Drishtikon: Locating Sex Workers within the Realm of Labour Laws

‘The prostitute is not at all a criminal. She does not violate anybody or anything, but is herself violated.’ — Jean D’ Cunha

Introduction

Sex work is one of the oldest known “profession” in the human civilisation wherein people from vulnerable communities, especially, women from social, economic, and politically, — historically marginalised groups (including women with disabilities) are subjected to work as a sex worker to have their bread and butter.

According to Debra Satz, Markets that destabilizes the fundamental morals and political values should be suppressed, as these markets tend to exploit the social vulnerabilities of downtrodden, lack informational transparency, pose unacceptably high risks for some participants, or contribute to the social marginalization of some groups.

However, in this research paper, the author would not indulge in the philosophical debate over whether there should be a market of sex workers or not or whether the sex work is morally right or wrong. Per contra, the author would discuss the labor rights of the sex workers and their application on the ground in respect of the right to freedom of association, sectoral discrimination, and the wages.

In the late 1970s and early 1980s, the process towards the unionization of sex workers observed a turning point viz. the emergence of the ‘sex work’ discourse and considering selling of sex and sexual services as ‘erotic’ labor, and the subsequent self-organization of sex workers into sex workers’ rights groups.

Hypothesis

The right to freedom of association in an unorganized sector, particularly in the sex work or prostitution is merely a mirage of a right.

Research Objective

A research endeavour to locate the plausibility of association or union of sex workers or prostitutes working in Red Light areas of GB Road in Delhi for the purpose of collective bargaining over better working conditions.

Research Methodology

The research methodology employed in this research endeavor is both empirical and doctrinal in nature for the purpose of a qualitative research on the subject matter. The researcher has relied upon this methodology for the collection of data and subsequently analysis of such data collected in those interviews carried out the researcher which is supported with theoretical research of articles, books, case laws, reports, and treaties relating to the theory, domestic and international legal regime of the sex workers; providing for a much more comprehensive and concise understanding at the very conceptual level of the subject matter.

Scope and Limitation of the Study

The researcher for the purpose of this empirical research paper, have interviewed seven groups of sex workers where an average number of sex workers in every group were two to three, thus, in effect, the researcher has carried out the interview of twenty-one sex workers of age group between thirty-five to fifty-five. The researcher tried to interview the younger sex workers but they vehemently refused straight away for not so obvious reasons.

Also, when the researcher asked the sex workers and a couple of pimps regarding Association of Sex Workers, every reply came in negative and because of the paucity of time, the researcher couldn’t afford to ask follow-up questions in order to unearth the subsequent correlated questions.

Theorising Freedom of Association

The whole history of sex work and prostitution is exhaustive with illustrations of sex workers coming together and organizing the struggle against the stigma and oppression that is being attached to the one of the world’s oldest profession i.e. prostitution. The Feminist Movement paved the way for a new consideration of sexual choices of women in both the public as well as private spheres and because of this socio-political change in climate provided the background for a radical sex workers to struggle for recognition of prostitution as a work or labour and change in the approach of the government and society in treating the prostitutes as sex workers and their work as a profession.

The right to freedom of association implies that the sex workers are permitted to constitute labor unions and toil jointly, in order to request safe, just, and fair working conditions. For the reason that sex work has been made practically implausible to operate because of the laws in India, sex workers, in general, are not allowed to form associations and labor unions or to indulge in the practice of collective bargaining because of infinite reasons. Despite being one of the world’s oldest continuous profession, it is still not considered as a profession rather it is portrayed to be “dirty job” carried by women of low character, consequently, the labour rights that other labourers observe are being denied to the sex workers by such exclusion and institutional discrimination against the sex workers.

Per contra, sex workers have to work in isolation and that too secretly, in order to hide their identity and reality from their family members who are not aware of their profession, with no mean to guarantee safe, just, and fair working conditions. Because of the legal regime, sex workers are neither able to enforce the contracts nor able to terminate abusive and violent practices involved in their profession which are forced upon them by the brothel owners or their clients who employ them or seeks their services. This results in a violation of sex workers’ right to freedom of association and unionize.

Now, coming to the philosophical aspect of the sex and sex workers, many great thinkers have dealt with this subject matter at great length. To start with, Thomas Aquinas in his unfinished works on the Summae Theologiae, he rationalizes the profession of prostitution as a safeguard for other women’s chastity.[1] Many other philosophers have dealt with this on account of morality and how this profession destroys the societal morality by being a sinful act. However, one major criticism of this argument is that despite involving both the men and women in this whole setup of prostitution as the customer and the service providers, it’s merely the women who are being stigmatized for being the house breaker in terms that they break the marriages. Thus, it’s the lust and sexual desires of the men that are being shifted upon the prostitutes or sex workers.

Moreover, in the later part of the twentieth century and with the advent of the twenty-first century, many feminist scholars have been able to change the discourse by calling for “dignity of work” and treatment of prostitution as a profession and work and not an immoral act carried out by the women of loose or bad character. Karl Marx also talked about the importance of the right to freedom of association in the mobilization of the labor movement and securing better working conditions and basic human rights in order to fulfill the dream of “dignity of labor”.

The formal unionization of sex workers and other sex-oriented sex services has been only a recent phenomenon (particularly, but not exclusively, since the 1990s) in areas where the rights of sex workers and “sex industry” have been recognized. The very idea that women who are voluntarily working as sex workers, prostitutes, strippers, et al and engaged in “sex industry” by selling sexual services, are selling sexual, emotional and erotic labour of their and not just their body and soul has been certainly translated into a social movement which subsequently secured support through formal unionization and union of sex workers. The movement of unionization has recognized for the requirement to move beyond just civil and political human rights, per contra, to pursue worker and workers’ unionization rights.

The global nature of the sex industry and the sex worker rights movement has lent itself to the internationalization of this early unionization process. This has been aided by global communications and the frequent use of the Internet and other computer mediated communication that has enabled organizing to exist beyond country boundaries. The international flavor of the organizing also has a political motivation. The setting up of one union to represent sex workers under a global umbrella highlights, that despite country, legal and cultural differences and diversity, sex workers experience a common set of negative treatments and discriminations across the world. Internationalization of the unionization movement demonstrates the common features of stigma, marginalization, exclusion, violence and a lack of workers’ rights.

The weaknesses of sex workers’ organizing stem from unrepresentative membership; the problematic relationship that a rights-based perspective has with branches of feminism which aim to eradicate prostitution because of a belief that it is violence against all women; and the practical resource demands such as time, facilities, and funds. There are more philosophical doubts regarding the scope and influence of sex worker rights movements and sex workers gaining legitimate recognition and rights by becoming unionized.

Now coming to the ground reality when it comes to the formation of an association for the welfare of sex workers around the world, there are examples in all the major developed and developing nations. To start with, in the early 1990s, in Venezuela — a group called “Association of Women for Welfare and Support” (AMBAR), while in Chile, APRODEM wasformed in order to establish a voice for the rights of sex workers in the continent of Latin America. In the same time frame in other part of the world, it was in early 1990s when in Calcutta (now Kolkata), an association of sex workers or prostitutes called “Durbar Mahila Samanwaya Samiti” (hereinafter called “Durbar” or DMSC) (or Unstoppable United Women’s Committee) was established to raise the voices of sex workers working in the Sonagachi Red Light district in West Bengal, India which was an association of somewhat 65,000 female, male, and transgender sex workers.

The contemporary sex workers organization association across the world includes the South African association “Sex Worker Education and Advocacy Taskforce” (SWEAT), Australia’s “Scarlet Alliance”, American “Sex Workers’ Outreach Project and the Desiree Alliance”, Brazil’s Davida (Of the Life) and Rede Prostitutas Nacional (the National Prostitutes’ Network) are the few sex workers alliances that advocates the rights of the sex workers in the major countries.

International Legal Framework

The principal international legal instrument that deals with the welfare of the workers of around the world is ILO convention. The right to freedom of association (FoA) lies at the very core of the International Labour Organization’s principle and values which are expressly worded and enshrined in the constitutional framework of ILO of 1919, the ILO Declaration of Philadelphia of 1944, and the ILO Declaration on Fundamental Principles and Rights at Work of 1998.

The instrumental treaty in the international legal regime that brought the human rights to the forefront in the international arena is Universal Declaration of Human Rights. Article 20(1) of the UDHR specifically talks about “Right to Freedom of Peaceful Association” while Article 23 categorical casts the “right to form and associate with trade unions for the protection of their interests” and the particularly important aspect of both the articles is that both the articles employ the term “everyone” which implies that the term is of wide interpretation and need to be interpreted widely and must include “sex workers” as well.

Another important international legal instrument that establishes and conclude the right to freedom of association into a Customary International Law is ICCPR and ICESCR. Article 22 of the ICCPR and Article 8 of ICESCR talks about the right to freedom of association as one of the basic human rights that must be attributed for a just and fair working condition for the sex worker and considering them as a worker or labourer and not immoral people, especially women of bad character indulged in illegal and morally wrong act. The wording of all these mentioned international treaties and other international and regional treaties are strongly worded and thus create an international legal regime that protects the interests of the laborers, especially the sex workers in the present case.

The right to organize and form association and organizations of workers and employees is the sine qua non for a strong collective bargaining and socio-political discourse. Nevertheless, there continue to be challenged in applying these principles: in some countries certain categories of workers (for example public servants, seafarers, workers in export processing zones) are denied the right of association, workers’ and employers’ organizations are illegally suspended or interfered with, and in some extreme cases trade unionists are arrested or killed. ILO standards, in conjunction with the work of the Committee on Freedom of Association and other supervisory mechanisms, pave the way for resolving these difficulties and ensuring that this fundamental human right is respected the world over.

Other significant legal instruments with respect to the Freedom of Association are discussed thereafter. Freedom of Association and Protection of the Right to Organize Convention of 1948 (№87) which is a fundamental international treaty that lays down the right for workers to form and join any organizations of their own choice without any prior authorization from the employer or the brothel owner in this context.

Another international legal instrument is the Right to Organize and Collective Bargaining Convention, 1949 (№98), it provides the workers with the right to enjoy adequate protection against sanctions of anti-union or anti-association discrimination. The Workers’ Representatives Convention of 1971 (№135) which provides the workers’ representatives with an effective protection against any act prejudicial to them for being a workers’ representative or a trade union member or for participation in a trade union activities, as long as they act of the union is in conformity with the prevailing laws or collective bargaining agreements.

The World Charter for Prostitutes’ Rights[2] of 1985 deals with the eradication of laws that may be interpreted to decline the right to freedom of association to the sex workers. The charter advocates that there must not be any laws that can be termed to be discriminating against the prostitutes unionizing or associating and working collectively for securing a better working condition and a higher level of personal safety and security. The charter also advocates for association and unions of current and ex-prostitutes in order to further the implementation of the purpose and objectives of the charter.

Everyone within the jurisdiction of European Union, which includes sex workers, prostitutes, porn actors, stripers, et al are entitled to the certain basic human rights under international human rights law regime. The Declaration of the Rights of Sex Workers in Europe requires every European country and casts an obliged to respect, safeguard, and entitles the sex workers, prostitutes, porn actors, stripers, et al the right to freedom of association.

Indian Legal Framework

The Constitution of India

The labor rights movement had a significant ripple effect in India’s freedom struggle movement as apart from the farmers Satyagraha, labor movement was one among the uniting force behind the common masses for the cause of bringing the dream of India’s independence to a reality. These rights of labor were recognized in 1931 when the Congress Resolution on Fundamental Rights laid down the classical civil and political rights, as well as the rights of labor dignity. However, after the independence, the constituent assembly at the time of the drafting of the Constitution, included civil and political rights in Part III, in effect, these rights became enforceable fundamental rights, per contra, and the rights of labour were given place in Part IV of the constitution as Directive Principles of State Policy, in effect, a set of enforceable rights. This positioning of labor rights within the umbrella of unenforceable rights was highly criticized by many members of the constituent assembly but later the majority decided otherwise on account of financial constraints.

However, these labor rights find its due place within the regime of Directive Principle of State Policy. In that respect, the author in this paper would endeavor to sketch these labor rights within the boundaries of the Indian Constitution, both as DPSP and Fundamental rights and would look from the prism of how Supreme Court of India has interpreted labor rights. Firstly, the author would deal with the Right to Association of the Sex Workers under Article 19 (1) (c) of the constitution, followed by the Sectoral Discrimination against the Prostitution as this sector have been denied even the right to be called “work”, forget the utopia of labor rights and dignity of work. The author would also discuss the important aspect of wages of these sex workers within this unorganized sector which is not covered by the social security and other welfare legislation.

The Freedom of Expression and Association at the Workplace (Articles 19 (1) (a) and (c))

To understand this fundamental right, the author would discuss some of the landmark judgments of the apex court which have dealt with this in some length, in that series, the first case is P. Balakotaiah v. Union of India[3], which was a five-judge bench judgment. In this case, some of the railway employees were terminated for the breach of Section 3 of the Railway Services Rules of 1949 which reads “is engaged in or is reasonably suspected to be engaged in subversive activities, or is associated with others in subversive activities in such manner as to raise doubts about his reliability” for being involved with the communists. The apex court holds that the employees were terminated for their “subversive activities” and not for their associating with communists, thus, the factual matrix doesn’t attract Article 19 (1) (c). The court further held that Art. 19 (1) (c) wouldn’t get attracted despite the fact that the employees were terminated for their association with communists. The underlying rationale of this case was that as there was no antecedent fundamental right to government employment, the employer i.e. the government has the free hand in making employment conditional on the requirement that employees do not associate with any particular group or association.

However, in another constitutional bench decision, Kameshwar Prasad v State of Bihar[4], the apex court gave a contrasting position while holding that the “government employees had as much right to free speech and association as any other citizen”. The court further backed its argument by stating that Article 33 of the Constitution enables Parliament to modify the application of the fundamental rights for the Armed Forces, forces charged with maintaining public order, and persons involved in intelligence. Thus, by the omission of other branches of the govt., constitution entitles govt. servant of fundamental rights of right to association.

This ratio decidendi of the Kameshwar Prasad judgment was further endorsed by another constitutional bench judgment in O.K. Ghosh[5] case. However, in the O.K. Ghosh case, the constitutional bench acknowledged that in exceptional situations, conditions of the government employees could be justified for the public order standard on the litmus test of proximity.

But yet again, the Court changed its track by returning back to its position of the Balakotaiah case, a two-judge bench of the Supreme Court in M.H. Devendrappa v Karnataka Small Industries[6] case. The doctrine of “unconstitutional conditions” which have been laid down in Re Kerala Education Bill case[7] where seven-judge bench stated that this doctrine “prohibits the State from denying citizens a benefit by making access to that benefit conditional upon citizens’ abstaining from exercising any or all of their fundamental rights.”

The Freedom to Unionise (Article 19(1) (c))

In respect to the freedom of unions, the decision of the five-judge constitutional bench in Raja Kulkarni v State of Bombay[8], where, the Supreme Court upheld a legal provision which restricted “registered unions” to associations whose membership comprises at least fifteen percent of the total number of employees in the said local industry. In the All India Bank Employees’ Association[9] case, the five-judge constitutional bench of the Supreme Court proceeded on the reasoning which was completely contradictory to the ratio in U.P. Shramik Maha Sangh[10] case and categorically held that there is no guaranteed right to strike under Article 19 (1) (c) the Indian Constitution.

In a combined reading to all these judgments, the author can easily sum up with the argument that historically, the legislature and the courts, maybe what the reason are, have always faced a real challenge and the welfare of the workers as a see-saw like situation where at one time, the labor rights are upheld while on the other hand, they are ignored under the capitalist and government pressures. In this light, even thinking of a Sex workers Association is somewhat utopian. There is some example like that of Kerala Sex workers Union but in reality, these women are at the mercy of the others who can’t even think of forming an association (in Delhi).

Empirical Study and Analysis

For this research project concerning the empirical research endeavor towards sketching the life struggles of sex workers from the labor law perspective, I, along with my group, in consultation with the subject teacher, decided to give a preliminary field visit to the Red Light Area of Delhi, situated at the Garstin Bastion Road. In our first field visit, we merely observed the area apart from communicating with the local Police station regarding our work. On our second field visit, we entered the brothels for the first time and interviewed half a dozen of the sex workers group. In most of the interviews, there were three to four sex workers who answered to us collectively. On our third group visit, we interviewed another dozen sex workers, along with a couple of pimps who gave us an outside perspective of the working and conditions of the brothels.

In respect to the wages, the response of the sex workers was very self-contradictory as on one hand, they responded that most of them entertain no customers on a day to day basis generally (as all the interviewee were from the age category of thirty-five to sixty). While on the other hand, despite such low income, sex workers were easily able to manage their day to day life expenditures and other essential services like children education without disclosing the source of any such income.

Now, coming to the point of minimum wages, despite this being an ideal situation, this seems very implausible task for even a socialist country like India, as irrespective of its socialist approach, the 1991 economic reform, with the advent of the policy of Liberalization, Privatization, and Globalization — the whole economy is more market-driven where even sex workers can be easily categorized as mere goods whose worth is going to be decided depending on the demand and supply. Thus, sex workers who can be categorized as — minor, young, slim, and fair would always be in more demand because of their societal “physical attributes” in comparison to that of dark, fat, and old sex workers.

Ergo, it would be a mission impossible like the situation to enroll a scheme where all the sex workers are subject to at least some minimum wages, in order to live a decent life with dignity. There also comes a problem of who is going to fund such scheme which provides minimum wages to the sex workers as this cannot come from the customers or clients. Also, neither the economic condition and nor the priority of the policymakers gives us any hope of a utopian situation very near where sex workers getting some minimum wages.

Being an unorganized sector, this problem becomes all the more so serious and without many plausible solutions as there is no mechanism to effectively regulate this aspect of labor laws. Thus, for the time being, the sex workers can be provided benefits under various social security schemes and other welfare legislation as persons below the poverty line because most of the sex workers who struggle with their income and other daily expenditures for the purpose of a dignified life can also be categorized within the Below Poverty Line segment.

Concluding Remarks

The de facto criminalization of prostitution violates the sex workers’ right to freedom of association as the sex workers are effectively restricted from unionizing and consequently, they cannot engage in the practice of collective bargaining.

As the sex workers interviewed in our empirical research were neither aware of any formal or informal association of sex workers or trade unions in order to practice collective bargaining in order to trade with the brothel owners, pimps, and clients — to improve the working conditions of the sex workers. Also, the interviewed sex workers were neither seemed interested in forming an association nor the very idea of having any such union or association seems to be tempting them.

The author concludes that the sex workers indulge in the practice of self-exploitation for various reasons as firstly, they are not fully aware of the advantages of having an association or union a practice of collective bargaining, secondly, they have been conditioned into all this environment that they are now somehow accommodated and doesn’t have any complaints because they term this whole episode of joining and working as a sex worker a matter of fate. One sharp observation that can be made from the interviews conducted is that the sex workers don’t see this profession as a demeaning as the outside world perceives this profession and attaches the taboos to it.

For the sex workers, their life is still a life of dignity as “sex work doesn’t devalue people, people devalue sex work” as in a society where the rape incidences are so rampant that even small girl children are not left from the free clutches of our perverted mind. The profession of prostitution works as a ‘Safety valve’ for the society as the men who are hormonally high and in need to sex in order to satisfy their lust and sexual desires and needs now can go to the sex workers and fulfill them.

However, another recent trend that has grown in the neo-liberal globalized world where the economic condition hasbeen improved despite growing inequalities is the concern for the privacy. For the same reason, people from the middle and high-class background are no longer convenient in going to a brothel for the sexual activities, per contra, they prefer escort services and college girls as they are better in terms of privacy issues and also because college girls and girls involved in escort services are younger and “more beautiful” which lure the customers.

On the other hand, it’s the lower working class segment that generally visits red light areas for sex which basically includes the labor class like drivers, daily wage construction workers, et al and people living away from their family, especially their wife which consequently makes them in dire need for sex.

Ultimately, the association of sex workers from other intersectionality like women with disabilities shall also be encouraged to promote their specific needs and rights and inherent human dignity especially given the context of their disproportionate vulnerability concerning physical and mental health.

Bibliography

Rohini Sahni, V. Kalyan Shankar, Hemant Apte (editor), ‘Prostitution and Beyond: An Analysis of Sex Work in India’, SAGE Publication (2008).

Gregor Gall, ‘Sex worker unionization: an exploratory study of emerging collective organization’, Industrial Relations Journal, 38(1): 70–88 (2007).

Susan Lopez-Embury and Teela Sanders, ‘Sex Workers, Labour Rights and Unionization’, in Teela Sanders, Maggie O’Neill, and Jane Pitcher, ‘Prostitution Sex Work, Policy, and Politics’, SAGE Publications (2009).

Melissa Hope Ditmore (editor), ‘Encyclopedia of Prostitution and Sex Work’, Greenwood Press (2006).

References

[1] Thomas Aquinas, Summa Theologica, Christian Classics; English Dominican Province Translation edition (1981).

[2] International Committee for Prostitutes’ Rights (ICPR), Amsterdam 1985, quoted in Pheterson (1989: 40).

[3] AIR 1958 SC 232

[4] AIR 1962 SC 1166

[5] O.K. Ghosh v E.X. Joseph, AIR 1963 SC 812

[6] (1998) 3 SCC 732

[7] 1959 1 SCR 995

[8] AIR 1954 SC 73

[9] All India Bank Employees’ Association v National Industrial Tribunal, AIR 1962 SC 171

[10] U.P. Shramik Maha Sangh v State of U.P., AIR 1960 All. 45

About the Author

Abhishek Kumar, National Law University, Delhi [2015–2020].

The author can be reached at: <abhishek.kumar15@nludelhi.ac.in>.