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Sex work and activism in India

INTRODUCTION

A person who works in prostitution is referred to as a prostitute or a sex worker. Prostitution is the practice or business where people participate in sexual behavior for payment. Prostitution can take place in a variety of settings, and its legal position varies from country to country as well as from region to region within a country. It can range from being an upheld or unenforced violation to being an uncontrolled or a directed vocation. In the same way that pornography or any other form of sexual entertainment is a component of the sex industry. Brothels are establishments that are solely focused on prostitution. Prostitution laws and conditions are generally changing globally, reflecting divergent judgments. Prostitution is perceived by some as a form of violence or cruelty against women and children that leads to the grave crime of human trafficking.

HISTORY OF PROSTITUTION IN INDIA

According to Indian history, prostitutes in the past were called “Devadasi,” and they gave their entire lives to serving Lord Krishna. Some religious beliefs hold that the Devadasis see the Gods as their spouses and, as a result, are not permitted to marry other human beings. Later referred to as “Nagarvadhu” or the “Brides of the town,” they were requested to perform for and by the wealthy and the aristocracy. According to historical experts, the royal families regarded the Devadasi with respect and deference, prior to British domination. No man, not even the Mughals and Kings, intended to even approach them. However, as the British entered the country, this stopped.

In front of the British commanders, the Devadasis started showcasing their talent, which led to the first one-night stands. The British started summoning these artists for sex, which prepared India for prostitution. The emergence of Devadasi as a prostitution business during the British era led to a decline in temple dances. As time went on under British control, the Indian economy shriveled and the majority of people struggled to make a living. Women then began trading their bodies for cash with the British populace.

Japanese women were captured and sent to India as sex slaves in the late sixteenth and early seventeenth centuries when some regions of India were Portuguese provinces. Another instance of the increased use of women as sex slaves was under the Company Rule in India. For its soldiers, the military constructed whorehouses all over India. Village girls and women were employed by the brothels and officially compensated by the military.

IS PROSTITUTION LEGAL IN INDIA?

When it comes to prostitution, there are three different types of nations.

  • Where prostitution is prohibited and against the law, such as in Kenya, Morocco, Afghanistan, etc.
  • Where prostitution is permitted with certain limitations and restrictions, such as in India, Canada, France, etc.
  • In countries with appropriate legal regulations, such as New Zealand, Australia, Austria, the Netherlands, etc., prostitution is permitted.

One of the most important questions is whether prostitution is permitted in India, and if so, whether prostitutes have any rights.

In India, prostitution is permitted subject to several restrictions. It’s against the law to engage in activities including pimping, child prostitution, service solicitation in public areas, owning a brothel, and pandering. To address the issue of prostitution and trafficking, various state laws have been passed, including the Juvenile Justice (Care and Protection of Children Act) (JJ), 2015, the Indian Penal Code (IPC), 1860, the Prevention of Immoral Traffic Act (PITA), and the Constitution of India, 1950. PITA, formerly known as the Immoral Traffic (Prevention) Act of 1956, was enacted and put into effect after India on May 9, 1950, in New York, ratified the United Nations Declaration for the Suppression of Women Trafficking.

The penalty for operating a brothel is a fine of up to 2,000 rupees and a sentence of one to three years in prison. The punishment for child prostitution is seven years of hard labour, with the possibility of life in jail. According to Section 370A of the IPC, the offender who takes advantage of a youngster who has been trafficked faces a five to seven-year prison sentence. They are entitled to getting the fundament rights of a citizen promised to them by the Constitution.

COURT RULINGS

  1.  Budhadev Karmaskar v State of West Bengal – The case dealt with the brutal murder of Chhaya Rani Pal alias Buri, a sex worker who succumbed to grievous injuries after being brutally beaten up by the accused, Budhadev.
  2.  Gaurav Jain v Union of India – The Supreme Court, passed a request, coordinating inter alia, the constitution of a council to make a thorough investigation of the issue of prostitution, young girls, and their offspring, and to advance reasonable plans for their salvage and recovery.
  3. Manoj Shaw & Manoj Kumar Shaw v State of Bengal – It was observed that sex workers should be treated as victims and not accused. When prostitution was busted, the prostitutes were put behind bars whereas the owner of the bar was merely sent a notice. This didn’t seem fair.

RECENT HIGH COURT JUDGEMENT

Kajal Mukesh Singh & Ors. v. State Of Maharashtra (2021)

‘Prostitution is not an offence; a woman has a right to choose her vocation’

  1. A, B, and C, the petitioners
  2. The State of Maharashtra is the respondent.
  3. The Immoral Trafficking (Prevention) Act of 1956 declared that the petitioners were the victims of the crime of pimping. They are listed in the records as A, B, and C to avoid being identified. Three sex workers filed the petition in an effort to overturn the orders made by the Metropolitan Magistrate Mazgaon and the Additional Sessions Court Dindoshi, both of which supported the prior judgement.

Observation of the High Court: The Court emphasized that the act’s goal is not to outlaw prostitution or prostitutes; rather, what is punished is sexual exploitation, commercial sex, and situations in which someone is running a brothel or enticing someone else. As their fundamental rights are protected by Article III of the Constitution, they too have the freedom to live as they like and to practice their chosen profession. Since the victims are adults and have the same fundamental rights as regular citizens, their permission should have been sought before placing them in a corrective facility.

PROBLEMS OR CHALLENGES FACED BY SEX WORKERS IN INDIA

The sex workers in India face multiple traumas – sexual violence, emotional abuse, and physical assaults from clients. Their living conditions are appalling as well; crowded streets and cramped quarters are negatively impacting their health, which leads to an increase in health-related issues. HIV, STDs, and cervical cancer are on the rise amongst them as little action has been taken to improve their situation. Additionally, they experience crippling prejudice and stigma, which makes it harder for them to defend their health and wellbeing.

There are many reasons why prostitution continues to thrive in society. Ill-treatment by parents, bad relationships, disturbed family culture, social customs, lack of sex education, media image, rape, early marriage, and desertion are just to name a few. The rights of sex workers are in reality non-existent even though they appear just like other citizens on paper. Prostitutes are continuously looked down upon and have no place in society, most of them are exposed to a slew of abuses, and they face harassment from clients as well as their own family members.

LAWS RELATING TO PROSTITUTION IN INDIA

  • Section 372 and 373 of the Indian Penal Code 1860 deal with prostitution but it is only restricted to child prostitution.
  • Immoral Traffic (Prevention) Act – 1956
  • The legislation governing sex work in India is the Immoral Traffic (Prevention) Act, enacted in 1956.
  • The legislation penalizes acts such as keeping a brothel, soliciting in a public place, living off the earning of sex work, and living or habitually being in the company of a sex worker.
  • Section 366 A, 366 B, 370A, of the IPC deal with punishment for offences of procreation with respect to a minor girl, importation of a girl from abroad for sexual purposes, and exploitation of a trafficked person respectively. Under IPC, laws relating to prostitution are quite limited.

SEX TRAFFICKING IN INDIA

For women and children who are victims of sex trafficking, India serves as a source destination and transit country. The majority of India’s trafficking issues are internal, and the most susceptible groups are those from the most economically and socially disadvantaged socioeconomic strata – those who belong to tribal & other backward communities. According to reports, thousands of unregulated labour placement firms use deceptive employment promises to recruit individuals and children into sex trafficking.

According to experts, sex trafficking affects millions of women and children in India. Traffickers subject women and girls to sex trafficking by making false work promises or setting up fictitious marriages in India or the Gulf states. In addition to typical red-light districts, tiny motels, cars, huts, and private homes are increasingly becoming the places where women and children are subjected to sex trafficking. In India, sex trafficking affects a large number of women and girls, primarily from Nepal and Bangladesh as well as Central Asia, Africa, and Asia, especially the Rohingya and other minority communities from Burma.

PROSTITUTION BEING LEGALISED

  1. It will result in sex workers living better lives.
  2. Labour rights will be given to sex workers.
  3. The authorities will have the information necessary to monitor whether any minors are engaged in prostitution.
  4. Forced Prostitution will not exist.
  5. Fewer instances of trafficking and rape.
  6. Financial empowerment. 
  7. Reduction in minor sex workers.

 DEFENSIBLE PROSTITUTION–RELATED OFFENCES 

  • Anyone who owns, operates, or aids in operating a brothel will be subject to a fine of up to two thousand rupees as well as a sentence of imprisonment of at least one year and a maximum of three years.
  • Anyone who coaxes, buys, or kidnaps a girl with the intent to force her into prostitution faces a minimum sentence of seven years in prison and a maximum of fourteen years in prison as well as a fine of up to 2,000 rupees.
  • Anyone caught holding a woman in brothels faces a minimum sentence of seven years in prison and a maximum of 10 years in prison.
  • Any person who engages in prostitution within 200 m of a public area, such as a hostel, hospital, temple, etc., faces a sentence of up to three months in prison. When a kid is involved, the crime is punishable by a minimum seven-year sentence that could go up to ten years in prison.
  • Anyone caught soliciting prostitutes faces a sentence of up to one year in prison or a fine of Rs. 500 on their first offence, and up to two years in prison on their second offence.

STEPS THAT SHOULD BE TAKEN IN ORDER TO FIGHT WITH PROSTITUTION

  • The victims who are still of school-going age should have access to formal education, while adults should have access to non-formal education.
  • All rescued victims who are not interested in education should get gender-sensitive, market-driven vocational training from the central and state governments in collaboration with non-governmental organizations.
  • Rehabilitation and reintegration of rescued victims is a long-term process, recruitment of a sufficient number of qualified social workers and counselors in government-run institutions and homes, either on their own or in cooperation with non-governmental groups.
  • It is important to promote legal literacy and awareness of economic rights, especially for women and adolescent girls.

CONCLUSION

Finally, it may be concluded from the study that it would be foolish to turn blind eye to it and act as though the system and its problems do not exist in a society where prostitution has been a long-standing profession and is still prospering as a business. By offering greater pay, health security, and protection, legalizing sex work will improve the quality of life for sex workers. Additionally, it will be a progressive move on the part of society to get rid of numerous societal ills like child prostitution, rape, sex trafficking. and other things.

REFERENCES

  1. Kaustubh Sinha, “The problem of Prostitution an Indian perspective”, available at https://www.legalserviceindia.com/
  2. Recognition of Sex Work as a profession, available at https://www.drishtiias.com/
  3. Khushi Yadav, “Rights of Sex workers in India”, December 15, 2021 available at https://www.juscorpus.com/
  4. Yashi Kumari, “Evolution and recognition of Sex Work as Profession in India, June 4, 2022, available at https://indianlawinfo.in/
  5. Luris Jura, “Recognising the human rights of sex workers in India: Their rights and issues, June 7, 2021 available at  https://www.iurisjura.com/

This article is written by Aditi Jangid, a 1st year law student pursuing bachelor’s degree from Delhi Metropolitan Education (Affiliated to GGSIPU).

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