Decriminalisation: The way forward for sex workers in India

With Belgium granting sex workers parity in labour rights, it prompts us to reconsider the future of sex work in the Indian context. While the idea of legalising sex work is frequently debated in Indian academia, we often overlook that legalisation is not the ultimate goal for sex workers in India.

Decriminalisation remains the only viable solution, especially in a country like India. Many intellectuals argue that decriminalisation is merely a preliminary step leading to legalisation. However, such perspectives often fail to account for the complex realities and challenges faced by sex workers on the ground.

Understanding decriminalisation

Decriminalisation refers to the removal of all laws that criminalise sex work, effectively repealing any provisions that make sex work illegal. A distinction is made between (i) voluntary sex work and (ii) sex work that involves force, coercion, or child prostitution, with the latter remaining criminal.

In a decriminalised framework, no specific regulations are imposed by the State on sex work; instead, the industry is governed by existing laws. Sex work is recognised as a legitimate business, subject to standard employment and health regulations, as well as local council business and planning controls.

Sex workers have the same rights and responsibilities as other workers, such as paying taxes. While legalisation aims to protect social order, decriminalisation focuses on safeguarding the rights of sex workers, and improving their health, safety and working conditions.

Understanding decriminalisation of sex work: A global perspective

Belgium

In Belgium, a reform of sexual criminal law was approved on March 18, 2022, with 70 members of Parliament voting in favour, 41 abstaining, and four voting against. This reform marked the end of a longstanding policy of tolerance that had denied sex workers their fundamental rights and allowed for exploitation. The law came into effect on June 1, 2022, decriminalising sex work.

It is important to note that offering or paying for sexual services has never been illegal in Belgium. However, the country’s previous approach aimed to gradually eliminate sex work by criminalising all third parties involved, such as landlords, room owners, bankers, lawyers, drivers and employers. This made it nearly impossible for sex workers to operate legally in brothels.

The 2022 law reform ended the criminalisation of third parties. Now, self-employed sex workers no longer face obstacles in finding services such as banking, insurance, or accounting, as third parties can no longer be accused of pimping for offering such services.

However, the law stipulates that if an accountant charges excessively high fees solely because the individual is a sex worker, or if a third party demands sexual services in exchange for their services, they may be prosecuted.

The Belgian Labour, Health and Justice cabinets worked with sex worker-led organisations UTSOPI, Violett and Espace P to develop a labour law for sex work. On May 2, 2024, this law was approved by the Belgian federal Parliament with 93 votes in favour, 33 abstentions and 0 votes against.

The law enables sex workers to work under an employment contract and gain access to social protection benefits. In the first place, this means access to social security: pension, unemployment, health insurance, family benefits, annual vacation, maternity leave, etc.

At the same time, the law ensures that sex workers in the workplace are protected from work-related risks and not everyone can become an employer. Central to the new law are the freedoms of sex workers: any sex worker may choose to refuse a client or a sexual act, interrupt an act or perform it however they wish.

Those who wish to become employers must not have incurred convictions for serious crimes, must appoint a reference person for the sex worker’s safety and provide an alarm button that immediately connects to the reference person.

The new law in Belgium, which came into force on December 1, 2024, grants sex workers formal employment contracts and legal protections similar to other workers. It grants them access to benefits such as sick days, maternity pay, pensions, unemployment benefits, health insurance, family benefits and annual vacation leave.

Sex workers are now entitled to labour rights similar to those in other professions, including the ability to refuse clients, set the terms of sexual acts, and stop an act at any time. Employers are required to provide employment contracts, meet background checks, ensure clean and safe premises, and not dismiss workers who refuse clients or specific acts.

While the law applies to sex workers with employment contracts, it does not cover self-employed individuals or those working in pornography or striptease. The law also narrows the definition of ‘pimping’, allowing sex workers to access services such as banking, insurance and legal assistance without facing criminalisation of third parties supporting their work.

Overall, this reform marks a significant step forward, ending legal discrimination against sex workers and offering comprehensive labour protections unique to Belgium.

Aotearoa, New Zealand

In Aotearoa, New Zealand, sex work was decriminalised for residents and citizens with the enactment of the Prostitution Reform Act (PRA) in 2003. This law removed penalties related to sex work, including those for living off the earnings, soliciting, procuring and brothel-keeping, allowing sex workers to choose the conditions under which they work.

While the PRA introduced specific regulations for sex work, sex workers are primarily governed by laws related to occupational health and safety, public health, human rights, employment rights and immigration. Under the PRA, there is no mandatory requirement for sex workers to undergo sexually transmitted infection (STI) testing.

Additionally, the law ensures that neither workers nor clients can claim a medical examination that guarantees the absence of STIs, and it allows sex workers living with HIV to work without disclosing their HIV status. The PRA encourages the use of prophylactic sheaths during activities that could transmit STIs between sex workers and clients.

However, the law still leaves migrant sex workers in a vulnerable position. Due to their precarious legal status, migrant sex workers are often forced to work ‘underground’’, where they face risks of violence and deportation.

Section 19 of the PRA prohibits anyone with a temporary visa from engaging in commercial sex, whether as a worker, manager, or business owner. Despite this, many migrant workers continue to engage in sex work. This provision creates a dual challenge for migrant sex workers: they lack the same legal protections and access to justice as resident workers and are subject to broader societal stigma as both migrants and sex workers.

Northern Territory, Australia

Selling sex was fully decriminalised in Northern Territory, Australia in 2020 through the passage of the Sex Industry Bill 2019, which came into effect on June 12, 2020. The law decriminalised both the act of selling sex and organising or managing sex work.

Operators of brothels with more than three sex workers are required to obtain a suitability certificate, but there are no penalties for failing to comply. Private workers can collaborate with up to four support staff from both residential and commercial zones, and larger commercial sex businesses are subject to the same planning rules as other businesses, with restrictions on scaling in suburban areas.

However, the implementation of the Online Safety Act 2021, which came into force on January 23, 2022, has raised concerns among sex workers. The Act includes provisions to remove harmful online content, including cyberbullying, image-based abuse and abhorrent violent material.

There are worries that the enforcement of the Act could be too broad and negatively impact sex workers by removing consensually created sexual content from the internet, thereby harming their ability to work online safely and securely.

New South Wales, Australia

Sex work is decriminalized in New South Wales, Australia with limited regulation, allowing for legal selling of sex, soliciting in public and working indoors, subject to restrictions.

Buying sex is also legal, though clients are prohibited from soliciting near dwellings, schools, hospitals, or churches. Brothels operate legally but under local planning regulations. Laws restrict earning a livelihood solely off another’s sex work unless managing or owning a brothel.

Advertisements for sex work or premises are also prohibited. There are no mandates for HIV/STI testing or registration, and regulations align with general business practices, affirming sex work as legitimate employment.

Victoria, Australia

Sex work is fully decriminalised in Victoria, Australia under the Sex Work Decriminalisation Act 2022, which took full effect on December 1, 2023. Selling and buying sex are not criminalised, though there are restrictions on where street-based sex work can occur.

Organising or managing sex work is also legal, and businesses are treated the same as other Victorian businesses, regulated through standard planning, occupational health, and safety laws. There is no mandatory HIV/STI testing or registration. Sex work is recognised as legitimate employment, marking a shift from the previous regulatory model to a framework that promotes equality and fair treatment.

What is the demand of the sex worker rights movement In India?

The answer to this question lies in another question: Today, can a sex worker in India report a crime against them when they themselves are considered a criminal under the ambit of the law?

The Indian sex worker rights movement advocates for a decriminalised framework that would allow sex workers to operate without fear of persecution. In such a framework, sex workers can come together and combat exploitative practices, which include police brutality and client harassment.

While sex work itself is not illegal in India, laws such as the Immoral Traffic Prevention Act (ITPA) continue to criminalise sex workers and those who support their work, such as third parties. Decriminalisation enables sex workers to organise and address various forms of exploitation, including abusive, sub-standard, and unfair working conditions within and outside the industry.

Despite the Supreme Court’s Order in Buddhadev Karmaskar versus State of West Bengal on May 19, 2022, which somewhat limits the application of the ITPA, the continued use of Section 370A of the Indian Penal Code [and Section 144 of the Bharatiya Nyaya Sanhita (BNS)] remains a challenge.

These Sections still apply, with an increased imprisonment term— from seven years to ten years for certain offences, and from five years to seven years for others— and are frequently misused by the police.

Decriminalisation is not merely a legal reform but a call for social equity, aiming to integrate sex workers into the larger framework of human rights and labour rights.

Moving forward, it is essential for governments, civil societies and stakeholders to engage in inclusive dialogue and implement policies that center the voices and lived experiences of sex workers, ensuring their fundamental rights and well-being are protected and respected.

Text Vaibhav Singh

Vaibhav Singh is a final-year law student at the Campus Law Center, University of Delhi. Additionally, he works as a legal trainer focusing on laws related to transgender individuals and sex workers.

Article was published on 28 Jan 2025 on portal theleaflet.in