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Sex workers rights in India

December 6, 2022

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This article has been written by Mudit Gupta, currently pursuing a BBA. LL.B. (hons.) from the University of Mumbai Law Academy. This article discusses the legal overview of prostitution in India and the rights of the sex workers.

It has been published by Rachit Garg.

Table of Contents

Introduction

Firstly, I would urge all the readers to be a bit open-minded and to leave all the preconceived notions regarding the topic, as it is a bit sensitive and many people might have different opinions about the same.

In a very recent case of Uttarakhand which is covered by various national news broadcasters, a girl named Ankita Bhandari, who was working as a receptionist at a resort, was pressurised to provide escort services to the guest staying at the property, and her denial for the same resulted in her murder. This incident clearly portrays the reality of how people are forced and pushed into the industry of prostitution in today’s day and age as well.

In the first half of this year, a Bollywood movie named “Gangubai Kathiyawadi” was released, which portrayed the life of Gangubai Harjeevan Das, who was an Indian social activist, prostitute, and madam of a brothel in the Kamathipura area of Mumbai during the 1960s. The film portrayed her earlier life, how she was pushed to work as a sex worker, her struggles, and her later work for the upliftment of the women and children belonging to that strata.

These stories clearly depict the mindset of many people in this country. Both of these stories tell us about the bitter truth that many people in this country are forced into prostitution, which changes their lives, mindsets, and futures in a very negative manner. This article will talk about the meaning and history of prostitution. Then further, its legalisation and notions in favour and against of the same will be discussed to get a complete picture about the same.

Meaning of prostitution

As per Section 2(f) of the Immoral Traffic (Prevention) Act, 1956, prostitution is defined as the sexual exploitation or abuse of people for monetary purposes, and a prostitute is a person who gains that commercial benefit.

But the term ‘Prostitution’ is derived from a Latin word called ‘Prostituere’ which means to expose something publicly. It can be divided into two parts. One is forced prostitution, and the other is willing prostitution. Both are separated only on the basis of one thing, ‘consent’. Forceful prostitution falls under the category of rape. This kind of prostitution mostly happens in brothels, where most of the victims reach because of human trafficking.

As per the 2008 survey conducted, by the Ministry of Women and Child Development, India has nearly 3 million sex workers, with an overwhelming majority in the 15-35 age group, and, contrary to the misconception held by many, a good number of them are also male.

The problem, which is much more serious, is that due to the image created in society, the fundamental rights of sex workers are also violated, and such violations are ignored in most cases. The Constitution of India grants equal rights to each and every citizen of this country. They are also citizens of the country and involved in a profession they want to be involved in. Also, that profession is not illegal in India.

The reason behind prostitution is somewhat related to the roots of our society. Indian society is patriarchal, and the women of these families are not considered equal to men in our society. Although the situation is much better than in earlier times, a lot more work is still needed. This situation in earlier times led to many social evils, some of which were illiteracy among women and the caste system. When the women from lower castes, as per the caste system, needed to be financially independent, they were left with the sole option of prostitution.

Now let’s dive deeper into the history, existing legislation, and various other issues regarding the rights of sex workers.

History of prostitution in India

Prostitution is one of the oldest professions in the history of mankind. Since the inception of organised society, prostitution has been practised all around the world. In the Rigveda, the earliest of the known Indian literary works, there are mentions of prostitution as an organised, established, and well practised profession. In Indian mythology, there are many references to high-class prostitution in the form of celestial demigods referred to as apsaras who act as prostitutes. They are Menaka, Rambha, Urvashi, and Thilothamma. They are described as perfect embodiments of unsurpassed beauty and feminine charm. They are highly accomplished in music and dance. Their task was to entertain the divinities and their guests in the court of Lord Indira, the Lord of Rain in Hindu mythology.

Also in the later stages of Hindu culture, the concept of ‘devadasis’ came into existence. ‘Devadasi’ in Sanskrit means female servant of god. They used to devote their lives to God, considering God to be their husband, and because of this, they never used to marry during their lifetime. Afterwards, these devadasis were called ‘Nagarwadhu’. They used to perform dances in the courts of the kings. They were sexually liberated and considered respectable in society. But when the British conquered India, the condition of these Nagarwadhus deteriorated. They were kept in a particular society, and the Britishers used to come to those localities to have sexual pleasures. With the passage of time, these areas developed into the so-called “red-light” areas. These areas were mainly located in British territories, such as Mumbai.

The term ‘Nagarwadhu’ was replaced by “prostitute,” and their work was referred to as “prostitution,” which was not given respect by the other societies, and slowly and gradually, all the people involved in this profession of prostitution were cut off from the general society of the country. As this work was not considered respectful in society, people did not profess it regularly. This resulted in an increase in human-trafficking for sex work in India.

Now let’s read about the existing legislation in India regarding the topic.

Is prostitution legalised in India

The Suppression of Immoral Traffic in Women and Children Act, 1956, commonly known as SITA, was given assent on December 30, 1956, and was made applicable to the whole of India. The act was made to legislate and suppress immoral trafficking in women and children as India signed the United Nations International Convention for the “Suppression of Women in Traffic in Persons and of the Exploitation of Others” in New York on May 9th, 1950. Subsequent amendments in this Act not only changed the nomenclature of the act but even the preamble to The Immoral Traffic (Prevention) Act, 1956. All the necessary provisions regarding prostitution are discussed in this legislation.

The profession of prostitution is not illegal per-se in the Indian legal system, but a certain pool of activities related to it are punishable as per the law in India. The Immoral Traffic (Prevention) Act, 1956, talks about these provisions. As per this Act, the following activities are punishable-

Keeping and maintaining a brothel

Provision: Section 3

As per this provision, if any person keeps or manages, or acts or assists in the keeping or management of, a brothel then he/she shall be punished with rigorous imprisonment for a term of not less than one year and not more than three years and also with fine which may extend to two thousand rupees on first conviction and if he/ she is caught for the second time then he/she shall be punished with rigorous imprisonment for a term of not less than two years and not more than five years and also with fine which may extend to two thousand rupees.

Allowing premises to be used as a brothel

Provision: Section 3

As per the clause(2) of this provision, Any person who-

being the tenant, lessee, occupier or person in charge of any premises, uses, or knowingly allows any other person to use, such premises or any part thereof as a brothel, or
being the owner, lessor or landlord of any premises or the agent of such owner, lessor or landlord, lets the same or any part thereof with the knowledge that the same or any part thereof is intended to be used as a brothel, or is wilfully a party to the use of such premises or any part thereof as a brothel,

shall be punished on first conviction with imprisonment for a term that may extend to two years and with a fine that may extend to two thousand rupees, and in the event of a second or subsequent conviction, with rigorous imprisonment for a term that may extend to five years and also with a fine.

Living on the earnings of prostitution

Section 4

As per this provision of the Act, any person over the age of eighteen years who knowingly lives, wholly or in part, on the earnings of the prostitution of any other person shall be punishable with imprisonment for a term which may extend to two years, or with a fine which may extend to one thousand rupees, or with both, and where such earnings relate to the prostitution of a child or a minor, shall be punished with imprisonment for a term of not less than seven years and not more than ten years.

Procuring, inducing or taking a person for the sake of prostitution

Provision: Section 5

As per this provision, if any person procures or attempts to do so, induces a person to go from any place, takes or attempts to take a person, or causes a person to be taken from one place to another with a view to indulge them in prostitution, then they shall be punished on conviction with rigorous imprisonment for a term of not less than three years and not more than seven years and also with a fine which may extend to two thousand rupees, and if any such offence is committed against the will of any person, the punishment of imprisonment for a term of seven years shall extend to imprisonment for a term of fourteen year.

Detaining a person on premises where prostitution is carried on

Provision: Section 6

As per this provision of the Act, if any person details someone in a brothel or at any other place with the intent to force that person to indulge in sexual intercourse, then such person shall be punished on conviction with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to a fine.

Prostitution in or in the vicinity of public places

Provision: Section 7

As per this provision, anybody who carries on prostitution and the person with whom such prostitution is carried on, in any premises which are restricted by the state government as per clause (3) of the provision or which are within a distance of two hundred metres of any place of public religious worship, educational institution, hostel, hospital, nursing home, or such other public place of any kind as may be notified in this behalf by the Commissioner of Police or magistrate in the manner prescribed, shall be punished with imprisonment for a term which may extend to three months. If such offence is in respect of a child or minor, the person committing the offence shall be punishable with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine.

Seducing or soliciting for purpose of prostitution

Provision: Section 8

As per this provision if any person, in any public place or within sight of, and in such manner as to be seen or heard from any public place, whether from within any building or house by words, gestures, wilful exposure of the person, or otherwise tempts or endeavours to tempt, or attracts or endeavours to attract the attention of, any person for the purpose of prostitution or solicits or molests any person, or loiters or acts in such manner as to cause obstruction or annoyance to persons residing nearby or passing by such public place or to offend against public decency, for the purpose of prostitution, shall be punished on first conviction with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both, and in the event of a second or subsequent conviction, with imprisonment for a term which may extend to one year, and also with fine which may extend to five hundred rupees.

Seduction of a person in custody

Provision: Section 9

As per this provision, if any person having the custody, charge, or care of, or a position of authority over, any person causes, aids, or abets the seduction for prostitution of that person, that person shall be punished on conviction with imprisonment of either description for a term that shall not be less than seven years but which may be for life, or for a term that may extend to ten years, and shall also be liable to a fine.

Apart from these activities, the Indian Penal Code, 1860, in Sections 372 and 373, discusses the trade of minors for prostitution. Also, Section 366-A, Section 366-B and Section 370A talk about the procuration of minor girls, the importation of girls from foreign countries, and the trafficking of persons, respectively.

Article 23(1) of the Constitution of India talks about the prohibition of traffic and forced labour. It prohibits trafficking, begar and any other form of forced labour, and it includes sex work as well. No person should be trafficked and forced to work as a sex worker, and the same is ensured by the legislation provided in the Immoral Traffic (Prevention) Act, 1956.

Any activity except the ones talked about above is completely legal and not punishable in India.

Now let’s talk about the human rights and health conditions of sex workers in India.

Other previous legislations in India regarding Prostitution

In 1923, the Calcutta Suppression of Immoral Traffic and the Bombay Prevention of Prostitution Acts were passed. The Calcutta legislation was subsequently replaced by the Bengal Suppression of Immoral Traffic Act, 1930. In 1923, the Province of the U.P. enacted legislation for the suppression of immoral traffic in women and girls. Punjab followed in 1935, and Mysore in 1936.

Heavy penalties were provided by these Acts for living on the earnings of prostitution, for keeping a brothel, for allowing premises to be used as brothels, for procuration, for unlawful detention for prostitution, for importing a female for prostitution, and for encouraging or assisting in prostitution. Some other legislation dealing with specific aspects of prostitution were also enacted. For example, the U.P. Naik Girls Protection Act and the Bombay Devadasis Act were passed in 1929 and 1934, respectively. The Children Act passed in Bombay, Madras and Bengal gave some protection to boys and girls in moral danger.

These were some of the legislations which were passed in India by some of the states. Now let’s focus on the order given by the Supreme Court earlier this year.

What changes with the Supreme Court order

In a recent order, given by the Apex Court in the case of Budhadev Karmaskar v. State of West Bengal And Ors. (2010),

In this case, a sex worker named Chhaya Rani, alias Buri, was beaten to death by the accused, Budhadev. In light of all the evidence presented before the Court, he was convicted by the trial court and the High Court. He further appeared before the Supreme Court in a criminal appeal, and his conviction was withheld. The Supreme Court, in its judgement and order dated February 14, 2011, took into consideration the social position of sex workers.

The Court declared prostitution to be a legal profession and also said that sex workers are entitled to their fundamental rights as any other citizen of the country. The Court order said that every citizen of the country, irrespective of their profession, has the right to a dignified life, and the same is guaranteed to every citizen by Article 21 of the Constitution of India. The Court’s direction in this order was based on the recommendations made by the Pradip Ghosh panel constituted by the Supreme Court in the case. The Court had previously held that the central and state governments should prepare schemes for rehabilitation for physically and sexually abused women, commonly known as prostitutes, through social welfare boards in the same case.

The report submitted by the Pradip Ghosh panel stated that the sex workers were finding it difficult to get their proofs of identity and other important documents. Due to this, they were not able to avail benefit of most of the government schemes. The panel suggested amendments to the Immoral Trafficking Prevention Act, 1956. The government agreed to make such amendments, but due to the non-fulfillment of the same, the Supreme Court ordered the states and the union territories to implement the recommendations by exercising its special powers granted by Article 142 of the Indian Constitution.

Key changes

There are six key changes that will stand until a new law is enacted. They are as follows-

Protection, support and medical assistance must be provided to the sex workers who are the victims of sexual assault as per Section-357C of Code of Criminal Procedure, 1973.
State governments can be called on to release adult sex workers who are detained against their will in “protective homes,” and can also be asked to investigate these rehabilitative institutions.
The Police force should be sensitised about the rights of sex workers to curb the violence and abuse often levied by the force on sex workers.
The Press Council of India must develop media guidelines to protect the privacy and confidentiality of sex workers, which is their right as per Article 21. If any privacy breach takes place, then the accused will be charged under Section-354C of the Indian Penal Code, 1860.
The possession of condoms cannot be considered as an offence or be seen as evidence of soliciting or brothel-keeping, both of which are illegal in India as per the provisions of the Immoral Trafficking Prevention Act, 1956.
The national and state legal services should ensure access to legal aid to the sex workers and should also educate them about their rights.

Notions favouring the legalisation of prostitution in India

The people in society are divided into two parts. One part of it favours the legalisation of prostitution, and the other part of it is against the legalisation of prostitution.

The first part considers sex workers to be part of their society, and they don’t demean them in any manner. According to them, they are humans before anything else and indulge in professions in which they want to be. The common thoughts of these people behind their opinions are-

Legalisation will secure their children

As per the opinion of people favouring the legalisation of prostitution, the children of sex workers are most of the time deprived of basic human needs such as a decent life, clean living places, education, etc. They always live in a fearful environment. With the legalisation of the same, the basic needs of life will be easily accessible to them, and they will be in a position to build their lives as they want.

Spread of STDs can be controlled

The sexual health of the workers is in a very adverse state. Many of them are infected with sexually transmitted diseases. This has affected their physical and mental health. The reason behind this is that medical facilities are not very accessible to them, and even if they are, they are quite hesitant to avail themselves of them. With the legalisation of the same, the shame factor associated with it will be removed and will have a positive impact.

Sexual assault and other related activities will decline

With the legalisation of prostitution, people would easily be able to access the services and would not indulge in the heinous crime, resulting in a decline in activities related to sexual assault.

Forced prostitution may end

With the legalisation of prostitution, legislation regarding human trafficking will become more strict. The offenders, will be punished at a higher rate, and subsequently, forced prostitution may come to an end.

Rights of the sex workers will be safeguarded

With the legalisation of prostitution, sex workers will be able to exercise their fundamental rights more easily and will be able to live as normal citizens in the country.

Notions against the legalisation of prostitution in India

In the previous part, we read about the favouring notions regarding the legalisation of prostitution in India. Now, let’s talk about the non-favouring notions of the same. As per other part of people, who believe that prostitution should not be legalised in India, prostitution is associated with shame and is a taboo topic. The common reasons behind this way of thinking are-

Will have a negative impact on the younger generation

As per the opinion of the people who are against the legalisation of prostitution, the step would lead to a bad environment, especially for the young generation, as it would make accessing sexual services much easier and without any fear.

Spread of STDs may increase

As per the opinion of this pool of people, the legalisation of prostitution would lead to a surge in the spread of STDs as more people might start to avail of sexual services and might get infected with STDs.

Human Trafficking for prostitution may increase

With the legalisation of prostitution, the demand for sexual services might see a surge, requiring more sex workers to fulfil the demand, which in turn can lead to an increase in human trafficking for the same.

If it is legal then why is it carried out in secrecy

Prostitution in India is partially legal. Most of the activities related to prostitution are not illegal, but the activities are carried out in secrecy because of the shame associated with them. People who indulge are scared to accept the same in society. Although it is legal in India, people are working as prostitutes, and clients are taking advantage of their services, but they are afraid to reveal their original identities. The reasons for the same somewhat relate to the laws made in the country.

The Immoral Trafficking Prevention Act, 1956, completely prohibits the running of brothels. These brothels provided a place to stay for the prostitutes. One side of the legislation provides support to them by keeping them away from the people who force them to practice prostitution, but on the other side, for those who willingly chose to be into prostitution, it also puts away a residential establishment in which they could live comfortably. This poses a problem for them.

Although, the viewpoint of the judiciary in India is in favour of the sex workers, and as per the new ruling, they have considered it to be a profession, the legislations in India are one of the major reasons because of which, prostitution is carried out in secrecy.

The other major reason behind this is the perception of society. The majority of the people in the country consider sex work to be bad for society.

Other Case Laws

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

In this case, the complainant Rupesh Ramchandra More and one police constable received some information from their confidential sources regarding a person named Mr Nizamuddin Khan who used to arrange customers for prostitutes at a guest house in Malad Mumbai.

Two persons were sent to act as customers who wished to avail the services. The trap was laid in such a way that the police raided the guest house where the accused had arranged the prostitute so that they could catch them red-handed. The police arrested the accused and the victims were taken into custody.

After considering all the facts and circumstances of the case the Court was of the view that there is nothing on record to show that they were seducing someone or that they were running a brothel. No activity punishable under Immoral Trafficking (Prevention) Act, 1956. They too have a right to reside freely at any place of their choice and to carry out the vocation as they like as their fundamental rights are guaranteed under part III of the Constitution. The only matter of concern was that the consent of the victims should have been taken before putting them under a corrective home as they are major and hold every fundamental right as an ordinary citizen does.

Gaurav Jain v. Union of India (1997)

In this case, a Public Interest Litigation (PIL) was filed in the Supreme Court of India by the Petitioner, who was an advocate. He had filed the petition after reading an article “A Red Light Trap: Society gives no chance to prostitutes’ offspring” published on July 11, 1988, in a magazine named ‘India Today’. In the petition, he had prayed for issuing an appropriate writ directing the setting up of distinct educational facilities for the children of prostitutes (referred to as “fallen women” by the Court throughout the judgment), up to sixteen years of age so as to prevent them from getting involved in the depraved and unethical way of life.

However, the Court on November 15, 1989 passed an order according to which the Apex Court was of the view that setting up different educational institutes and hostels would isolate the prostitutes’ children, which would be against the well-being of these children as well as the society in general. Though the Court did not approve the plea for separate hostels and schools by saying that to help the separation of prostitutes’ children from their mothers, the availability of sufficient accommodation in reformatory homes and hostels was needed.

The Supreme Court set up a committee of four advocates and three social workers to look into the matter and suggest appropriate actions. The Committee was chaired by Shri V. C. Mahajan.

Delhi v. Pankaj Chaudhry & Ors(2009)

In this case, the Apex Court reversed the decision of the Delhi High Court of acquitting 4 accused people from the charges of gang rape and upheld the conviction of the trial Court. The Delhi High Court dismissed the conviction of the accused because the women were in the custody of the police when the alleged rape was supposed to have occurred. Though the Court held that even if the woman is indulged in sexual activities, no one is permitted to rape her. Her consent is very much necessary in these matters. She is as equally protected from being harassed as any ordinary citizen would be.

The Court emphasised that even if it is proved through material evidence that a woman is habitual of sexual intercourse, no one can take advantage of her and can raise the issue regarding her character or by contenting that she is a woman of ‘easy virtue’. The Court observed that such women have the right to refuse to submit themselves for sexual intercourse. The Court imposed a 10 years sentence for the accused as was held by the trial court earlier.

Conclusion

As I come to the conclusion, I would like to urge the readers to think about this sensitive issue with a broad mind, look at both sides of the table, and then form an opinion about it. The condition of the sex workers in India is in a very adverse state, and many of them are not able to access the basic necessities needed to lead a dignified and normal life like any other citizen of the country. They face a lot of shame and ill-treatment by the normal strata of our society and are usually marginalised. In my opinion, we should consider them like any other citizen of the country and treat them in a fair manner.

The Supreme Court order is a step forward in the same direction by the Indian Judiciary and would lead to more such steps in the future.

Frequently Asked Questions

Is prostitution illegal in India?

It is partially legal in India. Certain activities related to sex work, such as operating a brothel, are illegal, but there is no bar on sex-work in particular.

Are the provisions of order by the Supreme Court mandatorily to be followed by states and union territories?

Yes, they are mandatory and need to be adhered to by the states and union territories.

Is doing sex-work a criminal activity?

No, it is not a criminal activity. The only requirement is that it should be done willfully and not forcefully.