Prostitution is considered one of the oldest professions in the world. However, the act of prostitution has been around society far before its systematic emergence as an occupation. With the change in society, the acceptance surrounding the institution changed as well. The women who were earlier considered coveted and symbols of aestheticism soon lost their standing in society and were gradually ostracised. The article attempts to showcase a deceleration in the social position of the participants over time. The article further aims to throw light on the violation of human rights that are faced by women in the industry all over the world, with specific reference to their legal position in India.

History of the Profession

The genesis of the profession of prostitution can be dated back to the beginning of the Babylon period in the West whereas an attempt to do the same for India dates to Vedic Period since the earliest documented proof of the same has been found in the Rig Veda, which is the most ancient literary work in India. During this time, the prostitutes or ‘courtesans’ were considered an aesthetic symbol of developed urban society and luxury available to the highest of classes including the King’s Court. This encouraged the beginning of prostitution as an institution.

Contemporarily, this began the practice of clandestine prostitution is temples. The practice of the ‘Devadasi’ system flourished where the young girls were given as tribute to the Brahmin pandits. Consequently, they were almost considered ‘sacred’ due to their relationship with the deities. However, with the ravages of time and the plundering of cities and temples, these women no longer remained a sacred tribute to the Gods and in exchange for shelter and providence, they were used by the priests for their lewd purposes.

Consequently, with the growth of patriarchal society, these women lost their social standing and caused their gradual ostracization in society. This led the prostitution to become a profession and not merely a casual affair since women started to earn money through it.

The change in the economic scenario in society led to a degrading change in the social standing of the prostitutes in society. These women gathered together in an area to conduct their business, which consequently came to be known as the ‘Red Light Area’.

Legal Framework Dealing with "Prostitution"

Like almost every country in the world, India is not a stranger to the existence of prostitution as a profession in the country. In India, prostitution is defined in the Immoral Trafficking (Prevention) Act, 1956 as the sexual exploitation or abuse of persons for commercial purposes, and the expression “prostitute” shall be construed accordingly”. The act is supported by Section 370-373 of the Indian Penal Code which criminalises the act of prostitution.

In this regard, India has accepted the practice of Neo-abolitionism of prostitution whereby the third party acts facilitating prostitution are punishable offence.

Legalising the act of prostitution has enabled various countries across the globe to document for the rights of the prostitutes and advocate for their involvement in the mainstream society. For instance, in Germany, prostitution is legal and requires prostitutes to obtain permits and registration certificate. India, unfortunately, adopts a very ambiguous policy towards prostitution whereby the act itself is not explicitly illegal but ‘solicitation’ of the act is. This ambiguousness is often used by the authorities to harass sex workers. Dedicated legislation along with better awareness of the rights is required to make safeguard the position of the workers in the country

Protection and Rights Guaranteed to the Sex Workers

Articles 1 to 7 of the Universal Declaration of Human Rights entails that all human beings are entitled to basic human dignity and should not be arbitrarily discriminated upon. The Declaration provides that all human beings are entitled to equal rights to life and liberty. Similarly, Article 23 of UDHR ensures the right to choose their employment. The article also provides the availability of social protection to ensure that their human dignity is maintained. This is often not provided to the sex workers as they have to face public prejudice, denial of agency, and active marginalization including discrimination with the justice system.

The fundamental rights guaranteed by the Constitution of India ensures that all the citizens are given equal rights and the freedom to choose their profession. It does not discriminate on the basis of the occupation of the citizens. However, the sex workers are often deprived of their basic fundamental rights including the right to privacy which is guaranteed by Article 21. For instance, workers are forced to share their medical history, their blood samples are taken without their consent, recommendations of redundant HIV tests without any discretion of revealing test result etc are given which violates the right to privacy of these workers.

Article 23 of the Constitution of India prohibits trafficking in human beings which is often the main source of acquiring prostitutes in the country. Women are often trafficked to these brothels which coerces these women to participate in the industry. ITPA 1956 specifically seeks to prevent trafficking of sex workers.

Violation of Human Rights of Sex Workers: An Unreasonable Torture?

The sex workers all over the world have been on the receiving end of endless harassment and marginalisation due to their occupation. These workers face constant violations of their inherent rights. There have been many reports of the discriminatory and degrading behaviour that has been faced by not only the workers but also their family members. These workers also have to face violence since they are often treated as criminals which undoubtedly leads to the violation of their human rights, such as the right to life, dignity, equality, equal protection, and due processes under the law. Their uncertain status in law often results in judgments that mark sex-workers as criminals. In some instances when approaching district courts, they reportedly have to deal with bias from lawyers and court officials. They are even advised to give up “illegal activities” (sex work) or, if appearing on a soliciting charge, they are advised to pay a fine and "not drag the case". They also have to deal with the threats of rape and other sexual offences against women.

The most crucial violation faced by sex workers has been in the field of availability of basic health care facilities. Due to the lack of proper education as well as lack of facilities, these workers are subjected to many detrimental health diseases that are often sexually transferred in nature. These workers are not in the position to access the available health care facilities due to the vulnerability of their position in society.