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.
Protection of Human Rights of Sex Workers: The Way Forward
Around the globe, various organisations have advocated over the years to safeguard the basic human rights of sex workers. There are many International Organisations which are dedicated to the upliftment of sex workers such as Amnesty International Organisation, World Health Organization, UNAIDS, the Global Network of Sex Work Projects, the Global Alliance Against Trafficking in Women, Human Rights Watch. These organisations aim at the overall betterment of the sex workers in all aspects including but not limited to healthcare, security, social inclusion, rehabilitation, etc.
Amnesty International has published a Policy in 2016 based on reports from various countries. The policy sets forth various duties and responsibilities for the states concerning ensuring the wellbeing of the sex workers and also ensure that their basic human rights are not infringed. The policy also mandates state intervention in scenarios to ensure that proper legal and protection is provided to these socially vulnerable group of people. Furthermore, the policy mandates for the governments to set up rehabilitation centres so that the sex workers are not marginalised from mainstream society. However, the creation of a policy of the state’s obligations does not necessitate its compliance by the countries.
Various countries have taken their measures in concurrence with the policy. For instance, in France, measures have been taken to create and facilitate an ‘exit route’ from prostitution which includes various health and financial benefits. In India, although no step has been taken for registering of the women employed in the industry, the Government has affiliated with various NGOs to set up rehabilitation centres and provide counselling to the women wanting to leave the industry.
Certain International Organisations advocate that criminalising of prostitution is not only against the right to privacy of participating parties but also exposes the workers to a new spectrum of harassment by law enforcement agencies. By legalising the industry, the workers are strengthened to exercise their rights to justice and health care. Further, elaborating the scope of Article 6 of CEDAW, General Recommendation 19 encourages the states to recognise that the unlawful status awarded to the sex workers makes them vulnerable to violence and hence they need equal protection of laws against rape and other forms of violence.
In India, various Governmental and Non-Governmental Organisations, have taken steps to understand the socio-legal-economic conditions of the prostitutes in the country. NHRC has set up a commission in 2002 to coordinate the programmes and measures to deal with prevention, rescue, and rehabilitation of women being trafficked into prostitution. In an Action Research conducted by the National Human Rights Commission and UNIFEM, during 2002 -2004 major issues have been identified in the deficiency of law enforcement such as lack of sensitivity, victimization, lack of priority, improper investigation, and lack of a database. Although the research had theoretically recognised all the issues relating to the subject, not much has yet been done by the Government to incorporate these suggestions as in the legislature.
In the 2019 Report, The National Crime Record Bureau, on the order of the Supreme Court has recommended the data on missing persons be made public for better identification of the person being trafficked. However, the report had solely analysed the data to identify the prone areas and not much action has been taken on the same. Even the State governments have taken some steps towards curbing the system of Devadasi in the states. For instance, The Karnataka Devadasi (Prohibition of Dedication) Act, 1982 declares the act of devadasi unlawful irrespective of the consent of the women.
Women and children have always been a vulnerable group in society, and among those groups, the most vulnerable were the sex workers. In a country like India, which is inarguably diverse in its cultural and religious beliefs, these workers who work in an unorthodox industry have inevitably faced ostracization due to their nature of work and people’s prejudicial beliefs. It is the duty of not only the government but also the citizens to ensure that these workers, who often have to take up these jobs due to poverty and illiteracy, know their rights and feel secure enough in an environment to fight for those rights. This can be done by maintaining a registered account of the people employed in the job since it would not only ensure their accountability but also ensure their access to medical facilities, financial security, and legal safeguards. Systematic measures for the acceptance would empower these women to stand for themselves against the perils of their industry and become financially independent. Mental counselling, awareness programmes, and health education are concurrently necessary to bring the workers in par with their privileged counterparts.
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The article has been written by Kanishka Iyer who is a Law Student at Gujarat National Law University. She has always enjoyed a good read irrespective of the genre. A staunch believer of equity over equality and of objectivity over generality, the rights of downtrodden, especially women, have always stirred a string within her.