Prostitution is the practice of engaging in sexual activity in exchange for monetary compensation. This practice has existed in society for centuries and is considered one of the oldest professions in the world, with its roots dating back to Babylon. However, in modern times, sex workers face numerous challenges and human rights violations. They are often subjected to sexual abuse, violence, and brutal working conditions worldwide. Many women are forced into prostitution due to human trafficking, poverty, and unemployment. Tragically, young girls are often targeted, kidnapped, and sexually assaulted before being coerced into prostitution, with their basic rights being denied. Unfortunately, even if their rights are violated, they may not be able to seek help from the police because they are asked to provide sexual favors to the officers. Additionally, sex workers are often denied their right to health, which is a Fundamental Right enshrined in Article 21 of the Indian Constitution.
Legality of Sex Work in India
There has been a great deal of confusion and misunderstanding regarding the legal status of prostitution in India. Around the world, the legal status of prostitution can generally be divided into three categories: countries that legalize prostitution, countries that legalize it with certain restrictions and limitations, and countries that criminalize it. India falls into the second category, with laws that are somewhat ambiguous. The Immoral Traffic (Prevention) Act of 1956 is the law that defines prostitution in India. While prostitution is typically understood as the practice of engaging in sexual activity for monetary compensation, according to section 2(f) of the Act, “prostitution” means the sexual exploitation or abuse of persons for commercial purposes, and the term “prostitute” is interpreted accordingly.
The Act neither legalizes nor criminalizes prostitution, and there is no mention in the Indian Constitution that the act of prostitution is a crime or illegal. However, the Act does penalize certain actions related to prostitution, such as solicitation or seduction for the purpose of prostitution, prostitution in public places or near public places, running of brothels, etc. The current Act is vague and the provisions related to prostitution are ambiguous.
Sex worker and their Right to Health
In accordance with Article 21 of the Indian Constitution, individuals cannot be deprived of their life and personal liberty except as established by law. While the Constitution of India does not explicitly recognize the Right to Health as a fundamental right under Part III, which deals with Fundamental Rights, the Right to Health is now considered an integral part of Article 21 due to various judicial interpretations. The Supreme Court of India has expanded the scope of Article 21 to include the Right to Health through its judicial interpretations.
Sex workers often face numerous human rights violations. In Indian society, prostitution or sex work is not recognized as a profession but is instead seen as an immoral act and lifestyle. The stigma attached to this profession results in the denial of basic rights for sex workers and their families, not only by the general public but also by state officials who are responsible for protecting their rights. Sex workers are unable to access proper healthcare and are subject to abuse and exploitation by government officials and police officers. Police officers often detain, harass, beat, rape, and torture sex workers, and are not held accountable for their actions because sex workers are considered socially marginalized.
Many sex workers are denied medical treatment by doctors and face discrimination that prevents them from accessing proper healthcare, resulting in lower levels of health. Many sex workers are forced to have unprotected sex with police officers, exposing them to the risk of sexually transmitted diseases. According to various studies, many sex workers are HIV positive and have syphilis. Additionally, sex workers are often forcibly drugged, becoming victims of drug abuse. Health includes not only physical health but also mental health, which is often not discussed in relation to sex workers. Verbal abuse, denial of ration, and discrimination faced by sex workers and their families can affect their mental health. Many minor girls are forced into prostitution, which can cause trauma and lead to depression, anxiety, and post-traumatic stress disorder.
Prostitution is an unfortunate reality in our society that cannot be eliminated. Therefore, it is better to regulate it. The first step towards achieving this is the need for clear and unambiguous laws, unlike the current act. Proper regulation of this industry is also necessary. The government should bring all brothels under its supervision and regulation, and these brothels should be licensed and registered under an Act. Many countries, such as the State of Nevada, USA, have legalized and regulated this industry. They have even made provisions pertaining to the health of sex workers. According to their laws, clients are required to use condoms when availing the services.
Rehabilitation centers are also necessary for those women who entered this profession by force and not by choice. Sex workers are often blamed for their rape by society, and even their families refuse to accept them. Moreover, sex workers are also victims of sexual assault, drug abuse, and verbal abuse. Hence, there is a dire need for rehabilitation centers for these women.
Sex workers suffer not only from HIV or other sexually transmitted diseases but also from various physical and mental illnesses. However, they cannot access proper medical care due to the discrimination prevailing against them in society. Thus, a system is necessary through which sex workers can obtain access to adequate medical care.
In modern times, society is becoming more liberal and people are discussing topics that were once considered shameful. Many NGOs are working to protect the rights of sex workers. However, they are still considered a marginalized section of society and face discrimination every day in terms of freedom, food, and health. It is disheartening that despite knowing that many sex workers are in this profession without their consent, we do not sympathize with them. Even if a woman voluntarily chooses to work as a sex worker, we have no right to deny her basic rights such as food, health, and dignity. Simply regulating the industry and creating laws related to prostitution is not enough. To ensure that sex workers can enjoy their rights, the stereotypes surrounding them must be eliminated. Society must accept sex workers and treat them like any other human being. Both the government and society must work together to reform the lives of sex workers.
- The Immoral Traffic (Prevention) Act, 1956
Authored by Vatsal Vatta , Legal Intern, LawDiktat.
Edited by Sahid, Team Member, LawDiktat.