In the vast, intricate tapestry of India’s workforce, there are threads that remain unseen, uncounted, and unprotected. These are the threads of “invisible labour”—work that, for reasons of social stigma, moral judgment, or legal ambiguity, is denied the status and dignity of a profession. Perhaps no group embodies this invisibility more profoundly than India’s sex workers.
Despite being engaged in an economic activity for their livelihood, they exist in a legal void, systematically excluded from the ambit of labour law and its protections. This exclusion is not a mere oversight; it is a consequence of a deep-seated conflict between morality and the right to a dignified life, a conflict that Indian jurisprudence is only now beginning to confront.
The Legal Labyrinth: Morality vs. Livelihood
The legal status of sex work in India is a paradox, primarily governed by the Immoral Traffic (Prevention) Act, 1956 (ITPA). A common misconception is that this Act criminalizes sex work itself. However, the ITPA does not penalize the act of providing sexual services for money between consenting adults. Instead, it criminalizes the activities surrounding it: operating a brothel, living off the earnings of a sex worker (pimping), and soliciting in public places.
While seemingly progressive, this framework creates an untenable situation. By criminalizing the infrastructure of sex work, the law pushes the entire profession into the shadows. It becomes impossible for a sex worker to operate from a fixed, safe location (an “establishment”) or to work with others for safety without risking prosecution. This forces them into clandestine, hazardous environments where they are acutely vulnerable to violence, exploitation, and police harassment. The law, in effect, acknowledges the existence of the worker but criminalizes their workplace.
This legal framework is a legacy of colonial morality, which viewed sex work not as a form of labour but as a social evil to be eradicated. This perspective continues to influence judicial and legislative attitudes, framing the discourse around “rescue and rehabilitation” rather than “rights and regulation.” The core legal conflict is with Section 23 of the Indian Contract Act, 1872, which deems agreements with an object or consideration that is “immoral” or “opposed to public policy” as void.
Historically, courts have refused to enforce contracts related to sex work on this ground, effectively severing it from any commercial or professional legitimacy. This moral lens prevents sex work from being seen for what it fundamentally is for millions: a means of survival.
Defining ‘Work’ and ‘Worker’: The Exclusionary Wall of Labour Law
Indian labour law has traditionally been built around the archetype of a formal, industrial worker. Key statutes like the Industrial Disputes Act, 1947, define a ‘workman’ based on a direct employer-employee relationship, typically evidenced by a contract of service within an ‘industry’. While subsequent laws, like the Unorganised Workers’ Social Security Act, 2008, and the new Code on Social Security, 2020, have expanded their definitions to include self-employed and informal workers, they still fail to explicitly accommodate sex workers. The application of these traditional definitions to sex work reveals several insurmountable hurdles.
The conventional employer-employee dichotomy, for instance, does not fit the reality of most sex workers. For a self-employed individual, the client is a customer, not a master, leaving no ’employer’ to hold accountable. In cases where sex workers operate in brothels, the owner could be seen as an employer. However, this creates a legal paradox: since running a brothel is illegal under the ITPA, recognizing this relationship under labour law would mean giving legal sanction to a criminalized activity.
The state cannot simultaneously prosecute an ’employer’ under one law and hold them responsible under another. This issue is compounded by the fact that any agreement for sexual services is likely to be deemed void under contract law due to “immorality,” which dissolves the very foundation of a worker-employer relationship. Furthermore, labour laws are typically applicable to work carried out in a recognized ‘establishment’ or ‘workplace’—a definition that a brothel, a street corner, or a private home cannot legally meet.
This legal architecture effectively builds an exclusionary wall, and while new labour codes have expanded to include gig workers, their continued silence on sex workers suggests the barrier is not a lack of legal imagination but a persistent moral judgment.
The Devastating Cost of Invisibility
This exclusion from the legal definition of ‘worker’ is not merely a semantic issue; it has profound and devastating real-world consequences. Being invisible to the state’s labour machinery means being denied a universe of rights and protections that other workers, even in the unorganized sector, can claim. It leaves them unable to invoke minimum wage laws or fight for fair remuneration, placing them entirely at the mercy of clients, pimps, or brothel owners, which leads to rampant financial exploitation.
This vulnerability extends to their physical safety, as they have no legal recourse against unsafe or unhygienic working conditions. In a bitter irony, they fall outside the purview of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, denying them protection from the very violence that is endemic to their profession.
Perhaps the most critical consequence of this invisibility is the complete lack of a social safety net. Sex workers are systematically denied access to maternity benefits, healthcare under schemes like the Employees’ State Insurance (ESI), provident funds, disability benefits, or pensions, leaving them to fend for themselves in cases of illness, injury, or old age. Even their attempts at collective action are constrained.
While sex worker collectives like the Durbar Mahila Samanwaya Committee in Kolkata have done monumental work in organizing their community, their legal standing as a ‘trade union’ with the right to collective bargaining remains tenuous. They are forced to operate more as community-based organizations rather than formal unions under the Trade Unions Act, 1926. This systemic denial of rights perpetuates a cycle of poverty, exploitation, and marginalization, reinforcing their status as second-class citizens.
A Glimmer of Hope: The Supreme Court’s Rights-Based Approach
In recent years, the judicial narrative has begun to shift, led by the Supreme Court of India. The landmark case of Budhadev Karmaskar v. State of West Bengal & Ors. has become a catalyst for this change. Stemming from a brutal murder of a sex worker in 1999, the case evolved into a broader examination of the rights of sex workers.
In a historic order issued in May 2022, the Supreme Court issued a series of directives that challenge the traditional status quo. The Court unequivocally stated that:
“Sex workers are entitled to dignity and equal protection under the law… a life of dignity under Article 21 of the Constitution.”
The Court recognized that sex work is a “profession” and that sex workers should not be arrested, penalized, or harassed during raids, as voluntary sex work is not illegal. It directed the police to be more sensitive and affirmed that a sex worker who is a victim of sexual assault is entitled to immediate medical and legal recourse, just like any other citizen. The Court also pushed for the extension of social welfare benefits and the issuance of Aadhar cards without insisting on proof of residence.
This judicial intervention marks a monumental ideological shift. It moves away from the ‘victim’ narrative and embraces a rights-based approach, recognizing the agency and constitutional rights of sex workers. By framing sex work as a ‘profession’, the Supreme Court has laid the moral and constitutional groundwork for its eventual recognition as a form of labour.
The Path Forward: From Judicial Fiat to Legislative Action
The Supreme Court’s directives are a powerful beginning, but judicial orders alone cannot dismantle decades of legal and social discrimination. The ultimate solution lies in legislative reform. The conversation must now pivot towards the decriminalization of sex work. This is distinct from legalization, which can lead to state-controlled, often rigid and exclusionary, systems. Decriminalization, as successfully implemented in countries like New Zealand, involves repealing the punitive laws (like ITPA) that target sex workers and their clients.
This would allow sex work to move out of the shadows and into the light, where it can be regulated for health and safety. It would empower sex workers to negotiate terms, report violence without fear of arrest, and access healthcare. Most importantly, it would clear the path for amending India’s labour laws. The definitions of ‘worker’, ’employee’, and ‘establishment’ must be made more inclusive to accommodate various forms of self-employment, including sex work.
Recognizing sex work as labour is not an endorsement or promotion of the profession. It is an acknowledgment of reality. It is about extending the promise of the Indian Constitution—of equality, liberty, and dignity—to every individual, irrespective of their profession. It is about making the invisible, visible.
References
1. The Immoral Traffic (Prevention) Act, 1956.
2. The Indian Contract Act, 1872.
3. The Unorganised Workers’ Social Security Act, 2008.
4. The Code on Social Security, 2020.
5. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
6. Budhadev Karmaskar v. State of West Bengal & Ors., (2011) 10 SCC 279.
7. Supreme Court of India, Order dated May 19, 2022, in Budhadev Karmaskar v. State of West Bengal & Ors.
8. Kotiswaran, P. (2001). “Preparing for Civil Disobedience: Indian Sex Workers and the Law.” Boston College Third World Law Journal, 21(2), 161-209.
9. Agnes, F. (2011). “Law and the Politics of ‘Sex Work’.” Economic and Political Weekly, 46(31), 21-24.
10. National Human Rights Commission (NHRC). (2020). Human Rights Advisory on the Rights of Women in the Context of Sex Work.
11. Goel, A. (2022). “Recognising Sex Work as Work: The Indian Supreme Court’s Momentous Push for Labour Rights.” Oxford Human Rights Hub.
12. Durbar Mahila Samanwaya Committee. (Various publications). Reports on the conditions and rights of sex workers in West Bengal.
13. Rao, N. (2018). “Sex Work, Law, and the Politics of Labour in India.” Routledge Handbook of Indian Law and Society.
14. Global Network of Sex Work Projects (NSWP). (2021). The Impact of Criminalisation on Sex Workers’ Rights.
15. UNAIDS. (2012). Guidance Note on HIV and Sex Work.
16. International Labour Organization (ILO). (1998). The Sex Sector: The economic and social bases of prostitution in Southeast Asia.
17. Kannabiran, K. (2012). “Judicial Meanderings in Patriarchal Thickets: Litigating Sex Work in India.” Socio-Legal Review, 8, 3-30.
18. Shekhar, T. (2016). “Trafficking, Sex Work, and the Law in India.” Anti-Trafficking Review, (6), 59-75.
Author Name- Tanishq, 3rd Year Law Student at Dr. B.R. Ambedkar National Law University, Sonepat
