Public Policy is simply what a government does or does not about a problem that comes before them for the consideration and possible action. Prostitution is one such public policy which requires attention. According to a recent report by Human Rights Watch, there are over 20 million sex workers in India.¹ Prostitution is indeed a matter of public policy and this article deals with the prostitution and the plight of the sex workers over the period of time. Prostitution, in a layman’s language, means getting involved in sexual intercourse in exchange of money. However, section 2(f) of the Immoral Trafficking (Suppression) Act of 1956, used to define prostitution as sexual exploitation or misuse of any persons for commercial purpose.² The central element of the definition of trafficking is the force, fraud or coercion exercised upon the person by another to perform or remain in service to the master. Broadly, there are two views related to prostitution, first which says prostitution should be treated like any other profession and should be made legal; the second view says, prostitution is something which is against public policy and morality. There are countries in the world which has decriminalized prostitution, some have criminalized it and others legalized it with restrictions. India is one such country to legalize it with restrictions. Though legalized, this profession is still a form of taboo. Sex workers are generally deprived of rights that they deserve, which makes it difficult for them to re-integrate into the society especially if they want to leave the profession and start a new life
Prostitution in India is a Rs. 40,000 crore annual business and 30% of the sex laborers are
youngsters whose exploiters acquire a whopping Rs. 11,000 crore. As indicated by a review,
there are around 10 million sex specialists in India out of which 100,000 are in Mumbai
alone, Asia’s biggest sex industry focus. There around 3 00 000 to 5 00 000 youngsters in sex
exchange India among which Bangalore alongside five noteworthy urban areas together
account for 80% of tyke whores in the nation. These figures are startling and point towards
the importance of a certified intercession of the State to check this essential underhandedness.
Prostitution belongs to a class of profession which involves great amount of physical
tolerance, endurance and risk. This profession is further effected by various social and
cultural norms; this means that they are victims of social stigma and poverty. In this scenario
it is necessary that law injects in this vicious cycle in order to strike a balance and to
GLIMPSES OF SONAGACHI WEST BENGAL
empower and safeguard those who are abused. The case of these sex workers are much worth
or on the same level of that as transgender individuals and poverty stricken individuals. These
persons become the victims of sexual abuse, public bashing, lack of health care facilities,
several variance of mental diseases,etc. Though prostitution is illegal in India the situation is
different in other countries where they have been given a legal status and hence curbing
plethora of malpractices adjacent with the profession. Like, how a coin has two sides
legalizing prostitution has its own pros and cons. While the pros would be that it provides
continuity to the government, provides a system of equality to the government structure, it
offers more security than other forms of government and it creates a higher level of neutrality
And cons would be: it can be implemented with varying levels of power, it focuses political
power onto people, it provides no guarantee on the quality of rule, it can discourage needed
social change etc., analyzing the effects of both these situations according to the existing
conditions a determined body of laws can be constructed to match the needs. The constitution
though does not expressively speak about the rights of sex workers it does implicitly provide
basic human rights in Article 14 which speaks about Right to equality, Article 15 ensures that
There shall be no discrimination on the basis of sex, caste, race, religion or place of birth,
Article 21 ensures right to personal liberty and life, and Artcile 32 ensures that every citizen
has a right to approach the supreme court for the enforcement of the right if he or she has
been deprived of the same.
HISTORY
DEVADASI DURING ANCIENT ERA
The Ancient Era Near East was home to numerous places of worship, sanctuaries or “places
of paradise,” which were devoted to different divinities. These holy places and sanctuaries
were recorded by the Greek historian Herodotus in The Histories, where sacred prostitution
was a typical practice. Sumerian records going back to 2400 BC are the most punctual
recorded say of prostitution as an occupation. These depict a temple-brothel operated by
Sumerian ministers in the city of Uruk. This kakum or sanctuary was devoted to the goddess
Ishtar and was the home to three evaluations of ladies. The main review of ladies were just
allowed to perform sexual ceremonies in the sanctuary, the second gathering approached the
grounds and obliged guests, and the third and most reduced class lived on the sanctuary
grounds. The second rate class was additionally allowed to discover clients in the lanes.
A tawaif was a courtesan who created to the nobility of south Asia, especially during the
mughal era. Such people would dance, sing, make poetry and entertain people (kings and
other people). The main purpose was to entertain the guests. Sex at this time, was not a
contractual agreement but was often incidental. The highest classified tawaifs would pick any
of the prostitutes who in turn would dance, play music and work for them.
The term „Devadasi‟ was used in India particularly to describe a person who was known as a
servant of Deva, such Devadasis did not only work in the temples, but they were considered
as holy. Devadasis were married to a deity or Devi. They were supposed to take care of the
temples and perform rituals. They also involved themselves in performing „Bharatanatyam‟
and other classical arts. Due to these reasons they enjoyed high class social status. Many
temples were destroyed in the Islamic times due to which there was a fall in the system of
devadasis and status of temples fell quickly in India. The temples lost their kings and they
were also destroyed and the devadasis who served the temples did not have a place to go and
they became poorer and hence they were forced into prostitution.
— THEN AND NOW
With changes and development in society over the period of time, there have been changes in laws and crimes related to prostitution and sex workers as well. Prostitution is not a new or modern concept in India or in the world. It has been one of the oldest professions, to be practiced. The traces of prostitution in history could be found in the early literature. Kautilya in his Arthshastra has talked about the same. He writes “Providing sexual entertainment to the public using sex workers (Ganika) was an activity not only strictly controlled by the State but also one which was, for the most part, carried on in state-owned establishments. Women who lived by their beauty (rupajivas) could, however, entertain men as independent practitioners; these could have been allowed to practice in smaller places which could not support a full-fledged state establishment. A third type of women of pleasure, mentioned in a few places, is pumsachali, perhaps meaning concubines
INDIAN LEGAL FRAMEWORK
The laws overseeing sex work in India are involved in the Constitution of India, 1950; the
Indian Penal Code, 1860 and the Immoral Traffic (Prevention) Act, 1956. The Constitution
apart from the equality provisions and provisions of freedom of association, Right to life and
Personal Liberty, guarantees prohibition of trafficking of human beings and forced labor,
ensures denial of trafficking of individuals and constrained work.
As mentioned in the preamble of the constitution of India is a sovereign, socialist, secular,
democratic and republic country and equality of status, dignity, and opportunity must be
secured for all the citizens of our country. Irrespective of gender, caste, religion, status etc.
the constitution of India provides for certain laws which ensure right to equality, freedom etc.
some of rights ensured under the constitution are:
a) Article 14: Article 14 ensures right to equality under law which means that every
citizen has a right to equality before law and has a right to live a life free from
discrimination on ant grounds. It provides every citizen with equal opportunities.
b) Article 15: Article 15 of Indian constitution ensures that there shall be no
discrimination done on the basis of sex, caste, race, religion or place of birth. It
states that state shall not discriminate any citizen on the basis of above mentioned
cases.
c) Article 21: Article 21 ensures right to personal liberty and life. It ensures that
there shall be no person who would be deprives of personal liberty and life.
d) Article 32: this article ensures that every citizen has a right to approach the
Supreme Court for the enforcement of the right if he/she has been deprived of the
same.
e) Indian penal code, 1860: As a result of rising crimes such as sexual harassment
against women there was a new section which was added in the Indian penal code
in the year 2013 through the crime law (amendment) act, 2013, which enlists the
acts constitute offense of sexual harassment and it also imposes
punishments/penalties such as act committed against women. The person
committing any such offense against women will be punishable with 1-3 years of
imprisonment or fine or both.
f) Article 354 of IPC: under the Indian penal code, article 354 states that, when
without any consent of the women, acts of any kind or physical attack or
intentional force are committed to outrage her modesty, then the offender shall be
fined or sentenced to 2 years of imprisonment or convicted with both; it ensures
punishments and penalties for the offenders who commit crimes against women
and sexually abuse them.
The Immoral Traffic (Prevention) Act, 1986
Unlike then, prostitution is no more a matter of choice now but an only option to survive. The profession according to the society is a disgrace and people involved in it are not only characterless but also a big black mole making the world impure. This thinking makes it difficult for the sex workers to live with dignity and they become more prone to crime.
India signed the International Convention on Suppression of Traffic in Person on May 9th, 1950 and brought into effect, the Immoral Traffic (Suppression) Act, 1956.⁴ The act decriminalised prostitution to a limited extent. The Act prohibits propagating prostitution but not practicing it, also it prohibits prostitution in public but if a sex worker is practicing prostitution in her private space, then it is legal. Section 3⁵ of the act imposes a punishment of 3 years for practicing prostitution within the 200 yards of public place. The involvement of third party as in case of brothels are also prohibited.
The amendment in the principal Act by way of Immoral Traffic (Prevention) Act, 1986 has increased its ambit and recognises that men and children can also be subject to prostitution. However, due to lacunae in the law, the purpose of legalisation i.e., more safety, right to live with dignity of sex workers remains unachieved. The law itself is treating prostitution as something immoral and indecent in a very passive manner. It is though legal today to practice prostitution but still the taboo related to sex is reflected in this particular act as well. The legislature by keeping prostitution away from public places, hotels, suggests that prostitution is viewed as an unethical activity in the society.⁶ Even though the Act has allowed to profess prostitution in private space, Section 7(2) of the Act⁷ punishes a landlord, lesser or owner who lets prostitution being practiced, for 3 months or with a fine of rupees two hundred or both. These contrary provisions are regulating prostitution today in India.
Evolution of prostitution as a profession over a period of time has degraded its status. Earlier when people were ruled by kings, sex workers used to have a royal life, however, when today everything is so advanced, they are not even considered worth of respect from the society. Respect is something which still can’t be considered as the primary goal, safety of the sex workers still remains a bigger issue. There have been instances where the sex workers had to suffer because of the so-called legalized profession they practice, though the judiciary did come for the rescue but the society has remained indifferent on this issue.
CHILD PROSTITUTION
Child prostitution is when any person below the age of 18 years is indulged or is forced to get indulged in prostitution. Child prostitution is one of the most prevalent and common type of prostitution in India. The most prominent reason being that they are an easy prey for the pimps and the middlemen, because children can be lured easily than adults and they are less able to defend themselves. Moreover, as a result of their young age, they are always looking for new experiences in life which usually leads them to fall into traps and getting out of them gets nearly impossible for them. The laws related to child prostitution are quite strict. Buying and selling of minors are punishable under Indian Penal Code with imprisonment up to ten years and fine.⁸ Also, Section 370A⁹ of the IPC provides for rigorous punishment for the people who engage in sexual exploitation of a trafficked minor person. However, the data shows contrary. Around 70,000–1 million women and children are in the sex trade in India, out of these 30 per cent are below the age of 20; nearly 15 per cent began sex work when they were below 15 and 25 per cent entered between 15 and 18 years¹⁰. And 2 million (approx.,) child commercial sex workers between the age of 5 and 15 years and about 3.3 million between 15 and 18 years. They form 40% of the total population of commercial sex workers in India. 80% of these are found in the 5 metros, 71% of them are illiterate and 500,000 children are forced into this trade every year¹¹. However, there are provisions in the Juvenile Justice (Care and Protection) Act, 2015 to deal with the children in need of care and protection regarding their rehabilitation and restoration but in most cases, the damage is already caused before such child is rescued.
THE PLIGHT OF SEX WORKERS
Most of the time, sex workers are trafficked from rural areas of the state or sometimes even across the borders. Those who are trafficked are then sold to these middlemen or agents or the pimps and are mostly women or children from the disadvantageous and lower strata of the society who are incapable of making ends meet in their day-to-day lives, like the economically weaker sections, lowest caste Dalits, or members of the tribal communities¹². These people are often persuaded with false promises to marry or offers of better standards of living. Apart from poverty, there are various reasons why women or children turn to prostitution as their last resort:-
1. Unemployment- For these people money becomes important, however earned and because they are an educated and unskilled no other businesses are ready to employ them and lack of shelter and food alongside makes them resort to prostitution.
2. Pricked to prostitution- Women and children are pricked to prostitution mostly by pimps under false promises to marry and also sometimes they are kidnapped and forced to do this.
3. Family Expectations / Problems and Lack of Parental Care- When children live under poor conditions, they tend to leave their homes at young ages of 14 to 16 years, to big cities which generally expose them to things they are not aware of, like sexual abuses from men. Also, with family at home they are expected and pressurised to pay bills so for that they resort to prostitution for fast and easy money.
There are many other reasons but it is crystal clear that prostitution is not a matter of choice but a compulsion.
Hazards and Ill-Effects
Now that we are talking about the reasons, we might as well talk about its hazards or ill- effects to the children, women as well as transgenders alike who are involved in this profession and how better and stringent rules and regulations will solve them. Prostitution is considered to be a Ranch Culture where sex and the sexual desires are treated as commodities and are sold. However, it might be just for the pleasure for clients or customers but in reality, this profession comes with a cost for the sex workers which are as follows:
Health Effects– There are many angles on the health issue like the sexually transmitted diseases, unwanted pregnancy, vaginal tearing, psychological and physical torture and stress. Data has shown that most of the times the clients deny wearing a condom which leads to unwanted pregnancy, and since prostitution is not being regulated, these sex workers hesitate to approach doctors.¹³ When protection is not used it increases the chance of getting the sexually transmitted diseases like HIV- AIDS or chlamydia or syphilis etc., which are deadly and can make a person vulnerable and helpless. Sex worker organizations in India and Thailand have demonstrated the effectiveness of adopting an empowerment approach, based on community mobilization, peer-based health promotion, self-regulation, active engagement on law enforcement issues and participation in dialogue about law and policy reform.¹⁴
Crime Rate– There are many instances when sex workers face violence, both physical and mental and sometimes are even raped by their clients. Due to no regulations, sex workers find it difficult to report it to the authorities or the police and even when they do often, they face police harassment. Had the profession been regulated with stringent laws, it would have also reduced the crime rate as a sex worker would have been able to report it. There would be a check up on the other activities like sex trafficking. Often these women are trafficked to such countries where they don’t even speak the language and often these people don’t tend to have legal documents or have false documents which makes it harder for them to report crime. What could be done for this remains the question? The clients as well as the workers should be mandatorily made to fill and sign the consent forms. Crimes against them is brutal most of the time but rarely it has happened that people come out raise voice against the same. For instance, recently in Kolkata, a boy of 21 years killed a sex worker, kept the body for two days, later the body of the victim was found only with her undergarments on.¹⁵ People need to change their mentality and its high time to raise voice as any citizen would have done for any other daughter of India, when she is raped or killed.
Lack of Legislation– Prostitution as a career doesn’t come under the purview of labour laws therefore, it becomes very difficult to provide them their rights and protection under such laws. All of these factors lead them in the exploiting hands and deprive them of their basic rights as enshrined in the Constitution of India¹⁶, let alone the labour rights. It is a established fact that unless and until consolidation of labour rights within sex workers don’t take place, human trafficking can also not be stopped. Evidence from the jurisdictions in the region that have decriminalized sex work (New Zealand and New South Wales) indicates that the approach of defining sex work as legitimate labour, empowers sex workers, increases their access to HIV and sexual health services and is associated with very high condom use rates¹⁷. Sex work is though said as a profession in India however, there is no specific legislation to regulate such profession. Better regulation of laws makes it easy to rehabilitate and re-integrate these sex workers back in the society after being brutally exploited.
COVID-19 and Sex Work
The COVID- 19 pandemic, which has disturbed the economic functioning of the whole world has not left sex workers too. The pandemic has caused loss of earning of the sex workers further adding on plight on their health vulnerability. It has been earlier also found that the schemes which are made for them doesn’t reach them due to lack of identity proofs. Darbar Mahila Samanwaya Committee filed an application¹⁸ asking for certain reliefs for sex workers such as monthly rations, cash transfer of rupees 5000 per month, pandemic prevention measures such as masks, sanitisers etc., to be delivered to sex workers under Targeted Intervention Projects/State AIDS Control Societies and Community Based Organizations etc. The court ordered providing the relief to sex workers on September 29 and Maharashtra became first state to implement it in the month of October and approximately, 2700 sex workers are receiving the aid¹⁹. The only problem with implementation of this order is the lack of identity proofs. A panel was constituted by the Hon’ble Apex Court to find the status of sex workers in the year 2011²⁰, which submitted in its report that most of the sex workers in India don’t have ration cards, bank accounts, voter id cards and other such basic identity proofs. This makes it difficult for them to avail the service made for them, if any.
In this crucial time of pandemic, one of the limited keys to survive is social distancing, but their profession doesn’t allow them with this privilege. Today when vaccination has been started, it is a point to ponder upon that will it be any easier for them get vaccinated where the supply of vaccine is low as compared to its demand. There is huge rush in the entire country to get vaccinated but what about those who have already exposed themselves because of their profession to the deadly virus and are vulnerable and lack awareness regarding the same too. The society has to come together leaving its taboo related to sex and sex workers aside, to spread awareness and help the sex workers to fight with this virus in whatsoever manner they can.
ASPECTS OF LEGALIZATION
Criminalization, Decriminalization and Legalization106 also known as Prohibitionist system,
Tolerationist system and Legalized Prostitution.107
The Criminalization or Prohibitionist system aims at changing criminal sanctions in order to control
the social evil of prostitution and to countenance it by amending the criminal law.108 It perceives
prostitution as immoral and aims at its eradication for which it bans prostitution per se, by criminalising the
activities of all categories of people involved in prostitution: brothel-keepers, pimps, procurers, clients and
Under Decriminalization or Tolerationist system, prostitution is not regarded as either a crime or a licensable
activity; it is based on voluntariness and considered an act between two consenting adults where the role of
the State is limited to eradicate coercive prostitution. The state can only bring in certain measures to curb
excessive exploitation and preserve public health. This system does not seek to abolish prostitution per se
but is only targeted at trafficking in women and girls for prostitution, brothel-keeping, pimping,
procuring and renting premises for prostitution; here prostitutes are not criminalized for their work
and they have more or less the same rights as other citizens in the society.
PROBLEMS OF IMPLEMENTATIONS
The main loophole of the act does not lie in the Act but instead lies in the implementation of the Act. The corruption riddled implementation is one of the main impediment in this Act. This is the reason for limited outreach of the laws in our country. This is pretty evident where the attitude of the police and also the judiciary has not been changed. Through raids, the police arrest the prostitutes instead of the brothel owners. Corrupt officials in law enforcement agencies are widespread. Another problem is the reformative and rehabilitation homes which are provided for these prostitutes are inadequate. These homes are inadequate and cannot accommodate large number of prostitutes who are a victim of crimes. There are shortages of number of homes and the victims are large in number. Hence, this creates a problem and does not provide homes for many of them, driving them again to the same activity and them being a victim of such activities. One of the solutions is that they must increase the number of homes and provide training and development to such victims. They must work on counselling them and providing jobs. The aim of decriminalization is that instead of the sex workers, brothel owners would be held responsible.6 Through a research made it was found that the number crimes registered are less if compared to the real crimes committed. In simple words, the numbers of crimes are more in number but such crimes reported are very few. This is because many of them are unaware of the rights and laws which exist in our country. Even though some of these are reported, due to high corrupt officials they are not been recorded. (Around 60 percent). For this, sensitization of the police is a must.