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Sex Workers in India: Legality v. Morality

Abstract

Prostitution is taken into consideration to be one of the world’s oldest Profession wherein someone presents sexual offerings in alternate for money. The person who practices this career additionally considers it towards morality and does now no longer needs to introduce this career to the subsequent generation. Here in India, the regulation and morality hooked up intimate dating among them however in different countries, the conflict between regulation and morality nonetheless exists. Although prostitution is thought to be the oldest work or profession in the world. The morality of sex work is a contentious issue in Indian society. Traditional and conservative attitudes often stigmatize sex work and sex workers. Social discrimination, violence, and lack of access to healthcare and legal protections are common challenges faced by sex workers due to societal attitudes. Prostitution itself is not illegal in India, but many related activities which are considered to be illegal such as running brothels or soliciting in public. The Immoral Traffic (Prevention) Act, of 1956, criminalizes some aspects of sex work while aiming to prevent human trafficking and the exploitation of sex workers. Morality and cultural norms play a significant role in shaping public opinion and attitudes toward sex work in India. Some argue that sex work is a matter of personal choice and that consenting adults should have the right to engage in it, while others view it as morally unacceptable.

Keywords

Prostitution, Sex Workers, Morality, Consenting, Trafficking and Exploitation, Sexual Activities/Services, Illegal, Legal Protection, Health, Legally, Cultural Norms

Methodology

This paper will get you to all the aspects of Sex workers. While doing this research paper I have gone to several Articles, Case Laws, Judgements, Blogs on the “Prostitution” or “Sex Workers” and collectively analysed this topic.

Review of Literature

This Research paper includes Case Laws, Sections, Judgments, Articles. The description are as follows:

  • Immoral Traffic (Prevention) Act, of 1956
  • Section 3 (Punishment for keeping a brothel or allowing premises to be used as a brothel)
  • Section 8 (Punishment for living on the earnings of prostitution)
  • Section 4 of the Immoral Traffic (Prevention) Act, 1956
  • Section 5 and 6 of the Immoral Traffic (Prevention) Act, 1956
  • Suppression of Immoral Traffic Act, 1956 (SITA)
  • Judgements of the following cases:
  • Gaurav Jain v. Union of India (1990)
  • Delhi v. Pankaj Chaudhry & Ors (2009)
  • Barry (1996)

Introduction

Prostitution: A word which has a stigma or a taboo in the Indian Society. Sex Work is a word that itself represents that “Sex is a Work”.[1] Sex work and prostitution are phrases that are often used conversely to refer to the exchange of sexual labor for money, other material items, or access to social resources. Sex work in India is a complex and controversial issue that involves a clash between morality and legality. Laws surrounding sex work aim to protect sex workers’ rights, health, and safety.

The tension between morality and legality results in a complex situation where sex work exists in a legal gray area. Some argue for decriminalization or legalization to ensure the rights and safety of sex workers, while others advocate for stricter regulation or complete prohibition due to moral concerns. The debate continues, and societal attitudes are evolving.

Debates surrounding sex work in India often focus on the need to protect the rights and dignity of sex workers, prevent human trafficking and exploitation, and balance public health concerns. It’s a complex issue where the tension between morality and legality persists, and finding a consensus is challenging. Public discourse, advocacy, and policy decisions continue to evolve in response to these complexities. When people look at real life in the experience, they come to know that sex workers are doing jobs to earn money without begging and still they are not recognized in society due to their moral obligations and mindsets.

Morality: Many individuals and organizations argue that sex work is immoral and goes against cultural and religious values in India. There is a stigma attached to sex workers, leading to social ostracization and discrimination.

Some people believe that sex work exploits vulnerable individuals, especially women, and perpetuates gender inequality.

Legality: Prostitution is not illegal in India, but related activities like running brothels or soliciting in public places are banned in many states.

The legal framework around sex work varies across states, with some regulating and others prohibiting it.

Legally, sex work itself is not explicitly prohibited in India, but various activities related to it, such as soliciting, running brothels, and living off the earnings of a sex worker, are criminalized under the Immoral Trafficking (Prevention) Act, of 1956.[2] This law aims to combat the exploitation and trafficking of individuals for the purpose of prostitution.

Morally, opinions on sex work in India vary widely. Some people view it as a matter of personal choice and agency, while others see it as immoral and exploitative. Societal attitudes often influence the legal framework, making it challenging for sex workers to access rights, healthcare, and social support.

Talking about Prostitution, according to the research, 98% of the people involved are women, whereas 99% of the buyers are men. 63% of women experience rape and 73% of women experience violence.[3]

Laws

  • The Immoral Traffic (Prevention) Act, 1956 (ITPA) is the primary legislation that deals with sex work in India. It criminalizes various activities related to sex work, such as solicitation, running brothels, and trafficking.
  • While sex work itself is not explicitly illegal, many of the activities surrounding it are prohibited under the Immoral Traffic (Prevention) Act, of 1956.
  • The legal status of sex work can vary from state to state, as some states may have their own laws and regulations that affect the practice of sex work.

Sections and Provisions:

  • Under the ITPA, various sections criminalize activities related to sex work, such as Section 3 (Punishment for keeping a brothel or allowing premises to be used as a brothel) and Section 8 (Punishment for living on the earnings of prostitution).
  • Section 4 of the Immoral Traffic (Prevention) Act, 1956 addresses solicitation in public places.
  • Sections 5 and 6 of the Immoral Traffic (Prevention) Act, 1956 deal with the trafficking of individuals for the purpose of prostitution and related offenses.
  • It’s important to note that discussions around the decriminalization or regulation of sex work in India are ongoing, and there are advocates for changing the current legal framework to improve the rights and safety of sex workers. The legality and morality of sex work in India remain complex, and the situation can vary from place to place.

Is prostitution legalized in India?

According to the Indian Penal Code[4], prostitution in its broader sense is not really illegal per se. Still, there are certain activities that constitute a major part of prostitution that are punishable under certain provisions of the act:

  • Soliciting services of prostitution in public places
  • Carrying out prostitution activities in hotels
  • Being the owner of a brothel
  • Pimping
  • Indulge in prostitution by arranging a sex worker
  • Arrangement of a sexual act with a customer

Immoral Traffic (Prevention) Act, 1956 (ITPA) defines prostitution as the sexual exploitation or abuse of a female for monetary purposes and a prostitute is a person who gains that commercial benefit. This act was exceeded in 1956 and is likewise referred to as the Suppression of Immoral Traffic Act, 1956 (SITA). This law essentially states that prostitutes are allowed to commence their trade in private but they cannot carry out their business in public[5]. As per the act, the customers may be arrested if observed responsible for conducting a sexual act in public.

A lady can’t bask in business intercourse inside two hundred yards of a public place. Sex workers cannot be put under the ambit of the existent labor laws considering how distinguished their profession is but they have all the rights of any given. Indian Citizens are entitled to be rescued and rehabilitated in the event that they want The Immoral Traffic (Prevention) Act, 1956 does not criminalize prostitution but several activities related to it are illegal (which has been already mentioned above).

Relevant Case Laws

  • Gaurav Jain v. Union of India (1990)[6]
  • In this case, a Public Interest Litigation (PIL) was filed in the Supreme Court of India by the Petitioner, who was an advocate. He had filed the petition after reading the article “A Red-Light Trap: Society Gives no Chance to Prostitutes “Offspring” published on July 11, 1988, in a magazine named ‘India Today’. In the petition, he had prayed for issuing the best writ directing the putting in of wonderful instructional centers for the kids of prostitutes (cited as “fallen women” through the Court during the judgment), as much as 16 years of age if you want to save you them from getting worried withinside the wicked and unethical manner of life.
  • However, the Court on November 15, 1989, passed an order according to which the Apex Court was of the view that setting up different educational institutes and hostels would isolate the prostitutes’ youngsters, which could be in opposition to the wellness of those youngsters in addition to the society in general. Though the Court did now no longer approved the plea for separate hostels and colleges with the aid of using announcing that to assist the separation of prostitutes’ kids from their mothers, the provision of enough lodging in jail houses and hostels changed into needed.
  • The Supreme Court set up a committee of four advocates and three social workers to look into the matter and suggest appropriate actions. Shri V. C. Mahajan chaired the Committee.
  • Delhi v. Pankaj Chaudhry & Ors (2009)[7]
  • In this case, the Apex Court reversed the decision of the Delhi High Court of acquitting 4 accused people from the charges of gang rape and upheld the conviction of the trial Court. The Delhi High Court brushed off the conviction of the accused due to the fact the girls had been withinside the custody of the police whilst the alleged rape become imagined to have occurred. Though the Court held that even though the girl is indulged in sexual activities, nobody is authorized to rape her. Her consent may be a very great deal essential in those matters. She is as similarly included from being stressed as any regular citizen could be.
  • The Court emphasized that even if it is proved through material evidence that a woman is habitual of sexual intercourse, no one can take advantage of her and can enhance the difficulty concerning her man or woman or through contending that she is a lady of “smooth virtue”. The Court determined that such ladies have the proper to refuse to put up themselves for sexual intercourse. The Court imposed a ten-year sentence for the accused as become held via way of means of the trial courtroom earlier.
  •  Barry (1996) claimed that prostitution shows the ongoing cultural portrayal of women as sex objects who exist to give men pleasure in accordance with the feminist version of this theory. Violence and Exploitation in society at big have an extra effect on prostitution via way of means of nature.[8]

The former Chairperson of the National Commission for Women – Lalitha Kumaramangalam, was caught in a controversy when she suggested that legalizing sex work would help to ensure better living conditions for sex workers by regulating their working hours, remuneration, health care, education, etc. Sex workers have to work alone, as even is two of them are functioning together it would be regarded as a Brothel which is illegal in India.

Risk factors for Sex workers

Female sex workers are to be at greater risk in terms of their health and safety. Here, health not only refers to physical health but also “mental health”. They face issues like assault and harassment which can affect their mental as well as physical health. While engaging in sexual activities, they can be the victim of several transmissible diseases such as HIV, AIDS, Chlamydia, Gonorrhea, etc, and also unwanted pregnancies.

Globally, sex workers are estimated to be 13 times more likely to acquire HIV compared to adults in the general population. Progress toward preventing new HIV infections and AIDS-related deaths among sex workers has been uneven between countries and regions. Despite being disproportionately affected by HIV, in many countries, sex workers remain neglected by efforts to expand access to HIV prevention and treatment. Intersecting types of stigma and discrimination related to sex work, real or suspected HIV status and sexual identity, physical and sexual violence, as well as punitive laws and policies that target sex workers, increase their vulnerability to HIV. Stigma and discrimination limit the availability, access, and uptake of HIV prevention, treatment, care and support among sex workers and their clients.[9]

Sex workers face high levels of stigma and criminalization almost everywhere. Modelling studies indicate that decriminalizing sex work could lead to a 46% reduction in new HIV infections in sex workers over 10 years, while eliminating sexual violence against sex people ought to result in a 20% discount in new HIV infections.

Depending on the study analysis data, there was little variation in self-reported lifetime Sexually Transmitted Infections (STI) prevalence of licensed brothel, private, and illegal (predominantly street-based) sex workers. However, licensed brothel workers were less likely to report ever being diagnosed with gonorrhea or pubic lice in the past (P = 0.035 and 0.004 respectively). In contrast, clients accessing illegal services reported higher lifetime STI (36.0%, 95% confidence interval (CI) 20.2-55.6) than men recruited through private sex workers (20.0%, 95% CI 11.4-32.5) and clients from licensed brothels (7.6%, 95% CI 3.7-14.5).[10]

Durbar Mahila Samanwaya Committee is a discussion board of 65,000 intercourse people primarily based totally in West Bengal, India. The fundamental method of Durbar’s program is primarily based totally on the precept of “three R’s” – Respect, Reliance and Recognition: Respect in the direction of intercourse workers, Reliance on the knowledge and wisdom Of the network of intercourse people and Recognition of intercourse activities as an occupation, for the safety in their occupational and human rights. Durbar was created through intercourse employees worried about the STD/HIV Intervention Programme or the Sonagachi Project. In 1999, Durbar took over the control of the Sonagachi Project and presently runs STD/HIV intervention programmes in forty-nine intercourse activities in West Bengal.[11] Durbar affords testing, counselling and take care of human beings with HIV/AIDS. DMSC’s anti-trafficking paintings is carried out through Self-Regulatory Boards produced from each intercourse employees and network supporters.

Children of sex workers can face various challenges and discrimination due to their parents’ profession. The result of this stigma is the denial of the basic rights for both sex workers and their families: Women cannot access good healthcare and are often subject to abuse, violence, and exploitation by police and government officials, while their children face harassment in schools and the workplace as well. The children sometimes have to face discrimination and disruptions on the grounds of education. Despite having their own identity as individuals, people started to consider or recognize the kids as sex workers only.

Life during the COVID-19 pandemic

Sex workers would have faced massive issues during the Pandemic. As it was the period of “Lockdown” and “Social Distancing”. Many have faced economic crisis, challenges in terms of health risks and a decline in clients and income due to the nature of their work. The financial strain made it difficult for them to meet their basic needs and access essential services. Support systems and advocacy for the rights and well–being of sex workers became crucial during these times. The COVID–19 pandemic not only resulted in the loss of income of Sex workers and made it difficult for them to continue their work but also augmented their mental health struggles. It is noted that there has been an escalation in mental health concerns among sex workers, particularly those from poor and middle-income nations. Over 800 out of 1000 participants surveyed in Indonesia indicated a need for mental health and supportive services for people living with HIV.[12]

Comparative Study of Sex Workers Between India and Other Countries:

In India, sex work operates in a complex legal framework where prostitution itself is not illegal, but related activities are. This can impact the safety and well-being of sex workers. There are various organizations and activists working to support and advocate for the rights of sex workers in India.

In some countries, sex work may be decriminalized or legalized, allowing for better access to support services and legal protections. This can contribute to safer working conditions and reduced stigma for sex workers.

Suggestions

India’s sex workers, even though constituting a vital part of its casual area economy are rendered unvoiced beneath patriarchal energy structures. Notwithstanding a loss of labor rights and healthcare coverage, their existence histories stay invisible from the area of regulation or law of policy.

The mental and physical health and safety measures of the sex workers must also be taken care. The police officers must not interfere with their jobs until and unless they are not minors and if they doing it voluntarily, as it is a profession and work of the Sex workers. Since voluntary sex is not illegal. It has been often seen that the attitude of police officers towards Sex workers is brutal and harsh. Corrective measures should be taken by the authorities if they are facing harassment or abuse. They also have the right to get all the benefits like “normal” citizens. Their children must also get a proper education as well and all the Sex workers must get Counseling to overcome with their mental health.

According to the Report[13], The NNSW comprises 84 organisations across 10 states with over 1.5 lakh sex workers as members. “Trafficking of persons into forced or coerced labour (including sexual exploitation) should not be equated with sex work undertaken by consenting adults,” it said.

As per more research[14] – Reiterating her stand on legalising prostitution, National Commission for Women (NCW) chairperson Lalitha Kumaramangalam on Wednesday pitched for effective mechanism to deal with criminal aspects of sex trade like trafficking. Observing that the sex workers must be given the right to decide what they want to do with their lives, she said there was a need to provide better working conditions to them.

Sex workers remain largely excluded from the Mainstream society and hence there is an urgent need to pay attention to this community as well. Remember to approach this topic with sensitivity and an open mind, considering the diverse viewpoints and experiences of those involved in or affected by the industry or in the profession. Its crucial to recognise and respect their rights, agency and the diverse experiences within the sex workers community.

Conclusion

India needs to regulate the prostitution industry. Unlike any other profession, Sex work is also a profession and they should not be harassed or assaulted by any human beings. Sex workers should also be entitled to equal protection under the law. They should also be able to avail themselves of the same facilities and benefits as any other citizens of India. It is the time that we think from a labor perspective and assign Sex work as “Work”.

In conclusion, the issue of sex work in India is complex and multifaceted. It involves various social, economic, and legal dimensions. While there are concerns related to exploitation, trafficking, and the vulnerability of sex workers, there is also a need to address their rights, health, and safety. Comprehensive policies that focus on decriminalization, destigmatization, and providing support and alternatives to sex workers can be more effective in addressing the challenges they face and ensuring their well-being. Additionally, broader societal awareness and education are essential to foster a more compassionate and informed approach to this issue.

Finding a balance between morality and legality is challenging. It is crucial to prioritize the safety and well-being of sex workers, acknowledging their rights as individuals while addressing the concerns of society. Comprehensive legislation, coupled with social support and education, can help reduce the negative aspects associated with sex work and work towards a more compassionate and pragmatic approach. Ultimately, a nuanced and evidence-based approach is essential to strike the right balance between morality and legality in the context of sex work in India.

Furthermore, the children of individuals involved in prostitution can face a range of challenges, including social stigma, economic instability, and potential exposure to unsafe or exploitative environments. To address these struggles, it’s important to focus on providing support, education, and resources to help improve their well-being and opportunities. This may involve government and community programs, social services, and efforts to reduce the overall demand for prostitution through education and policy changes.

Mahek Bardiya – Student of Navrachana University, Vadodara Gujarat


[1] Why use the term “sex worker” rather than “prostitute”? Understanding Sex Work in an Open Society, April 2019, https://www.opensocietyfoundations.org/explainers/understanding-sex-work-open-society

[2] Immoral Trafficking (Prevention) Act, 1956

[3] Sunaina Sharma, Sex Work in India: Legality v. Morality, Oct 31, 2022, Linkedin, www.linekdin.com

[4] Indian Penal Code, 1860

[5] Advocate Chirkirsha Mohanty, Is Prostitution Legal in India? July 11, 2023 https://lawruto.com/indian-kanoon/criminal-law/is-prostitution-legal-in-india-2838

[6] Gaurav Jain v. Union of India, 1990 AIR 292, SCC

[7] State v. Pankaj Chaudhary and Ors. (2019) 11 SCC 575

[8] Aashank Dwiwedi, India’s Sex Work: Ethicality vs Legality – Times of India, Feb03 2023, www.indiatimes.com

[9] GPC, 2018 Report, Global Consultation on HIV and Sex Work, https://hivpreventioncoalition.unaids.org

[10] Charlotte Seib, Joseph Debattisate, Jane Fischer, Michael Dunne, Jackob M Najman, Sexually Transmissible infections among sex workers and their clients: variation in prevalence between sectors of the industry, Mar 06, 2009, https://pubmed.ncbi.nlm.nih.gov

[11] Durban Mahila Samanwaya Committee (DMSC), Global Alliance Against Traffic in Women  https://gaatw.org/members/asia/127-membership/asia/553-durban-mahila-samanwaua-committee-dmsc

[12] Neha Sehgal, Chandra Bhushan Patni, Covid – 19 and Female sex workers in India: a journey of brutal reality, Marc 06 2023, https://ncbi.nim.nih.gov/pmc/articles/PMC9987386/

[13] The New Indian Express, Retain ‘sex worker’ in SC handbook of stereotypes, activists write to CJI, 26 November, 2023,  https://www.msn.com/en-in/news/India/retain-sex-worker-in-sc-handbook-of-stereotypes-activists-write-activists-write-to-cji/ar-AA1kwWcF

[14] Sex workers need better working conditions, says NCW chief Lalitha Kumaramangalam, Jan 14, 2015, 06:17 PM IST, https://www.dnaindia.com/india/report-sex-workers-need-better-working-conditions-says-ncw-chief-lalitha-kumaramanglam-2052487

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