Open Access Research Article
UNIONS AS SHIELDS AGAINST EXPLOITATION: THE CASE FOR ORGANISING THE SEX INDUSTRY
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Article Details
UNIONS AS SHIELDS AGAINST
EXPLOITATION: THE CASE FOR ORGANISING THE SEX INDUSTRY
AUTHORED BY
- VEDHIKA GUPTA
ABSTRACT
This
research paper primarily focuses on the Rights of Sex Workers. That a woman’s
worth and her right to bodily autonomy should not be defined by her sexual
history or by her professional choices. It is very important to keep in mind
that judging someone or victim blaming on the basis of her professional
choices, will not only be harmful but will also lead to a culture of misogyny
and violence. Through this paper the reader will get an overview of how society
look at the work done by a sex worker along with the problems faced by sex
workers while following their profession. However, every woman irrespective of her
choices and her profession deserves equal protection under the law. The readers
will get an insight about the challenges might occur in unionization and it
potential benefits if given recognition. The paper does mention few landmark
judgement of Hon’ble Supreme Court providing such women their rights as equal
to others. Alongside, it provides the possible solution. Regardless that there
exists difference of opinions in different people, everyone deserves respect
and equal rights.
INTRODUCTION
Prostitution is considered as one of
the oldest professions in the world. There are almost 100,000 women per state
who are working in this profession. It is to be mentioned that majority of the
women are joining this industry or have been working in this industry is because
they were being forced to join the profession. Despite having lakhs of women in
the profession per state, still if we talk about a true profession,
prostitution will not be considered in the line. Recognising prostitution as a
true profession and subjecting it to regulations similar to other industries
could pave a way for Unionisation, improved working conditions, safety for sex
workers. This grounded approach will definitely offer a significant benefits
for those caught in this often exploitative system.
India, few years back has
decriminalised prostitution which had made the profession of sex workers a
legal recognition on certain aspects. But continuation of illegality of
brothels and income leaves these sex workers vulnerable to exploitation and
abuse, and still are considered as illegal. Women who are engaged or working in
the profession are exploited is such a way that they are suffering from
violence, physical and mental abuse and sexually transmitted diseases. While
unionisation can give them a vital mechanism and provide them access to safety,
healthcare, mentioning and addressing the physical, mental and economical
challenges faced by them. Such women
need protection from these abuses, which could only be granted by unionization
of the Sex industry.
Unionization of Sex workers will
offer a platform to sex workers to raise their voice and address their grievances
and to advocate for improved working conditions similar to other recognised
profession. This will give them a power to fight against exploitation and such
other practises and will pave a way to equal treatment.
If we see the situation or sex
workers in other countries all around the world, sex workers have been given
their right and freedom. In Australia, sex workers have been included in
unionization. Under the Australian liquors Hospitality and miscellaneous
workers union sex workers are been included. In Japan, also the government is
bringing unionization of sex workers so that their community can be more strengthened
and get protected.[1]Thus,
there is a need in India also to have a union for sex workers.
PROSTITUTION
AS AN INDUSTRY
Few of the queries that come are
whether prostitution fits in the definition of an industry. As this only will
decide that it qualifies as an industry or not. The ambit of this question will
be stating that the sex workers are eligible for benefits under the 1947
Industrial Dispute Act or not. The act was enacted so that there should be a
good relationship between the labour and the employer or the management of
industries. The same is applied to all the establishments which fall under the
purview of Industry.
The term industry has been defined
under “Section 2(j) of the Industrial
Disputes Act, 1947. It defines, that any type of business, trade, undertaking
or calling of employees includes employment, handicraft or industrial
occupation” will be covered under this act. Basically, it states that an
industry in simple language is cooperation between the employer and employee in
a proper organised manner for the purpose of production activities.[2] In
India, there is lack of regulations on prostitution which has left the sex
workers for exploitation. Due to lack of regulation, it omits the profession to
come under Industry as there is not employer employee relationship. Also, this
profession or the type of work sex workers do is being operated in very secretive
manner in places which are popularly known as Red-Light areas. The workers in
this profession are usually women who are being exploited. These workers not
only have social but a legal disadvantage too. As any formal organization or
unions of sex workers are not been permitted hence, there exists a successfully
established informal organization which is popularly known as the Karnataka Sex
Workers Union.[3]
Karnataka Sex Workers Union was
formed as to a reason that four women were arrested under the Immortal Traffic
(Prevention) Act. This news went to the media and lot of exposure was into the
news. This case was having a strong effect due to which, a hype was seen in the
informal organisations members and other people in the sector with the motive to
come together and form a relationship with NGO’s and sex workers in a
cooperative manner. This case is one of the prominent case, because it was
observed that many of the workers who are in this profession don’t even have
ration or voting card as they don’t have their ID proof or proper address with
them as such facilities were never been claimed by the workers because of not
having proper identification. And this, Karnataka Sex Workers Union was helping
these workers in providing them with ration and voter card. Not only this but
the union also settled their various disputes and helps them to have old age
benefits such as pension. The biggest achievement of Karnataka Sex workers
Union is that they run a 24/7 helpline not only for the workers but also the
women’s who have been abused or exploited, the organisation used to provide
them with the legal aid assistance.
Karnataka Sex Workers Union is an
incarnation that how an organisation should work. If an informal organisation
can work like this and try to make a difference in the lives of sex workers, a
formal organisation can bring a lot to regulate and treat the sex workers in a
respectable way. The approach of this case should be taken with a perspective
to resolve the dispute arising in this profession and a positive change should
be brought in the form of unionization of sex workers, hence it should be
allowed. As this has the potential to improve the status of sex workers in the
industry.
POTENTIAL BENEFITS OF UNIONIZATION OF SEX WORKER IN
INDIA
1.
Voice and Collective action: A union will provide a platform to
sex workers to raise their disputes and advocate for better working conditions.
A chance to negotiate with brothel owners, clients and authorities will be
given. This collective power will help them address issues like exploitation,
violence, unfair treatment and lack of access to healthcare services.
2.
Equal rights and recognition: Unionization can contribute in
dismantling the stigma and discrimination faced by the sex workers. While
recognizing it as legitimate labour union can pave the way for equal access to
basic human rights, legal protection and social acceptance.
3.
Safety and formation of regulation: Unionization can lead to a more secure and
safe working environment including formation of regulation for brothels, health
care and protocol for handling violence and harassment against the sex workers.
This can reduce vulnerability for sex workers.
PROBLEMS FACED BY SEX WORKERS
1.
Safety: Women who work as prostitutes are not
just victims of violence of their clients but there are very less chance of
them getting protection from police in fact they are considered as perpetrators
of this violence. Because society deems such women as morally corrupted and
assumes them to be guilty. As per the author this is the clear result of
discrimination and inequality.
2.
Health: Bandawwa Makadwale, a sex worker in
the state of Karnataka who was a member of VAMP says that the sex workers
suffers discrimination even in hospitals and are not given even a curative care
which results in lower level of health. She stated that “doctors don’t treat us
properly and government doctor don’t let us come in front of them”. Such
inhumane treatment of sex workers irrespective of the rights guaranteed to
them.
3.
Education: lack of education among the sex workers and their children
has affected the community at large. In the baseline survey of the community in
Sangli, SANGRAM found that less than 2% of the women have been to school of any
kind, and less than 50% of that 2% have finished high school[4].
Children of sex workers are also repeatedly reported discrimination in school
because of their mother’s profession or work this has also been portrait very
well in the bollywood movie named “Gangubai”. Undoubtedly this harassment at
the age of 4-5 years have led to lower self esteem and lack of motivation in
school for kids.
CHALLENGES IN THE PATH OF UNIONIZATION
1.
Legal status of sex worker in India: While prostitution is legal in India,
but brothel ownerships is not which creates a complex legal landscape that can
hinder the efforts.
2.
Building trust within the community: The difference of experiences
faced by the sex workers create a diversion in their perspective about
unionization and building that trust and solidarity within the community
alongside acknowledging such diversions is a task in itself.
3.
Social stigma and discrimination: The deep rooted social stigma
surrounding sex workers in Indian society posses a significant challenge.
Overcoming these differences and gathering big public support for addressing
the sex workers’ rights and equal protection under law is equally important and
challenging.
LEGISLATIVE AND JUDICIAL REFORMS
The Supreme Court has issued certain
safeguards while hearing a plea highlighting the destitution faced by the sex
workers due to Covid 19 filed in 2022, the directions are as[5]:
a) The three judge bench has directed
police to not interfere in cases where there is consent of sex workers as
voluntary sex work is not illegal.
b) Sex workers are also entitled to
equal protection of law, hence any complaint of criminal, sexual or any other
type of criminal offence made by sex worker should be taken seriously by the
police and act accordingly.
c) Child of sex worker should be kept
separately and in case they are found living in brothel it should not be
presumed that the child was trafficked.
d) In case any sex worker is a victim of
sexual assault then they should be provided with all the facilities available
to a survivor of sexual assault.
e) Government should take measures to
educate and spread awareness as to what is legal and prohibited under
laws.
JUDICIAL PRECEDENTS RECOGNIZING THE RIGHTS OF THE SEX
WORKERS
In
this case the order passed by the Metropolitan magistrate Mazgoan and the order
passed by the Additional Session Court Dindoshi was challenged by three sex
workers. The court held that the subordinate court have taken the matter
involves in the case very casually, ignoring the facts and circumstances of the
case also the provisions of the Immoral Trafficking (Prevention) Act were
interpreted in a wrong way.
“Section 17 of the act
doesn’t empowers Magistrate to hold the victims in custody for more than 3
weeks period without pronouncing the final order, if the magistrate is
satisfied with inquiry taken place under section 17 (5) of the act than he
shall direct the custody of the victim to protective home”.
The court also
highlighted that the purpose of the act is not to abolish Prostitution and
prostitutes rather it provides for the punishment for sexual exploitation and
acts where the person is seducing other person which wasn’t the case.
Considering all the facts the court held that these people also have
fundamental rights to reside freely at any place of their choice and also to
carry to any profession of their choice under Part III of the constitution. The consent of the victims should be taken
before taking any action against them as they are major and have all the rights
as normal ordinary citizen.
“Prostitution is not an
offence, a woman has a right to choose her Vocation”.
2. Budhadev Karmaskar v State
of West Bengal (2011)[7]
This case is a prominent landmark judgment which has paved
a way for securing the rights of sex workers in the country. This case highlighted
the vulnerable state of sex workers and the social stigma attached to them
across the country. The court upheld the Rights of Sex Workers including the Right to Live with Dignity as
enumerated under Article 21 of The
Constitution of India. This case has also impelled the Supreme Court to
frame guidelines to address the plight of sex workers to avert the possibility
of any mishap of the like nature. Moreover, it enervated the common people that
sex workers are not mere commodities and they must not be looked down upon only
because of their profession and the type of work they do. The sex workers too
are human being and they are also entrusted with the same rights and privileges
as the other human being in the society. The major concerns pointed out by the
court were as follows:
a) To prevent sex trafficking of woman
b) Rehabilitation of those woman who doesn’t wish
to continue as sex workers
c) Most importantly to provide a dignified
environment to the sex worker who wish to continue in the industry.
3. Delhi
v. Panjak Chaudhray & Ors (2009)[8]
This
Judgement affirms an important aspect that a woman’s sexual history will never
impact her right to protection from sexual assault. If a woman is immoral that
doesn’t mean someone is permitted to rape her. She is equally protected under
the laws as an ordinary citizen. Her consent will be of paramount importance. The
court said that even if it is proved that the woman is a habitual to sexual
intercourse no one can take advantage of that and contend that she is a woman
of easy virtue[9].
The court held that the
sex workers also have the right to refuse and not to submit themselves for
service and it depends on their choice to work or not.
SUGGESTION AND SOLUTIONS
If the Sex
Industry has been recognised as industry under the definition of “Industry” in
The Industrial Disputes Act, 1978, it would have created a huge difference as
to how they are being treated and looked upon. Recognising the Sex Industry as
a legal entity under the Act has merit. As such recognition will offer a legal
protection and benefits to the sex workers, similar to those enjoyed by
employees in other industry. However,
the fact that the women doesn’t need futile pity they are capable of advocating
for themselves and demanding their rights they just need the rest of society to
recognise and fight against their own misconceptions and judgements. Adding
more, the researcher would like to quote few more possible solutions as per her
understanding:
1. To Educate and organise awareness
campaigns.
2. Providing sex workers access to
resources, legal assistance.
3. Tackling poverty, lack of education
and limited opportunities can help in decreasing the number of women forced
into sex work.
CONCLUSION
Prostitution is an act of sexual
pleasures in return of monetary benefits. Most sex workers are working either
due to poverty or illiteracy, however there are certain women who are working
and choosing this as profession on their own choice. The profession has always
been treated and looked upon as derogatory irrespective of the Supreme Court
passing several judgments upholding the rights of sex workers and entitled them
with equal rights which are guaranteed to an ordinary citizen. Access to a
dignified life and lifestyle, choosing one’s vocation, residing freely are the
fundamental rights, and are rightfully extended to sex workers as well. And to
combat the social stigma and discrimination one have to stand out and start
focusing towards educating, tackling poverty, create opportunities which will
help in decreasing the number and for those who are voluntarily working,
recognise their work as any other work or profession in the eyes of law.
By focusing on all these above
mentioned aspects, we can surely step towards a society where every
individual’s right and choices are respected regardless of their profession.
However, ostracizing them based on their chosen profession is not only harmful
but also hindering collective development towards a more inclusive and
equitable society. While the researcher has only outlined the general approach
and it’s quite important to consider all viewpoints for the purpose of finding
a perfect solution which will effectively address the needs and concerns of the
Women involved. After all, the ultimate goal is to ensure safety, well being
and empowerment of sex workers, regardless whether the industry is formally
recognised or not.
[1]Nitish Pattanaik, Need for Sex
Workers Union in India, INDIAN LAW PORTAL BLOG (Apr. 08, 2023)
[2]Industrial Disputes Act, 1947, § 2,
No. 14, Acts of Parliament, 1947 (India)
[4] From “Sex Work and HIV/AIDS: The
Violence of Stigmatization” By Meena Seshu for UNAIDS Global Reference Group on
HIV/AIDS and Human Rights.
[5] The Times of India, (May 27, 2022)
[7] Budhadev Karmaskar v
State of West Bengal 2011
Article Information
UNIONS AS SHIELDS AGAINST EXPLOITATION: THE CASE FOR ORGANISING THE SEX INDUSTRY
Authors: VEDHIKA GUPTA
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/01/02
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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