Legal Status of Sex Work in India

When it comes to discussing the topic of sex work, India is often a point of controversy. Sex work is the profession of engaging in sexual acts in exchange for money or goods. It is often looked down upon and considered immoral in many societies around the world including India. Despite the social stigma, sex work is a prevalent form of work in India, with an estimated 3 million individuals working in the industry. The legal status of sex work in India is complex, with differing laws and regulations from state to state. However, there are several legal and moral questions around the legality and ethical implications of sex work in India. This article aims to provide an overview of the status of sex work in India, including its history, the laws regulating it, and the challenges sex workers face.

HISTORY OF SEX WORK

Sex work in India has a long and complex history, dating back to ancient times. In some traditional Indian communities, temple prostitution has been practised, in which women were dedicated to temples as a form of religious service(devadasis), but also functioned as sex workers. This practice was officially abolished in the 19th century.

During the period of British colonial rule in India, the authorities adopted a repressive stance towards sex work, seeing it as immoral and a threat to public health. They introduced legislation to prohibit and criminalize sex work. However, under British colonial rule, the Criminal Tribes Act of 1871 imposed punitive measures for prostitution, further intensifying social taboos.

Despite the laws, sex work continued to thrive, particularly in urban areas where migrants and rural women moved to work in factories or as domestic workers. It became a significant source of income for many women and some men who did not have other means of livelihood.

In recent years, there has been a growing movement for the rights of sex workers in India, which has sought to challenge the stigma, violence, and discrimination faced by sex workers and to improve their access to healthcare, education, and other services. Nevertheless, the legal status of sex work remains contentious and it continues to be stigmatized and criminalized in many parts of the country.

LEGAL FRAMEWORK

IMMORAL TRAFFIC (PREVENTION) ACT OR ITPA, 1956

The Immoral Traffic (Prevention) Act or ITPA, 1956 is the primary legislation that deals with the prohibition of prostitution or sex trade in India. The act was amended in 1986 and then again in 2018 to make it more comprehensive. The main objective of this legislation is to prevent the exploitation of women and children in prostitution or human trafficking. According to this act, any person found guilty of recruiting, abducting, transporting, harboring, or inducing a person into prostitution can be punished with imprisonment for a term ranging from seven to ten years and fined[1].

However, the act distinguishes between voluntary sex work and forced trafficking. If a sex worker is above the age of 18 and is practising sex work willingly, it is not considered a crime. Hence, sex work itself is not illegal but soliciting customers and maintaining brothel is. The act provides for the establishment of rehabilitation centres for the rehabilitation of the victims of sexual exploitation or trafficking.

The recent amendment in the ITPA has proposed to decriminalize prostitution, making it a legal profession. However, the proposed amendments are yet to be passed in the parliament. Until the amendment is passed in parliament, sex workers will continue to face arrest, harassment, and exploitation under the current legal framework.

PREVENTION OF IMMORAL TRAFFICKING ACT OR PITA, 1956

The PITA (Prevention of Immoral Trafficking Act), 1956 is another law that governs various aspects of sex work. The legislation is more comprehensive than ITPA and defines the meaning of “prostitution,” “trafficking,” and “sexual exploitation.” It also provides for stricter punishments for those who abduct or lure women and children into prostitution.

However, this law only criminalizes sex work but does not provide protection or legal recognition to sex workers. This leaves women vulnerable to exploitation and abuse from clients, pimps, and the police. Moreover, under the PITA, sex workers are also not permitted to own property, run businesses, or access healthcare, education, or social security schemes.

STATE-SPECIFIC LAWS

While the ITPA is a federal law, it is up to individual states to enforce it. Some state governments have enacted additional laws that regulate sex work in their jurisdiction.

For example, in Maharashtra, the Prevention of Prostitution Act, 1986 makes it illegal to practice prostitution in or near public places. In Karnataka, the Karnataka Police Act, 1963 criminalizes soliciting and the procurement of prostitution[2]. In Tamil Nadu, however, sex workers are required to register with the police, and brothels are monitored by the police.

LAWS RELATED TO TRAFFICKING AND CHILDREN:

JUVENILE JUSTICE (CARE AND PROTECTION) ACT, 2015

The Juvenile Justice (Care and Protection of Children) Act, 2015 aims to improve the situation of children involved in prostitution. The act provides for the rehabilitation and protection of children who are victims of trafficking or sexual exploitation. Under this act, juveniles are not to be treated as offenders but as a victim of circumstances[3].

TRAFFICKING OF PERSONS (PREVENTION, PROTECTION, REHABILITATION) BILL, 2021

The Trafficking of Persons (Prevention, Protection, and Rehabilitation) Bill, 2021, is the latest development in the fight against sex trafficking. The proposed legislation aims to address the problem of sex trafficking comprehensively by including prevention, protection, and rehabilitation measures for victims.

The bill also proposes to establish a National Anti-Trafficking Bureau and Anti-Trafficking Fund for the effective implementation of the provisions of the bill. The proposed law takes a victim-centric approach, and it aims to provide protection and rehabilitation to the victims of trafficking[4].

INDIAN PENAL CODE, 1860

Sections 372 and 373 of the IPC criminalize the offence of trafficking of human beings for the purpose of prostitution, while section 370 criminalizes trafficking in persons, including for exploitation in the sex industry. These sections provide punishment for anyone involved in trafficking for sexual exploitation, including brothel owners, pimps, and customers.

However, laws under the IPC only criminalize sex work and do not provide legal protection or recognition to sex workers. Section 294 of the IPC criminalizes “obscenity” in public places and is often used to target and harass sex workers[5]. The law is often used to arrest sex workers and to extort bribes from them, leading to further marginalization and exploitation.

Moreover, the IPC and other laws criminalizing prostitution often led to sex worker’s social and economic marginalization, making it difficult for them to access basic facilities like healthcare, education, and employment. This leaves them vulnerable to poverty, violence, and exploitation.

While IPC has provided a legal framework to combat sexual exploitation and human trafficking, it has also contributed to the stigmatization and marginalization of sex workers. The need of the hour is to focus on providing legal recognition and protection to sex workers and to empower them with basic facilities, education, and social security so that they can live with dignity and without fear of prosecution.

LANDMARK JUDGEMENTS

There have been several landmark judgments in India related to sex work and the rights of sex workers. These judgments have played a significant role in shaping the legal and social landscape for sex workers in India. Here are some of the most notable judgments:

1. Gaurav Jain vs. Union of India [(1997) 8 SCC 114]:

In this case, the Supreme Court of India recognized the constitutional right to free choice of profession and held that sex workers were entitled to the same protection of the law as any other citizen[6].

2. Budhadev Karmaskar vs. State of West Bengal, JT 2011 (8) SC 289, 2011 (8) SCALE 155, 2011 (4) UJ 2675 (SC):

This was a landmark judgment that recognized the rights of sex workers under the Constitution of India. The court held that sex workers have the right to live with dignity under Article 21, which includes the right to practice their profession freely without harassment or violence[7].

3. National Human Rights Commission vs. State of Maharashtra, (AIR 2017 Bom 42):

This judgment was significant in recognizing the role of the government in protecting the rights of sex workers. The court held that the government had a duty to take measures to provide basic facilities to sex workers, such as healthcare, education, and housing, to ensure their safety and dignity.

4. NALSA vs. Union of India, (AIR 2014 SC 1863):

In this case, the Supreme Court of India recognized the rights of transgender individuals in India and held that they were entitled to the same legal protections as any other citizen. The judgment included recognition of the right of transgender individuals to engage in any profession, including sex work, as part of their right to live with dignity[8].

5. All India Network of Sex Workers vs. Union of India, WRIT PETITION (CIVIL)NO.297 OF 2018:

This case is currently before the Delhi High Court and seeks the decriminalization of sex work in India. The petition argues that criminalization of sex work leads to exploitation and violence against sex workers and that legal recognition and protection are necessary to improve their working conditions.

These landmark judgments have played an important role in recognizing the rights of sex workers in India and have led to improvements in their legal protections. However, there is still a long way to go in ensuring that sex workers can work safely and with dignity without fear of harassment or violence.

PROBLEM WITH INDIAN LAWS:

Laws related to sex work in India are complex and often create more problems for sex workers than they solve. Here are some of the major problems associated with Indian laws related to sex work:

1. Criminalization of sex work:

Prostitution is illegal in India, and sex workers are often the subject of harassment and violence from law enforcement agencies. This criminalization leads to social and economic marginalization, making it difficult for sex workers to access basic facilities like healthcare and education, which are essential for their well-being.

2. Lack of legal recognition and protection:

The laws related to prostitution in India are aimed at punishing offenders, such as brothel owners and pimps, but do not provide any legal recognition or protection to sex workers themselves. This makes them vulnerable to exploitation and abuse from their clients, law enforcement officials, and other members of society.

3. Stigma and discrimination:

The criminalization of sex work is often accompanied by social stigma and discrimination against sex workers, who are often ostracized from their communities and denied basic human rights. This stigma can make it difficult for sex workers to access healthcare and other services, leading to serious health problems and further marginalization.

4. Lack of effective legal remedies:

Despite the existence of various laws related to sex work, the legal system in India often fails to provide effective remedies to sex workers who have been victimized by violence or exploitation. This can lead to a lack of trust in the legal system and make it difficult for sex workers to seek justice when they are the subject of abuse or violence.

5. Lack of empowerment:

The marginalization and criminalization of sex work in India can make it difficult for sex workers to advocate for their own rights and welfare. This lack of empowerment can make it difficult for sex workers to organize and fight for better working conditions, access to healthcare, and social recognition.

To address these problems, there is a need for legal recognition and protection for sex workers in India. This includes providing legal recognition for sex work as a profession, decriminalizing prostitution, and providing access to basic facilities, education, and social security. Additionally, there is a need to raise awareness and reduce the stigma surrounding the sex industry in India through education and outreach campaigns.

ARGUMENTS IN FAVOR OF THE LEGALIZATION OF PROSTITUTION

1. Improved working conditions:

Legalizing prostitution would allow sex workers to work in safer environments with better working conditions. This would reduce the risk of violence and exploitation, which is especially important for women who are often the victims of sexual assault and abuse.

2. Protection from harassment and abuse:

Many sex workers in India are subject to harassment and abuse by police and other law enforcement officials. Legalization would allow sex workers to access legal protections, including police protection if they are threatened or victimized.

3. Improved access to healthcare and other services:

Legalization would allow sex workers to access healthcare and other essential services more easily, which would greatly improve their overall health and well-being. Access to other services such as education and social security would also help sex workers to improve their social and economic status, and reduce transmission of sexually transmitted infections.

4. Government regulation and oversight:

Legalization would enable the government to regulate and oversee the sex industry more effectively, including implementing workplace regulations, requiring regular health checks, and preventing trafficking.

5. Freedom of choice:

Sex work is a personal choice and should be treated as such. Everyone has the right to control their own bodies and should be free to make their own decisions about whether or not to engage in consensual sex work.

The legalization of prostitution in India would improve the working conditions and well-being of sex workers while also reducing the incidence of exploitation and abuse. Legalization would also make the government more capable of regulating and overseeing the industry, preventing trafficking, and ensuring that sex workers have access to essential services like healthcare and education. Legalization would enable sex work to be recognized as a profession, and allow individuals to exercise their personal freedom to make choices about their own lives.

ARGUMENTS AGAINST THE LEGALIZATION OF PROSTITUTION

1. Promote exploitation:

Legalizing prostitution may end up increasing demand for it. It will lead investors and pimps to establish businesses centered on prostitution, thereby exploiting sex workers. Women, especially those from economically disadvantaged backgrounds, become vulnerable to being exploited.

2. Difficult to regulate:

It is difficult to regulate prostitution, and there is a risk that it would lead to an increase in illegal sex trafficking activities. Since it is already illegal in India, it is difficult to enforce the laws. If it becomes legal, it may become more widespread and difficult to monitor.

3. Harms society:

The legalization of prostitution would lead to the moral decay of society. It will result in the exploitation and degradation of women. India is a conservative and traditional country, and it is believed that the legalization of prostitution may lead to social and moral decay.

4. Does not address root causes:

Legalizing prostitution does not address the root causes of why people become sex workers. These could be poverty, lack of education, discrimination, and societal stigma. Legalizing prostitution will not eliminate these causes, and these individuals will continue to suffer from these problems.

5. Health risks:

Legalizing prostitution could lead to the spread of sexually transmitted diseases, which could lead to a public health crisis.

CONCLUSION

Sex work is a complex issue and is viewed differently by various stakeholders. While some view it as a personal choice, others see it as a social evil. The laws related to sex work in India are not clear, and there is a lot of grey area. However, the laws related to trafficking and sexual exploitation are robust, and the government has taken various measures to fight these issues. The need of the hour is to focus on providing legal recognition and protection to sex workers and provide them with basic facilities like healthcare, education, social security, and job opportunities. This would go a long way in improving their working conditions and reducing exploitation.

[1]Immoral Traffic (Prevention) Act 1956, India, available at:

https://www.indiacode.ic.in/bitstream/123456789/15378/1/the_immoral_traffic_%28prevention%29_act%2C_1956.pdf (Visited on July 11, 2023).

[2]Karnataka Police Act 1963, India, available at:

https://finance.karnataka.gov.in/storage/pdf-files/The%20Karnataka%20Police%20Act,%201963.pdf (Visited on July 11, 2023)

[3]Juvenile Justice (Care and Protection) Act 2015, India, available at:

https://www.indiacode.nic.in/handle/123456789/2148?sam_handle=123456789/1362 (Visited on July 11, 2023)

[4]Trafficking in Persons (Prevention, Care and Rehabilitation) Bill 2021, India, available at:

https://wcd.nic.in/sites/default/files/DRAFT%20TRAFFICKING%20IN%20PERSONS%20(PREVENTION,%20CARE%20AND%20REHABILITATION)%20BILL%202021%20(1).pdf (Visited on July 11, 2023)

[5]Indian Penal Code 1860, India, available at:

https://www.indiacode.nic.in/bitstream/123456789/2263/1/a1860-45.pdf (Visited on July 11, 2023)

[6] https://indiankanoon.org/doc/40881001/ (Visited on July 11, 2023)

[7] https://indiankanoon.org/doc/1302025/ (Visited on July 11, 2023)