INTRODUCTION
“Notwithstanding the profession, every individual in this country has a right to a dignified life under Article 21[1].”
If the above statement, as mentioned in the case of Budhadev Karmaskar vs State of West Bengal[2],carries a kernel of truth within it, then the question that arises is why do we encounter the distraught living conditions of sex workers in various parts of India? Why are they treated as an isolated community after working in the most ruthless circumstances? Do they not fulfil the conditions to exercise a life of dignity and respect?
CONFLICT THEORY
Highlighting the sociological aspect of prostitution according to Marx’s Conflict theory, prostitutes reflect the economic inequality in society. He looked upon them as the victims of the capitalist system. According to him, human effort and the use of our brains and muscles to do things becomes a capacity we sell to other people under capitalism. This idea, however, spreads and does not stop at the border of the goods and services we usually think of, and the market develops something unexpected within the definition of goods and services that were initially not understood to be part of the economic system, such as sexual activity, sexual servicing and more. So it would sooner or later occur to either an employer or employee to produce and market sexual services[3]. The fundamental idea that Marxists come up with is that capitalism makes it easy for people to think about the profit gleaned here and push against the traditional laws and religious prohibitions that restrict such activities meant to be kept outside of the economic realm. It is similar to the story of King Midas, who was so enamoured of gold like capitalists are of profit, that he got carried away when he used his special touch that could turn everything to gold on his daughter, who stopped being a living person and became a solid gold person who was no longer a human being. The notion that has to do with capitalism’s abuse of sexuality in advertising and production in every conceivable way should not escape anyone’s notice.
Karl, in his Economic and Philosophic Manuscripts of 1844, described sex work as being only a specific expression of the general prostitution of the labourer and viewed its abolition as a significant step to end capitalism.[4] In his Communist Manifesto, he stated how prostitution was a complement to the bourgeois family and predicted that both institutions would one day vanish. Hence, prostitution based on this theory reflects a situation of inequality within the society where poor women are compelled to become prostitutes due to the lack of financial support provided to them. Interestingly, this was evident during the second half of the nineteenth century when many females lost their husbands and were left penniless. Having no former education, they had to resort to prostitution to feed their families and themselves.
NEO-ABOLITIONISM
It takes a contemporary approach towards addressing the issue of sex work, which is often associated with radical and Marxist feminists. It is critical in both the aspects of abolitionism as well as the legalization of sex work due to the emphasis it lays on understanding the structural issues that underlie the growing sex industry. They also mark the significance of gender-based discrimination that pushes individuals to sex work. The one common approach visible among neo-abolitionists is the idea to decriminalize sex work while criminalizing those who purchase sex, thus reducing its demand and making this profession less profitable and exploitative. However, no unified theory exists as it accommodates many views.
SOCIO-LEGAL ASPECT
The legal status of sex workers has always been a matter subjected to heated debate. Currently speaking, there does not exist any particular law that illegalizes prostitution in a broad sense, but several activities under the same are punishable by law.
The Immoral Traffic (Prevention) Act of 1956[5] primarily regulates prostitution in India. Under Section 2(f)[6] of the Act, prostitution has been defined as “sexual exploitation or abuse of persons for commercial purposes or consideration in money or any other kind.” This definition presents the practice of prostitution in a negative light, correlating it with terms such as sexual exploitation or abuse and not as a legitimate profession. In the case of Gaurav Jain v. Union of India[7], the Supreme Court highlighted the constitutional validity of this act and provided the impetus to distinguish trafficking and adult consensual sex work. Further, Section 3[8] prescribes punishment for keeping a brothel, and Section 4[9] penalizes any person who is eighteen and above and depends partly or wholly on the earnings of prostitution. Section 5[10] also penalizes the procuring, inducing, or taking of any person for the sake of prostitution. Thus, targeting the pimps, brothel owners, and traffickers. The brothel owner is also targeted through Section 6[11] which penalises people who detain a sex worker in a brothel or other premises where prostitution is practiced.
Section 7[12] is the only section that makes prostitution subject to punishment as it clearly states that any person who practices prostitution under a distance of 200 meters of a public place will be held liable to be punished with imprisonment of up to three months. The Indian Penal Code,1860[13] also covers human trafficking of minors for prostitution under Sections 372 [14] and 373[15].
Broadly looking at the Immoral Traffic (Prevention) Act, of 1956[16] it tends to overlook the issues of human trafficking and focuses more on the elimination of the practice of prostitution. It does not provide safeguards to the sex workers but rather puts them in a vulnerable state. In the Supreme Court case of Budhadev Karmaskar vs State of West Bengal[17], it was held that the “basic protection of human decency and dignity under Article 21[18] extends to sex workers and their children, who, bearing the brunt of social stigma attached to their work, are removed from the fringes of the society, deprived of their right to live with dignity and opportunities to provide the same for their children.” The Hon’ble Supreme Court of India also published a handbook that encourages the use of the term sex worker instead of prostitute. Despite these judgments, no action has been taken to make amendments in sections such as Section 7(a)[19] of ITPA which is particularly violative of the fundamental rights of sex workers under Article 21[20] of the Constitution of India.
CONCLUSION
Apart from all of these discussions, the undercurrent of attitudes toward sex workers makes their image worse. Attitudes that tend to demean and degrade them further marginalize them in our society. This practice has been going on for ages, and it is not going to be eliminated anytime soon; hence, our focus should be on fighting for their rights rather than with their profession altogether. While the Supreme Court discussed the importance of protecting the rights of sex workers in Vishal Jeet v. Union of India[21] we are still a long way from achieving these goals. They must have a right to lead a healthy life and all other rights granted to this country’s citizens. Thus, it is high time we emphasized the word life mentioned in Article 21[22], which means a life of dignity and not of complete neglect.
Author(s) Name: Nandini Singh (Symbiosis Law School, Pune)
Reference(s):
[1] Constitution of India 1950, Article 21
[2] Budhadev Karmaskar vs State of West Bengal [2010] CA 135
[3] Collins, R, Social Problems, “Conflict theory of sexual stratification” [1971]
[4] Canavan. M, “Woman’s Law” [2000]
[5] Immoral Traffic (Prevention) Act 1956
[6] Immoral Traffic (Prevention) Act 1956, s 2(f)
[7] Gaurav Jain v. Union of India [1990] SCR 292
[8] Immoral Traffic (Prevention) Act 1956, s 3
[9] Immoral Traffic (Prevention) Act 1956, s 4
[10] Immoral Traffic (Prevention) Act 1956, s 5
[11] Immoral Traffic (Prevention) Act 1956, s 6
[12] Immoral Traffic (Prevention) Act 1956, s 7
[13] Indian Penal Code 1860
[14] Indian Penal Code 1860, s 372
[15] Indian Penal Code 1860, s 373
[16] Immoral Traffic (Prevention) Act 1956
[17] Budhadev Karmaskar vs State of West Bengal [2010] CA 135
[18] Constitution of India 1950, Article 21
[19] Immoral Traffic (Prevention) Act 1956, s 7(a)
[20] Constitution of India 1950, Article 21
[21] Vishal Jeet v. Union of India [1990] SCR 1412
[22] Constitution of India 1950, Article 21
