ABSTRACT
Prostitution in India, being a multifaceted socio-legal issue, impacts numerous facets of society, including morality and law. This research paper attempts to provides a detailed assessment of prostitution through a socio-legal lens, highlighting the obstacles that sex workers face and evaluating changing opinions on the industry. The study investigates into the underlying reasons of prostitution, historical contexts, legal frameworks, and socioeconomic elements that influence the sector. The report begins by explaining how prejudice and societal stigma affect sex workers, perpetuating a cycle of abuse and exploitation. It investigates how sex work is portrayed in media and society as a whole, challenging narratives and recognizing the industry’s diverse experiences. The study travels into the historical evolution of prostitution in India, tracing its roots from ancient customs to colonial influences and modern realities. A critical review of the legal landscape surrounding prostitution in India is provided, including judicial interpretations that acknowledge sex work as a legitimate profession deserving of dignity and rights. Furthermore, the article investigates the intersection of prostitution and public health, emphasizing the hazards of sexually transmitted illnesses and the hurdles that sex workers encounter in accessing healthcare. The subject of child prostitution is also discussed, highlighting the critical need for legal and social initiatives to protect vulnerable children from exploitation. Finally, the paper recommends for a comprehensive strategy to combating prostitution, highlighting the need of recognizing sex work as a legitimate business while also protecting sex workers’ rights, safety, and dignity. It advocates for a shift from stigmatization to acknowledgment, as well as legalization and regulation as potential solutions to mitigate the industry’s harms, making it critical to promote a more equitable and inclusive society that values the autonomy and agency of all individuals involved in the sex industry.
Keywords: Prostitution, Sex Workers, Profession, Red-Light Areas, Brothels, Child Prostitution. Sexually Transmitted Diseases.
INTRODUCTION
Various forms of discrimination and harassment are prevalent in the Indian society and violation of human rights continue in numerous facets of Indian culture, but nowhere is this more apparent than in the lives of those who work as prostitutes or sex workers. The primary cause for this prejudice could be that sex work, in contrast to other forms of labour, is viewed as an immoral and indecent lifestyle that apparently threatens the innocence of the society. Sex workers and their families face social outcast and are subsequently, denied basic rights due to societal bias, which not only reinforces stereotypes but also feeds a vicious circle of abuse, exploitation, and vulnerability. Sex workers encounter an array of prejudices that is not only limited to their professional lives. In addition to having no access to quality healthcare or access to legal assistance, they are abused by government and police personnel. Women, who work in the sex industry, are violently mistreated and their children are harassed in schools and in their daily lives at large.
A narrow and distorted view of the sex industry is the fundamental reason behind the mistreatment of its workers. In the thirst of commercial gains, the media frequently portrays a tainted image of sex workers by telecasting women, who work in the sex industry, as either exploited victims or blatant sexual threats to society. However, the varied experiences that women have in the sex work market are not adequately represented by this binary portrayal. Although there are cases of forced labour and human trafficking, many women who engage in the sex industry do so willingly because they see it as a means of providing for their family and themselves. There are two primary perspectives in the discourse around the rights of sex workers: the traditionally feminist perspective, which sees all sex workers as victims of coercion, and the perspective that sees sex work as a legitimate industry that deserves to be acknowledged as such. The former views earning money from sex as equal to sexual exploitation and argues that no woman could voluntarily choose to participate in the sex industry. The latter viewpoint recognizes sex work as a legitimate profession and advocating for laws protecting the person, their profession, health and most importantly, safety.
RESEARCH METHODOLOGY
Using secondary sources of data, this study uses a comprehensive methodology that combines qualitative and quantitative techniques. The purpose of this research is to provide a
comprehensive analysis of the rights and difficulties faced by those who operate as prostitutes and sex workers in India. A strong contextual base is supplied by secondary sources, such as critical evaluations of reports and literature reviews of academic works. This study explores pertinent findings from international organizations and non-governmental organizations, as well as government documents.
REVIEW OF LITERATURE
Over the past 150 years, a lot of scholars have worked to shed light on the causes of prostitution. The first is a man’s sexual demand. The second reason is that various organizations, including pimps, traffickers, brothel owners coerce women. The failure of governmental measures and the legalization of prostitution constitute the third significant factor. The fourth reason given by Hughes for women turning to prostitution is cultural impact. Media has a major influence on how prostitution is portrayed as a quick way to get money. (Debamalya Biswas, 2022)
India has the largest red-light district in Asia, Kamathipura in Mumbai, in addition to other red-light districts like G.B. Road in Delhi, Budhwar Peth in Pune, Meergunj in Allahabad, Chaturbhujsthan in Muzaffarpur, etc. (S.P. Pandey, 2010)
The funding they require must be provided to support rehabilitative measures in order to prevent them from being compelled to return to prostitution. Those who choose to continue should also be given the opportunity to do so, and their working conditions should be improved. Since prostitution will always exist in society, it is necessary to legalize this line of work. Prostitutes should be treated with the same level of dignity as those in other occupations; rather, they should be acknowledged as human beings and allowed to live somewhat respectable lives. (Payal Lamba, 2013)
Whether it is decriminalized or not, prostitution is here to stay. Therefore, it is better to deal with the primary problem at hand and perhaps develop solutions that mitigate the difficulties that women involved in prostitution endure. (Yuktha Suresh, 2021)
METHOD AND ANALYSIS
Historical Background
The practice of “Nagar Vadhu” was prevalent in ancient India. Men gathered to watch her dance, and girls from all over the city competed to win this title. These “Nagar Vadhus” were known to be the sexual partners of Kings and Nobles. The benefactors provided financial support to guarantee her well-being in return for the same. Prostitution was a common practice throughout the Mughal era, and the ladies who engaged in it were referred to as “tawaifs”. In the past, Hindus frequently donated their daughters to temples as “Devadasis.” However, when feudalism declined, these “Devadasis” were abused by temple priests. The modern Indian version of these traditions took the shape of brothels.
During the Portuguese colonial era, in the 16th and 17th centuries, it is known that Japanese women were employed as slaves in Goa. Snce the soldiers were away from their home country for years, the British were also worried about fulfilling the sexual needs of their soldiers in India. They took European ladies with them. “Red Light Areas” were set up close to the soldier’s camps; these areas operated independently and contrastingly, were not seen as forbidden. Subsequently, the British government sponsored these brothels to bring in girls from smaller villages. For the smooth functioning of such brothels a legislation was passed, The Cantonment Act of 1864, which gave a structure to the functioning of these brothels giving it the look of a common practice.
After the British left, prostitution continued, albeit seen through a different perspective: taboo. Police harassed prostitutes or sex workers on a frequent basis. Although official statistics are unavailable, according to Havoscope, worldwide, there are an estimated 13,828,700 individuals involved in prostitution. Every day, almost 5 lakh people encounter sex workers at red lights. Media reports state that there are roughly 110 Red Light Areas in India. In India, there are between 6 and 10 lakh prostitutes. One of the biggest unorganised commercial sex industries globally is found in India.
Legalization and Regulation of Prostitution
Despite the fact that prostitution is a billion-dollar industry in India and that it supports the livelihoods of thousands of people, it is nevertheless stigmatized and frowned upon. Prostitution and India have a complicated history that involves both ethical and legal issues. With the passage of The Immoral Traffic (Suppression) Act (SITA) in 1956, prostitution became
lawful, perhaps with restrictions that forbade forcing someone into engaging in sexual activity or soliciting them. Prostitution, as defined by the Immoral Traffic (Prevention) Act of 1956, is the commercial exploitation or abuse of individuals for sexual purpose. Notably, the Indian Penal Code (IPC), 1860, does not categorize it as a crime. Within the context of prostitution, there is a paradox since, although sex work is allowed, running a brothel is still prohibited. As a result, prostitutes frequently meet their clients in hotels, where they typically encounter police raids and arrests on the grounds that their activities are unlawful even if, if done under free consent.
If prostitution has been equated to a profession, we must acknowledge that Article 19 (1) (g) of the Constitution of India guarantees all citizens the fundamental freedom to engage in any profession, carry on any occupation, trade, or business. Article 19 (1) (g) grants everyone the right to engage in any specific kind of business of their choosing. However, this does not grant the freedom to carry out practices interfering or violates the law, public order, decency, or morality. In the context of Prostitution, decency and public order cannot be disturbed by consensual sexual interactions that are conducted behind closed doors in exchange for financial gain. Since no objective approach exists to categorize common practices as good or harmful. Morality being a subjective concept, society exists within the grey areas of morality and so does prostitution. Times are changing and so is the general morality of the people. The Indian Exclusion Report for 2019 states that roughly 68% of women voluntarily opt to work in this field.
Judicial Interpretations and Landmark Decisions Pertaining to Prostitution and Sex Work
The Indian judiciary has taken a progressive approach towards those engaged in sex work through its verdicts. Notably, the Budhadev Karmaskar v. State of West Bengal case from 2011 proved that the Right to Life and Livelihood protected by Article 21 of the Constitution of India extends to sex workers, granting them the Right to Dignity. In 2019, the Calcutta High Court ruled that The Immoral Traffic (Prevention) Act (ITPA) states that those who are identified as victims of commercial sexual exploitation cannot be prosecuted unless there is enough evidence proving them to be “co-conspirators.” The Bombay High Court gave a historic judgment in September, 2020 when it liberated three female sex workers who had been imprisoned in a state jail, stating that the law does not currently prohibit sex work while emphasizing the freedom of women to choose their profession. A landmark decision was made
in 2022 when a three-judge Supreme Court panel formally acknowledged sex work as a legitimate profession. This landmark ruling upheld the right of sex workers to dignity and equal legal protection. The Delhi High Court rendered a significant decision in the G.B. Road Case (2015), which analysed the working conditions of sex workers in the neighbourhood of G.B. Road. The court advocated for a balanced approach to the prostitution, taking into account the experiences of countries with established legal systems, and stressed the significance of rehabilitating and integrating sex workers into society.
Role of law enforcement agencies in implementing prostitution laws and addressing human trafficking has been negligible in contrast to the prevailing condition of prostitutes. According to the National AIDS Control Organization (NACO), there are over 8 lakh women sex workers in India, and more than 6000 female sex workers have been subjected to physical violence, and other forms of abuse according to the National Crimes Records Bureau Report 2020-21. While it is difficult to determine the exact incidence of prostitution because of the industry’s clandestine nature and secrecy, the government has made minimal attempt to locate and disrupt sex trafficking networks. Prostitution is governed by laws, although false beliefs about it are nevertheless prevalent. Payment for sex services does not entail giving up ownership of the sex worker’s body, as against popular notion that it means treating another person as a purchasable commodity. It is wrong to categorize prostitution as intrinsically immoral, given the complexity and disagreement among ethical viewpoints about the subject.
Rights, Safety, and Health of Sex Workers
Because they are not regarded as belonging in the same category as other workers, they must continue to struggle for the same human, health, and labor rights as others.
Proponents of sex workers’ rights argue that legalizing prostitution would protect women from abuse, mitigate the spread of sexually transmitted diseases, and give sex workers greater security and autonomy. Furthermore, awareness on spread of sexually transmitted infections (STDs) due to the avoidance of using contraception is essential. The stigmas and taboos coupled with the possibility of harassment makes it difficult for sex workers in India to receive healthcare, especially in government facilities. This discrimination is exacerbated by policies such as mandatory STI testing and denial for admission for those not on HIV medication. Sex workers prefer private healthcare providers, which highlights the need for advocacy and education in public health settings. Hospitals’ requirement for spousal consent for abortions, the procedure’s high cost, financial limitations, and the precarious nature of many sex workers’
lives are all obstacles to accessing healthcare. Furthermore, clients’ acts of violence complicate their healthcare issues even more. Besides that, prostitutes have to face physical violence and mental harassment on a daily basis just because of the profession they do.
Child Prostitution
India has proved to be a prominent landscape for child sexual and commercial exploitation, when traffickers abduct girls to sell them into brothels or international sex trade. Sometimes parents drive their children into this sector due to lack of education and financial difficulty. These young girls, who are frequently trafficked from nearby nations, are abused on a regular basis by clients who view them as commodities and are subjected to shocking levels of exploitation. A number of risks are associated with child prostitution, such as drug addiction, sexual abuse, fatal pregnancies, and an increased risk of HIV/AIDS. The disturbing rise in child prostitution is brought to light by the National Human Rights Commission (NHRC) and Childline Foundation, which highlights the pressing need for appropriate legal action. Data show an alarming surge in the trafficking of women and children for sex crimes, with a reported 25% spike in 2016 over 2015. With regard to victims, West Bengal, Uttar Pradesh, Haryana, and Bihar have the largest numbers.
A person who coerces a girl under the age of eighteen into engaging in sexual activity with the intention of forcing her into illegal relationships is punishable by up to 10 years in prison and a fine under Section 366-A of the Indian Penal Code, 1860. Similar sanctions apply to the importation of girls under the age of twenty-one into India under Section 366-B, which aims to subject them to unlawful sexual relations. Section 370-A prohibits the sexual exploitation of adolescents and imposes severe sentences, up to seven years in jail, on anyone who indulge in this practice. Section 372 forbids the sale or disposal of people under the age of eighteen for immoral reasons and carries a fine and 10 years of jail time. However, when it comes to shielding vulnerable children from the atrocities of child prostitution, a comprehensive strategy that incorporates social, legal, and educational activities is essential.
SUGGESTIONS
Studying recent trends, it can be observed that India has made progress in promoting the rights of its sex workers, but there are still obstacles to overcome in the increasingly globalized industry. Traditional street brothels disappear as sex trade moves toward institutionalization
through escort services. Sex workers undergo this metamorphosis and become affluent escorts, submitting to commercialized business control. Prostitutes from the middle class become less independent and depend on others. It’s critical to dispel myths. Instead of addressing societal assumptions and politically driven sympathy, advocacy should concentrate on acknowledging their agency. People who work in the sex industry should be entitled right of choice. It becomes essential to acknowledge people’s right to make decisions about their bodies and careers in a culture that values personal autonomy. The notion of choice ought to take precedence, promoting an atmosphere that honours many choices and viewpoints, regardless of whether an individual opts to provide or accept services. The crucial idea of consent is at the centre of any conversation about such relationships. In order to effectively address the pervasive problem of sexual assault, particularly in the context of sex work, it is imperative to debunk myths that imply sex workers are always available and cannot be victims of assault. The emphasis should now be on creating specific laws and most importantly, ensuring proper implementation of the same. It is high time, sex workers are provided with rights, protection, and dignity. Police personnels should be sensitized to these issues and should ensure their protection instead of being their abusers. While, legalization and regulation are suggested as possible means of mitigating the violence and exploitation connected to the sex industry, it is critical to go from stigmatization to acknowledgment of sex work as a profession that, with appropriate regulation, while supporting a more equitable and inclusive society.
CONCLUSION
The understanding that each person has the right to use their body however they see fit is fundamental to this viewpoint. Denouncing prostitution as evil is a sign of a distorted morality, and it is important to accept different viewpoints. While people have the right to disengage from sex work if they feel it to be morally repugnant, forcing someone else to adhere to your moral standards is an infringement on their right to autonomy. The claim that having sex is a valid form of expression, similar to other types of employment, emphasizes how important it is to value and acknowledge different kinds of self-expression in a society that upholds the rights and freedoms of the individual. A complex plan of action is needed to overcome this obstacle; it must protect the sufferers while also respecting human dignity and promoting an equitable and compassionate community. It is suggested that legalizing sex work will be crucial in decreasing human trafficking and minimizing violent crimes including rape and sexual assault. Most importantly, it will act as a safeguard for children, guaranteeing their expulsion from the sector through strict laws, rights protection, and safety guarantees. In conclusion,
considering the ethical implications of prostitution requires an extensive perspective, it is still very difficult to maintain an appropriate equilibrium between the rights of sex workers and the justifiable concerns of the general population.
REFERENCES
- Debmalya Biswas, Sex Workers: Undeserving of Morality, Law School Policy Review (Jun. 4, 2022), https://lawschoolpolicyreview.com/2022/06/04/sex-workers- undeserving-of-morality/ .
- Jaya Pandey, Prostitution Laws in India: Shedding Light on the Lost Citizens, June 21, 2023, 10:06 pm, Aarambh Judicials, https://aarambhjudicials.com/prostitution-laws-in- india/.
- Payal Lamba, Viability in Legalizing Prostitution in India, SSRN (August 29, 2013), https://ssrn.com/abstract=2318040.
- Prostitution as Profession, Drishti IAS, (7 October, 2022, 7:05 PM), https://www.drishtiias.com/daily-updates/daily-news-analysis/recognition-of-sex- work-as-a-profession.
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Name: Aishnai Singh
College: Symbiosis Law School, NOIDA