Prostitution is said to be the oldest profession in the world as it was said by Rudyard Kipling in 1888, by citing a Biblical reference. The word Prostitution comes from a Latin term prostituere which means to expose in public. The meaning of the word prostitution, according to the Merriam-Webster Dictionary is the act or practice of engaging in promiscuous sexual relations especially for money. In ancient India, the earliest mention of prostitution can be found in the Rigveda. From the Rig Veda we find that there were women who were common to several men were courtesans or prostitutes. In Rigveda. I.167.4 the bright Maruts (storm gods) are said to have become associated with the young (lightning), just as men become associated with a young courtesan. Rig Vedas refers the tradition of offering the present of slave girls to rishis by kings. Prostitution, as a profession appears in the literature a few centuries after the Vedas although it must have been common in the society much earlier. In the Indus Valley Civilization, the bronze figure of dancing girl from Mohenjo-Daro shows a sacred prostitute carrying out her duties within the precincts of the temple of mother-goddess. Chanakya in his Arthashastra considered the profession of prostitution lucrative and defined the duties and activities of a prostitute. Prostitutes were under the state’s control, contributing their enormous income to the state’s exchequer were known as Ganika. One of the most celebrated courtesan was Amrapalli or Ambapalli(600BC) who was conferred the title of Nagarvadhu of Vaishali for her incomparable beauty. However people also remembered her for being a political acumen and her compassion for the society for which she constructed various schools and roads. In the Hindu temples of ancient India, dancers would be married to God and would serve the God all their life. These women would be devdasis and they wouldn’t be allowed rather than required to marry any mortal being. Veena Talvar Oldenburg wrote in 1990, that the status of these courtesans and dancers were much gloriously celebrated till it was untouched by the colonial rulers. Under the colonial system, they fell from their grace, hard. With the capture of the Nawabs of Lucknow, these courtesans had no such place to go. Most of them became impoverished, the rest were reduced to cheap sex trade in the streets or were kept by the British and arbitrarily relocated in the cantonments for the convenience of the European soldiers. This exposed the women to venereal diseases.
Prostitution in modern India
While there are no current estimates on how many sex workers operate in India, a 2007 MWCD report said that there are 3 million sex workers, with 35.4% below the age of 18.Studies and surveys sponsored by the Ministry of Women and Child Development (MWCD) estimates that there are about three million prostitutes in the country, of which an estimated 40 percent are children, as there is a growing demand for very young girls to be inducted into prostitution on account of customer preferences. The National AIDS Control Organisation in its Phase 3 programme estimated between 8,31,677 to 1,242,819 people to be doing sex work in India. However the unofficial numbers may be higher. In most metropolitan cities in the country, prostitution hubs are present. Some examples are Sonagacchi in Kolkata, West Bengal, Kamathipura in Mumbai, Maharashtra, and G.B Road in Delhi.
The workers living in the brothels in these places often do not have facilities in regards to proper personal hygiene, safe sex measures, or education. Most of the workers here are subjected to violence of sexual nature, abuse both physical and mental, sometimes starvation. A lot of women in these brothels were trafficked there illegally, whereas some of them willingly joined the profession. If someone wants to leave the profession she is not allowed to do so in most cases. A woman wanting to stop sex work is greeted with violence, torture, blackmailing or being trafficked to some other place else by the big and powerful pimps, with strong network, who are normally in-charge of a brothel. Sex workers in India are frequently subjected to harassment by the police.
Raids are conducted by the police in these brothels due to complaints received from NGOs, for rehabilitating and “rescuing” minors, or when they receive ‘tip’ from their own resources. In 2012, an operation was carried out over three or four days in a red light area called Simplex building in Mumbai and over 200 women were “rescued” and sent to “correction homes” Now during these alleged rescue and rehabilitation raids conducted, the police are reported to have used excessive force. These raids are carried out in an unlawful manner whereas the sex workers’ rights were being violated. Numerous sex workers who are arrested from these raids are detained in the police station and then being humiliated and insulted to such an extent where it goes even beyond the humanitarian limits. While being detained in the police stations, the sex workers are sexually abused by the policemen. They would be beaten with batons, made to sweep the police station, rubbed with chilli powder on the eyes and genitalia. Even where were presented in the courtroom, the judge would only listen to the police’s side of the case and the workers were forcefully made to accept the guilt. No differentiation is made between those who were trafficked and those who joined the profession with their own consent. Despite the sex-workers testifying that they were in the profession with their consent, they were sent to the rehabilitation centres or Sudhar Griha, where the living conditions are worse with bad food, dirty environment and further abuse while others , even those who were adults were sent to their parents' or family's custody.
When the sex workers are sent to hospitals after being rescued , they are forcefully tested for HIV, discriminated against by the doctors, taunted and criticised and even asked sexual favours from.
Legal Stance of Sex Work
Whether or not sex work is legal in India is a topic of debate. Prostitution is legal in India, but with certain limitations and restrictions.
According to Section 2(f), The Immoral Traffic (Prevention) Act , 1956 , "prostitution" means the sexual exploitation or abuse of persons for commercial purposes.
Arrest and detainment of the sex workers along with pimps are subject to the Immoral Traffic Prevention Act, 1956. The Act doesn't explicitly mention anywhere about the illegality of prostitution. The Act criminalises 'pimping' or 'touting' persons for sex work. It also criminalises a person who procures or recruits people to work as sex workers. The Act also makes the managing or owning of a building or house illegal which is used for practising sex work , i.e., criminalises managing a 'brothel' defined under Section 2 of the Act.
Section 7 of The Immoral Traffic (Prevention)Act 1956, deals with the location of prostitution. According to Section 7, carrying out prostitution in a public place is a punishable offence. Apart from public places, carrying on prostitution, Section 7 also criminalises practicing sex work within a distance of two-hundred (200) metres from public places like hospitals, educational institutions, hostel, religious places. If sex work is practiced in a hotel, then the competent authority has the power to suspend the hotel.
So, from the Immoral Traffic Prevention Act , it can be deduced that ,
Maintaining and managing a brothel, or a building where sex work is practiced is illegal.
Pimping or touting for a sex worker is illegal.
Habitually being in company of a sex worker.
Recruiting a person for the purpose of sex work is illegal.
Practicing sex work in a public place or in a place which is within a distance of 200 metres from public places with hospitals, religious organization, educational institutions etc is illegal.
Exposing oneself wilfully in a way, so that the person can tempt other people or passerby for the purpose of prostitution is illegal.
Sex work in India is governed mainly under the Immoral Traffic Prevention Act. However the Act instead of curbing or preventing sex work has made the position of the sex workers dangerous. The sections enumerated in the Act have left the sex workers being vulnerable and exposed to the harassment by pimps, customers, administrative authority like the police.
According to the Immoral Traffic Prevention Act, 1956 the women who are 'rescued' from these brothels are to be sent to 'protective homes', where they are given training on a vocational skill. However, in the whole process of rescuing and sending in protective homes, the consent of the women is not taken in consideration, formally.
It is quite clear from the Immoral Traffic Prevention Act 1956 that it is not prostitution that the Act criminalises but the activities related to it.
The constitutionality of the Immoral Traffic Prevention Act 1956 was challenged in the case of State of Uttar Pradesh vs Kaushalya, 1963. In the case, some sex workers were served a show-cause notice as to why they shouldn't be evicted from their residence in Kanpur in order to cleanse the city of Kanpur. The Act was held to be constitutional as there was an intelligible difference between a prostitute and a person causing a nuisance, as was held by the Allahabad High Court.
The Supreme Court in 2011 had set up a panel headed by senior advocate Pradip Ghosh for enforcement of different efficient measures to rehabilitation the sex workers and assist those who were willing to leave sex work.
The panel headed by Pradip Ghosh was formed after the case of Budhadev Karmaskar vs The State of West Bengal. In that case, the appellant, Budhadev Karmaskar had murdered a sex worker named Chaya Rani Pal alias Buri in front of a few eye-witnesses. The appellant was held liable for murder and rightly so. It was further stated that, a woman practices sex work not out of pleasure but out of poverty. The Court also stated that the sex workers are entitled to the right of a dignified life given by Article 21 of the Indian Constitution and that the society must not look down upon them. The panel in its report also discussed about the Government Homes where the sex workers are rehabilitated after rescuing.
In February 2016, the panel headed by Pradip Ghosh recommended that adults who does sex work with their own consent shouldn't be harassed or penalized or arrested by the police. The panel suggested that police should not interfere or take criminal action against adults participating in sex work wilfully. The panel also recommended the removal of Section 8 of Immoral Traffic Prevention Act, dealing with soliciting for prostitution as it is misused by authority. The panel further added that no parent , partner or children, who lives wholly or partly on the earnings of a prostitute must be taken criminal action on , thus suggesting an amendment to Section 4 of the Act.
More recently in the case of Manoj Shaw @ Manoj Kumar Shaw vs The State of West Bengal, the Calcutta High Court rejecting an anticipatory bail , the High Court stated that the sex workers should not be treated as criminals but as victims, especially those who are minors. In that case, it was observed that the minor victim of sex work was arrested and not produced before the Child Welfare Committee (CWC).The High Court in its judgement, gave certain orders dealing with the arrest and detainment of sex workers. Some of them are:
When the victim is a minor, graver penalty involving sentence above seven years is attracted and recourse to Section 41A of the Code of Criminal Procedure is wholly prohibited;
No sex worker exploited for commercial sex shall be arrayed as an accused in the course of investigation/ prosecution of offences under the Immoral Traffic (Prevention) Act, 1956 until and unless cogent materials come on record that she was also involved as a co-conspirator in the crime.
Investigating officers who are involved in investigating offences under the Immoral Traffic (Prevention) Act, 1956 and/or other cognate offences under the Indian Penal Code shall not arrest any sex worker in the course of investigation but shall treat them as victim of crime and extend to them all ameliorative measures available under the law including witnesses protection programmes, grant of interim compensation and/or other rehabilitative measures and protective custody. If the victim is a minor she shall be forthwith forwarded to CWC for her care, protection and rehabilitation. These directions are in addition to the directions given by this court in State of West Bengal Vs. Sangita Sahu @Shaw, (2018) 3 C Cr. LR (Cal) 459.
In the case of Kajal Mukesh Singh and others vs State of Maharashtra, the Bombay High Court in its judgement stated that, prostitution is not a crime in accordance with the provisions of the Immoral Traffic Prevention Act 1956. The Court in its judgement also stated that adults who are practicing sex work consensually cannot be detained as it was against the fundamental rights.
Until now, the article discussed about the condition of sex work and the sex workers in the country. We got to know that whereas sex work in the country is not illegal, other activities related to sex work are punishable offence. Sex work may be termed as immoral, but cannot be called unlawful. Terming sex work unlawful and/or illegal would mean interference with Article 21, dealing with right to a dignified life, Article 19(1)(g) dealing with the right to practice any profession or carry on any trade. The Immoral Traffic Prevention Act 1956 exposed the sex workers to the mercy of the administrative authority. There have been long pending amendments to be made in the Immoral Traffic Prevention Act, some of which were recommended by the Supreme Court panel headed by Pradip Ghosh. Some of my recommendations for the betterment of the situation if sex workers are as follows:
Serious amendments must be made to the Act in accordance with the recommendations by the Supreme Court panel and any other amendment as may be deemed fit to uplift of the position of sex workers.
Adults who are doing sex work wilfully should not be harassed, arrested or detained by any kind of administrative authority.
Adult, trafficked into sex work, after rescuing must be asked if they want to stay in the 'protective home' or to be sent to the custody of their prospective families.
The legal procedure after a raid and rescue operation in a brothel must be sped up to do away with unwanted long stays of the sex workers at the Government Homes.
Condom vending machines must be installed in such buildings or rooms where sex work is practiced to promote safe sex practices.
NGOs with the collaboration of State Governments and Legal Services Authority must give education and professional training to the children of sex workers and to those women who were rescued from brothels, but are orphans or unwilling to return to their homes.
1, Proffesor P.V Kane, History of Dharmashastra, Chapter 16
Dr. Singh, P. K., Brothel Prostitution in India, 18
Sukumari Bhattacharjee, Prostitution in Ancient India, 15,.2 Social Scientist, 32, 1987 https://www.jstor.org/stable/3520437
Gathi Jaseph, Child Prostitution in India, Concept Publishing Company, 9, New Delhi, 1998
G. Kuppuram, Chanakya on Prostitution , 40 , Indian History Congress, 215-219, 1979 https://www.jstor.org/stable/44141963
Mekhla SenGupta, Courtesan Culture of India -The Transition from the Devdasi to the Tawaif or Boijee, 41,.1, India International Centre, 124, 127-128, 2014 https://www.jstor.org/stable/44733578
Veena Talvar Oldenburg, Lifestyle of Resistence: The Case of Courtesans from Lucknow, India ,Feminist Studies , 16, 2, 1990 https://www.jstor.org/stable/3177850
India Country Report , Ministry of Women and Child Development, Government of India ,4, 2008 https://www.unodc.org/pdf/india/publications/India%20Country%20Report.pdf
Aarthi Pai(CASAM INDIA), Meena Seeshu, SANGRAM India, Manisha Gupte, MASUM India, VAMP(Veshya Anyay Mukti Parishad), ‘Status of sex workers in India’ accessible at : https://www.google.com/url?sa=t&source=web&rct=j&url=https%3A%2F%2Ftbinternet.ohchr.org%2FTreaties%2FCEDAW%2FShared%2520Documents%2FInd%2FINT_CEDAW_NGO_Ind_17395_E.pdf&ved=2ahUKEwj6iavdk9XwAhUZ5nMBHUDmAjsQFjACegQIGxAC&usg=AOvVaw19Lr7YRotKJbzJSd1ncYlo&authuser=1
SANGRAM Maharashtra, NNSW India, ‘Violations faced by Sex Workers in India’, 20th Sep 2016, accessible at https://www.google.com/url?sa=t&source=web&rct=j&url=https%3A%2F%2Fwww.sangram.org%2Fresources%2FUPR-Submission-Sex-Work-Final-Submission-22-Sep-2016.pdf&ved=2ahUKEwiZkOOxkdXwAhXdDnIKHYY7CGQQFjAQegQIFRAC&usg=AOvVaw3P4MvGO4V5kmxhlnRtS9ys&authuser=1
Supra Note 9
Supra Note 10
Ibid, pg 10, Testimony of Nirmala, Sangli,2016
Ibid, pg 4
Ibid, pg 5
The Immoral Traffic Prevention Act,1956, No 104 of 1956, Acts of Parliament 1956 India
Ibid, Section 7
State of Uttar Pradesh vs Kaushaliya and others AIR 1964 S.C 416
Budhadev Karmaskar vs The State of West Bengal, 2011, 10 S.C.R 577
Markandey Katju and Gyan Sudha Misra JJ, Supreme Court Reports (2011) https://www.google.com/url?sa=t&source=web&rct=j&url=https%3A%2F%2Fmain.sci.gov.in%2Fpdf%2FSupremeCourtReport%2F2011_v10_piii.pdf&ved=2ahUKEwj10O7YvtXwAhWXX30KHbBsB7YQFjACegQICRAC&usg=AOvVaw0bertm7Y1AalhU1HQWKXu-&cshid=1621418647457&authuser=1
Moushumi Das Gupta and Bhadra Sinha,"'Consenting’ adult sex workers should not be arrested: SC panel",14 Feb 2016, Hindustan Times accessible at https://www.google.com/amp/s/www.hindustantimes.com/india/adult-sex-worker-participating-with-consent-should-not-be-arrested-sc/story-plLs1o0QIcPRMqNjmz2PPM_amp.html
Manoj Shaw @ Manoj Kumar Shaw vs The State of West Bengal , C.R.M 5927 of 2019, https://www.casemine.com/judgement/in/5e97f98e4653d02ef73f03ce
Kajal Mukesh Singh and others vs The State of Maharashtra, Cr.W.P no. 6065 of 2020, https://www.casemine.com/judgement/in/5f6cbc549fca1973cf8a1b01
By Iman Ganguly