STATUS OF SEX WORKERS AND PROSTITUTION AS PROFESSION IN INDIA

Yuvraj Pandey,

University of Allahabad

INTRODUCTION

Prostitution is something called as capital sex or sexual service. It is one of the world's oldest professions but still, this profession is seen as taboo or social evil in India. Although the rights available to them are the same as the ordinary people, they cannot utilize them because of social isolation and lack of awareness. The elections for the 17th Lok Sabha kicked off and every political party is trying to build their vote banks stronger through campaigns neglecting the sex workers and prostitutes. So, in this article, we'll dig deeper into the history of prostitution, its evolution, legislation and judicial decisions related to it, its current status, and the way forward.

HISTORICAL BACKGROUND

Prostitution in India is seen as a social evil and taboo. People feel uncomfortable to even talk about it. It is something that has a deep-rooted history in India. During the Vedic period, the concept of “Ganikas” was found in which they were provided with the task of giving mental and physical pleasure to their “maharajas” through dance and sexual intercourse. In ancient Indian history, this concept was called “Nagarvadhus” who were chosen through the competition of “most beautiful girl of the city” whose job was to give sexual pleasure to kings and mental pleasure to citizens through dancing and singing.

In medieval India, it took the form of the “Haram and Tawaif system” most popular during the Mughal era, where the tawaifs were kept separately by kings and rich landlords for sexual pleasure. With the advent of the Britishers, the Kota system (Brothel Culture) started and the Britishers regulated it for the first time through legislation and the law was the Cantonment Act of 1864[i]. Now in contemporary India, the Red-light system is prevalent and no strong law exists to regulate it. Prostitution is legally no crime but it is something illegal as per the Indian society and religion.

TYPES OF PROSTITUTION

In contemporary India prostitution can be classified in 4 ways:

1. Street Prostitution: Here the sex workers approach the passersby to be their clients and engage in sexual intercourse with them.

2. Brothel Culture: It is also called the "red light area" where the clients approach the sex workers for sexual pleasure who are working under the owner of the brothel and this system is also called kotha culture.

3. Home system: It is a kind of prostitution system where the sex workers invite their clients to their homes for sexual pleasure with whom they establish connections through middlemen.

4. Virtual Sex: It is a kind of prostitution where the sex workers provide sexual pleasure to their clients on Video calls and they establish connections with them through online sites.

CHALLENGES OF SEX WORKERS IN INDIA

Sex workers in India face psychological challenges because of their social isolation which puts a bar on their social engagement in employment of household activities such as sweepers, utensils cleaners etc. This puts them in financial crisis because of which they don't get access to proper health care and even in hospitals get thrashed because of their profession. The sex workers face an identity crisis because they don't have access to social services schemes of the government and they don't own Aadhar and PAN cards which leads to their deductions of names from the voter list, molestation by cops, their safety issue as they were hired for haphazard works such as illegal mining etc. and when they are raided either in brothels or illegal works they face legal discrimination by the administration. They don't get the right to vote which makes them unheard on the platform of the world's biggest democracy. As per the reports of UN 2019, approximately 3 million sex workers live their lives outside of the political arena of India in a mess with weak rights[ii].

VARIOUS LEGISLATIONS FOR PROSTITUTION

After 1947 the government of India, by passing The Suppression of Immoral Traffic in Women and Girls Act, of 1956, made the first law to control prostitution indirectly. It didn’t criminalise prostitution but restricted many other related things like declaring brothel-keeping illegal under Section 3 and criminalizing procuring, detaining, or inducting any person for sex work under Section 5. It also criminalized prostitution near public and notified areas under Section 7 and made soliciting prostitution illegal under Section 8[iii].

Through Sections 372 and 373 of the Indian Penal Code, the government criminalized the buying, selling or importing of minors for prostitution[iv]. The same offence carries a ten-year sentence or a fine under Schedule 1 of the CrPC. Section 8 of the Suppression of Immoral Trafficking Act, 1956—which penalises prostitutes for soliciting clients—is decriminalised by the Immoral Traffic (Prevention) Act, 2006.

JUDICIAL DECISIONS

The judiciary, through landmark judicial decisions, has extended constitutional protections to sex workers in India. Articles 23(1) and 23(2) of the Constitution, which prohibit the trafficking of human beings and forced labour, have been interpreted by the courts to include sex workers within their ambit. In the case of State of UP vs Kaushalya[v] the Allahabad High Court upheld the constitutionality of the Immoral Trafficking (Prevention) Act, 1956, emphasising the distinction between prostitution and nuisance, thus affirming sex workers' fundamental right under Article 21[vi]. Furthermore, in the pivotal case of Budhadev Karmakar vs State of West Bengal[vii] the Supreme Court unequivocally asserted that sex workers are entitled to dignity and humanity, declaring prostitution a recognized profession under Article 19(1)(g)[viii]. Additionally, the court ruled that sex workers should not be deprived of their parental rights solely due to their profession. To ensure their safety and dignity, law enforcement agencies are instructed to treat complaints of sexual harassment against sex workers seriously, refrain from arbitrary raids, arrests, or harassment, and uphold their identity confidentiality during any law enforcement proceedings. Upholding the principles of equality and justice, the judiciary affirms that sex workers are entitled to equal protection under the law and should be treated as valued members of Indian society.

STATUS OF PROSTITUTION IN VARIOUS COUNTRIES

1. New Zealand - They legalised prostitution in 2003 in which they operate licenced brothels working under public health and employment laws.

2. Canada: They legalised prostitution in 2013 but with strict regulations.

3. Germany: They legalised prostitution in 2002 where the brothels are under state control and sex workers are asked to pay tax to get health insurance, pension and advantage of another government scheme.

4. Greece: They legalised prostitution in 1834 but only in state-licensed brothels.

5. Australia: They decriminalised prostitution through the Prostitution Act of 1992 but brothels and prostituted persons must be registered.

PROS

Legalizing prostitution would significantly enhance the working conditions and quality of life for sex workers by affording them access to government schemes and healthcare services. Furthermore, legalization would curtail societal, police, and administrative exploitation by guaranteeing sex workers their rightful entitlements. The implementation of legalization measures would also effectively mitigate the spread of sexually transmitted diseases (STDs) through enhanced healthcare interventions. Additionally, legalization could serve as a safeguard for numerous women against spousal abuse, particularly those facing dissatisfaction within their marital relationships. Lastly, the regulation of prostitution through taxation, akin to online gaming platforms such as Dream11 and My11Circle, holds the potential to generate substantial government revenue, further bolstering the economic landscape.

CONS

The legalization of prostitution may exacerbate the objectification of women, reducing them to mere objects of gratification rather than individuals deserving of respect. Moreover, legalization could inadvertently fuel the trafficking of women and girls, perpetuating their exploitation within the prostitution business. Additionally, legalization may instigate moral decay among the youth, as the pursuit of instant gratification could overshadow long-term consequences, potentially leading to a societal acceptance of prostitution as a viable career path. Furthermore, the normalization of prostitution could erode traditional family values and religious obligations among Indian citizens, potentially destabilizing societal norms and moral frameworks. In sum, legalization may inadvertently open the floodgates to societal upheaval and moral decline within India.

CONCLUSION

In conclusion, the imperative for government intervention in regulating prostitution is underscored by the multitude of court orders advocating for legislative oversight. Following the successful taxation model seen in China's $76 billion prostitution market[ix], the implementation of a tax system for prostitution not only promises substantial revenue but also formalizes the industry. Moreover, the provision of healthcare facilities and sexual education to sex workers stands as a crucial step towards mitigating the transmission of sexually transmitted diseases (STDs) and promoting overall public health. Concurrently, facilitating proper documentation for sex workers would seamlessly integrate approximately three million individuals into mainstream Indian politics, ensuring their voices are heard and their rights upheld. This multifaceted approach not only affirms their legal, social, moral, and fundamental rights as enshrined in the Constitution of India but also advances the cause of social justice and equity in the nation.

REFERENCES 

[i] The Cantonment Act of 1864

[ii] UN report of 2019

[iii] Suppression of Immoral Trafficking Act, 1956

[iv] IPC, 1860

[v] State of Uttar Pradesh v. Kaushalya AIR 1964 SC 416

[vi] Constitution of India

[vii] Budhadev Karmakar v. State of West Bengal on 19th May 2022

[viii] Constitution of India

[ix] Price and Statistics of the global sex trade report