Thomson Reuters Foundation

A police sting that busted a prostitution ring and triggered a back-and-forth in the courts has revealed a conflict in Indian law over a woman’s right to sell sex and a state’s right to stop her.

It all comes down to female choice, according to a landmark legal ruling last month that hands a rare victory to prostitutes in a land which affords women scant sexual freedom.

“You cannot rehabilitate anyone against their will. There has to be consent,” the women’s lawyer Siddharth Jaiswal told the Thomson Reuters Foundation.

The case began last year when a Mumbai court prevented three sex workers from leaving the protective home they were forcibly moved to after police rescued them from prostitution. Despite their opposition, the court said they should be counselled against sex work, learn new skills and find fresh jobs. It said the trio needed state “care and protection”.

That order was overturned last month by the Bombay High Court, which upheld the women’s right “to choose their own vocation”, a judgment campaigners say should help other adult sex workers break free from enforced protection.

“The consent of the victim is never taken before they are taken into shelters. The victim themselves are not aware of their rights,” said Jaiswal.

The case is key as India’s Immoral Traffic Prevention Act - applied in brothel raids and sex worker rescues - fails to distinguish between victims of trafficking and women doing sex work out of choice, lawyers and campaigners said. Adult sex workers rounded up by police are housed in shelters for 21 days for verification and medical tests, among other formalities, according to the law. After the 21 days, courts can impose a further detention of up to three years, based on a woman’s family background and the circumstances that led them into prostitution.

“The belief is that no woman can take sex work by choice, that they are all trafficked... they infantilise adult women,” said Smarajit Jana, founder of Durbar Mahila Samanwaya Committee, a collective of 65,000 sex workers in Kolkata.

“But (the high court) did not confuse morality with livelihood... it distinguished between trafficking and sex work,” said Jana.

“It is very rare.”