation’ of poverty and migration, thus leading to the assumption that since women are moving because of poverty, in essence it is not choice that they are exercising but circumstances that are forcing them to move or get trafficked. Here it is important to understand that the notion of ‘complete’, ‘free’ and ‘informed’ choice is simply an elusive perception, applicable to all walks of life, and sex work is not an exception. All of us make choices in circumstances where we choose from amongst the best possible options. The same is the case for sex workers, where the grey area between the binaries of coercion and consent comprises a space where women choosing sex work negotiate between the options that they have and opt for sex work as the best possible choice.

“Lives of women in prostitution are lives like any other, including pain, exploitation, victimhood, and coercion as well as pleasure, empowerment, agency, and choice. A woman can choose to enter prostitution and still face coercion from a client, or she can be forced into prostitution and yet assert her agency in refusing a client,” observes Bishaka Datta, who made the film In the Flesh in 2002, documenting the lives of three sex workers. “Choice and force are not mutually exclusive positions; rather, both are situations that a sex worker can encounter and has to negotiate -- like any other woman,” she adds. It is this ‘choice’ that women in prostitution exercise that needs to be recognised and respected.

HIV/AIDS and sex work

The primary argument for ‘legalisation’, as many understand it, is thought to be the protection of women from sexually-transmitted diseases and HIV/AIDS. This follows a known trope where such state intervention identifies women as the primary vectors for the spread of the disease.

This approach attempts to arrest the spread of HIV/AIDS by enforcing mandatory health check-ups to protect clients, such that the ‘good’ women from the families where these male clients come from do not contract AIDS. “In such HIV/AIDS interventions, the male ‘bridge population’ is the primary focus, since it forms the ‘unholy’ link between the ‘sanctified’ space of the family and the ‘evil’ space of the brothel. The understanding is that those who engage in any activity within this illegal/immoral space do not require any protection, be it the client or the sex worker -- unless the client is married,” points out Meena Seshu, renowned HIV/AIDS activist and recipient of the 2002 Human Rights Watch Award.

The idea then is to stop HIV/AIDS from leaving the ‘bodies’ of sex workers, and through married male clients finally reaching the good/loyal and chaste wife in the family. This is done through mandatory health check-ups and surveillance instead of creating enabling conditions that would help sex workers protect themselves against contracting the disease from clients who come to them. Wrongly identifying sex workers as a community that is solely responsible for the spread of HIV/AIDS stigmatises them and makes them more vulnerable to the disease.

Indian experiences of collective resistance

The ‘popular’ discourse around sex work seems to borrow statistics from all over the world to establish how ‘legalisation’ leads to legitimising prostitution, which is, in turn, understood as a grave form of violence against women. Relying on international statistics does allow for a comparative analysis of the approaches, but it completely ignores the voices and experiences of sex workers in India who have been struggling hard and negotiating with the state to recognise and guarantee their right to full and equal citizenship.

There have been remarkable developments in the area of sex workers’ collectivisation in India, with two of the world’s most well-known sex workers’ collectives -- the Durbar Mahila Samannaya Committee (DMSC) in Kolkata and the Veshya Anyay Mukti Parishad (VAMP) in Sangli -- that have established exemplary best practices on sex workers’ rights to health and healthcare. These collectives have been almost unanimously campaigning for the decriminalisation of soliciting and an end to police brutality, and among others, rights claims to better working conditions and freedom from police torture and abuse. The process of forming these collectives has happened through rights-based approaches where the voices and demands of sex workers have been primary.

‘Only Rights can Stop the Wrongs’

This was the campaign cry of women at the 1998 Sex Workers’ Conference in Kolkata’s Salt Lake Stadium, where women in prostitution from all over India gathered to articulate concerns and demands about their human rights and to celebrate and break out of their position of imposed victimhood. This was the first-of-its-kind meeting held in India. It has been a long time since 1998, and the struggle to claim their rights continues.

In recent times, governments in India and the Global South have been required to take cognisance of the 2003 United States Leadership against HIV/AIDS, Tuberculosis and Malaria Act (Global AIDS Act) and the Trafficking Victims Protection Reauthorisation Act (TVPRA). The US Global AIDS Act bars the use of federal funds to “promote, support, or advocate the legalisation or practice of prostitution”. As a report by the Centre for Health and Gender Equity in the US points out: “Organisations receiving US global HIV/AIDS funding also must adopt specific organisation-wide positions that explicitly oppose prostitution and trafficking. Such funding restrictions force organisations working in public health from Southern countries that heavily rely on US funding to comply with an ideological litmus test that often runs counter to both public health practice and human rights standards.”

Women in prostitution, some of whom have been trafficked, are among the most marginalised people in any society. The report further notes: “The organisations with the most effective anti-AIDS and anti-trafficking strategies build their efforts on a sophisticated understanding of the social and personal dynamics faced by marginalised populations, and start by building trust and credibility among the populations in question. They recognise that it is both possible and often necessary to provide social, legal and health services to women in prostitution without judging them, and without adopting positions on issues such as prostitution. They may work to provide persons in prostitution with new skills essential to moving out of the commercial sex sector, to secure the legal rights of women in prostitution to be free from violence and discrimination, or to empower them to demand universal condom use, thereby preventing the further spread of HIV infection within and outside this sector. They may also work to prevent people from being trafficked into the sex sector and to assist trafficking victims.” Requiring organisations to adopt these policies makes it extremely difficult, if not impossible, to establish the trust necessary to provide services to these hard-to-reach groups.

For instance the Sonagachi project in Kolkata, India, has reached more than 30,000 persons working in the commercial sex sector at risk of HIV, in large part through peer-based outreach services. Sonagachi’s peer educators work to stop the spread of HIV among women and men in prostitution, in part through strategies intended to earn their trust, reduce their social isolation, increase their participation in public life, and confront stigma and discrimination. Sonagachi’s work has received strong positive evaluations from both UNAIDS and the World Bank, and has been cited by UNAIDS as a “best-practice” model of working with women and men in prostitution. These initiatives focus on promoting the fundamental human rights and health of persons working in prostitution, but do not equal the promotion of prostitution. Yet, valuable programmes such as those run by Sonagachi and organisations like it are exactly the type threatened by current US laws and policies.

Thus, while an amendment is being brought in the ITPA to decriminalise soliciting in public, a cruelly regressive step accompanies it -- that of booking clients under criminal laws. This is simply hogwash on the part of the government, which continues to disregard the intensity of the stigma that sex workers face in their everyday lives due to the violence of the law. Most importantly, such a move continues to be premised on the consideration that sex work and brothels are ‘evil’ spaces. The attempt remains to arrest HIV/AIDS and other STDs from reaching the ‘good’ wife of the male client in the family. Such responses, regulated by US funding, do not in any way work towards recognising the citizenship status of sex workers and guaranteeing their human rights, but treat them as agency-less ‘bodies’ which need to be incarcerated or else rescued and rehabilitated.