Profession of Prostitution in India — Legal in Letter but Illegal in Essence?
By Simran Parmar & Bandita
INTRODUCTION
Public Policy is simply what a government does or does not about a problem that comes before them for consideration and possible action. Prostitution is one such public policy which requires attention. According to a report by Human Rights Watch, there are over 20 million sex workers in India.¹ Prostitution is indeed a matter of public policy and this article deals with the prostitution and the plight of the sex workers over the period of time.
Prostitution, in a layman’s language, means getting involved in sexual intercourse in exchange of money. However, section 2(f) of the Immoral Trafficking (Suppression) Act of 1956, used to define prostitution as sexual exploitation or misuse of any persons for commercial purpose.² The central element of the definition of trafficking is the force, fraud or coercion exercised upon the person by another to perform or remain in service to the master. Broadly, there are two views related to prostitution, first which says prostitution should be treated like any other profession and should be made legal; the second view says, prostitution is something which is against public policy and morality. There are countries in the world which has decriminalized prostitution, some have criminalized it and others legalized it with restrictions. India is one such country to legalize it with restrictions. Though legalized, this profession is still a form of taboo. Sex workers are generally deprived of rights that they deserve, which makes it difficult for them to re-integrate into the society especially if they want to leave the profession and start a new life.
PROSTITUTION — THEN AND NOW
With changes and development in society over the period of time, there have been changes in laws and crimes related to prostitution and sex workers as well. Prostitution is not a new or modern concept in India or in the world. It has been one of the oldest professions, to be practiced. The traces of prostitution in history could be found in the early literature. Kautilya in his Arthshastra has talked about the same. He writes “Providing sexual entertainment to the public using sex workers (Ganika) was an activity not only strictly controlled by the State but also one which was, for the most part, carried on in state-owned establishments. Women who lived by their beauty (rupajivas) could, however, entertain men as independent practitioners; these could have been allowed to practice in smaller places which could not support a full-fledged state establishment. A third type of women of pleasure, mentioned in a few places, is pumsachali, perhaps meaning concubines”.³
The Immoral Traffic (Prevention) Act, 1986
Unlike then, prostitution is no more a matter of choice now but an only option to survive. The profession according to the society is a disgrace and people involved in it are not only characterless but also a big black mole making the world impure. This thinking makes it difficult for the sex workers to live with dignity and they become more prone to crime.
India signed the International Convention on Suppression of Traffic in Person on May 9th, 1950 and brought into effect, the Immoral Traffic (Suppression) Act, 1956.⁴ The act decriminalised prostitution to a limited extent. The Act prohibits propagating prostitution but not practicing it, also it prohibits prostitution in public but if a sex worker is practicing prostitution in her private space, then it is legal. Section 3⁵ of the act imposes a punishment of 3 years for practicing prostitution within the 200 yards of public place. The involvement of third party as in case of brothels are also prohibited.
The amendment in the principal Act by way of Immoral Traffic (Prevention) Act, 1986 has increased its ambit and recognises that men and children can also be subject to prostitution. However, due to lacunae in the law, the purpose of legalisation i.e., more safety, right to live with dignity of sex workers remains unachieved. The law itself is treating prostitution as something immoral and indecent in a very passive manner. It is though legal today to practice prostitution but still the taboo related to sex is reflected in this particular act as well. The legislature by keeping prostitution away from public places, hotels, suggests that prostitution is viewed as an unethical activity in the society.⁶ Even though the Act has allowed to profess prostitution in private space, Section 7(2) of the Act⁷ punishes a landlord, lesser or owner who lets prostitution being practiced, for 3 months or with a fine of rupees two hundred or both. These contrary provisions are regulating prostitution today in India.
Evolution of prostitution as a profession over a period of time has degraded its status. Earlier when people were ruled by kings, sex workers used to have a royal life, however, when today everything is so advanced, they are not even considered worth of respect from the society. Respect is something which still can’t be considered as the primary goal, safety of the sex workers still remains a bigger issue. There have been instances where the sex workers had to suffer because of the so-called legalized profession they practice, though the judiciary did come for the rescue but the society has remained indifferent on this issue.
CHILD PROSTITUTION
Child prostitution is when any person below the age of 18 years is indulged or is forced to get indulged in prostitution. Child prostitution is one of the most prevalent and common type of prostitution in India. The most prominent reason being that they are an easy prey for the pimps and the middlemen, because children can be lured easily than adults and they are less able to defend themselves. Moreover, as a result of their young age, they are always looking for new experiences in life which usually leads them to fall into traps and getting out of them gets nearly impossible for them. The laws related to child prostitution are quite strict. Buying and selling of minors are punishable under Indian Penal Code with imprisonment up to ten years and fine.⁸ Also, Section 370A⁹ of the IPC provides for rigorous punishment for the people who engage in sexual exploitation of a trafficked minor person. However, the data shows contrary. Around 70,000–1 million women and children are in the sex trade in India, out of these 30 per cent are below the age of 20; nearly 15 per cent began sex work when they were below 15 and 25 per cent entered between 15 and 18 years¹⁰. And 2 million (approx.,) child commercial sex workers between the age of 5 and 15 years and about 3.3 million between 15 and 18 years. They form 40% of the total population of commercial sex workers in India. 80% of these are found in the 5 metros, 71% of them are illiterate and 500,000 children are forced into this trade every year¹¹. However, there are provisions in the Juvenile Justice (Care and Protection) Act, 2015 to deal with the children in need of care and protection regarding their rehabilitation and restoration but in most cases, the damage is already caused before such child is rescued.
THE PLIGHT OF SEX WORKERS
Most of the time, sex workers are trafficked from rural areas of the state or sometimes even across the borders. Those who are trafficked are then sold to these middlemen or agents or the pimps and are mostly women or children from the disadvantageous and lower strata of the society who are incapable of making ends meet in their day-to-day lives, like the economically weaker sections, lowest caste Dalits, or members of the tribal communities¹². These people are often persuaded with false promises to marry or offers of better standards of living. Apart from poverty, there are various reasons why women or children turn to prostitution as their last resort:-
1. Unemployment- For these people money becomes important, however earned and because they are an educated and unskilled no other businesses are ready to employ them and lack of shelter and food alongside makes them resort to prostitution.
2. Pricked to prostitution- Women and children are pricked to prostitution mostly by pimps under false promises to marry and also sometimes they are kidnapped and forced to do this.
3. Family Expectations / Problems and Lack of Parental Care- When children live under poor conditions, they tend to leave their homes at young ages of 14 to 16 years, to big cities which generally expose them to things they are not aware of, like sexual abuses from men. Also, with family at home they are expected and pressurised to pay bills so for that they resort to prostitution for fast and easy money.
There are many other reasons but it is crystal clear that prostitution is not a matter of choice but a compulsion.
Hazards and Ill-Effects
Now that we are talking about the reasons, we might as well talk about its hazards or ill- effects to the children, women as well as transgenders alike who are involved in this profession and how better and stringent rules and regulations will solve them. Prostitution is considered to be a Ranch Culture where sex and the sexual desires are treated as commodities and are sold. However, it might be just for the pleasure for clients or customers but in reality, this profession comes with a cost for the sex workers which are as follows:
Health Effects- There are many angles on the health issue like the sexually transmitted diseases, unwanted pregnancy, vaginal tearing, psychological and physical torture and stress. Data has shown that most of the times the clients deny wearing a condom which leads to unwanted pregnancy, and since prostitution is not being regulated, these sex workers hesitate to approach doctors.¹³ When protection is not used it increases the chance of getting the sexually transmitted diseases like HIV- AIDS or chlamydia or syphilis etc., which are deadly and can make a person vulnerable and helpless. Sex worker organizations in India and Thailand have demonstrated the effectiveness of adopting an empowerment approach, based on community mobilization, peer-based health promotion, self-regulation, active engagement on law enforcement issues and participation in dialogue about law and policy reform.¹⁴
Crime Rate- There are many instances when sex workers face violence, both physical and mental and sometimes are even raped by their clients. Due to no regulations, sex workers find it difficult to report it to the authorities or the police and even when they do often, they face police harassment. Had the profession been regulated with stringent laws, it would have also reduced the crime rate as a sex worker would have been able to report it. There would be a check up on the other activities like sex trafficking. Often these women are trafficked to such countries where they don’t even speak the language and often these people don’t tend to have legal documents or have false documents which makes it harder for them to report crime. What could be done for this remains the question? The clients as well as the workers should be mandatorily made to fill and sign the consent forms. Crimes against them is brutal most of the time but rarely it has happened that people come out raise voice against the same. For instance, recently in Kolkata, a boy of 21 years killed a sex worker, kept the body for two days, later the body of the victim was found only with her undergarments on.¹⁵ People need to change their mentality and its high time to raise voice as any citizen would have done for any other daughter of India, when she is raped or killed.
Lack of Legislation- Prostitution as a career doesn’t come under the purview of labour laws therefore, it becomes very difficult to provide them their rights and protection under such laws. All of these factors lead them in the exploiting hands and deprive them of their basic rights as enshrined in the Constitution of India¹⁶, let alone the labour rights. It is a established fact that unless and until consolidation of labour rights within sex workers don’t take place, human trafficking can also not be stopped. Evidence from the jurisdictions in the region that have decriminalized sex work (New Zealand and New South Wales) indicates that the approach of defining sex work as legitimate labour, empowers sex workers, increases their access to HIV and sexual health services and is associated with very high condom use rates¹⁷. Sex work is though said as a profession in India however, there is no specific legislation to regulate such profession. Better regulation of laws makes it easy to rehabilitate and re-integrate these sex workers back in the society after being brutally exploited.
COVID-19 and Sex Work
The COVID- 19 pandemic, which has disturbed the economic functioning of the whole world has not left sex workers too. The pandemic has caused loss of earning of the sex workers further adding on plight on their health vulnerability. It has been earlier also found that the schemes which are made for them doesn’t reach them due to lack of identity proofs. Darbar Mahila Samanwaya Committee filed an application¹⁸ asking for certain reliefs for sex workers such as monthly rations, cash transfer of rupees 5000 per month, pandemic prevention measures such as masks, sanitisers etc., to be delivered to sex workers under Targeted Intervention Projects/State AIDS Control Societies and Community Based Organizations etc. The court ordered providing the relief to sex workers on September 29 and Maharashtra became first state to implement it in the month of October and approximately, 2700 sex workers are receiving the aid¹⁹. The only problem with implementation of this order is the lack of identity proofs. A panel was constituted by the Hon’ble Apex Court to find the status of sex workers in the year 2011²⁰, which submitted in its report that most of the sex workers in India don’t have ration cards, bank accounts, voter id cards and other such basic identity proofs. This makes it difficult for them to avail the service made for them, if any.
In this crucial time of pandemic, one of the limited keys to survive is social distancing, but their profession doesn’t allow them with this privilege. Today when vaccination has been started, it is a point to ponder upon that will it be any easier for them get vaccinated where the supply of vaccine is low as compared to its demand. There is huge rush in the entire country to get vaccinated but what about those who have already exposed themselves because of their profession to the deadly virus and are vulnerable and lack awareness regarding the same too. The society has to come together leaving its taboo related to sex and sex workers aside, to spread awareness and help the sex workers to fight with this virus in whatsoever manner they can.
CONCLUSION
“To the moralist, prostitution does no consist so much in the fact that the woman sells her body; but rather that she sells it out of the wedlock”
-Emma Goldman
Prostitution is one of the necessary evils of the society. The society needs this profession but doesn’t want to acknowledge this fact. Where the status of prostitution as profession has degraded over the period of time, the plight of the sex workers has increased. The law indeed is widening its ambit by acknowledging the presence of men, children and transgender in prostitution. The Preamble to the Constitution of India provides for equality of status and opportunity, fraternity assuring the dignity of the individual but it is quite evident with the data shown about the plight of sex workers that such equality and fraternity remains missing for sex workers.
The government indeed has brought different schemes for the improving their conditions and judiciary indeed came forward for their rescue from time to time but still there remains a scope of a lot to be achieved. The schemes being brought must ensure that it also has an impact on the thinking of the society and it should be tried by every institution to make the society understand how important this very profession is and it is not a mole but a necessity all over the globe.
The Immoral Traffic (Prevention) Act,1956 has a very limited scope and it needs to be widened and need to include more group of people. When things like prostitution will be better regulated it would decrease the crime rates, women will be less prone to STDs and other communal disease and will make these people aware of their rights. If it is being treated as a legalised profession, then like other professions there must be crystal clear laws without any contravention to regulate the same which the current act lacks.
It is an unsaid fact that how society sees prostitution as, as something very indecent and immoral. But it fails to see the truth that this so-called indecent and immoral act is because those sex workers have been failed by the system and the society itself in such a manner that they have no option but to sell their own bodies to survive. And doing so they are making society a better to place live in and thus they deserve to be treated with respect and they must be saved. Saving those involved in sex work can be said as part of the public policy and needs to be tackled as soon as possible.
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[1] Human Rights Watch, ‘RAPE FOR PROFIT Trafficking of Nepali Girls and Women to India’s Brothels, Human Rights Watch/ Asia, May 5, 2021 6:00 PM, https://www.hrw.org/reports/1995/India.htm#P699_187393.
[2] Section 2(f), Immoral Traffic (Prevention) Act, 1956, №104, Acts of Parliament, 1956(India).
[3] Sunita Bachchhav, Status of Prostitution and Related Crimes in India, Legalservicesindia.com, (3 May 2021 5:00 PM) https://www.legalservicesindia.com/article/2513/Status-of-Prostitution-and-Related-Crimes-In-India.html.
[4] United Nations Human Rights, Convention for The Suppression of The Traffic in Persons And Of The Exploitation Of The Prostitution Of Others, United Nation Human Rights Office of the High Commissioner (4 May 2021 5:00 PM), https://www.ohchr.org/EN/ProfessionalInterest/Pages/TrafficInPersons.aspx.
[5] Section 3, Immoral Traffic (Suppression) Act 1956, №104, Acts of Parliament, 1956(India).
[6] Section 7(b), Immoral Traffic (Suppression) Act, 1956, №104, Acts of Parliament, 1956(India).
[7] Ibid.
[8] Section 372 and Section 373, Indian Penal Code, 1860, №45, Acts of Parliament, 1860 (India).
[9] Section 370A, Indian Penal Code, 1860, №45, Acts of Parliament, 1860 (India).
[10] National Human Rights Commission, ‘Bibliographic Information on Trafficking in Women and Children’, National Human Rights Commission (5 May 2021 6:00 PM) https://nhrc.nic.in/relatedlinks/bibliographic-information-trafficking-women-and-children.
[11]United Nations Development Programme, Not Her Real Name- Reporting Trafficking in Persons Mediakit, HIV & Human Development Resource Network (HDRN) 2006 (5 May, 2021, 5:30 PM) https://www.undp.org/?content/dam/india/docs/not-_her_real_name_reporting_trafficking_in_person_mediaKit.pdf.
[12]India Women Welfare Foundation, ‘Trafficking in Women’ (2009), Women Welfare Organisation (5 May 2021, 6:30pm) http://womenwelfare.org/Trafficking_Prostitution.html.
[13] Caroline Free, Ian Roberts, Megan McGuire, Sex workers’ accounts of condom use: implications for condom production, promotion and health policy, National Library of Medicine (4 May 2021, 6:00 PM) https://pubmed.ncbi.nlm.nih.gov/17407678/.
[14] John Godwin, SEX WORK AND THE LAW IN ASIA AND THE PACIFIC (UNDP 2012), United Nations Development Programme (5 May, 2021, 4:21 PM), https://www.undp.org/content/dam/undp/library/hivaids/English/HIV-2012-SexWorkAndLaw.pdf.
[15] Times News Network, ‘Youth Held for Sex Worker’s Murder in Taltala’ (2009), Times of India (5 May, 2021, 9:00pm), https://timesofindia.indiatimes.com/city/kolkata/Youth-held-for-sex-workers-murder-in-Taltala/articleshow/4377228.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst
[16] Article 19, Constitution of India.
[17] Supra note 14.
[18] Abraham Thomas, ‘Provide Food to Sex Workers During Lockdown’: SC Tells Centre, States’ (2021), Hindustan Times (5 May, 2021, 10:00 pm), https://www.hindustantimes.com/india-news/provide-food-to-sex-workers-during-lockdown-sc-tells-centre-states/story-JlAtJ064xSaw9QB4WRzrPK.html.
[19] Tabassum Barnagarwala, ‘Nearly 2,700 Sex Workers in Mumbai Received Govt Aid During Pandemic’ (2020), Indian Express (5 May, 2021, 6:00 pm), https://indianexpress.com/article/cities/mumbai/nearly-2700-sex-workers-in-mumbai-received-govt-aid-during-pandemic-7221292/.
[20] Budhadev Karmaskar v. The State of West Bengal, [2011] 10 S.C.R. 577.
The first author is a Year III B.A. LL.B student and the second author is a Year III B.B.A. LL.B (Hons) student at the Chanakya National Law University, Patna.
Disclaimer: Any academic content published in Legis Sententia will be for informational and academic purposes only, and shall not be reflective of the views of the Department of Law, University of Calcutta or the Editorial Board thereof or any other institution, but only the views of the author concerned.
