Sex work – legalise or decriminalise?


The debate over legalising sex work in India is a long-standing one. There are many supporters for the legalising option, though Kamayani Bali Mahabal thinks differently. According to her, it is more prudent to bring sex work under the purview of the labour department and decriminalise it. She gives the reasons why.

Sex work has traditionally been seen as a form of violence against women. Over the last two decades, however, the global sex workers’ rights movement has consistently argued that while there is violence within sex work, the exchange of sexual services for money is not in and of itself, violence. Consensual adult sex work does not constitute violence .The present law is meant for prevention of trafficking and makes no sense for adults voluntarily working as sex workers.

There is no relation between solicitation and being forced into the trade. When these women are forced to evacuate their houses, they go to ‘rehabilitation centres’ or undergo medical tests which amounts to violation of basic human rights. While sex work has traditionally been seen as the most extreme manifestation of patriarchy, sex workers rights groups argue that sex work also challenges patriarchy. In deconstructing patriarchy, it is vital to talk about institutions that control sexuality. We also need to talk about the sacred space of sex. The engagement of feminists on the so-called ‘sacred space’ of sex is very limited. Sex is looked down upon, but anything in the name of love is considered kosher.

Legalising sex work

The National Commission for Women (NCW) chairperson, Lalitha Kumaramangalam, is advocating legalising sex work to regulate the trade and ensure better living conditions for women engaged in commercial sex work. According to her, it will also bring down trafficking and lower the incidence of HIV and other sexually transmitted diseases.

But what will really happen?

Sex work is often seen through binary lenses – sex work out of necessity is considered legitimate, but not sex work for any other reason. Everything around sex work has been so maligned and stigmatised that violence around it is very high. Violence exists in both marriage and sex work, but marriage is not itself seen as violence—sex work is. Neither are married women maligned the way sex workers are.

Women in sex work cannot be put into a box. The fact that a majority of adult women in sex work consent to it, is disbelieved and ignored. The understanding that trafficking is synonymous to sex work has also dodged the strategies by policy makers, who insist that all women in sex work are victims of trafficking. Not all the women in sex work are trafficked and not all trafficked women are in sex work.

A regulated framework permits some forms of sex work, but not necessarily all forms of sex work. It requires sex workers to register with the government and have licenses to do sex work, but many sex workers choose to work privately instead of registering because of the social stigma attached to it. This will result in a separate class of sex workers who continue to work without licenses and are thus denied access to redress when faced with violence, abuse and rights violations. India has a vast number of home-based, part-time, and hidden sex workers who will become criminalised in such a regulatory regime.

Only certain forms of sex work will be permissible under the law. Law enforcement will be tasked with the process of licensing and monitoring of sex work practices. For instance, a study on the legalisation of sex work in the Netherlands concluded that the police play the most important role in monitoring the licensed sector, and in carrying out inspections. In the context of India, such a regime can only lead to further rights violations for sex workers, especially those who wish to work in private without the license.

A licensing system will also result in curbing the right of sex workers to move freely for their work within the country. Since licenses will be issued only for a specific area or zone, any sex worker working outside the designated zones will be liable for prosecution.

Mandatory health checks required in a regulatory framework will further perpetuate the stigma against sex workers, while failing to address the HIV epidemic in a meaningful manner. Singling sex workers for compulsory HIV testing or health check-ups will perpetuate the stigmatising notion that sex workers are vectors of disease. Mandatory health check-ups have been recognised by UNAIDS, and the Office of the High Commissioner for Human Rights as a bad public health practice and a rights violation. It is well-known that such coercive practices alienates vulnerable populations and drives them away from the resources that they need, to safeguard their health and the health of their partners.

Sex work under the purview of the labour department?

In conclusion, sex work should be treated as work and brought under the work schedule of the labour department. Sex workers from both the brothels and the streets should be recognized as workers, and the Immoral Traffic Prevention Act (ITPA) should not be applied to them.

Decriminalisation will actually make sex work safer, sex workers argue.Punitive laws that criminalise and punish sex work act as instruments through which sex workers are harassed and regularly have their human rights violated by law enforcement agencies, health authorities and clients.

In many countries, sex workers are a primary means by which the police meet arrest quotas, extort money, and extract information. Police wield power over sex workers in the form of threats of arrest and public humiliation, and use condoms as evidence of illegal activity, undoing years of effective public health promotion and campaigning around STIs and HIV. Forced testing for HIV is commonplace, along with breaches of due process and privacy.

Decriminalisation will help sex workers organise and address all forms of exploitation, including abusive, sub-standard or unfair working conditions instituted by both state and nonstate actors. Sex work must not be equated with sexual exploitation or sex trafficking. Also, decriminalisation is not an attempt to legalise ‘pimps’, nor does it increase exploitation of sex workers. Such arguments are made with a limited understanding of the sex trade and undermine sex workers’ struggle for the right to health and justice.


Kamayani Bali Mahabal

The writer is an expert in gender, health and human rights issues.