CONTEMPORARY OVERVIEW ON SOCIO-ECONOMIC HISTORY DEVELOPMENT AND STATUS QUO OF PROSTITUTION IN INDIA BY - NOHITHA ANIL & LAKSHMI PRIYA P
CONTEMPORARY
OVERVIEW ON SOCIO-ECONOMIC HISTORY DEVELOPMENT AND STATUS QUO OF PROSTITUTION
IN INDIA
ABSTRACT
The primary component of legislation
intended to prevent sexual exploitation and human trafficking is “The Immoral
Traffic (Prevention) Act”[2]. It renders operating a brothel,
profiting from prostitution and engaging in prostitution-related activity unlawful.
There are extra sanctions for involving minors.
Apart from the provisions of ITPA, the
Indian Constitution's fundamental rights section particularly addresses the
protection of sex workers in India. Furthermore, the Indian Supreme Court has
ruled that sex workers ought to be treated with dignity and accorded equal
protection under the law, acknowledging prostitution as a respectable
occupation.
A sex worker who is
engaged in this profession faces numerous mental and physical issues that has
long term effects in their life. Studies have proven that sex workers in a
society is a major reason which control the rate of rape and assaults on women.
But their growth is facing stagnation which can be improved by introspection of
each member in a society.
Keywords:
Sex Worker, Prostitution, ITPA Act, Sexual Exploitation, Human Trafficking.
I.
INTRODUCTION
Man has reached the moon and beyond
and at earth it is the artificial intelligence and robots in fashion but the
social creeps like caste discrimination poverty social exclusion still
continues. “It’s a very painful and humiliating job, we have to
live a life of ignominy and shame. One might enjoy it for the first time or the
second, but when you have to do this to earn a living and do it every day, your
body no longer remains yours. It becomes public property.”[3] These are the words
of Rekha a sex worker from Delhi Red Street. A sex worker has always been excluded from the society for
their nature of work being shunned. They
have only received spurn instead of their wish to head a normal life. A
microscopic lift is seen in their social affiliation from recent decade. The reason for their enrolment into this profession,
continuance and sufferings are dealt in this paper.
II.
FEMALE SEX WORKERS IN INDIA
History has been unjust to sex workers. Many women turned to sex worker who were ‘devadasis’ in flourished court. But
downfall of kingdoms and raise of British rule turned devadasis to prostitutes.
Earlier who had eminent positions and divine status in courts was pushed to
choose a job with no interest by poverty and family circumstances. There are
too many stories on their history but this is relevant. Talking about the social environment, sex workers are always excluded from
the society. There are two view points on this concern
i.
If
their activity is totally normalised then it leads to increase in trafficking and more will be dragged to it. And people
may be hesitant to accommodate them in localities which further makes an
exclusion.
ii.
If
not normalised then a class of people will be deprived of basic fundamental rights guaranteed in Constitution of
India.
Another dilemma in this service is
that the one who has exploited them enjoys all privileges in society. Often the
service seekers may laugh off on it however, a service provider is ostracized. A sex worker is always
exploited and subsequently shunned in the society. Many voluntarily blind folds
on these side of their work and make futile comments on physical pleasure and
pay scale.
Pseudo
hierarchy in the society
is one of the main reasons for degrading this profession to a pathetic level.
Society has been judgemental in classing the job of individuals. Where a person
is forced to take some job and to continue it for long is some hard. It exhausts
their mental health, with which performing an activity (even with an
earning) is equal to a surrender. Society without examining the actual means
has established a pseudo hierarchy which created two sections mainly
white-collar jobs and the rest. Here the reason for such a list being unknown, it has been deep rooted in
minds of people living now and for the generations to come it will remain the
same.
Pathways are 3-fold
First, women are propelled into sex
work as part of their family profession.
The stigma of exclusivity contained in prostitution as seen along with caste-based
discrimination, severely limits the educational, alternative economic and
career opportunities. Second, many young women from domestic rural areas as
well as from socially and economically backward countries are deceived, sold, or otherwise trafficked
into sex work. Driven by extreme poverty faced by their families and the lure
of relatively better incomes, women choose to return to sex work, albeit in a
coercive context, they once returned to their homes.
Sex workers in Calcutta are conservatively
estimated to earn an hourly wage almost twice that of women in urban India. Thus, some women
choose sex work as a means to support her stakeholders after being widowed,
divorced, or abandoned by their family. Statistically about 9% of a random
sample of sex workers in the Sonagachi “red light” area stated that they voluntarily
chose this profession. While some sex workers are street-based, majority of
them work, and often live, in brothels clustered in red light areas of big
cities and small towns.
Basic human rights jurisprudence in
India has gained potential recognition and constitutional status by the wide
interpretation awarded by the constitutional courts in India, leaning towards
Article 14, 19 and 21.[4] The constitutional updation for
human decency and dignity has been explicitly incorporated by Article 21. In
the case of “Francis Coralie Mullin v. Administrator, Union Territory of Delhi,
the Court broadened the interpretation of the right to life under Article 21.
It was expanded to encompass not only the protection of limb or faculty, but
also the right to live with human dignity. It goes without saying that this
fundamental safeguard of human decency and respect applies to sex workers and
their children as well. They often bear the weight of the social stigma
associated with their profession, leading to their marginalization within
society. As a result, they are denied the right to live with dignity and the
chance to offer the same to their children”.[5]
III.
LEGISLATIONS PERTAINING TO SEX WORKERS
In 2022, the film "Gangubai
Kathiyawadi" starring Alia Bhatt tells the tale of Gangubai Harjeevan Das,
an Indian social activist, sex worker, and brothel madam who lived in Mumbai's
Kamathipura neighbourhood during the 1960s. In the movie Her early life, her
issues, how she is being forced into the world of prostitution and her later
attempts to help all women and children in that social class were all shown. The
tale aptly captures the mentality of a great deal of people in this nation. The
Immoral Traffic (Prevention) Act of 1956[6] encompasses the legislation
pertaining to sex work. In India, prostitution or sex work are both legal;
however, certain related acts, such as pimping, are not.
The Immoral Traffic (Prevention)
Amendment Bill, 2006, was also presented with the goals of addressing sexual
exploitation and human trafficking while reinforcing the ITPA. Sections that
penalised prostitutes for looking for clients were removed by the bill, which
also established central and state agencies to fight human trafficking. On the
other hand, trafficking for domestic and bonded labour was not covered. The
ITPA has been useful in combating human trafficking and sexual exploitation in
India, even though its enforcement and society's obligation to prevent these
crimes remain crucial.
ITPA
makes many prostitution-related activities illegal. “Section 2(a) of Act defines a "brothel" as any
home, room, or place used for such activities.”[8]
Section 2(f) of the Act[9] also
defines prostitution. People
who are sexually abused or exploited for financial gain or other forms of
payment in kind or currency are known as prostitutes. Although the Act does not make sex work illegal, it does
forbid operating brothels, subsisting on the money earned of prostitution,
pimping, soliciting, luring someone into prostitution while they are in jail,
and engaging in prostitution in public places. It runs counter to the idea
of prostitution in general. They meet their clients in hotels since they are
unable to open a brothel. These hotels are frequently raided by the
authorities, who then arrest the owners and their guests. Most of the time,
they are arrested and told that what they did was unlawful. However, is lawful
in practice.
In
order to care for and safeguard women and girls who have been rescued from
prostitution or who require care and protection, the Act also calls for the
construction of protective homes and corrective institution[10]. In order to make its prohibitions
stronger, the ITPA was further updated in 1986 with the goal of preventing
human trafficking.
“The Immoral Traffic (Prevention)
Act, 1956”[11], which focuses more on punishing sex
workers than it does on solving human trafficking, has drawn criticism. The Act
addresses "prostitution," in a manner similar to human trafficking.
Rather than focusing on the people traffickers, this has led to the prosecution
of sex workers who willingly do the act. Instead of using the terms
"trafficking" or "human trafficking" once, the Act
concentrates on penalising actions related to
"prostitution." Human trafficking victims are now considered
criminals as a result of the 1986 revision to the Act, which altered the definition
of "prostitution," which has drawn criticism for inflicting more harm
than good. Instead of serving as a deterrent to human trafficking, the Act has
been described as a tool used by law enforcement to penalize sex workers.
In the case “Kajal Mukesh Singh and Ors
v. The State of Maharashtra, the Bombay High Court made it
clear that the law is meant to safeguard sex workers rather than to penalize
them.”[12] Commercial sexual exploitation,
including pimping, recruiting, and seduction in public spaces, is illegal.
Running a brothel or permitting its premises to be used for prostitution is
likewise prohibited. People who exchange their bodies for cash are acknowledged
by the law as victims, not offenders. The ITPA does not outlaw prostitution per
se; rather, it outlaws the networks of support that facilitate and promote
prostitution.
Constitutional articles protecting
sex workers
Fundamental rights established in the
Constitution serve as the primary source of the constitutional articles
protecting sex workers in India.
Article 14
“Article 14 of the Indian
Constitution ensures equality before the law and equal protection of the laws
for all individuals, including sex workers.”[13] This provision is significant in
protecting sex workers rights as it ensures that they are not discriminated
against based on their profession or status. Article 14 forms the basis for
ensuring that sex workers are treated fairly and justly under the law.
Article 19(1)(g)
“Article
19(1) (g) of the Indian Constitution guarantees every Indian citizen the fundamental
right to practice any profession or to carry on any occupation, trade or
business subject to reasonable restrictions.”[14]
It says nothing in this section
grants permission to practise any trade, company, or profession that is illegal
in accordance with the law. Individuals may not be subject to arbitrary limits;
instead, they must be in line with public morality, order, and the public
interest. People engage in sexual work as a career, and Art. 19(1) (g)'s
reasonable restriction does not appeal to them. “The Hicklin test, which was
established in the R v. Hicklin case, is used in India to define obscenity. The
question is whether the content that is being called obscene has the potential
to corrupt and deprave people whose minds are prone to such immoral influences
and who might come into possession of such a publication. Most sex work is done
behind four walls, and it doesn't corrupt or deprave people's minds.”[15]
This article guarantees that those who operate in the sex
industry are free to practice without worrying about harassment or
discrimination.
Article 21
“Article 21 of the Indian
Constitution guarantees the right to life and personal liberty, which includes
the right to a dignified life.”[16] “In the case of Budhadev Karmaskar
v. State of West Bengal, the Supreme Court of India has recognized sex work as
a profession and stated that sex workers are entitled to dignity and equal
protection of the law under Article 21. The court has also issued various
guidelines to protect the rights of sex workers, including protection, support,
and medical assistance to sex workers who are victims of sexual assault,
sensitization of the police force about the rights of sex workers, development
of media guidelines to protect the privacy and confidentiality of sex workers,
and ensuring access to legal aid to sex workers. The Supreme Court's guidelines
under Article 21 are a significant step towards recognizing the dignity and
rights of sex workers in India.”[17]
In short, the constitutional articles
protecting sex workers in India intent to make sure that sex work industry are
treated with dignity and respect, have access to legal protection against
sexual harassment, and are not discriminated against based on their profession
or status.
IV. A
COMPARATIVE EXAMINATION OF THE UNITED KINGDOM AND INDIA’S LAWS CONCERNING SEX
WORK
The Sexual Offences Act, 2003[18] in the United Kingdom addresses
legislation pertaining to sex industry. Whereas in India, “The Immoral Traffic (Prevention)
Act, 1956”[19]
(ITPA) is the lawful system for
sex work. The
Sexual Offences Act of 2003 addresses offences related to child prostitution
(Sections 47 to 51), sex trafficking, as well as prostitution and its
victimization etc. the Act seeks to lower the number of sexual offences in the
UK. Under this act, individuals who intentionally promote a minor under the age
of 18 to become a prostitute are subject to harsh penalties. In Great Britain
(England, Wales and Scotland), prostitution per se is permitted in exchange for
money. Under The Sexual Offences Act of 2003[20], however, soliciting
in public, kerb crawling, running, managing, helping in management, maintaining
or running a brothel, pimping, and pandering are all regarded as
crimes. In England and Wales, paying for sex with a forced sex worker is prohibited and is punishable
by strict liability offense.
The
legal foundation for sex work in India is set by “The Suppression of Immoral
Traffic (Prevention) Act, 1956”[21]
(SITA). ITPA was created in 1986 as a result of additional revisions and
modifications to the Act. ITPA covers commercial sex-related activities rather
than completely banning sex work. It also makes it possible for sex workers to
be freed and receive rehabilitation. The police and magistrates are authorised
to enforce the act. The victims' security, restitution, and compensation are
expressly covered by this statute.
Coming
to what is a brothel, a brothel is a place used for illicit sexual activity. “Section
3 of The Immoral Traffic (Prevention) Act 1956 lists the penalties for doing
so. It says that anyone who maintains, helps maintain, or manages a location
that is utilised as a brothel faces three years of rigorous imprisonment and a
fine of up to two thousand rupees. Following sentencing, the punishment
consists of two years rigorous imprisonment, not to exceed five years, and a
fine of up to two thousand rupees.”[22]
According to “Section
55 of the Sexual Offences Act of 2003, anyone who maintains, operates, or
assists in the operation of a brothel will face consequences”.[23] The UK law stipulates
that maintaining an area or premises that is used as a brothel is a crime that
has a minimum sentence and allows for a summary trial. All of the offences
listed in the Act for summary trial, however, are not covered by any provision
in Indian law. Nonetheless, compared to Indian legislation on indictment, the
UK legislation prescribes a greater sentence.
The exploitation of
prostitution is the main emphasis of UK legislation. It establishes harsher
penalties for a few prostitution-related offences. Nearly every facet of the
prostitution offence is covered by Indian law. The UK statute does not go into
the same detail or list all of the significant prostitution-related sections as
the Indian legislation.
Gender-specific prostitution crimes
have been broadened under schedule 1 of the UK statute. This includes all
individuals, regardless of gender, engaged in prostitution. The prejudice
against gender-based prostitution is significantly reduced by this clause. The
most important clause in UK law is this one.
V.
INCURIOUS PROLONGMENT
When a lady
is recognised as a sex worker it is very hard for her to come out of that
vicious circle. A girl
who is brought into prostitution at a very young age is deprived of her
elementary or higher education. She lacks mental growth and self-determination.
Thus, she finds it very hard to afford herself into a better profile. Burdened
with pressure from the family for monetary earnings stabs her to continue to do
the same. Especially, in most of the north Indian states where there are large
number of members per family, it requires everybody to earn. This forms the
reason for high rate of illiteracy in northern states of the country, where
young children are deprived of schools and employed in farms, fields and
industries. This is why even the trafficked girls once dragged to this
community are forced to continue in the
same field.
VI.
FINANCIAL TOXICITY
Even though not admitted in family
their income is always welcomed. They are mostly excluded from attending family
functions and social gatherings even if fully funded by themselves. In many
places remuneration is pooled by an agent and a part of it is distributed among
them. Thus, they find it hard to live. They need money to take care of their
children and fund families along with their personal needs. But often they find hard to manage their
money. As they lack proper employment papers etc banks restrict access to loans
or create deposits. Thus, they settle with local money lenders who exploits the
funds. To meet with immediate needs especially aged sex workers take loans at
high rates of interest from unauthorised financial institutions. As their living
arrangements are improper many amounts get stolen also. In addition to this,
their wardens or agents, police officers as well as criminal gangs snatch a
high amount from them when kept in self -custody. Thus, this financial
mismanagement put them to further financial debts.
The Usha Multipurpose co-operative
society which basically function in
west Bengal has allowed to accumulate their funds and also provide micro credit
to sex workers. it also offers many other banking services. Thus, sex workers
in West Bengal have got rid of the misery of financial mismanagement.
Yet there are many parts in India
where, the money they get as remuneration is looted which needs a solution.
Rather than avoiding them banks can provide loans or accept deposits which
helps them to accumulate wealth.
VII.
ORGANISATION OF SEX WORKERS
There are many numbers of NGO’s and
other organisations which raise voice against social discrimination and also
for their better mental and physical health.
“Usha Cooperative, Durbar Mahila
Samanwaya Committee (DMSC)” is India’s oldest and the first organisation which
was formed with an aim of empowering and uplifting the livelihood of sex
workers. One of its core action plans contained 3 r’s in late 90’s namely
respect, reliance and recognition. The primary goal is fixed to fight
exploitation and discrimination. It functions as a collective organisation
where basic human rights is demanded as well as other rights to safe sex is
jointly advocated. The HIV awareness it spreads has formed a crucial role in
helping thousands of sex workers all over India. Even though it began by
focusing on west Bengal state now it operates all over the country. It runs
educational, healthcare and rehabilitation institutions. Hence it fights against
the old strategy of administrators and government to beat them up and
transporting the sex workers to far off places in name of eradication. The
children of sex workers are also provided with great hands of help.
The Sonagachi Project was replicated,
including community organizing and advocacy, peer education, condom social
marketing, and establishment of a health clinic in Kolkata, mainly functioning
In India. A study conducted by National institute of health released the
statistics as “HIV seroprevalence rates among sex workers have ranged from
50–90% in Bombay, Delhi, and Chennai. However, HIV rates of only 10% have been
observed among sex workers in Calcutta, a city on the drug route into the heart
of India and one of the most impoverished urban areas in the world. Condom
usage has risen in Calcutta, from 3% in 1992 to 90% in 1999, compared with
steady rates of low condom use among sex workers in other cities in India”.[24]
Many NGOs talk about rehabilitation
and just brings them out or get signed from them not to return to sex work
which neither benefit sex work nor their dependents. Many sex workers have
commented that actually they are not in need of rehabilitation as they don’t
want return from this profession as it is their work. Proper education on their
matters to protect their body from contingent diseases and rationing system
extending to them, which is being implemented recently is a progress.
Notwithstanding, women who are trafficked and channelised can be given life
opportunities.
VIII.
SUGGESTION
i.
Use
of health and safety measures by sex workers should not be conferred as
commission of an offence nor the materials to be summoned as evidence of
offence.
ii.
State
government should ensure that children of sex workers are given due respect and
development opportunities. Separating their children should be stopped and
given adequate surveillance.
iii.
The
central and state government involving in planning, designing or organising any
projects beneficial for the sex workers must include them in the program at the
panel level.
iv.
Appropriate
education must be given to sex workers in matters relating to rights
obligations health measures and most importantly on steps to access judicial
bodies in case of unnecessary harassment of trafficking and sexual assault.
v.
Police
or anyone in authority must handle sex workers case just like any other case.
They should not be subjected to humiliations and rejections while seeking help
to restore the rights guaranteed by the constitution.
IX.
CONCLUSION
The events in a sex workers life,
their hardships and vulnerability are showcased which is an eye-opener to take
steps to their upliftment in society. The Immoral Traffic (Prevention) Act
(ITPA) 1956 had in it many changes compared to the repealed Act but its success
rate is yet a question mark as neither the socio-political situation of the sex
workers has not improved nor they have acquired economic independence. By the
intervention of the honourable Supreme Court the profession and its community are
to be treated with standard dignity and humanity. However as all theirs
benchmarks are to be applied in human beings there is no universal mode of
application. Only individual development through education and self-redefining
can evolve the mentality towards sex workers as well as to offer then a better
standard of living.
[3] Shoaib
Shafi, ”Indian sex worker in GB Road, New Delhi’s
main red light district, tells her story of pain and loss
‘(2019)
[4] Maneka Gandhi v. Union of India
(1978) 1 SCC 248.
[12] Kajal Mukesh Singh and Ors v. The State of Maharashtra Criminal
Writ Petition No. 6065/2020 dated 24/09/2020.
[24] HIV
Prevention Among Sex Workers in India, available at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2826108/
(last visited on April 14, 2024).