Nearly Three Years After the Supreme Court’s Landmark Judgment, Sex Workers in India Still Wait for Change
A sex worker deserves a billion times more respect than the mystical fraudsters of society, such as astrologers, psychics, and tarot card readers.” – Abhijit Naskar.
INTRODUCTION
In India’s red-light areas and the dingy corners of society, thousands of sex workers continue to live in the shadows despite a historic legal triumph to safeguard their rights. These workers have fought for decades for legal recognition, dignity, and protection from violence, but the ground reality for them has not changed. Exploitation, police harassment, and social ostracism continue to haunt their lives, leaving them open to abuse with little access to justice.
In May 2022, a milestone was reached when the Supreme Court of India, in the case of Budhadev Karmaskar v. State of West Bengal, passed a landmark judgment that declared sex work as a legitimate profession. The Court held that consenting adult sex workers should be accorded equal protection under the law. It emphasised the fact that law enforcement agencies should not harass or prosecute sex workers for simply practising their profession, observing that they should be treated with dignity as required under Article 21 of the Constitution, which ensures the right to life and personal liberty. This judgment was hailed as a progressive move in establishing the rights and autonomy of sex workers, making them entitled to the same legal protection as any other citizen But very much in contrast to the liberal mood of this judgment, the harsh reality is different. Sex workers all over the country still suffer from violence, discrimination, and illegal detentions. A 2019 report to the Committee on the Elimination of Discrimination Against Women (CEDAW) found that sex workers in India are abused by clients, the police, and society at large. The report documented cases of physical abuse, coercion, and police brutality, and sex workers had very limited access to justice and protection.
In addition to the legal hurdles, access to required services is a significant hindrance. Most hospitals refuse to admit sex workers, fearful of action from the authorities or swayed by deeply rooted prejudices. Social stigma around sex work also plays a role in excluding these workers, making it difficult for them to receive healthcare, obtain economic stability, and cope with the law.
These cases illuminate the growing chasm between legal decisions and their practical execution, prompting a vital inquiry: What value does legal recognition hold if it fails to manifest in genuine protection in the real world?
ANCIENT ROOTS AND CULTURAL SIGNIFICANCE
Sex work in India has been traced back to ancient days through Hindu mythology and historical literature. The Devadasi system, which was a venerated custom, soon turned into an institution of exploitation, coercing women into prostitution. In the Mughal period (1526–1857), Tawaifs and Mujra dancers were considered classy, performing before nobility and emperors. Jahangir’s harem had 6,000 concubines, representing power and status. The colonial era of Britain institutionalised sex work by opening brothels such as Kamathipura in Mumbai, which later emerged as a destination for Indian sex workers. Current red-light areas of major size are GB Road (Delhi), Sonagachi (Kolkata), Budhwar Peth (Pune), and Reshampura (Gwalior), and there are around 3 million sex workers in the country.
Though its roots run deep, sex work is still stigmatised and unregulated. Though not criminalised in India, restrictive laws drive sex workers to the periphery, exposing them to harassment by the police, abuse, and exploitation. Most are regulated into sex work under coercion or trafficking, in large numbers from Nepal and Bangladesh, and mostly minors. Trapped, they remain in a cycle of debt and violence, with few means of escape.
It is important to recognize sex work as a respectable profession to provide legal, social, and healthcare protection for sex workers. Without proper regulation, they are left to the mercy of brokers, the police, and social discrimination. Decriminalization and policy change can offer them protection from violence, access to justice, and respect as individuals, something all working individuals have a right to.
ENDURING CHALLENGES IN THE LIVES OF SEX WORKERS
Sex workers are often denied basic rights and subjected to harassment by the police, unlawful detention, and violence. They are discriminated against in terms of housing, health care, and legal protection. The stigma attached to their profession further stigmatizes them, leaving them open to exploitation and violence.
Human Trafficking and Compelled Prostitution
Most sex workers are initiated into the industry under coercion, trickery, or compulsion and become victims of human trafficking. They get entrapped in situations of exploitation without any recourse in law and are forced to perform their duties in subhuman conditions. Lack of education and poverty, leave women and young girls especially susceptible to such abuse.
Criminalisation and Inadequacy of Protection Under Law
Although sex work is not prohibited in India, ancillary activities like brothel-keeping and solicitation are criminalised. This partial criminalisation compels workers into unsafe environments where they have no legal protection. Without labour rights, they are still vulnerable to exploitation by clients, brothel owners, and law enforcement officers.
Health Risks and Denial of Medical Care
Sex workers are at great risk of sexually transmitted infections (STIs) because their work remains unregulated. Most of them do not seek medical attention for fear of persecution or prosecution. They lack access to health services, including reproductive and maternal health care, further worsening their already exposed status.
Social Stigma and Marginalization
The deep-seated societal prejudice towards sex workers is responsible for exclusion from society. They are refused elementary rights, and even their children are discriminated against at school. It is hard to rehabilitate them back into society due to stigma, which continues to isolate them further and makes them more vulnerable.
GLOBAL PERSPECTIVES
USA
Prostitution in the United States goes back to the colonial period when it was legalized instead of strictly prohibited. The government prohibited the importation of women for prostitution in 1875, and in 1902, the reports promoted better housing, medical care, and compensation for women rather than regulation. The Supreme Court initially discussed sex workers’ rights in Keller v. United States, where resident aliens could not be deported for prostitution.
The White Slave Traffic Act, or Mann Act, addressed forced prostitution and interstate trafficking. The Supreme Court affirmed congressional power to regulate these activities in Hoke v. United States, although it subsequently held in Mortensen v. United States that travel not for the purpose of prostitution was excluded. In 1913, the Bureau of Social Hygiene was formed to research and prevent social problems associated with prostitution, and the Chamberlain-Kahn Act authorised the government to quarantine women suspected of venereal disease.
Attempts at decriminalising prostitution have been met with varying degrees of success. California decriminalised prostitution in 2004, but San Francisco voted against it in 2008. Prostitution is currently illegal in most states, other than rural areas of Nevada. The new FOSTA-SESTA laws have also restricted online sites accessed by sex workers.
Germany
Prostitution was prohibited in early 20th-century Germany, but certain cities licensed health issues such as STDs. The Law of Combating Venereal Diseases legalised the practice in 1927, only to re-criminalise it in 1933 through strict control and massive police raids. By 1939, regulated brothels were required in all the cities.
The significant reforms in 2002 were the German Prostitution Reform Law, which eliminated the moral taboo, granted access to state health insurance and pension schemes to sex workers, and permitted them to sue clients in case of non-payment. Pimping was legalized with formal contracts. Still, a recent law ushered in more stringent regulations, registration requirements, and fines, which have been denounced by sex workers.
Britain
Britain regulated prostitution until Henry VIII’s Royal Proclamation ended official oversight. In 1866, the Contagious Diseases Act allowed authorities to detain, and conduct forced medical examinations on sex workers in military towns to control venereal diseases, though this was repealed in 1886.
The Criminal Law Amendment Act of 1885 aimed to safeguard women and young girls from brothels. Prostitution was subsequently decriminalized following the recommendations of the Wolfenden Report, while soliciting became illegal. The latest government report, Paying the Price, evaluated several legal approaches to controlling the industry.
LEGAL FRAMEWORK IN INDIA
In India, prostitution is not explicitly illegal and is not punishable by law. The Bombay High Court observed in Kajal Mukesh Singh & Ors. vs. The State of Maharashtra (2020), “There is no provision under the law that makes prostitution per se a criminal offence or punishes a person for engaging in prostitution.”
The Bharatiya Nyaya Sanhita prohibits definite activities related to sex work and sex work in general is not illegal per se. Soliciting services of sex work in public places, carrying out prostitution activities in hotels, owning brothels, and arrangement of sexual acts with customers are prohibited in the Act. Procuration, importing, selling, and buying of Minor girls is prohibited under sections 96, 141, 98, and 99 of BNS. In the case, Fateh Chand v. State of Haryana the accused was held guilty under section 366 IPC for procuring a minor for sex work. Immoral Traffic (Prevention) Act, 1956 states that sex workers are allowed to trade in private but not in public and that the clients can get imprisoned for not more than 3 months and fined if found guilty of engaging in sexual activity in a public place that is within the area of 200 yards of public space. Pimps who generally live from the income gained by any person who is indulged in sex work shall also be guilty even if a major man who lives with a sex worker shall be regarded guilty if he doesn’t prove his innocence. In the case, of Smt. Afjal v. State of U. P, the accused was held liable under the Act for running a brothel and detaining minor girls for sex work. A sex worker is also punishable under ITPA (1986) if found soliciting prostitution or even if found seducing any person. Further, they can be imprisoned for 6 months along with a fine if found that a sex worker is making their phone numbers public. The Act has the object of preventing immoral trafficking, soliciting, and other sexual crimes taking into consideration the morality of society, maintaining decorum in society, and providing rehabilitation to the women who are victims and have fallen into the profession by force.
Indian sex workers are guaranteed the same basic rights as any other citizen under the Indian Constitution. These rights are, however, frequently infringed upon owing to social stigma and police tactics.
- Right to Equality (Article 14)
Sex workers are entitled to equal protection under the law and should not be discriminated against. But they are often subjected to abuse by police, wrongful arrests under public nuisance laws, and illegal detentions, undermining their fundamental rights.
- Right to Profession (Article 19)
Sex workers can pursue their vocation as long as it is not against the law. Pimping, trafficking, and child prostitution are prohibited, but consensual sex work by adults is not criminalized.
- Right to Life and Livelihood (Article 21)
The right to life encompasses the right to livelihood, i.e., sex workers should not be deprived of their means of survival. Any effort to limit their occupation without legal reasons is a contravention of their constitutional rights.
- Right to Legal Remedies (Article 32)
Sex workers can go to court if their basic rights are infringed upon. No government agency can deny them access to legal remedies so that they can challenge discrimination, violence, or wrongful prosecution.
CONCLUSION
Sex work has existed in society for centuries, yet sex workers continue to face discrimination, victimisation, and legal uncertainty. Although various rights have been granted for their protection, violations persist due to social stigma, lack of legal recognition, and inadequate policies. An integrated approach is essential to safeguard their safety, dignity, and equal treatment under the law. Legalising and decriminalising sex work can provide sex workers with legal rights, improve their working conditions, and help prevent human trafficking by distinguishing between voluntary and forced involvement. Countries such as New Zealand, Canada, Argentina, and the Netherlands have already implemented such reforms, resulting in decreased crime rates and better healthcare access for sex workers. Stricter laws should be enforced against trafficking, coercion, and the exploitation of children, while allowing consensual adults to engage in prostitution without the fear of prosecution.
Ultimately, law enforcement must take reports of violence against sex workers seriously, uphold their rights, and avoid treating them as criminals. Access to healthcare, insurance, and social security should be prioritized, emphasizing STD prevention, safe working conditions, and improved housing. Membership in labour organizations and inclusion in employment contracts will help ensure their workplace rights and prevent exploitation. Additionally, a change in societal attitudes is necessary. Public campaigns can demystify and recognize that sex work is legal labour.
The right to dignity under Article 21 of the Indian Constitution applies to everyone, and sex workers are no exception, underscoring the necessity for social and legal reforms. Finally, recognizing sex work as legitimate work and establishing legal, social, and economic safeguards will benefit not only sex workers but also contribute to a more secure and equitable society.
Author: Kunal Singh, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.
