Author: Mahadev Nambiar, a student at Campus Law Centre, Faculty of Law, Delhi University
“Needless to say, this basic protection of human decency and dignity extends to sex workers and their children, who, bearing the brunt of social stigma attached to their work, are removed to society’s fringes, deprived of their right to live with dignity and opportunities to provide the same to their children.”, cited the Supreme Court in a monumental intervention using its special powers under Article 142 to pass an order to establish complete justice in any cause or matter pending before it.
Article 142 intends to augment the law and such orders have turned into legal landmarks like the intervention to protect and clean the Taj Mahal and protecting the rights of victims of the Bhopal Gas Tragedy. Some interventions like that in the matter of ban of alcohol shops along the National and State Highways have been criticized calling it ‘judicial overreach. The order of the Supreme Court to see prostitution as a ‘profession ensures that those sex workers who are presently shunned and stigmatized by society must be treated with complete respect for their humanity and dignity, as provided by Article 21 of the Constitution.
Prostitution considered the oldest profession in the world was never unknown to India, even finding mentioned in Rig Veda, the ancient Indian text. The Pali term ‘muhuttia’ and the Sanskrit equivalent ‘muhurthika’ denote the presence of such relationships during those times. During the Mughal period, ‘tawaifs’ lived in the streets of ‘Bazar-e-husn’, meaning the ‘market of beauty’ at Chawri Bazar in the medieval city of Shahjahanabad. For instance, we should thank these courtesans of the Mughal era for popularising the famous ‘Anarkali’ kurta.
During the colonial age, the Britishers developed and ran brothels all throughout the Indian subcontinent. The prostitutes who worked in these brothels were hired directly by the British authorities from rural Indian households. During this period, the red-light districts of cities like Mumbai began to emerge. The Cantonment Act of 1864 was passed by the British Raj to regulate and control prostitution. For every regiment of a thousand British soldiers, there were around twelve to fifteen Indian women housed in brothels known as ‘chaklas’ under the Cantonment Act, which controlled and organised prostitution in British military facilities. Thousands of women and girls from Japan and continental Europe were transported into British India in the late 19th and early 20th centuries, During the Sepoy Mutiny of 1857, the Mughal courtesans moved to Lucknow and Kanpur where they became part of the conspiracies of various events of the mutiny. Their establishments known as kotha became hideouts for rebels. Some sources account that Hussaini, a tawaif to have been the main conspirator of one of the massacres that killed over a hundred Britishers.
In India, the Immoral Traffic (Prevention) Act, 1956 (ITPA) is the primary law governing sex work and related activities, however, the Indian Penal Code (IPC) and Juvenile Justice Act also have laws addressing prostitution and trafficking in India. The ITPA is a 1986 amendment to the law established in 1956 as a response to India signing the United Nations’ proclamation on the eradication of trafficking in persons in 1950 in New York.
The All India Suppression of Immoral Traffic Act (SITA), as it was then known, was modified to become the current statute. The rules were designed to gradually criminalize various types of sex work in order to restrict and finally outlaw prostitution in India. According to the ITPA, private prostitution is permitted in India, however, it is prohibited to solicit, engage in it openly, or run a ‘brothel’.
A ‘brothel’ as described under Section 2(a) of the ITPA includes any house, room or place, or any portion of any house room, or place, which is used for purposes of sexual exploitation or abuse for the gain of another person or for the mutual gain of two or more prostitutes. It also punishes those who allow their space to be used as a brothel. The ITPA also prohibits living on the earnings of prostitution.
IPC Sections 372 and 373 prohibits selling and buying minor for purposes of prostitution respectively. The Indian Constitution prohibits trafficking in human beings, beggars, and other similar forms of forced labor under Article 23(1) and any violence of this provision shall be an offense punishable in accordance with the law under Article 23(2).
Despite the fact that public prostitution is against the law, the enforcement is slack as a way to see sites like GB Road and Sonagachi are open for business. GB road, one of the largest markets for machinery, automobile parts, hardware, and tools during the day in the National Capital Region turns into a street of endless brothels at night, right in the heart of the city. Carolyn Sleightholme and Indrani Sinha’s acclaimed book ‘Guilty Without Trial’ brought out to the world the plight of over 16,000 professional sex workers living in several hundred multi-storeyed brothels at Sonagachi, one of the biggest red-light districts in Asia.
Observations by the Supreme Court
The honorable courts of the country have shed light on this issue several times and have always upheld the idea of dignity of sex workers who have historically been stigmatised by the system. In the case of Budhadev Karmaskar vs State of West Bengal, the Supreme Court mentioned that sex workers are also human beings and hence they are entitled to a life of dignity. In the judgment of Krishnan vs. State of Andhra Pradesh, the Supreme Court stated that the “Right to health and medical aid of workers” falls within the ambit of Article 21, since the expression ‘personal liberty’ is of the widest amplitude. It also ruled those sex workers should be provided with health insurance as well as their medical fitness should be given paramount consideration. When a sex worker reports a crime, sexual assault, or any other form of offense, the police must take the report seriously and act according to the law.
The honorable Supreme Court Bench consisting of Justice L Nagashwera Rao, BR Gavai, and AS Bopanna in its recent ruling emphasized that voluntary sex labor is not illegal and only running a brothel is prohibited by law. They should not be “arrested, penalized, harassed, or victimized” whenever there is a raid on any brothel. The court also ruled that a child of a sex worker should not be taken away from the mother, just because she is a ‘sex worker’ and stated that sex workers’ children also get the “basic protection of human decency and dignity.”
The Immoral Traffic (Prevention) Act of 1956 mandates that the authorities have a responsibility to “remember the constitutional protection that is accorded to all citizens in this nation.”
The debates revolving around legalizing prostitution have been in the public spot for a long time. Many countries around the world have given legality to prostitution. The prostitution industry plays a very important economic role in many small European countries known for tourism. New Zealand, Australia, Belgium, Denmark, and many other countries have legalized prostitution. In Australia, there are very influential organizations like the Scarlet Alliance which takes efforts to represent sex workers in the political sphere.
Although this recent step by the Supreme Court is detrimental to boosting the dignity of sex workers, the enforcement can only be meaningful if the authorities could curb exploitation and trafficking. Moral and religious sentiments come as a point in the debate and ask for a complete blanket ban on prostitution. A large number of people come into this profession through compulsion and it is at many times, not a choice. NGOs working in this field have quoted instances where independent sex workers refused to quit this profession as they value this profession just like any other and do not want to work under any other person. COVID crisis has further worsened the situation of this community and the reports of them taking huge loans and falling into debt traps came into the public sphere.
Government and NGOs have taken several initiatives like the National Plan of Action to Combat Trafficking and Commercial Sexual Exploitation of Women and Children 1998 and a dedicated cell to prevent trafficking has been set up by the Ministry of Home Affairs.
It is certain that a one-day revolution is not possible in this field. As per many reports, the sex work industry of the country, with more than seven lakh prostitutes is a million-dollar industry and India is housing one of the world’s largest commercial sex industries.
Proper education regarding STIs, safe working conditions, consent, and dignity should be given to the people working here in order to curb problems within the system. The common man should also be educated about consent and dignity. The Supreme Court’s recent intervention has helped to keep this topic relevant and could be a guideline for society in its way to a better chance.