By Niharika Sharma, Ideal Institute of Management and Technology, GGSIPU
Scintillating glass bangles and curvy traces, red pouts and hair adorned with jasmine: illegal by night, ostracised by day. This is a plausible melange of the imagery that the term “sex worker” arouses. An outcast community, with needs and desires as mainstream as us, these sex workers, live outside of the law.
Female prostitution is perhaps the oldest profession all over the world. Alas, it is perhaps the most hated profession. Hated in the sense that people who visit them actually enjoy it, but in society, they pretend otherwise.
As a concept, prostitution has been defined by social scientist in different ways depending on the extent of its prevalence. The most widely accepted definition; however, is the one given in the encyclopedia of social science which defines prostitution “as the practice in which a female offers her body for promiscuous sexual intercourse for hire etc”. However, a new definition has been coined for the word ‘Prostitution’ in the Government of India’s “Prevention of Immoral Traffic Act-1987, which now means “Sexual exploitation or abuse of persons for commercial purposes.”
Is Prostitution legal in India?
One of the biggest question is whether prostitution is legal in India or not?
The answer to this question is in the dilemma of both “Yes” and “No”.
In the Indian context, prostitution is not explicitly illegal as it is not specifically expressed to be punishable by law, but certain acts that facilitate prostitution are regarded as illegal, acts like managing a brothel, living off the money procured by means of prostitution, soliciting or luring a person into prostitution, traffic of children and women for the purpose of prostitution, etc. are made explicitly illegal by the Immoral Traffic (Prevention) Act, 1956 (ITPA). For example, running a sex racquet is illegal but private prostitution or receiving remuneration in exchange for sex with consent without prior solicitation might not be illegal.
History of prostitution
Surprisingly, prostitution is often deemed to be the oldest profession and can be traced back to 4000 years back to ancient Babylons. This suggests that prostitution has its roots in ancient India and is not a manifestation of decadence, as is sometimes claimed. Further, it is important to emphasize that the fact that this practice found a place in sacrosanct literature, including the Vedas and the Arthashastra, implies that prostitution was not an underground practice. Rather, it was a well-acknowledged, mainstream activity.
Prostitution was once upon a time a theme of Indian literature and arts for centuries. They are referred to as Menaka, Rambha, Urvashi, and Thilothamma. They are described as perfect embodiments and unsurpassed beauty and feminine charms. As per the Indian history, the previous adaptations of prostitutes were also known as “Devadasi”. As indicated by the history specialists the Devadasi were treated with deference and respect by the Royal families. These dancing girls were considered essential at the time of offering of prayers and were given a place of honor.
Even during the medieval period and rule of mughals they were treated very royally. The Muslim rulers with the exception of Aurangazeb recognized prostitution and the profession flourished under royal patronage. The word ‘Tawaif’ and ‘Mujra’ became common during this era. During the Mugal era in the sub-continent, prostitution had a strong nexus with the performing arts. Mugals patronized prostitution which raised the status of dancers and singer to the higher levels of Prostitution. Ever since the downfall of Mughal Empire, and the beginning of the rule of britishers the conditions have deteriorated to deplorable levels. The Devadasis began performing their art in front of the British officers and this became the beginning of one night stands. The Britishers began calling these artists for sexual joys and this made ready for Prostitution in a nation like India.
The prostitution continued from ancient and medieval India and has taken a more gigantic outlook in modern India, not in terms of treating the women with respect and dignity but rather we have seen a major downfall in the profession of prostitution. The devdasi system still continues, according to a report of National Human Rights Commission of the Government of India, after initiation as devadasis, women migrate either to nearby towns or other far-off cities to practice prostitution.
Legal provisions related to prostitution in India
The law is vague on prostitution itself. The primary law dealing with the status of sex workers is the 1956 law referred to as The Immoral Traffic (Suppression) Act (SITA). According to this law, prostitutes can practice their trade privately but cannot legally solicit customers in public. In particular, the law forbids a sex worker to carry on her profession within 200 yards of a public place. Unlike as is the case with other professions, sex workers are not protected under normal labor laws, but they possess the right to rescue and rehabilitation if they desire, and they possess all the rights of other citizens. In practice SITA is not commonly used. The Indian Penal Code (IPC) which predates the SITA is often used to charge sex workers with vague crimes such as “public indecency” or being a “public nuisance” without explicitly defining what these consist of. In 1986 the old law was amended as the Immoral Traffic (Prevention) Act or ITPA.
As per our Indian Constitution, the fundamental rights are available to every citizens of India and therefore sex workers being also the citizens are entitled to enjoy the rights. The right to life incorporated under Article 21 of the Indian Constitution is available to a prostitute which was highlighted in the case of Budhadev Karmaskar vs State of West Bengal. It stated that sex workers are human beings and no one has a right to assault or murder them as they also have the right to live. The judgment also highlighted the plight of sex workers and empathizes that these women are compelled to indulge in prostitution not for pleasure but because of poverty and directed the Central Government and State Governments to open rehabilitation centers and impart technical and vocational skills so that they attain other means of livelihood. But even after having this right, women in this profession are not treated as any other citizen and their rights are continuously violated and they become the victim of assault on a regular basis.
Immoral Traffic (Prevention) Act-1956
The Immoral Trafficking Prevention Act, 1956 (“ITPA”), the main statute dealing with sex work in India, does not criminalize prostitution or prostitutes per se, but mostly punishes acts by third parties facilitating prostitution like brothel keeping, living off earnings and procuring, even where sex work is not coerced. The above-mentioned activities attract heavy penalties such as rigorous imprisonment even at the first instance of conviction. The minimum punishment for brothel-keeping is imprisonment for a term of not less than one year and not more than three years and also with fine which may extend to two thousand rupees.
The fact that the Act criminalises brothels, which includes two or more women working together as prostitutes, implies that if women want to work as sex workers legally, they should do so alone. Further, the compulsion that sex work shouldn’t be within a 200m radius of any public place again implies that to engage in prostitution legally, an isolated location should be chosen. These aspects of the Act make sex workers more vulnerable to abuse and exploitation. Moreover, sex workers who are often exploited by pimps or brothel owners can’t take the resort of the legal system because, under the law, they will be prosecuted for working in a brothel and hence, they silently continue to suffer at the hands of brothel owners. The Act has made sex workers more vulnerable by forcing them to work in the darker, more invisible corners of the cities, silently suffering exploitation. This seclusion of sex workers also implies that they are left in oblivion about access to information about and treatments for sexually transmitted diseases, which they are most at risk of contracting.
Indian Penal Code, 1860
Section 372 and 373 of the Indian Penal Code 1860 also deals with prostitution but it is restricted to child prostitution only. Section 372 of the Code awards imprisonment of at least ten years for a person selling a minor for the purpose of prostitution. Section 373 of the Code awards imprisonment of ten years for buying a minor person for the purpose of prostitution.
Though under sections 366A, 366B, 370A of the IPC deals with punishing for offences of procreation of minor girl, importation of girl from foreign for sex and exploitation of a trafficked person respectively. Thus under IPC laws related to prostitution is quite limited.
The problems that women involved in prostitution face are very complex since it is deeply rooted in the society. Thus, it has to be handled from two angles (1) Preventing new incumbents from entering prostitution (2) Rehabilitating women who are already in prostitution. Just providing legal validity to prostitution will not be sufficient to resolve this problem rather a uniform law must be made for its administration in our country that will help to safeguard the sex workers and their children from getting exploited.
Prostitution is considered a taboo in India and is not discussed openly and is a topic frequently frowned upon. Counseling and guiding programmes with a view to educate public with regard to the causes and problems of prostitutes coupled with sex education is need of the hour. There is a very strong need to treat the sex industry as any other industry and empower it with legal safeguards. The practical implications of the profession being legal would bring nothing but benefits for sex workers and society as a whole. Mainstreaming sex work, easing access to birth control methods and medical aid together with educational opportunities will not only enable sex workers to live a more normal life but will also work to a great extent to prevent their exploitation because they will no longer be vulnerable to their perpetrators.
From the past research it is seen that the legalization of prostitution bears both negative as well as positive effects. There are numerous causes that lead a woman towards prostitution. It is difficult for any government to combat each and every issue. Hence it is important to come up with more stringent laws for them. They can generate a set of rules and regulations in regard to the age limit of the prostitutes, requisite earning and necessary clinical facilities to the sex workers. And with the help of this the sex workers will be able to exercise some of their rights, for example, they will get an equal opportunity to educate their children, right to medical treatment, they will be entitled to protest against exploitation, violence, rape and so forth.
It is important to understand the nuanced differences between the motivations of why some people voluntarily choose to do sex work and address their interests; and at the same time is important to punish sex traffickers and rehabilitate women who were forced into sex work. Thus, if the intention of the legislation is to protect sex workers and victims of sex trafficking and provide them with opportunities for growth, it is indispensable to understand their problem from their perspective and make them a part of the decision-making process instead of ignoring their voice and consent.