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A SILHOUETTE OF SOCIETY: SEX WORKERS & PROSTITUTION IN INDIA BY: ADEEB BAKHTAVAR
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Article Details
A SILHOUETTE OF SOCIETY: SEX
WORKERS & PROSTITUTION IN INDIA
AUTHORED BY: ADEEB BAKHTAVAR (NLU,
SONIPAT)
Synopsis
This article endeavors to present a
thorough perspective on the legal status, rights, provisions, and historical
context of sex workers and prostitution in India, examining these aspects
through the lenses of both societal perspectives and constitutional considerations.
It seeks to analyze the disjunction between the legal rights afforded to sex
workers as delineated in court judgments and parliamentary statutes, and the
actual conditions experienced by prostitutes. Utilizing statistics and diverse
datasets, the article aims to shed light on the state of healthcare for sex
workers and the prevailing societal treatment towards them, thereby providing a
nuanced understanding of the complex landscape surrounding this issue.
Introduction: The History and Existence of Sex Workers
in Society
Since the epoch when humanity
coalesced into societies, there has been a remarkable cognitive and social
evolution. Commencing as pastoralists and hunters, we have traversed the ages
to inhabit a world marked by urbanization and globalization. In this
interconnected tapestry of diverse societies, myriad job opportunities and
occupations have emerged, pursued either as a manifestation of personal passion
or societal responsibilities.
Amid this myriad, certain professions
have achieved global acclaim and are deemed noble and elite across diverse
societies. Occupations such as that of a Lawyer, Doctor, Teacher, and Artist
have stood the test of time, existing since the inception of human society
itself.
However, amidst the ever-changing
tapestry of evolving societies, one occupation has endured as a constant
throughout history – that of sex work, commonly known as prostitution. Often
referred to as the oldest profession, its roots extend deep into the annals of
time[1].
The earliest recorded acknowledgment
of prostitution traces back to 2400 BC, unveiling a glimpse into the past. The
historical account unveils a brothel temple nestled in the ancient Sumerian
city of Uruk, under the management of Sumerian priests. This unique establishment
was a tribute to Ishtar, the ancient goddess embodying love, war, and fertility[2].
Whereas in the intricate tapestry of
Indian history, the Rig Veda sheds light on a tradition where kings bestowed
the unusual gift of slave girls to revered rishis. A unique chapter in cultural
evolution emerged around the 6th century, marked by the institutionalization of
ritualized prostitution. This transformative practice gained prominence with
the dedication of girls to Hindu deities, ushering in the era of 'devdasis,'
where 'dev' signified god, and 'dasi' denoted female servant. These girls were
regarded as divine handmaidens, a poignant intersection of spirituality and
societal norms in ancient India[3].
This profession, with its roots
deeply embedded in history and persisting through centuries, continues to cast
its shadow across the fabric of our contemporary society. Despite its
unwavering presence, it remains ensconced in stigma and taboo, perpetuated by
the very individuals who constitute the social tapestry. The existence and
prevalence of sex work and prostitution, according to me is a Silhouette of the
very society we live in, screeching for attention, regulation, awareness, and
protection of the rights of the sex workers
akin to a solitary light piercing through the profound darkness of a
deep canyon.
Current Legal Status and Rights of Sex Workers
The term ‘Sex work’ was coined by
Carol Leigh to start a moment to redefine how people viewed sex work[4].
It recognized sex work as work,
rather than a status and rejected the word prostitution.
Is sex work or prostitution legal in
India? Sex work is legal in India but with some ambiguities, as The Constitution of India[5]
provides some rights and safeguards to its citizens and at the same time some
activities related to sex work are penalised under statutes like Immoral Traffic (Prevention) Act (1956)[6]
which includes sexual abuse, brothels, pimping and the involvement of minors.
In India, the business of sex work or
prostitution generates 40,000 Crores Rupees annually, which underscores the
fact that commercial sex work is a way for people to earn livelihood[7].
The Constitution of India unequivocally
extends fundamental rights to individuals engaged in prostitution, just as it
does for all other citizens. This inclusive provision is grounded in the
principles of equality enshrined from Article
14 to 18[8]
and further amplified in Article 19[9],
emphasizing the right to practice any profession, trade, or occupation.
Moreover, the sanctity of life and personal liberty, encapsulated in Article 21[10],
encompasses the right to live with dignity. Thus, recognizing sex workers as
integral members of society, the constitution secures their entitlement to
these fundamental rights, reinforcing the democratic ethos of equality and
individual autonomy.
As well as the assurance of the right
to livelihood is expressly extended to both men and women through state
policies delineated in the Directive
Principles of State Policy (DPSPs)[11],
outlined in Part IV of the Constitution. While these principles are not
inherently enforceable, a notable judicial precedent in the case of P.N. Swamy,
Labour Liberation Front, Mahaboobnagar v. Station House Officer, Hyderabad[12],witnessed
the Andhra Pradesh High Court adjudicate that specific obligations enumerated
in Part IV, coupled with their corresponding rights, form an integrated
framework granted to sex workers. This legal affirmation thus converges the
constitutional ethos, elucidating the interconnectedness between the DPSPs and
the collective entitlements bestowed upon individuals engaged in sex work.
In the landmark case of Francis Coralie vs Union Territory of Delhi[13].
The Supreme Court, in its expansive interpretation of the right to life,
rendered a verdict of profound significance. Within this judicial
pronouncement, the apex court elucidated that the right to life encompasses not
merely biological existence but extends comprehensively to the right to live
with inherent human dignity. This holistic conception of life's sanctity
encapsulates the provision of fundamental requisites such as sufficient
nutrition, shelter, and clothing, affirming that these elemental facets are
integral components of a life lived with dignity.
Furthermore, the court, in its
discerning wisdom, underscored that the right to life encompasses the freedom
to engage in activities that inherently constitute the expression of one's
human self. By recognizing the right to carry out functions that embody the
essence of individual expression, the judiciary heralded a jurisprudential
paradigm that acknowledges the multifaceted dimensions of human existence. In
essence, the Francis Coralie case not only safeguarded the tangible essentials
for a dignified life but also championed the right to pursue actions that
resonate with the intrinsic nature of being human.
Moreover, the rights of sex workers
find protection under Section 375C of
the Code of Criminal Procedure, 1973[14].
This statutory provision stipulates that individuals engaged in prostitution,
who become victims of sexual assault, are entitled to access all services
accorded to survivors of sexual abuse, with a specific emphasis on prompt
medical attention. The directive underscores a commitment to ensuring that
those in the profession of sex work, confronted with instances of sexual
assault, are afforded comprehensive support akin to any other survivor of such
heinous offenses. In essence, Section
375C represents a legal imperative to extend equitable access to critical
services, particularly expeditious medical care, recognizing the vulnerability
of sex workers in the face of sexual violence.
Addressing the pervasive
discrimination and social stigma encircling sex workers, the judiciary, as
exemplified in the case of Gaurav Jain
vs Union of India[15]
promulgated expansive directives for the rescue and subsequent
reintegration of sex workers and their children into mainstream society. The
court, cognizant of the nuanced dynamics at play, unequivocally asserted that
women involved in prostitution ought not to be perceived as perpetrators, but
rather as victims ensnared by adverse socioeconomic circumstances.
A cornerstone of the court's
pronouncement lay in its resolute emphasis on empowering these women
economically. This empowerment, as envisioned by the court, materializes
through avenues such as self-employment initiatives and vocational training
programs. By recognizing the intrinsic link between economic autonomy and the
liberation of individuals engaged in sex work, the court sought to dismantle
the entrenched cycle of exploitation and marginalization. In doing so, the
judicial intervention in Gaurav Jain vs
Union of India not only underscored the need for a compassionate and
rehabilitative approach but also laid down a blueprint for fostering enduring
societal inclusion and empowerment.
As well as, in the judicial precedent
set by the Supreme Court in the case of Buddhadev
Karmasakar vs State of West Bengal[16],
a pivotal affirmation was made, asserting that sex workers, as human beings,
inherently possess the right to life under Article 21 of the Indian
Constitution. The court emphatically declared that no individual or entity
possesses the prerogative to inflict harm or perpetrate violence, including
murder, upon sex workers. This pronouncement solidified the recognition of the
inviolable dignity and entitlements of individuals engaged in sex work within
the constitutional framework.
Furthermore, the nuanced distinction
between women trafficked for commercial sex and consenting, mature women who
willingly choose sex work as a profession was elucidated by the Justice Verma Commission in 2013[17]
This commission, through its discerning analysis, delineated the legal status
of sex work as a distinct profession. By categorizing consensual adult
engagement in sex work as a legitimate professional choice, the Commission
underscored the importance of recognizing the agency and autonomy of those who
willingly enter into such arrangements. This legal perspective sought to dispel
misconceptions and contribute to a more nuanced understanding of the
complexities surrounding sex work within the ambit of the law.
Laws and Reality: A sharp contrast
Even after the efforts of the
judiciary, safeguards of the constitution and existing laws in force, there
remains an ambiguity, stigma and blur around the sex workers and their rights.
Statistics show that there are nearly 500,000 child sex workers in India even
after the Immoral Trafficking act[18]. Whereas
the access to health care and health conditions of sex workers is in an
aggrieved state, a report showed that many prostitutes whose blood was tested
were HIV positive. In so far as the report about AIDS amongst sex workers, it
is stated that out of the 70,000 prostitutes in the red-light district, 65%
were already infected with the dreaded AIDS disease and had been tested HIV
positive in Mumbai[19].
According to data there are
approximately one million women and children victims of sexual exploitation
alone including 40% of children in prostitution through abduction[20]. In 2016 alone 20,000 women
and children were trafficked for prostitution in India[21].
These statistics underscore the sharp contrast between the actual conditions
and safeguards provided in statutes and judgements, and also highlights the non
implementation of law, lack of awareness, and absence of will to work for the
betterment of the sex workers.
Conclusion:
The enduring stigma, taboo, and
discrimination directed at sex work and its practitioners, present since the
dawn of society, perpetuate a cycle of exploitation and subjugation. Despite
judicial and governmental guidelines, sex workers often find themselves
ensnared in perilous conditions. Prostitution becomes the haunting silhouette
of our societal landscape, casting those engaged in it as stranded souls in a
dark and precipitous valley.
To go by Justice Ramaswamy’s words,
“women found in flesh trade should be viewed more as victims of socio-economic
circumstances and not offenders of the society, some police authorities have
already set out the process of sensitization towards the sex workers and their
treatment.[22]” The intervention intended for the
rescue of sex workers, under the ITPA often paradoxically leads to their
blatant mistreatment at the hands of law enforcement. In order to liberate sex
workers from the cycle of violence and exploitation, it is imperative to
explore alternative strategies, such as adopting a Human Rights or Activist
approach. Organizations like DMSC and SANGRAM exemplify innovative paradigms
that not only seek to emancipate sex workers but also empower them to assert
their rights within society.
More emphasis must be laid on health
care regarding the prevention and protection of sex workers from HIV/AIDS.
Initiatives such as the HIV and AIDS
program have demonstrated notable success, as evidenced by statistical data.
Prior to its implementation, condom usage stood at a mere 4 percent. However,
following the program's introduction, figures in 2001 reflected a remarkable 80
percent increase in condom usage[23]. To
address contemporary challenges, it is essential to integrate a more modernized
approach, augmented by state support and assistance. Notably, the prevalence of
HIV in Sonagachi, where the program was initiated, ranges between 8-10 percent,
in stark contrast to the 60 percent prevalence observed in Mumbai's Kamathipura
red-light area[24].
The imperative to enhance awareness,
accountability, and access to essential services, such as healthcare, legal
assistance, and equality, underscores the need for the steadfast implementation
of peer education programs. This commitment should extend beyond governmental
agencies to encompass non-government organizations and student bodies. A
poignant illustration of this approach involves collaborative efforts with
medical students engaged in the distribution of free condoms and the provision
of health-related assistance. Concurrently, law students can contribute their
expertise to offer legal support. This comprehensive strategy not only empowers
communities through education but also addresses fundamental aspects of public
health and legal advocacy, thereby fostering a more inclusive and responsive
societal framework.
Furthermore, it is crucial to place
significant emphasis on the rights, upbringing, and education of the children
born to sex workers, as they bear no responsibility for the circumstances they
find themselves in yet remain the most vulnerable demographic. Ensuring the
well-being and education of these children becomes paramount, with a focus on
promoting their enrollment in mainstream schools. Such an approach not only
safeguards their fundamental rights but also holds the potential to generate a
positive impact on ameliorating their overall living conditions.
Overall, society must refrain from
moral judgment and instead view sex workers as ordinary citizens. More robust
measures must be implemented to enforce laws that safeguard their interests,
offering protection against exploitation, violence, and trafficking. Such as
the participation and involvement of NGOs, sex workers representatives and
awareness programmes to regulate policies and eliminate the stigma and
discrimination. Only through a shift in perspective and proactive legal
enforcement can we extend a lifeline to those navigating the shadows of the sex
industry.
[1] Aman Nigam,
Recognising Prostitution as a Profession and holding up its dignity under
Article 21 : How can Conventional barriers be challenged?, 3.1 JCLJ (2022) 470,
2022.
[2] García, Magaly Rodríguez, et al., editors. Selling Sex in the City: A Global History of
Prostitution, 1600s-2000s. Brill, 2017. JSTOR, http://www.jstor.org/stable/10.1163/j.ctv2gjwwht , 2017.
[3] Rajni
Bala, ‘Prostitution in India’, 3, Scholarly Journal for Interdisciplinary
Studies 19, 2016.
[4] Palash Varyani, Pratishtha Srivastava, “Supreme Court declares Prostitution as a
Profession”, 2.4 JCLJ (2022) 498, 2022.
[5] Constitution of India, 1950,
https://lddashboard.legislative.gov.in/sites/default/files/COI...pdf.
[6] Immoral traffic prevention act, 1956, Act 104 of 1956, acts of
parliament, 1956, India.
[8] INDIA CONST. art 14, 15, 16, 17 & 18.
[9] INDIA CONST. art 19.
[10] INDIA CONST. art 21.
[11] INDIA CONST. Part IV, DPSPs.
[12] PN Swamy,
Labour Liberation Front, Mahaboobnagar v. Station House Officer, Hyderabad, (1998) 1 ALD 755.
[13] Francis Coralie v. Union Territory of
Delhi, (1981) 1 SCC 608 : AIR 1981 SC 746.
[14] Criminal Procedure Code, 1973, Act 2 of 1974, India.
[15] Gaurav Jain v. Union of India, (1997) 8 SCC 114 : AIR 1997 SC 3021.
[16] BudhaDev
Karmaskar v. The State of West Bengal Criminal Appeal (SC) No. 135 of
2010.
[18] Jaffer Latief Najar, ‘Human
Trafficking in India : How the Colonial Legacy of the Anti-Human Trafficking
Regime Undermines Migrant and Worker Agency’ (LSE Human Rights, 11 February
2021) <https://blogs.lse.ac.uk/humanrights/2021/02/11/human-trafficking-in-india-how-the-colonial-legacy-of-the-anti-human-trafficking-regime-undermines-migrant-and-worker-agency/#:˜
: text=According%20to%20data%2C%2095%25%20of,prostitution%20(Divya%2C%202020)>
[19] Public at Large
vs State of Maharashtra and ORS (1997) 4 Bom CR 171.
[20] Robert I Friedman, ‘India's Shame
: Sexual Slavery and Political Corruption Are Leading to an AIDS Catastrophe’ 3
Trends in Organized Crime 60, 1998.
[21] National
Crime Records Bureau, 2016.
[22] Gaurav Jain v. Union of India, (1997) 8 SCC 114 : AIR 1997 SC 3021.
[23] Mishra,
G. et al, “Protecting the Rights of sex
workers: The Indian Experience”, Mishra, G. and Chandramani, R. (eds.), Sexuality, Gender and Rights,( New Delhi, Sage Publishers,)
2005.
[24] Jenkins, C, Female sex workers: HIV Prevention
Projects: UNAIDS Case Study, UNAIDS/00.45E, 70.
Article Information
A SILHOUETTE OF SOCIETY: SEX WORKERS & PROSTITUTION IN INDIA BY: ADEEB BAKHTAVAR
Authors: ADEEB BAKHTAVAR
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/01/25
- Issue 7
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International Journal for Legal Research and Analysis
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