By Khusbhu Sahu
Prostitution as a profession has a long existed in our country & is still dominant in modern society. The legal statute which deals with prostitution or sex work in India is the Immoral Traffic (Prevention) Act.
The ITP Act came into force on 26th January 1987. The purpose of this statute is to regulate and eliminate prostitution in India by progressively criminalizing various aspects of sex work. The existing law does not criminalize prostitution per se, but it intends to punish acts of facilitating prostitution like brothel keeping, living off earnings and procuring by third parties.
Human rights violations are common throughout India, and the same can also be seen in the lives of sex workers. Prostitution is not treated as work, but an immoral activity threatening the society. This results in denial of basic rights to both sex workers and their families.
Women involved in such a profession cannot access good healthcare and are made subject to abuse, violence and exploitation by police and government officials, while their children face regular harassment in schools and the workplace. A large factor for the ill treatment being faced by the sex workers is the narrow understanding that people have of this work.
Though there are many who are victims of trafficking, but majority of women in sex work consent to doing it. Today, it’s much needed to identify the major human rights issues that are being faced by people involved in sex work in India in the areas of law, health, safety, and education, and the role that stigma and marginalization in these abuses.
Incompetent Law
Access to justice for women sex workers is constrained by lack of knowledge of their rights, dependence for assistance and resources and the threat of sanction.
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 publicising entitlement schemes available with the government.
The failure to receive legal assistance is denial of the right to fair trial for women. Violence against sex-workers in India is linked to the perception of sex workers as criminals and not citizens. This has led to large scale violation of human and fundamental rights such as the right to life, dignity, equality, equal protection and due processes under the law.
Several factors put sex workers at risk of violence. Stigma attached to sex work exposes them to violence in personal spaces from family members as well as from intimate partners. 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). 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 Traffic (Prevention) Act (ITPA) of 1986 which seeks to prevent trafficking of persons in India and prohibits most outward manifestations of sex work, including brothel operation 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 seen being used against them. Though the Act does not specifically prohibit prostitution, law enforcement officials have continuously used it as a tool to harass sex workers.
The prohibition against “public solicitation” is particularly ambiguous. Police officers have been known to accuse workers of solicitation, and then demand bribes or free sex. These issues require urgent attention of the lawmakers but have been left untouched in the Immoral Traffic (Prevention) Amendment Bill.
Stigma and Marginalization
Stigmatization is experienced as the major factor that prevents women in sex work from accessing their rights. Due to this discrimination, women in sex work have been denied safety, proper healthcare, education and, most importantly, the right to practice the business of making money from sex.
No Provision for Safety & Security
People in sex work are not only at a higher risk for violence, but are also less likely to get protection from the police as often they themselves are the perpetrators of this violence against sex workers. Because society deems women in sex work to be morally corrupt, they are assumed guilty thus “deserving” of any violence committed against them.
Lack of Education
Women in sex work have drastically low levels of education. In a survey it was found that less than 2% of the women have been to school of any kind, and less than 50% of that 2% have finished high school. But the stigma against a woman in sex work is not limited to the woman herself; it carries down to her children, regardless of their own professions or lifestyles.
Children of sex workers repeatedly report discrimination, ostracization and isolation felt on account of their mothers’ work. Many are embarrassed by their home lives. This has had significant effects on their education, as the drop-out rate in this community is particularly high. Children abandon school for myriad reasons, ranging from failed test scores to harassment by teachers and classmates. This harassment is incredibly debilitating for school-aged children.
Lack of Healthcare
The health of sex workers and their children suffer the most due to this stigma and marginalization existing in our society. Illiteracy, ignorance and fear of ill treatment by medical establishment make it difficult for women to access healthcare; therefore they are unlikely to seek either preventative or curative care, resulting in lower levels of health.
Labeled as “Carriers” of the Disease
Sex workers are labeled as “carriers” of sexually transmitted disease. Sex workers have always been considered outcastes as they are believed to be infecting the community with their compromised morals.
It is not yet recognized that sex workers can be of great help in preventing the spread of HIV and other STDs. Researchers have shown that women in sex work are the best educators of their male clients.
Need for Regularising and Legalising Prostitution
Currently, prostitution is not regulated. Soliciting sex is an offence though practising it ‘in private’ isn’t. Sex workers in India do not enjoy any protection like other professions under labour law which makes it unregulated and dangerous.
It’s time to face the reality and accept that prohibition of prostitution isn’t going to stop it. In fact if prostitution is dealt with proper legalisation and regulation it will not only benefit sex workers but also the society as a whole.
- Regulation of prostitution would provide sex workers to avail facility of regular medical check-ups and adequate birth control tools, which ultimately result in reducing the high risk diseases being communicated from workers to customers and vice-versa. Thus promoting their personal well-being through cleaner, healthier and safer working environment and conditions.
- Legalisation 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.
- Decriminalization of the entire prostitution industry will put it under the sphere of legal control which will enable law upholders to detect instances of forced prostitution and help victims of the same.
As far as the question of recognising the ones who are forced into the flesh trade and those who aren’t goes, the current unfortunate system makes it impossible to determine willingness. A legal system in place will check criminal behaviour and significantly reduce the smuggling and slavery of women and children.
Prostitution in India is approximately an $8.4 billion industry. Legalising it and taxing the proceeds like any other business will provide an incentive for the government, and facilitate it in providing regular medical check-ups, and protecting the rights of people engaged in the profession.
On the recommendation of the Verma Report, the Government of India recently adopted anti-trafficking provisions in the Indian Penal Code (IPC) through the Criminal Law (Amendment) Act of 2013, to conform to the internationally-recognized definition of the crime of trafficking as outlined in the Palermo Protocol.
However, India’s other anti-trafficking legislation, which includes more comprehensive anti-trafficking laws, the Immoral Traffic (Prevention) Act (ITPA) of 1956, has not been changed in nearly thirty years. Therefore, it’s much needed for government to amend the ITPA by including specific provisions that will improve anti-trafficking efforts, protect children and survivors and address other shortcomings still remaining.
Amending this Act will put India in line with its international legal obligations under the Protocol.
Recommended Amendments to ITPA 1956
- Ensuring legal protection and removing criminal sanctions from women and children in prostitution. Prostituted women and children must be able to seek the help and protection of the police without fear of being prosecuted. To achieve this, Section 20 (“Removal of prostitute from any place”) and Section 10 (“Detention of prostitute in a corrective institution”) of the ITPA must be removed entirely.
- Criminalization of pimps and brothel keepers, not women or children in prostitution. The new measures in the IPC, inexplicably, do not include the offence of pimping and touting, which is completely contrary to India’s requirements to punish traffickers under the Palermo Protocol. Section 8 of the ITPA must be reworded to include the same.
- Punishment of those who pay for sex. According to Apne Aap, very few Indian women, and no Indian children, freely offer commercial sexual services to men. The vast majority are victims of trafficking who are being forced to earn a living. Men who abuse their economic power to sustain this industry are perpetuating the exploitation of the most vulnerable people in society. The law must, therefore, criminalize those who pay for sex, especially those who pay for sex with children.
- Strict liability for traffickers and buyers of a minor regardless of whether the perpetrators knew the victim’s age. Anyone “buying” or “selling” a minor in order to exploit them in prostitution, or “buying” sex in exchange for money from a minor, should be penalized. Ignorance should not be allowed as defenses for perpetrators. Thus, Section 22 ITPA need to be amended accordingly.
Victims Rehabilitation and Welfare Fund. Provisions must be made in the law for real and sustainable rehabilitation in women-friendly shelter homes, which provide necessary linkages to various schemes and programs that trafficked women and children can benefit from.
Countries Around the World That Have Legalized Prostitution
- New Zealand — Prostitution has been legal for Kiwis since 2003. There are even licensed brothels operating under public health and employment laws, which mean the workers get social benefits just like other employees.
- Australia — The legal status of prostitution in Australia differs from state to state. It is decriminalised in some areas, and illegal in other parts. The same goes for brothel ownership.
- Austria — Prostitution is completely legal in Austria. Prostitutes are required to register, undergo periodic health examinations, be 19 years old or older, and pay taxes. Despite this, there is a lot of smuggling and forced prostitution here.
- Bangladesh — Male prostitution is illegal, but everything else is legal. Bangladesh has a severe minor trafficking problem, which is perpetuated by corruption. Pimping and owning a brothel is also legal.
- Belgium — They have been trying to remove the stigma, violence and fear associated with prostitution by not just legalising it but also running proper state-of-the-art brothels.
- Brazil — Prostitution in itself is legal here, though pimping is illegal.
- Canada — Prostituting yourself is legal, but buying sex became illegal during the end of 2014. This deeply flawed system puts sex workers in a very dangerous position.
- Colombia — It is legal to work in the sex industry in Colombia, though pimping isn’t. Prostitution is especially widespread in cities such as Cartagena and Barranquilla.
- Denmark — Prostitution is legal here.
- Ecuador — Everything related to sex work is legal here. Forced prostitution is a bit of a problem though.
- France — Prostitution is legal in France, though soliciting in public is still outlawed. Pimping is illegal and brothels were outlawed in France in 1946.
- Germany — Prostitution was legalised here in 1927 and there are proper state-run brothels. The workers are provided with health insurance, have to pay taxes and they even receive social benefits like pension.
- Greece — Greece has also followed the German method of including prostitution.
- Netherlands — One of the places most famous for its red-window sex workers, prostitution is legal here.
Conclusion
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. To achieve this, the following should form the basis of a reform framework:
- Recognition of sex work as an occupation.
- A commitment to the application of human rights standards and norms, including recognition of sex workers as legal persons capable of holding and exercising all human rights, the right to work, freedom of association, and a recognition of the right of consenting adults to form sexual relationships, paid and unpaid.
- A commitment to ensuring that commercial sex can take place under healthy and safe conditions that are understood to exclude oppressive testing regimes.
- Guaranteed access for sex workers to health and social services.
- Justice, including but not limited to, protection from violence, abuse, and discrimination.
The sex worker is not a threat to the society. They need the rest of society to recognize and fight against their own misconceptions, judgments and unfounded fears.