Famously regarded as the “Universally oldest profession”, prostitution has proved to bring to light many viewpoints and questions in the minds of political thinkers and policymakers of not only India but the world. The question on the recognition of prostitution as a profession, further sparked controversies since they were so against both the moral aspect as well as the national struggle which aimed at equalizing rights for women in India after a struggle of more than two centuries. The common notion had always assumed that prostitution was a bane to the rights of women and that its abolishment shall always be supported but, it came as a complete shocker when those sections of women, who were involved in this profession came forward to claim it as a right under their fundamental right to livelihood. This left our leaders of the time in a fix. Our constitutional leaders had framed and touched upon all the downtrodden sections of the societies including the untouchables, bonded laborers, etc. but the problem of prostitutes was comparatively distinct to India. This can be traced back to the history of the country as that is what has shaped this question today. It is thus, a pressing need to further dive into the scope of prostitution gaining legal recognition as a profession, the rights of prostitutes in a country where their profession was and is still looked down upon by a major section of society, and the future scope for development in this field such as getting sex institutions legalized. It is a question that makes one wonder about the reasons behind the social boycott of this section of the female population in our society and why they have been framed as an accused when they themselves are victims. The paper shall also aim at establishing that legalising sex institutions such as brothels shall contribute in bringing prostitution under the ambit of a “recognised profession” in the eyes of both society and law.
KEY WORDS
Prostitution, legalization, brothels, equality, society, human trafficking, The Immoral Traffic (Prevention) Act
INTRODUCTION
To understand the position of prostitutes in our society, it’d be prudent to start with the history and analyze how the question of rights of prostitutes came into the eyes of people. Although we see the reference of a section of society referred to as prostitutes in early texts and ancient Indian scriptures, it was only during the colonial period that prostitutes and their lives were brought into the legal purview. The British had been concerned with the aspect of prostitutes contributing to the spreading of venereal diseases among the British soldiers and high society men while in Indian society the class of prostitutes was often seen as a potential threat to a middle-class domestic household and their values. These sections of the women, even though distributed in different subsets such as Escorts, brothel employees, window workers, streetwalkers, call girls, massage parlors, etc., were collectively categorized by the British under the umbrella name of prostitutes. This categorization is seemingly having both legal and social impacts on society, even today. In 1958, for the first time, a query regarding the rights of prostitution was brought forth. Husna Bai, a prostitute, had approached the High Court of Allahabad claiming that the new regime that was aimed at taming down human trafficking – SITA (Suppression of Immoral Traffic Act) was against her Right to livelihood which was a fundamental right of every Indian Citizen under Article 19 of our constitution. The petitioner claimed that the particular regime went against the “welfare purpose” that the constitution set to achieve as it snatched away her source of livelihood and that of all the other prostitutes who were willingly involved in such work. Many female socialists such as Durgabai Deshmukh were appalled with the claim made, especially since they had themselves campaigned against prostitution several times, firmly believing that they were fighting to bring women forth at par with men, as equal citizens of the same country. They had taken support of Article 23 which stood against the practice of human trafficking and had believed that the removal of prostitution would further support the purpose. While in those days, prostitution was seen as a work that was to be condemned, today there has been a slight shift with new laws in place for prostitutes, media focusing on their plights and the youth becoming aware of them as a part of the society.
RESEARCH METHODOLOGY
The paper is illustrative and the research has been conducted from secondary literature and sources. Various sources such as books, newspapers, online articles, online websites, etc. have been used as sources in the research process and have accordingly been cited. Apart from these, primary sources such as legal frameworks, for instance, the Immoral Traffic (Prevention) Act, of 1956 have been heavily referenced.
THEORIES REGARDING PROSTITUTION
There are several theories regarding prostitution that emerged from earlier times. They indicate the social mentality and ideologies people held about the institute of prostitution altogether. Firstly, we have the Functionalist theory which states that everything occurs to serve a purpose and in the same way, prostitution occurs due to its demand in society. The institution of prostitution serves a purpose that facilitates its continuance. It serves as a source of livelihood to the prostitutes who would not have one, if not for prostitution. Some studies in the old times held that the institution of prostitution even helped in lowering the rates of divorce by engaging married men as the relation between a prostitute and their client is impersonal at its best. Secondly, we have the Conflict Theory, which suggests that women adopt the practice of prostitution due to the societal inequalities that prevail between the rich and poor. Historically, a rich woman never has to even think about becoming a prostitute because she does not need to labor to live a comfortable life. This theory was further proved during the 19th century when war took place in Europe and a large number of poor women turned widows. They had to turn to prostitution as the last resort for earning livelihood for their family and children. Thirdly, we need to include the Feminist theory, which suggests that prostitution is deemed to prevail in a society that showcases men as the dominant sex. In such a society, it is always possible that men shall pay for sexual favors and the women shall have no option but to be subdued by them due to societal oppression and prejudice.
CHALLENGES FACED BY PROSTITUTES
The women prostitutes who were subject to human trafficking and wanted to get justice, were the easily recognized victims but it was difficult to help the women who claimed they had a full right over their body and that prostitution was their livelihood and came under “labor work”. This was because the notion was alien to most of the leaders and was difficult for the general public to digest as it went against their notion of moral principles. In the eyes of most middle-class families in India and foreign nations, the work of sex workers is disgusting and they deserve to be subject to sexual violence and abuse. It is because of this preconceived notion that most prostitutes are subject to assault, rape, abuse and other inhumane activities throughout their lives. The lack of protection provided under the justice system to prostitutes leaves them vulnerable to the monsters outside. Even if they face such difficulties, prostitutes do not prefer approaching the authorities since they believe that even the authorities shall contribute in violating their rights. Prostitutes are worried, not only for themselves but also for the welfare of their own children since their children are deemed less than others, are denied equal rights like education and often the misogyny against prostitutes extends to that against their children as well. At times when a prostitute is pregnant, the hospital authorities are hesitant to provide their services due to which sex workers often get involved in unsafe methods of getting abortion done. The sex workers have to pay a large amount of their earnings to the police in order to provide them protection against violent male clients otherwise, the policemen are passive spectators or are often even the contributing factors towards the brutalities against these women. In an analysis conducted in the U.S., it was found that of the total victims of female homicide between the years 1982 and 2000, 2.7% were prostitutes. The majority reason is the lack of control they have over their lives and society making their already miserable lives worse. With the change in time, these issues have gained a focal point in a lot of political and social debates.
THE PRESENT LEGAL STATUS OF PROSTITUTION IN INDIA
The work of prostitution in India was legalized after the year 2006 after the Immoral Traffic (Prevention) Amendment bill was passed and the Supreme Court recognized the rights of sex workers by passing orders under Article 142. This was done after amending the already amended Immoral Traffic (Prevention) Act, of 1986 which had not supported the practice of prostitution as a valid profession. Although prostitution has been legalized, other activities related to prostitution such as maintaining brothels for carrying out the business of prostitution are deemed illegal. Such conditions act as complete contradictions to the people engaged in sex work as these are hindrances for them in the way they earn their livelihood. Under the case of Gaurav Jain vs. Union of India, the rights of children of sex workers were upheld and it was contended that these children ought to be made a part of the mainstream society but should be separated from their mothers who live in prostitute homes and this shall be in the best interest of society. The court had based its reasoning on international conventions that talked about the rights of children and laws such as the Juvenile Justice act of 1986. The court had further reasoned that living in prostitute homes shall have a bad impact on the children and instead of this, their mothers should be involved in other employment so as to be united to their children. The case of Budhadev Karmaskar vs. State of West Bengal, was a watershed judgment where recognition was given to the rights of prostitutes in the country under Article 21 which guarantees all citizens in the country, the right to life with dignity. The case held that sex workers were not to be objectified or insulted just on the basis of their livelihood. The court further recognised the plight of such people highlighting that prostitution was taking place not out of choice but sheer poverty and helplessness. In the issue regarding the Rehabilitation of sex workers (2011), the Apex, headed by Justice L. Nageswara Rao court again upheld the importance of Article 21 guaranteed to each citizen of the country, irrespective of the profession they may be practicing. While upholding this, the Hon’ble Court further outlined ways for rehabilitation of people involved in sex work. Seemingly, our judicial system in recent years has made evident efforts to give a boost to the upliftment of the status of sex workers in society. This indicates the change in both mentalities and an effort to make prostitutes a part of mainstream society and to normalize the profession of prostitution. While these efforts are commendable, there still remain rocks in the path of our goal. The judiciary and the legislative initiatives legalized prostitution but have still kept maintaining brothels i.e. the place from where prostitution is operated, illegal. This was done to avoid human trafficking of females and young children, who were forcefully brought here and were subject to being prostitutes, unwillingly. But now, not legalizing brothels has become a source of obstacles for the sex workers for whom prostitution acts as their source of livelihood.
THE INSTITUTION OF PROSTITUTION AS AN ASSET
For decades, society was reluctant to let prostitution be a normalized notion and recognize it as a legitimate profession. For these reasons and more, it is important to underline the benefits of prostitution. As unrealistic and morally challenging as the fact may sound, prostitution, like everything, has two sides to it. Firstly, Legalising prostitution has opened scope for them to contribute to the economy in the form of Income Tax cost, Health care cost and Criminal Justice system cost. Before prostitution was legalized, all these were not being collected under the legal wealth of the nation due to the industry being underground but now, prostitutes help in boosting the health care system and criminal justice system by availing these amenities openly and under the recognized ambit. Reportedly, Income tax officers had collected an amount of about a crore from the red-light area in Kolkata. Once the government formulates the application of taxes on the profession of prostitution, it shall be a boom to the Indian economy. Secondly, by legalizing prostitution, we as a society have recognized the autonomy of individuals who willingly want to be a part of this industry. This freedom has constitutionally been guaranteed to all Indian citizens under Article 19 and by upholding the same, the legitimacy of the constitution has been upheld. Thirdly, prostitutes are one of the largest victims of sexual assaults, HIV/STDs, and unwanted pregnancies, and for all these things, immediate medical help is needed. Until the time prostitution had not been legalized, hospitals often refused to treat prostitutes for any issue but now, healthcare is being provided to such women. Thirdly, the legalization of prostitution has helped in reducing the prejudiced mindset of society towards the sex workers and their profession which has again helped not only the prostitutes but also their families and children, to be a part of the mainstream. This has helped the people of our generation understand the position of sex workers and keep an open mind while dealing with differences in society.
FACING THE CHALLENGES POSED BY PROSTITUTION
Prostitution in practice does not come without its challenges. We read above about how the legalization of prostitution has made medical help, criminal justice help, and other services, more accessible to them due to which they are now not subject to being a victim to alien methods of protection. This does not mean all the grass is greener on the other side of legislating sex work and its aspects. It has its own challenges such as a potential risk of increase in human trafficking or there being an opposite effect of the legislation than was intended. There is a strong possibility that if more sex workers step out in the mainstream, their presence shall be strongly opposed which may even lead to complete boycott by the general public, especially the middle class families whose value system makes it extremely difficult to accept something so revolutionary. In order to avoid such consequences, the higher authorities need to step up and take action. Till the time only individual sex work is being recognised, it shall not be of any help to the prostitutes. In India, sex institutions such as brothels continue to be illegal and unacceptable both by law and society. This is in clear contravention to Article 19(1) (g) which bestows on all of us the right to practice any profession. Since sex institutions are not legalised, they run underground which means on a large scale, activities related to prostitution have still not been “legalised” as was the intention of the Justice system. Rejecting these institutions is not the solution, we need to regulate them and organise them in such a way so that they provide a healthy environment for the sex workers to work in. If these sex institutions come to be regulated by the government or any other body of right authority then it shall stop exploitation of prostitutes from their clients, shall help in extending to them, the facilities of healthcare and shall also be a source of national income through taxes. The government ought to work on making a legalised path to decide who can practice prostitution so that entry of children in such professions can be avoided at all costs. Also in such a regularised way, an eye can be kept to avoid the spread of HIV/AIDs. Even if females are entering the profession on their will, it does not indicate that they cannot polish their other talents. To serve this purpose, the government can take initiative to set vocational centres in the brothels itself so that such women, if they want to, can leave this job behind and make their life somewhere else further ahead whenever they want to. Also, if such changes are brought through government initiatives then it shall give a stamp of authority to the process and will be easier for the public to accept thus, protecting the sex-workers from unnecessary public scrutiny.
CONCLUSION
Prostitution has been considered a taboo in society since time immemorial. In the process of this, we seem to forget that these were also our people. The rights of minorities, LGBTQ, etc. are a topic of constant discussion. But, prostitutes are the forgotten section of society. The section that existed was used but was forgotten as easily. But today, when a step has been taken to legalize their existence, it ought to be taken in the right way. For this purpose and all above, legalising sex institutions such as brothels is as important as legalizing sex work. Both are entwined together and cannot be separated.
Aanchal agarwal
Symbiosis Law School, Nagpur