Legalization of Prostitution in India

By: Shruti Lather and Nilanjana Ghosh

The society that we live in today believes that it has done away with its unfair ways, making it a liberal space for people to coexist with one another. Over the years, there have been numerous changes in the society which suggests that it is gradually becoming more inclusive. However, there are a few realities that it is yet to accept, and prostitution is one of them. Prostitution is one of the oldest professions in the world. In India, prostitution as such is not a prohibited activity under the Immoral Traffic (Prevention)Act, 1956 (ITPA). However, solicitation of clients in public places, operating brothels, living off earnings from prostitution is prohibited, thus in effect, prostitution is illegal. Due to this stigma of illegality, sex workers are subject to continuous harassment from the procurers or pimps, brothel owners, client and the police. These workers exist in a violent and vicious cycle where nearly half of their earnings or more are taken away by their respective pimps and the brothel owners. Violence that sex workers are subject to has been normalized in our society owing to the illegal nature of their work which makes the them turn a blind eye towards the sex worker’s community. The legalisation of prostitution will help in fostering introduction of regulations to protect to the interests of sex workers and prove for providing them a better position in society.

The Immoral Traffic (Prevention) Act, 1956, was made with the intent to reduce immoral trafficking of persons and the exploitation under prostitution. This Act effectively declares prostitution to be illegal in a very incoherent manner. Despite the law in existence, prostitution is still rampant across the country. According to section 3 (2) (a) of the ITPA, “Any person who keeps, manages or allows premises to be used as a brothel, is it be punished”; hence making it clear that the existence of the very place required for carrying out the trade is punishable. Further, section 6 (b) of the Act states, “Any person who detains another within the premises of where prostitution is carried out, with or without the consent of the other with the intent of having sexual intercourse with a person who isn’t a spouse of such a person, is punishable under the law”. Section 7(2) (a), effectively states that being a keeper of any public place and allowing a prostitute to carry out their trade or remain in such a place shall be punishable under law. Considering the wording of the Act, it implies that letting a sex-workers carry on their trade is not permissible under the law. Further, the definition of public place as given in the Act is very broad because it includes any place accessible to the public, including any public conveyance.  Therefore, there is no place for these persons to undertake their trade. Section 8 (b) prohibits the solicitation of any form in public places and also punishes by way of imprisonment. All the sections stated above from the ITPA,1956, clearly declare all the activities that are required to undertake the trade, illegal. Thereby effectively making prostitution illegal. Since their activities are unlawful, sex workers are often prey to vicious harassment from their procurers/pimps, the police and their brothel owners. There is no protection due to the illegal nature despite the violent and vicious harassment; sex workers do not enjoy any recognition and live wretched lives.  

Individuals who work as sex workers are usually forced into this field against their will. In many cases, parents/guardians sell their children into this profession, others are lured into the trade on account of the promise of earning money and living the big city life or are kidnapped off the street and caged in corners of various brothel’s in India. Once these individuals are bought to a brothel, they are treated as though they owe their lives to the pimps or procurers and are exploited to unimaginable degrees. Since people who are forced into the flesh trade come from the weaker sections of the society, they are not well aware of their basic human rights and thus, are ignorant about the ones that are violated within these brothels. Violence against sex workers has been prevalent since the time of its inception especially in a patriarchal society like ours. Sex workers experience unbalanced degrees of brutality that include police brutality, rape, assault, provocation, coercion, maltreatment from customers and operators, private accomplices, neighbourhood occupants etc.

In 2014, the Special Rapporteur on Violence Against Women (SR-VAW) following a visit to India observed, “Sex workers in India are exposed to all sorts of abuse including physical attacks and harassment by clients, family members, the community and state authorities; they are forcibly detained and rehabilitated and consistently lack legal protection; and they face challenges in gaining access to essential health services, including for treatment of HIV/AIDS and sexually transmitted diseases.” Recent studies have shown that sex workers experience harassment, physical violence, and rape in the pretext of HIV/AIDS research. Various researches  have highlighted multiple vulnerabilities of the street-based sex workers stemming from independent solicitation of clients, placing them at higher risk of brutal violence, rape, and exploitation. This results in increased risks of sexually transmitted diseases (STDs) like HIV, inability to negotiate safe sex, especially with clients under influence of alcohol.

Research on sex work in India has mainly been focused on interactions of sex workers with clients, HIV prevention awareness drives and condom-use experiences. It has been noted that intimate relationships of sex workers are often subject to violence by their partners as well as clients. This sometimes includes sexual coercion. Female sex workers are often excluded from the conversation about the experiences of women facing violence in intimate relationships. This is probably due to the assumption that there is a higher risk of adverse consequences resulting from the interaction with their clients when compared to intimate loved ones. While there is a significant body of research which documents experiences of intimate partner violence (IPV) amongst women in the general population, documentation of these experiences for female sex workers is negligible. The flesh trade workers are not only subject to violence from their intimate partners and clients but are also subject to it from the police as well as the state. In our society, sex workers are viewed as objects that can be violated and be mistreated to an inhumane extent. This implies that the flesh trade does not become a vicious trade in itself considering the harsh treatment that the community receives from the Indian society. According to the Skillet India sex labourer review, the police had manhandled 37% of female sex workers, 51% of the female sex workers reviews expressed that when they had wished to seek help assistance from the police it instead resulted in offensive attacks from them and 22% of workers stated that they had been compelled to offer incentives to the police in return for getting police assistance. It can therefore be assumed that sex workers are in need of protection from the ones who are supposed to be the protectors of our society.

The State is ignorant of the violence faced by the sex workers and it itself subjects the community to savagery. It neglects the issues and concerns of the sex workers by equating their profession to a criminal activity which incites sexual brutality in our society. This situation has worsened with time because sex work is wrongly perceived as criminal behaviour or is seen as an unlawful activity, driving the ‘industry’ underground. Sex workers face violence from military personnel, border guards and correctional officers and mostly from the police. ITPA (1956) provides cover for such violence and not only compromises the access to justice for such persons but also deprives them of police protection. Hence sending a message that ‘such violence is not only acceptable but socially desirable’ in our society. Most of the time violence against sex workers is not defined or perceived as a criminal act. Rules and policies, including ones that criminalize sex work, increases sex workers’ vulnerability to violence. Harassment or fear of arrest by the police forces the street-based sex workers to move to places that are far-less secure or pressure them into hurried negotiations with clients that may compromise their ability to assess risks to their safety.

The illegality and stigmatization around sex work in India leaves the workers unwilling to disclose or report/ seek help from the so called “justice system” when subjected to any kind of violence or harassment. The harsh adversities that these individuals are put through not only leaves them with severe health conditions but also contributes to mental health issues and leaves them with PTSD. The illegality of the trade leaves them at the mercy of the police/the pimps, owners etc. which other breeds toxicity in individuals. There are a few trade unions across the country that provide aid to sex workers and address their concerns. But the number of such trade unions is meagre because of the illegal nature of their trade. Further, these unions are not as powerful because they are not officially recognized under law, unlike the unions operating in a legal trade like manufacturing etc. Trade unions have shown that if sex workers are identified, they will be able to organize themselves better and lead better, respectful lives, care better for their children etc. and hence, legalization of prostitution is necessary. It will enable sex workers to officially collectivize and form unions to secure their rights and demand better for conditions.  It should also be legalized to ensure the welfare of their children. The documentary, “Born into Brothels” shows the harsh reality of the red-light areas of such children. The children who have been documented have so many hopes and aspirations from their life so much so that they pray each day, hoping they do not end up like their parents. In order to give these children a chance and help them secure admission into decent schools, it is necessary that the trade be legalized.

Therefore, it can be concluded that legalization of prostitution will reduce the brutality that sex workers are subjected to, somewhat do away with the social stigma attached to profession and give them a chance to better their lives. Thus, legalising the professionwill finally help them take their first steps to live as dignified citizens of this country.

Works cited

  1. Born into Brothels, Directed by Zana Briski and Ross Kauffman. Performance by        Zana Briski, Kochi, Avijit Halder, Shanti Das, Manik, Puja Mukherjee, Gour, Suchitra, Tapasi and Mamuni.  HBO Documentary Films, 2004. Documentary streamed on Vimeo.com.

vimeo.com/365877481

  • Immoral Traffic (Prevention) Act, 1956. Print.

            indiacode.nic.in/bitstream/123456789/1661/1/1956104.pdf

  • Para 20, Page 6, Report of the Special Rapporteur on Violence Against Women its causes and consequences, Rasheeda Manjoo, Human Rights Council, twenty sixth session, A/HRC/26/38/Add.

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