What is Prostitution
Prostitution is the business of engaging in sexual activity in exchange for monetary compensation. The word has been derived from the Latin word “Prostituere”, which means “to expose publicly”. It has been an occupation which has existed in our early history but, through the passage of time, has become an occupation questioning public morality and as a “taint” to society. The primary issue that lies here is that people often just relate a profession such as sex work to be synonymous with sexual abuse and oppression; they fail to see it as a viable commercial trade for females. Additionally, the majority of the females who take up this form of profession belong to the lower income strata of society and thus have low bargaining power. This leads to recurrent injustice and grave harm to their dignity. Through this blog, we would be discussing the recent judgements and the laws regulating the rights of sex workers in India.
Immoral Trafficking (Prevention) Act [ITPA], 1986
The Immoral Trafficking (Prevention) Act (ITPA) of 1986 regulates and provides guidelines for the occupation of sex work in India. Section 2 (f)[1] of this Act defines “Prostitution” as “Prostitution means the sexual exploitation or abuse of persons for commercial purposes, and the expression “prostitute” shall be construed accordingly”
This Act does not consider “prostitution” to be illegal in India. On the other hand, pimping and running a brothel would be regarded as unlawful. If a female is wrongly exploited and used to gain profits, that is an offence under the law. It does not legalize the “flesh trade” in any form or manner. It is to be ensured that the sex worker is an adult who consents to work in the environment without any coercion. Under these circumstances, the police must refrain from taking criminal action against them. Apart from this Act, several provisions exist like Sections 372[2] and 372[3] in the Indian Penal Code and Section 81[4] in the Juvenile Justice (Care and Protection of Children) Act, 2015, which provide for punishments regarding child prostitution, exploitation and trafficking and so on. While this Act was made to regulate and protect the rights of these sex workers, it is not ubiquitous in nature. For instance, the Act includes only females as sex workers and not the male and transgender population, which discredits the rights that should be available to them. Moreover, Additional Solicitor General Jayant Sud informed the court that a draft anti-trafficking bill was under the process named the Trafficking in Persons (Prevention, Care and Rehabilitation) Bill, 2022[5]. The bill was introduced five years ago.
Judgements by Courts
In the case of Budhadev Karmaskar v. State of West Bengal[6], a case wherein a sex worker had been brutally murdered for refusing to have sexual intercourse with a man, the Supreme Court held that sex workers have a right to dignity under Article 21[7] of the Constitution.
The court in Manoj Shaw and Manoj Kumar Shaw v. State of West Bengal[8] laid down specific guidelines while dealing with the offences under ITPA 1956.
In the case of Maharashtra v. Madhukar Narayan Mardikar[9], a “woman of easy virtue” was sexually abused. The Supreme Court has held that even a sex worker is entitled to the protection of the law enshrined under Article 14[10] and Part III of the Constitution and her statements must be taken into account. Moreover, in the case of Shushil v State of U.P[11], the Allahabad High Court has held that the statements given by a prostitute in instances of rape must be believed, and it cannot be undermined because of her choice of profession.
In the most recent judgement, the Supreme Court bench, which included Justices L. Nageshwar Rao, B.R. Gavai and A.S. Bopanna held that sex work or trade is a recognized profession by law. This ensures that in the legal framework, sex workers and their children are on par with the rest of the people. It also provides the workers with more protection from possible exploitation or harassment at the hands of police officials. Moreover, it highlights and draws attention to sexual assault and the guidelines to navigate through such complaints. The court has also directed that the Aadhar Cards should be issued to them on the criteria of a performa certificate issued by the “UIDAI and submitted by the Gazetted Officer at NACO or the Project Director of the State Aids Control Society along with the Aadhar enrolment form/application”[12]. It ensures no breach of confidentiality to ensure the holder’s identity is not revealed.
Problems Faced By The Sex Workers
Despite the existence of laws and constitutional rights, the traditionalists of the society cannot discriminate between the religious and sacred implications of sex, making it difficult for the sex workers and their families to live peacefully. Sex workers are often exploited at the hands of police and government officials who unjustly take advantage of their position. Often police officials accuse them of solicitation and demand bribes for free sex. Moreover, in cases of violence and abuse, their complaints are not taken seriously. They are unable to have access to basic healthcare facilities. While there have been statutes introduced to provide them with better care and lifestyle, they are often used to exploit them rather than meeting the goal of the introduction of the same. Apart from being ostracized from society, their children are mistreated in schools not only by their peers but also by their teachers. Being subjected to such behaviour from an early age causes them to drop out of school at early age. Until the decision of the Supreme Court, they did not receive the fundamental right to approach the court for availing recourse. In comparison to other professions that have strong unions and fight for their labour rights, sex workers are not entitled to adequate labour laws. There are various associations that are working on the betterment of sex workers by forming unions to educate them about the advantages of using a condom, awareness related the sexually transmitted diseases and also providing a safe space free from discrimination.
Conclusion
While making laws in India to regulate sex work, there needs to be a balance between the exploitation of women and children and the right to the human dignity of sex workers. Moreover, since it is such a grey and sensitive area, leading to a lack of clarity and ambiguity, there needs to be more clarification of terms. This would make it easier for sex workers to claim their fundamental rights and not get exploited by officials. It becomes imperative for the legal fraternity to ensure that the rights of sex workers are violated because of their lesser bargaining power.
Author(s) Name: Khushie Jain (Symbiosis Law School, Pune)
References:
[1] Immoral Trafficking (Prevention) Act 1986, s 2(f)
[2] Indian Penal Code 1860, s 372
[3] Indian Penal Code 1860, s 372
[4] Juvenile Justice (Care and Protection of Children) Act 2015, s 81
[5] Kavita Chowdhury, ‘India’s Supreme Court Recognizes Sex Work as a Profession’ (The Diplomat, 13 June 2022) <https://thediplomat.com/2022/06/indias-supreme-court-recognizes-sex-work-as-a-profession/> accessed 17th August 2022
[6] Budhadev Karmaskar v State of West Bengal (2011) 10 SCC 277
[7] Constitution of India 1950, art 21
[8] Manoj Shaw and Manoj Kumar Shaw v State of West Bengal (2019) Criminal Miscellaneous Case No. 5927/2019
[9] Maharashtra v Madhukar Narayan Mardikar (1991) AIR 207
[10] Constitution of India 1950, art 14
[11] Shushil v State of U.P (2016) SCC OnLine All 254
[12] ‘Every Individual including sex worker has right to dignified life: Supreme Court’ (The Economic Times), May 26th 2022 <https://economictimes.indiatimes.com/news/india/every-individual-including-sex-worker-has-right-to-dignified-life-supreme-court/articleshow/91820528.cms accessed> accesssed 19th August 2022
