Prostitution is one of the oldest professions present in India. It dates back from the times of Mughals, in those times ‘tawaifs’ were treated with royalty, and now in the present time, it is considered as an indecent act? Is our mindset going backwards or forward? Are we becoming broad-minded or narrow-minded?
There are many factors that make a woman vulnerable to prostitution. One of the main reasons is that in India women are considered as a commodity, and it makes them vulnerable. There are many other factors such as economic, social, psychological and many others. Child sex workers are forced as they are not an incapacity to give consent, some women and girls are sold by family members into sex work. Some of the major causes of economic insecurities include poverty or loss of a male breadwinner, violent and dysfunctional marriage, early marriage, low status of widows etc. Prostitution in India is regularized and not illegal, The Immoral Traffic (Prevention) Act, 1956 was brought into power so as to authorize and confine the act of prostitution.
The main aspect of our article is, “Can prostitutes be raped?” Yes, they are raped and assaulted and exploited and are forced too, do they not have their own consent, just because they are prostitutes? They are considered as a criminal and not a citizen. This has lead to the violation of human rights, like the right to life and dignity. Paying someone for sex does not provide violent men with permission to rape or physically abuse someone.
There are many countries that have legalized prostitution and other things that are related to that such as pimping, soliciting, etc. Countries such as Thailand, New Zealand and other countries, they consider prostitution as a profession, unlike in India. Women are treated with equal dignity and respect and the laws are flexible related to that. In India, police also see prostitutes with a different perspective and don’t even register their cases. Is this what we call equality?
There are an estimated 3 million female sex workers across India consisting of those who are providing services voluntarily, those who have been forced or coerced into sex work and children. The extent and number of sex workers in India—voluntary, coerced and under-age—is difficult to ascertain because of a lack of research and data, although they are estimated. The Ministry of Women and Child Development estimated that there were three million female sex workers across India of which approximately 40 per cent were girls and 35.47 per cent had entered the sex trade before the age of 18 years. Sex work is lawful in India only if soliciting is conducted in private spaces. According to Section 7 of Immoral Traffic in Persons Prevention Act 1956, it is stated that if Sex workers carry on prostitution in any premises ‘within a distance of two hundred meters of any place of public religious worship, educational institution, hotel, hospital, nursing home or such other public place of any kind’ then they commit an offence and will be punishable with a penalty of up to three months’ imprisonment.
If they seduce or solicit for purpose of prostitution ‘in any public place’ ‘by words, gestures, wilful exposure of his person (whether by sitting by a window or on the balcony of a building or house or in any other way) it will be also considered as an offence. The penalty on first conviction is imprisonment up to six months, or a fine up to five hundred rupees, or both, and for a subsequent conviction, the penalty is imprisonment up to one year and a fine up to five hundred rupees.
Amnesty International started a debate in 2016 in which it talked about the rights of the sex workers and calling on the Government to take different actions for protecting different human rights of the sex workers which became a matter of debate. It also talked about how the sex workers are helpless because they can’t run to the police as they’ll just arrest them straight away. They also suggested that the relationship they have with police should be improved, so their lives become a little safer and they can at least depend on them for their safety.
If we look deeply in this matter, it’s a matter of concern because they are being exploited and not a single case comes up because they already know that if they come up with a complaint such as rape, they’ll be the one who’ll be charged for soliciting because people usually think that they’re the one who’s wrong. Why? Just because she’s a sex worker! Amnesty also talked about how often sex workers are often subject to horrific sexual abuse. And the main cause of this is the criminalization of sex work and it makes them vulnerable and alienated and it obstructs them to seek legal protection from abuse.
How the criminalization of sex work is a human right issue?
Sex Work is basically a commercial exchange of sexual services which is consensual between two adults and criminalizing it is an infringement of a persons privacy. The government should not be telling an individual with whom he should be having sexual relations. It’s his/her choice to choose a partner. Criminalization of the sex work results in human right issues such as human right abuses impedes prevention of women and girls from being trafficked for the purpose of sex. Because of criminalization sex workers are subjected to violence and discrimination and impeded from accessing critical services, such as healthcare, and right to equal protection.
Now if we talk about how the police threatened them, then we can say that the sex workers can’t even approach a law enforcement official or a police officer because of different reasons but the main reason is that they’re the ones who’ll get arrested because the work they are doing is stigmatized in our society. They are more vulnerable to rape, sexual assault, murder, etc. because they are seen as an easy target as they can’t approach the police.They are prone to many other cases of abuse because the work they’re doing, they have to in some unsafe location because of the fear of police and fear of getting arrested. Sometimes they’re even harassed by police.
In countries like India where sex work is a ban, sex workers are not able to organize as workers and are also not able to advocate for their rights, also they can’t work together to protect themselves. It is the need of the hour to protect the human rights abuses against sex workers by modifying or eliminating different policies and rights and also prevent the sex workers by providing them adequate healthcare facilities including HIV prevention and support.
Also, there is a violation of Right to privacy, as police threatened sex workers with media publicity in different newspapers and different media channels. Even after raids, the photographs of the women are detained which basically leads to the clear violation of the law as the right to privacy as well as the night to confidentiality. Sometimes, police and media together humiliate the women and sensationalize their story of the raid which is illegal and unethical.
In 2011, it was recommended by the Supreme Court that police must not interfere or take criminal actions against those sex workers which are participating with the consent as the police always cross the limits while enforcing anti-trafficking laws and harsh behaviour on the sex workers and on clients even having a liaison conducted in private with the consent of the both.
Can decriminalizing sex work help in protecting sex workers?
The answer is Yes! When decriminalization of sex work is done then slowly it will be destigmatized and it will maximize the legal protection of sex workers and their basic rights like equality and live a life with dignity. The decriminalization of sex work is a human rights issue and all women, including sex, are entitled to the full enforcement of those rights which give them a meaningful life.
Durbar MahilaSamanwaya Committee is an organization of around 65000 sex workers which includes male, female and transgender too. It is an organization based in Kolkata which works for the rights of sex workers, anti-human trafficking and prevention of HIV/AIDS. From the last 14 years, Durbar is fighting against Immoral Traffic Prevention Act, which makes buying of sex services illegal. Durbar also works for the betterment of children of sex workers because they also face humiliation as they are the children of a sex worker and are not treated as an equal, they also made separate residential areas for them because they can’t live in a brothel and this a very applaudable work from Durbar and they are also trying to make the life of children better by providing them with these kinds of facilities so that they can grow in a better and safe environment. We need more organizations like these in every red-light district. They have also set up some self-regulatory boards. These are committees of sex workers who, among other things, conduct peer to peer education on issues like safe sex and identifying anyone who is below 18 years of age or who might be working as a sex worker against their will.
Should there be full decriminalization or the “Nordic Model”?
There should be full decriminalization and not the “Nordic Model”. Nordic Model was first introduced in Sweden, in, the selling of sex work is illegal but does not prosecute the seller, the sex worker. In this, it decriminalizes all those who are prostituted and provides them services to exit this profession and buying people for sex is considered as a criminal offence in order to reduce the demand that drives sex trafficking.
Basically, proponents of the Nordic model see “prostitution” as inherently harmful and coerced; they aim to end sex work by killing the demand for transactional sex. It was promoted by police, religious workers exclusionary feminists and mainstream non-governmental organizations across the different countries of the world.
The disagreement between organizations seeking full lawmaking of sex work and teams supporting the Nordic model has been a contentious issue among the women’s rights community in several countries and globally.
In our view, full decriminalization is much more effective then Nordic Model because research shows that full decriminalization is a better approach to protect the rights of sex workers.
It is acknowledged that sex workers are suffering from sexual assault, rape and violence by the clients, even by the police when they try to seek justice by approaching for help. Criminalization of sex work results in human right issues because the Criminalization of sex workers are subjected to violence and discrimination and impeded from accessing critical services, such as healthcare, and right to equal protection. Crimes go undetected, offenders continue to pose the same crime to the victims and victims have no access to the support and the law they need. Decriminalizing sex work is the only solution to protect sex workers in the country from the humiliation, violation, and it is the only way in which they can live a meaningful life. The government needs to set up some self-regulatory boards and ensure free legal aid services to educate prostitutes on issues like safe sex and health care problems etc.
Section 7 of the Immoral Traffic Prevention Act https://indiankanoon.org/doc/139656816/
BY- Akshita Bansal and Divyanshu Bhargava
University of Petroleum and Energy Studies, Dehradun