That sex work is work seems to have been established through the Supreme Court ruling in the Budhadev Karmaskar v. State of West Bengal case. On the basis of the judgment in the case, it can now safely be argued that adult consensual sex workers are entitled to dignity and equal protection under law in India.
But the struggle of sex workers has, by no means, ended.
Work status of sex workers
The conundrum: Sex work may exist, but sex work as recognized employment does not.
The legal position of sex work in India is unique. Adult consensual sex work is not illegal. Yet many surrounding activities remain criminalized under the Immoral Traffic (Prevention) Act (ITPA), including brothel-keeping, solicitation, and living off prostitution earnings in certain circumstances.
So, who would be the employer of sex workers?
A brothel, as per common understanding, is the most likely establishment that would hire sex workers for conducting its business through them. The Merriam-Webster dictionary describes a brothel as “a business establishment where sex workers are available for hire.”
But keeping a brothel is a banned activity, as we already know.
What that means is that a sex worker has to carry on the trade as an individual practitioner.
It (carrying on business as an individual practitioner) is not uncommon. Many types of work are carried on in this format, such as lawyers, doctors, stand-up comics, private tutors, yoga instructors, small shopkeepers, plumbers, brokers, and many others. Terms like self-employed, independent contractors and unorganized or informal workers are often used to refer to them.
So, what is the problem?
Indian labor protections generally attach to recognized employment relationships. Labor laws typically define rights and obligations of the employee and employer, working conditions and workplace safety, minimum wage stipulations, social security and retirement security nets, etc. They seek to create an equitable and fair environment and power distribution between employee and employer.
Worker entitlements such as Provident Fund contribution, health insurance, paid leave, gratuity, workplace injury compensation that require commitment and contribution by the employer flow from their status as an employee. Workers who do not have the status of an employee with an employer, become ineligible for these safety nets.
Sex workers as self-employed professionals
Without the option of being recognized as an employee of an employer, sex workers are only left with the option of classifying, or considering, themselves as self-employed workers or independent contractors.
However, self-employed workers in India do not receive protections in the same automatic way that salaried employees do and do not have access to benefits like EPF, gratuity, Employees’ State Insurance (ESI) and others, which were designed around an employer–employee relationship.
So, what do they do?
Access private solutions that are the same as, or similar to the employee schemes. The advantage is that workers can pick and choose schemes.
The downside is that the protection and benefit is available to them only to the extent they are able to contribute.
India has already moved towards creating a more uniform playing field conceptually with the Code on Social Security, 2020 which seeks to consolidate the laws relating to social security with the goal to extend social security to all employees and workers either in the organized or unorganized or any other sectors and for matters connected therewith or incidental thereto.
Catering to different needs as self-employed workers
While private solutions are available, the government has ensured the availability of inexpensive, matching schemes to cater to the people on the lower rungs off the financial ladder, which many sex workers tend to be.
Provident Fund. Sex workers can build retirement savings through voluntary vehicles like the Public Provident Fund (PPF) or mutual funds, fixed deposits, or other investments.
Pension. The National Pension System (NPS) is available to all while the Atal Pension Yojana and the National Pension Scheme for Traders and Self-Employed Persons are subject to eligibility criteria being fulfilled.
Health Insurance. Individual/family health insurance purchased privately, or government programs like Ayushman Bharat (if eligible).
Life Insurance/Disability. Private policies or government schemes like Prime Minister Jeevan Jyoti Bima Yojana (PMJJBY) and Pradhan Mantri Suraksha Bima Yojana (PMSBY).
Workplace injury. Usually private accident insurance, disability insurance, or government welfare schemes where applicable.
Leave. Typically, self-funded. Income stops unless savings or insurance exists.
What next?
Sex workers continue to be exploited. While progress is being made, the debate rages on regarding the most suitable models of work and dignity and, most importantly, addressing the power imbalance between the workers and other entities that operate in the ecosystem.
Could a trade union style organization be the answer, some ask?
In India, representative bodies already exist, such as sex-worker collectives associated with community mobilization models, HIV-prevention peer networks and rights-based advocacy organizations. These groups frequently perform functions similar to labor representation such as negotiating with authorities, health advocacy, legal support and welfare access.
Is it enough? Certainly not.
Apart from addressing issues of provident fund, pension, sick leave compensation, maternity protection and mental health of sex workers, policy makers need to continue to engage with the different actors to work towards evolving the best outcomes for sex workers and make them an integral part of society.