Maharashtra National Law University, Mumbai

LABOUR LAW

Final Submission

Prostitution: An Industry under the Industrial Disputes Act, 1947

Submitted to: Submitted by:

Mr. Raghav Pandey Ritika Gusain, 2015-009,

B.A., LL.B (Hons.) (VI Semester)

Introduction

Prostitution, as an occupation, has been in existence since time immemorial but it continues
to be stigmatised and is not considered as a legitimate profession. In India alone, there are
around 15 million women that are forced into the sex industry with over 100,000 women per
state now working in the industry.1 Prostitution in India, per se, is legal but the activities
related to it like brothel ownership and surviving on the income of a woman engaged in a
business where she is sold for sexual purposes are illegal.2 Women working in this industry
are extremely vulnerable to violence, physical and mental abuse and sexually transmitted
diseases and are trapped in an endless cycle of poverty.3 The fact that they have no rights
since they are not treated as employees makes matters much worse. The main research
problem of this paper is the unionisation of the sex industry. Prostitution does not fit the
mould of an industry under the Industrial Disputes Act, 1947. An industry, under section 7(j)
of the Act, consists of systematic activities that occur in an organized manner between and
employer and workmen and since prostitution does not recognise an employer and can
certainly not said to be organised, it fails to fulfil these requirements. They require protection
from such abuse and the social stigma of their profession, and this protection could best be
provided by the unionization of the industry, allowing them a forum in which to voice their
grievances and be regulated in such a way that they cannot be mistreated or defrauded. 4

Prostitution as an Industry

The main question for consideration is whether or not prostitution can be categorised as an
industry according to law, which will allow the people, both men and women, working in the
business to obtain the benefits provided for industry workers under the Industrial Disputes
Act, 1947. An Industry, as per the Act, consists of systematic activities that occur in an
organized manner between and employer and workmen.5 The lack or absence thereof of

1
Azad India Foundation., ‘Prostitution In India’ http://www.azadindia.org/social-issues/prostitution-in-
india.html
2
The Immoral Trafficking (Prevention) Act, 1956 – Sections 3 and 4.
3
E Rehn, E Johnson Sirleaf, ‘Women, War and Peace, The Independent Experts’ Assessment on the Impact of
Armed Conflict on Women and Women’s Role in Peace-building’ [2002] WWP 1, 33
4
Professor Gregor Gall, Research Professor of Industrial Relations, Centre for Research in Employment
Studies, University of Hertfordshire, Hatfield, England AL10 9AB, ‘Sex Worker Collective Organisation:
Between Advocacy Group and Labour Union?
5
The Industrial Disputes Act, 1947 – Section 2(j).
regulation of prostitution alone is enough to exclude it from the purview of the Act, as there
is no sole employer for there to be an employer-employee relationship, and there is no system
by which the number of employees can be determined. It is simply a huge number of people
being sexually exploited, or voluntarily selling their bodies to earn money. There are no
qualifications or standardised criteria by which sex workers are put to work.

There are, however, unions in different countries, formed by prostituted themselves, to

protect their rights, or in the least, efficiently represent them. A century after the development
of the first and foremost labour union in Australia, sex workers of the nation enlisted the
Australian Liquor, Hospitality and Miscellaneous Workers' Union under the Australian
Council of Trade Unions.6 At the European Trade Union Confederation Congress in 2007, a
civil argument assumed control over the gathering, as it was finally enquired with respect to
why associations, that imply to secure the powerless, and vulenerable workers of society are
obviously advancing exclusivity.7 Japan, after extreme misuse and disobedience of their Anti-
Prostitution enactments, is working resolutely to bring prostitution out from the murkiness
and into the light, recommending that the development of such unions would provide better
protection to the men and women in the business than denying their reality would, as the
business would just flourish underground. 8 Numerous contentions against the unionization of
sex workers is that it will also do more harm as it will give legitimacy to the employers, i.e,
pimps and traffickers and will strengthen them as much as it will fortify the workers
themselves.9 This contention can be refuted by differentiating between victims of sexual
exploitation on one hand and on the other hand, consensual and voluntary sex work done by
persons who are competent to perform such acts with their consent.10 Backing this
differentiation, the Supreme Court of India observed the necessity for both groups of sex
workers to be recognised in order for either of them to be effectively secured. In Budhadev
Karmaskar v. State of West Bengal, the Supreme Court recommended the carrying out of
surveys throughout the country, to determine the number of workers in the sex industry that
wanted to leave the industry and were forced into it by a myriad of circumstances and those

6
Jemima Walsh, The Worlds First Prostitutes Union (1996) http://www.walnet.org/csis/news/world_96/mclaire-
9601.html
7
Karin Persson-Strömbäck, European Trade Unions, Sex Workers and Organizing Rights (2010)
http://nppr.se/2010/11/15/european-trade-unions-sex-workers-and-organizing-rights/
8
Akira Morishima, Comparative Studies On Sex Workers In Japan, Australia and New Zealand: The Way To
Unionisation of Sex Workers (2008) Otemon Journal of Australian Studies, vol. 34, page 55, 57.
9
National Network Of Sex Workers, Statement of NNSW, India(2013)
http://www.nswp.org/sites/nswp.org/files/Statement-national-network-of-sex-workers-India.pdf
10
Ibid.
who consciously entered the business and have an intention to continue in the
industry.11 Both groups require representation, the former requiring the aid of social workers
and rehabilitation centres and the latter requiring the representation of trade unions. The
essential nexus between them is that both require the law to recognise their rights and to be
on their side.

In Ibiza, Spain’s first union for prostitutes, called Sealeer Cooperative, was formed, keeping
in mind the role that prostitution plays in helping the economy of the tourist destination. The
union helps the women who are cheated out of their due pay by clients as well as those who
are physically abused.12 In Australia, the decriminalization and unionization of sex work led
to the profession being labelled as health-assured, as the fact that the profession was
recognised and the dangers and risks that come with it were accepted in a public forum made
it possible for precautionary measures to be taken to prevent sexually transmitted diseases
and HIV/AIDS by the use of condoms and other protective methods.13Further, the
unionization of the industry made it possible to protect not just adult workers, but the workers
under the age of 18, by extracting them from the industry and rehabilitating them.14

Conclusion

Once we consider the issues so far raised – sex work as part of reproductive work, the
regulation and restrictions applied to sex work, the struggle for sex workers’ rights – it
becomes clear that sex work deserves much more attention than, and attention different from,
that usually offered by discussions about the statistics of ‘free’ and ‘trafficked’ sex workers. 15
There is a need for unionization of the industry in India and it is essentially based on three
main necessities required by the sex workers. They are:

 Protection for the workers against physical, mental and financial abuse at the hands of
their clients as well as their employers and the police.

11
Budhadev Karmaskar Vs. State of West Bengal, ILC-2011-SC-CRL-Feb-14
12
Jessica Morris, Spain’s First Prostitute Union Formed in Ibiza, CNBC, http://www.cnbc.com/id/101348749
(2014)
13
Supra note 8, page 60.
14
Ibid.
15
Morgane Merteuil, Building a Sex Workers’ Trade Union: Challenges and Perspectives,
http://salvage.zone/in-print/building-a-sex-workers-trade-union-challenges-and-perspectives/
  Measures by which the healthcare problems of these workers such as Sexually
Transmitted Diseases, HIV/AIDS, unplanned pregnancies etc., can be reduced,
prevented or treated.

 A change in the way the society perceives prostitutes, which can be achieved with the
help of the media, the legislative and judicial bodies, human rights activists, etc., so as
to remove the stigma and humiliation that these people face.

The stigma of prostitution in India has led to the denial of voter’s identification, ration cards
and even admission into educational institutions, for the people openly and voluntarily
working in the industry.16 Because of stigmatisation, the fear of coming out publicly as sex
workers, and of facing troubles in one’s personal and social life as a result of such disclosure,
is also a big setback in organising sex workers. Such stigmatisation is also one reason among
many that prostitutes often believe that they have no rights on account of being ostracised,

In any case it must be noticed that the unionization of sex labourers, as observed by the cases
of different nations around the globe, in which prostitution is either legitimate or
decriminalized, has turned out to be a gift and without a doubt a need for the sex workers.
India has various prostitution associations, the biggest being the National Network of Sex
Workers, India, that gives a platform to the sex workers to talk about their rights and
perspectives across the nation, more particularly however, it endeavours to create awareness
among the general population that not all people, particularly women in the sex business are
17
casualties of human trafficking, and a lot of them take up this profession intentionally. Sex
workers perform a function similar to that of any labourer working in an industry, whereby
they execute an activity that participates in the creation of a final product which is sold to the
public at large for a profit. Despite the fact that the sex industry does not constitute an
industry as per the standards of the Industrial Dispute Act, 1947, the workers of the industry
are still workers, and even if they are not protected by the Act, they cannot be denied
protection by the virtue of it. Regulation of this industry, by means of legalisation and
decriminalisation, is a need, to give these workers their due regard, and allow them the rights
that all workers are entitled to possess.

16
Asia Sentinel, Fighting for the Rights of Sex Workers, (2013) https://www.asiasentinel.com/society/fighting-
for-the-rights-of-sex-workers/
17
Supra note 9.