Sex workers in India

Source: Libcom

The commercial sex worker has been a universal being throughout civilization as prostitution is the so-called “oldest profession”. The earliest known record of prostitution appears in ancient Mesopotamia. It is surprising to witness that licensed brothels were established by Solon in Greece in around 550 B.C. The Indian Vedas, Vishnu Samhita and the Puranas abound in references to prostitution as an organized, established and necessary institution. Vatsyayana’s Kamasutra describes in detail various types of prostitutes, rules of conduct and the roles played by the procurer, pimp and brothel-keeper. In the post-vedic era the custom of devadasi (servants of God) system came into practice. Today, the word ‘devadasi’ is a euphemism for referring to a woman prostituting in the name of religious tradition.

In many countries sex work is not criminalized by law that mentions prostitution, but by less defined laws against vagrancy, loitering, immorality and debauchery. Organizations of sex workers, United Nations (UN) agencies and Commissions have understood and articulated sex work as a contractual arrangement where sexual services are negotiated between consenting adults.  Implicit in this consent is the act of agency; wherein sex work can be a realistic choice to sell sex.

While human rights violations are common throughout India, they are particularly prevalent in the lives of people involved in prostitution and sex work. Sex work is not treated as work, but as a dirty and immoral lifestyle threatening to taint the “innocent” public. The result of this stigma is the denial of basic rights for both sex workers and their families: women cannot access good healthcare and are often subject to abuse, violence and exploitation by police and government officials, while their children face harassment in schools and the workplace.

There are various reasons as to why people engage in sex work. It could be attributed to the lack of sex education, economic distress, lack of recreational facilities and ignorance, psychological factors, etc. Several factors put sex workers at risk of violence in India. Stigma attached to sex work exposes them to violence in personal spaces from family members as well as from intimate partners. Violence is used as a mechanism of asserting sexual control; it is normalized as punishment for having sex with other men.

A large factor in the ill treatment of sex workers is the narrow understanding that people have of this work. The media fuels the image of women in prostitution as either overly sexual outcaste who threaten the very structure of Indian family life, or abused and exploited victims. In fact, women in sex work cannot be put into a box. While there are certainly victims of trafficking in sex work today, the majority of women in sex work consent to doing it. They have decided that making money from sex is a lucrative option for them and their families. But traditionalists cannot divorce sex from its sacred and religious implications. Indian laws and policies regarding sex work are crafted from a moralistic standpoint and people involved in sex work are defined by their “immoral” profession.

Prostitution is a problem in itself and child prostitution is making it more complex. Quoting a study on ‘Girls/Women in prostitution in India’, Minister for Women and Child Development, Renuka Chowdhury said that out of the total number of prostitutes in the country, 35.47 per cent entered the trade before the age of 18 years.

Sex work is a practical livelihood option for many women in India as sex work generates better income than jobs in unorganized labor sector.  This view challenges the general perception that all women in sex trade are forced into it. This view gives precedence to the right of women to choose their profession. But when the State intervenes and this profession is viewed through the blinkers of morality, it denies women the right to choose their profession on moral grounds. The shifting of power from choice to moral standards means that police, criminals, pimps, and clients threaten, control and abuse sex workers.

Sex workers are unaware of provisions of the domestic violence act which provide redress against partner violence. Police apathy to the plight of sex workers results in denial of access to provisions under the Protection of Women from Domestic Violence Act (PWDVA 2005). Despite free legal aid being enshrined in the Indian Constitution and it is not being offered to sex workers because of their status in orthodox Indian society. The Supreme Court has also observed that the State and District Legal Services needs to play a role in publicizing entitlement schemes available with the government.

Indian law seems to have failed to protect the women and safeguard the rights of women involved in prostitution and sex work. Not only does it take a moralistic approach, but it is also ambiguous, leaving sex workers vulnerable to abuses by police, government officials and petty criminals.

The main law dealing with people in sex work is the Immoral Trafficking (Prevention) Act (ITPA) of 1986 which seeks to prevent trafficking of persons in India and prohibits most outward manifestations of sex work, including brothel operating and public solicitation. It also allows for eviction of sex workers from their residences in the name of “public interest.” While the stated purpose of the ITPA is to protect sex workers, it is more often than not used against them. The act does not specifically prohibit prostitution, but law enforcement officials have continuously used it to harass sex workers. The prohibition against “public solicitation” is particularly ambiguous.

Regulation of prostitution would provide sex workers to avail facility of regular medical checks ups and adequate birth control tools, which will ultimately result in reducing the high risk of sexual diseases being communicated from workers to customers and vice-versa. This will promote their personal well-being through cleaner, healthier and safer working environment and conditions.  Legalization of prostitution will lead to a systematic advancement of the industry. The service of pimps and middlemen will no longer be required, which would lead to a decline in crimes against sex workers and an increase in their wages.

Presently there is this confusion building up as one side reiterates that prostitution should be criminalized on three strands of thought- Morality, Legal Paternalism and Harm to Other. The other side believes in what these unions have been demanding for that to relax laws on loitering and propositioning on streets as well as general soliciting. The Immoral Trafficking (Prevention) Amendment Bill 2005 moved by the Women and Child Department actually included this.

Sadly, in India, ITPA is the only legislation that deals with trafficking. It considers trafficking as prostitution. This is not in accordance with International Policies and Guidelines, including the Palermo Protocol of 2001, which India has signed. This is very unfortunate as Article 23 of the Constitution prohibits ‘traffic in human beings and all similar forms of forced labour’. The police often use the existing provisions of Section 8 of the ITPA [4], which prohibit seducing or soliciting for purpose of prostitution in public place, to harass streetwalkers. The Bill when passed may amount to legalizing prostitution but at least sex workers will not be harassed while soliciting with prospective customers.

The earlier repealed law, Suppression of Immoral Traffic (in women and girls) Act (SITA) of 1956 allowed prosecution of persons other than women only if they “knowingly” or “willingly” forced women into prostitution. Clients and brothel owners escaped punishment by showing ignorance. We should not go much into the SITA, as it stands repealed with the coming into force of the ITPA. What is more important in the present scenario is the wind of change in which the Bill proposes.

It is something accepted by all that under the present law, only the women are targeted while the clients go free. Many attempts to make some remedies were made but only by the ITPA of 1986 when a maximum punishment of three months for soliciting was introduced for clients. Again, there was another restriction in it that the client could not be punished in the act itself if the girl was an adult. Even though the lawmakers have broadened the circle of persons liable for prosecution the law is still focused on punishing women severely.

Under the Immoral Trafficking (Prevention) Act, 2005 the definition of “trafficking in persons” has been proposed to include “recruitment, transportation, transfer, harboring or receipt by persons” as punishable. The earlier prevalent Section in both SITA and ITPA provided punishment for brothel keeping, pimping, detaining anyone in a brothel, use of premises and procurement, but with the inclusion of the above words, the Act can be used to criminalize receipt and transfer by a client. Clients, after such passing of the Bill, can be fined and jailed for up to three years.

Sex workers should enjoy the same protections and benefits as other citizens and workers. Sex workers must be understood as persons endowed with rights in a meaningful fashion, not merely as a rhetorical claim. The Immoral Traffic (Prevention) Act, 1956 should be made very strict in fact, rather than easing it up. The police machinery does not act in consonance with it. There should be a proper investigation agency. On the complaint of any NGO, power for raiding brothels and other related places should be strengthened. Most of the times, there is force involved in such situations, where women do not willingly get involved in sex work. It is hence necessary to ascertain these things. There has been an increase in number of bodies and organization working for the protection of sex workers.

The governments should protect, respect and fulfill the rights of sex workers including protecting them from harm, exploitation and coercion, ensuring they can participate in the development of laws and policies that affect their lives and safety and guaranteeing access to health, education and employment options. This also calls for the decriminalization of sex work based on evidence that criminalization makes sex workers less safe, by preventing them from securing police protection and by providing impunity to abusers. States must have laws in place which criminalize trafficking, and use them effectively to protect victims and bring traffickers to justice.

Shreya Mukhopadhyay

Shreya Mukhopadhyay

Intern at InPRA
Shreya is a final year undergraduate of the Political Science, International Relations department, from Jadavpur University.
She has previously interned at organizations like OneWorld Women Network, Child Rights and You, and Daricha Foundation.
Shreya takes active interest in Model United Nations simulation and has done research related to gender rights.
She is a firm believer of gender parity and passionate about working in this field.
Shreya Mukhopadhyay

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