The word prostitution is defined as– sexual exploitation or abuse of a person for commercial purpose.[i] Its etymology is derived from the Latin word ‘prostituere’ meaning–“dishonour or expose to shame”. [ii]Sadly “the oldest profession” has been ignored by society since a long time, even though its existence has been mentioned in various religious texts. The society hasn’t been warm in acceptance of such, be it during the Medieval, British era or Independent India, Moreover, these social norms have led pathway for initiating Immoral traffic (Prevention) Act, 1956 which criminalises prostitution.
The long-term factors for its cause and rise are ill-treatment by parents, bad company, family prostitutes, social customs, inability to arrange marriage, lack of sex education, media, prior incest, rape, early marriage and desertion, lack of recreational facilities also financial causes such as poverty and economic distress; these conditions force them to indulge in immoral activities. These sex workers are part of this industry not by own-will but due to the situation they have been put through, also to note that there are few exceptions– of been a sex worker by choice[iii]. Ironically, given the fact of being an illegal phenomenon in India, their presence is accentuated in various cities to the extent that Asia’s biggest prostitute market is situated in West Bengal. It functions on cliental demands and a majority of sex-worker resides in destitute.
The plight of the Prostitutes
Prior to approaching and drafting a policy to legalize prostitution, it is vital to comprehend the life of a prostitute. It is to be understood that a plethora of sex-workers are victim to human right violations. Moreover, the stigma attached to this profession makes life more miserable to live. They have an uncertain legal status attached to their work and their identity further ‘invisibilises’ them as citizens with associate rights and entitlements; they are subjected to assault and battery from their clients, brothel lord, husband’s and peers[iv]. Instances of sex-workers have seldom reported for being arrested under public nuisance or obscene conduct code. They are produced in court and released on the payment of fines, or at times exploited (sexually or financially) by the authorities[v]. Most sex workers choose not to contest their arrest under these provisions since they find it easier to pay fines and be released. Illiteracy about their indispensable right makes situation worse.
Social separation and a notion of disrespect has evolved as a stigma and this stigmatisation has embedded its roots due to the standards set by patriarchal morality– which is also a major factor hindering women from accessing their rights. Even having a residential address of red-light mentioned in a women’s identity card makes her vulnerable.
Need for legalisation
This cursed profession faces social, economical, legal and health issues which makes workers life difficult to survive.This structural violence further aggravates discrimination in the lives these women and it creates a fertile ground for communal exclusion and denial of rights similar to the one witnessed in Nippani violence, Maharashtra-2002[vi]. Such incidents shout for the decriminalisation of sex-work as a pre-requisite need with an aim to ensure the physical and emotional inviolability of sex workers, their right to life, right to freedom of labour, health and reproductive and sexual rights.
The International Labour Organisation (ILO) and United National Development Programme UNDP have emphasised on the need to provide sex workers with legally enforceable rights to occupational health and safety and right to participate in the process of developing workplace health and safety standards.[vii] The voices of these organisations are ignored by the mainstream dialogue as this contradicts with opinions of masses. Eventually, despite societal norms, the Supreme Court of India has observed that sex workers are entitled to a right to life and must be accorded the protection guaranteed under Art.21 to every person in India.
The Approach towards Legalisation
Instructions have been given to the State to provide recommendations on the rehabilitation of sex workers who wish to leave sex work of their own volition and provide supportive conditions for sex workers who wish to continue working as sex-workers in accordance with Article 21 of the Constitution[viii]. A Supreme Court panel recommended that the Central government and Election Commission should issue voter ID cards, relaxing verification requirements, it also recommended the State Governments and local institutions to issue ration cards to sex workers.[ix]
It is to be comprehended that legitimizing prostitution won’t resolve the problem associated to it; there is a dire need to change the collective approach of society towards this occupation. Such approach cannot be seen within a day-or-two, for its no-less than a herculean task. The role of Non-Governmental Organisation (NGO’s) and civil societies is pivotal in bringing this much needed change. Further, their welfare should be acknowledged by the legislature, as it is ruled that they are responsible for the welfare of the State and it is for them to lay down the policy for upliftment of the oppressed.[x]
India has a traditional culture where idols of the goddess are worshipped. Then why are we turning our eyes blind in the matter where lives of thousands of female workers and millions of those affiliated with them are at stake? There is a pressing concern for mechanism to formulate a policy with an aim to not only safe guard their health and rights but also empowered them from the possible annihilation by social norms. The policy should just not aim in the prevention of violation of human rights but intend in crafting uplifting and empowering programs for women, so they can have a better life ahead.
If these prostitutes are left to fate, the consequent repercussion will be devastating as with the globalised world, cross-border sex trafficking, sex slavery will rise in times ahead and to counter such– legalisation of prostitution is needed, as this business will come along with mechanism regulating prostitution such will safeguard rights and health of sex workers[xi]. Well, there lies no substantive date as to the number of prostitutes in India[xii] and survey is needed at the earliest. However, even in absence of accurate data some sources have approximated sex industry of being an $8 billion a year industry[xiii]. This amount is significant and the tax from this will be beneficial for the collective good. The regulation will not only call for pecuniary gains but drive India in lines of the welfare state, as constitution demands for it. The country must indulge in for passing a legal document to shield prostitutes because a protective legislative piece is the need of the hour. Well, the acceptance of such is debatable but the legal backing towards an empowering cause will be accepted with time in our societal space.
[i] Immoral traffic (Prevention) Act, 1956, s.2(f)
[ii] [ii]“Latin definition for prostituo, prostituere, prostitui, prostitutus”, LatDict. https://latin-dictionary.net/definition/32052/prostituo-prostituere-prostitui-prostitutus [Last visited 22nd August]
[iii]https://timesofindia.indiatimes.com/city/bengaluru/We-do-it-out-of-choice-not-compulsion-Sex-workers/articleshow/52099867.cms [ last visited on 13 August 2020]
[iv] “Review the Immoral Traffic (Prevention) Act, 1956 that de facto criminalizes sex work and ensure that measures to address trafficking in persons do not overshadow the need for effective measures to protect the human rights of sex workers.” Report of the Special Rapporteur on violence against women, its causes and consequences, Mission to India, 1 April 2014
[v] https://www.nswp.org/sites/nswp.org/files/cedaw_report_india_sangram_vamp_-_2014_0.pdf.[last visited 14 August 2020]
[vi] Case study of State violence against sex workers in Nippani, Maharashtra, 2002
[vii] 6ILO Recommendation concerning HIV and AIDS and the World of Work, 2010 (No 200), Geneva: ILO 27,UNDP (2012), op cit., p 35\
[viii] Budhadev Karmaskar v. State of West Bengal (2011) 11 SCC 538
[ix] Interim Orders, Sex Workers Rehabilitation Case, Supreme Court of India, 16 September 2011, Law Resource India. http://indialawyers.wordpress.com/2011/09/16/sex-workers-rehabilitation-case. [Accessed on 14 August 2020]
[x] The State of Bombay vs. Narasu Appa Mali AIR 1952 Bom 84, (1951) 53 BOMLR 779
[xii] National AIDS Control Organisation, Phase 3 Program estimated between 831677 – 1242819 people in sex work in India
[xiii]http://factsanddetails.com/india/People_and_Life/sub7_3h/entry-4190.html#:~:text=Prostitution%20is%20technically%20illegal%20but,10%20million%20commercial%20sex%20workers. [last visited 14 August 2020]