RECOGNIZING PROSTITUTION AS A PROFESSION IN INDIA

Introduction

Prostitution means engaging in sexual activities for commercial purposes. It can also be described as the act of selling sexual services in return for monetary or other valuable remunerations. Prostitutes include women, men, Transgender, homosexuals, heterosexuals etc. The history of prostitution is as long as the history of civilization. According to historians, prostitution can be found in ancient Greek, Rome and Mesopotamian civilizations, in Hindu mythology and history. But even today we consider prostitution an immoral activity because it is against the social norms set up by the privileged section of society and degrades the people who engaged in prostitution. But what we do not understand is the reasons why they engage in such work or their living conditions. There are circumstances that even, we forget we are dealing with human beings. This article is dealing with the hopeful changes that can be brought about by recognising prostitution as a profession in the life of sex workers.

Prostitution in India

The legal status of prostitution varies in different countries. Prostitution is legalised in Germany, Austria, Greece, Turkey etc. But it is illegal in China, Croatia, Egypt, Iran, Iraq etc. India opted for an abolition technique so that number of such activities can be reduced over time. Prostitution is legal in India. But activities connected with it like pimping, running a brothel and soliciting prostitution services in public are punishable under The Immoral Traffic (Prevention) Act 1956. Section 2(f) of this Act defines prostitution as sexual exploration or abuse of persons for commercial purposes.[1] Provisions related to prostitution are limited in IPC. SECTION 366A, 366B, and 370A deal with offences of procreation of minor girls, importation of girls from foreign countries for sexual activities and exploitation of human trafficked victims, respectively. Section 372 and 373 deal with child prostitution. Article 23(1) of the Indian Constitution prohibition of human traffic, forced labour and any other kinds of modern slavery. Infringement of this provision is punishable under law.

Rights of prostitutes in India.

Like every citizen of India, prostitutes are also entitled to enjoy the fundamental rights guaranteed under the Constitution of India. But the question is up to what limit they were enjoying it. Our system and government failed to provide basic living conditions to them so, fundamental rights are a far way to go. Conservative and diminutive thought processes of people will always act as a barrier to bringing them into mainstream society. They also have the right to lead a life with dignity and respect, engage in the profession as per their choice, right to equality, right against discrimination etc. Just because of their profession no one can deprive anyone of the right to life and personal liberty.

In State of Maharashtra v. Madhukar Narayan, it has been held that the ‘right to privacy is available even to women of easy virtue and no one can invade her privacy. A police inspector visited the house of a lady in uniform and demanded to have sexual intercourse with her refusing he tried to have her by force. When he was prosecuted, he told the court she was a lady of easy virtue and therefore her evidence was not to have relied upon. The court rejected the argument of the applicant and held him liable for violating her rights to privacy under Article 21 of the Constitution of India.[2]

In Manoj Shaw & Manoj Kumar Shaw v. State of West Bengal court held that sex workers should be treated as victims not accused. When a raid happened, prostitutes were arrested and owners of brothel houses were merely sent a notice. Prostitutes who were minors and forced to work were threatened, intimated and treated as accused. Also, court-ordered to grant interim compensation to victims under the state victim compensation scheme.[3]

In Delhi v. Pankaj Choudary & Ors, the court reversed the decision of the Delhi High Court of acquitting 4 accused of gang rape and upheld the decision of the trial court. The Court emphasised that even if it is proved that a woman is habitual of sexual intercourse, no one can take advantage of her and can raise an issue about her character or by contenting that she is a woman of ‘easy virtue’. The Court observed that such women have the right to refuse to submit themselves for sexual intercourse. The Court imposed a 10 years sentence for the accused as was held by the trial court earlier.[4]

Prostitution as a profession

The intervention of the court always gives hope to sex workers that they can also have a life with dignity and equal protection under the law. By recognising prostitution as a profession court guarantees them protection under the law. In Budhadev Karmaskar v. State of West Bengal[5], Supreme Court recognised prostitution as a profession. The court observed that “it need not be gainsaid that notwithstanding the profession, every individual in this country has a right to a dignified life under Article 21 of the Constitution. Sex workers are entitled to equal protection from the law. When it is clear that the sex worker is an adult and is participating with consent, the police must refrain from interfering or taking any criminal action.”. The court also provided directions to the media to take utmost care not to reveal the identities of sex workers, during arrest, raid, and rescue operations, whether as victims or accused and not publish or telecast any photo that would result in disclosure of such identities. The court directed UIDAI to take the necessary steps to provide them with Aadhar cards without insisting to produce residence proof.[6]

Through this judgement, the prostitutes can improve their deplorable living conditions from congested lanes, and an unhygienic environment to a better one. By getting an Aadhar card they will be able to get government and non-governmental benefits, and most importantly their life will become easier. By providing proper awareness and taking precautions STDs can be prevented. But because of their living conditions and social discrimination they were not able to look after their health and well-being. They also face multiple traumas and devitalizing social stigmas like sexual violence, physical and verbal abuse from people, police even from customers, restrictions in movements etc. resulting in serious psychological issues. The intervention of the court is only the first step toward removing the limitations faced by sex workers for a long time.

The directions issued by the court are just a replica of real legislation. We need a codified law to improve the life of prostitutes. Some suggestions that need to be looked into while making the legislation are: –

  1. A pension scheme for sex workers above the age of 50 under the social pension scheme.
  2. A rehabilitation centre for sex workers who want to look for other work.
  3. Provide free job-oriented skill development coaching for prostitutes so that they can lead a decent life even after leaving prostitution.
  4. Provide free and compulsory medical check-ups every 3 months.
  5. Provide medical insurance to sex workers.
  6. Create a database of people engaged in prostitution.
  7. Provide them with all necessary documents like Aadhar card, Voters ID, Ration card, Pan card etc.
  8. Provide free and compulsory education to the offspring of a prostitute.

Conclusion

By recognising prostitution as a profession, the court makes a place for sex workers in society. They also deserve to be among us, to lead a ‘normal’ life with respect and dignity, and to get equal protection from the law. This is a fight for equality. They are also human just like all of us. Every profession has its quality no one can be judged based on profession. The morals and immoral of work are decided by a pre-decided set of rules established by a privileged section of society. So, according to them, prostitution is immoral to work. But how can the sexual life of a person decide their morality? Morality is a set of rules followed by a person or the conscience of a person between good and bad. If a work is not according to the social norms doesn’t mean it is immoral. Prostitution is prevalent around the world whether it is carried out legally or illegally. The legalisation of prostitution can give them more security and safety against all odds. It is not possible to change social stigma overnight. But through a continuous effort and process society’s opinion about prostitutes can be changed and make them more acceptable in mainstream society.

Author(s) Name: Devika Dileep (Cochin University of Science and Technology)

References:

[1] Immoral Traffic (Prevention) Act 1956, § 2(f), No. 104, Acts of Parliament, 1956 (India)

[2] State of Maharashtra v Madhukar Narayan AIR 1991 SC 207

[3] Manoj Shaw & Manoj Kumar Shaw v State of West Bengal (2017) CAN 4521

[4] State (NCT of Delhi) v Pankaj Chaudhary (2019) 11 SCC 575

[5] Budhadev Karmaskar v State of West Bengal, Criminal Appeal No(s). 135/2010

[6] FirstPost,  https://www.firstpost.com/india/supreme-court-recognises-prostitution-as-profession-what-does-this-mean-for-sex-workers-10726011.html. (last visited on 18 July 20220