PROSTITUTION – A PROFESSION?
INTRODUCTION
The term "prostitution" means providing sexual favors in exchange for money. People nowadays,
prefer the term "sex worker" to "prostitution" because it recognizes sex work as work, whereas
prostitution often implies something immoral or criminal. The perception towards prostitution as
a profession varies from culture to culture. At some places like European countries, they are
viewed as a part of recognized profession where as in some places like Middle-east they have
been rejected, criticized and punished with stoning, imprisonment and in some cases death.
Despite being prohibited in many countries around the world, prostitution is commonly accepted.
India fits into this group as well. Prostitution hasn't been outright prohibited, but the majority of
the accompanying activities have. Due to the rise of AIDS and the resurgence of the feminist
perspective, which saw prostitution as both a symptom and a result of gender-based exploitation,
attitudes regarding prostitution underwent a significant shift in the 1980s. Therefore, due to
changing patterns, terms like sex worker came into vogue.
India has a long history of prostitution. It has been recognized as a trade that has been going on
for centuries in India. It has its mention even in mythology. This profession, earlier, was not
considered immoral per se, but as time evolved, people started looking down upon it. The
situation of these sex workers went from bad during the Mughal period to even worse during
colonialism.
HISTORY
In ancient India, prostitutes were given high status not only by the locals but the royal families as
well. They were treated by great deference. Prostitution was previously known as “Devadasi”,
who give away their life in devotion for lord Krishna. Their roles and titles kept on shifting from
time to time i.e., they were called “nagarvadhu” or “brides of the town” sometimes. They were
often called by the royal families to sing and perform dance on various occasions and festivities.
Their destiny changed on arrival of colonialism in India. The Britishers started controlling and
maintaining these brothels across the country. These prostitutes were generally recruited from
rural areas and were paid directly by the authorities. This further led to the emergence of red-
light districts across Mumbai. Earlier, every princely state had their own rules and regulations to
regulate the brothels but after the arrival of British, an act called Cantonment Act of 1864 1 was
passed to admit a necessary evil which needs to be managed.
The Cantonment Act of 1864 regulated prostitution in British military bases. This act provided
for about twelve to fifteen Indian women who were kept in brothels called “Chaklas” and had to
serve thousands of British soldiers belonging to different regiments. They were licensed by the
military officials and were only allowed to associate with the soldiers belonging to British army.
During the same time while some part of the country was under portugese rule, girls and women
were trafficked from places as far as like Europe and Japan to India as sex slaves. Even during
the East India Companies’ rule, the military built up whorehouses to carry on prostitution.
THE CAUSES OF PROSTITUTION-
The statistics compiled by various NGOs and other institutions suggest that there are currently
approximately 3 million sex workers in India, consisting of an overwhelming majority of women
in the age group of 15 to 35 years. This profession is dominated primarily by women. Not all
women willingly pursue it. Some of the workers are victims of human trafficking, but as time
passes by, they get mired in this web, making it difficult for them to leave it and lead a new life.
Poverty is considered to be the most significant cause of prostitution. The patriarchal mindset of
Indian society aggravates this situation because women generally are not financially independent
as they are deprived of basic education and skills, compelling them into the profession of
prostitution as the only way to earn a livelihood. The other reason could be the caste system that
is still prevalent in Indian society that sexually exploits and abuses women from lower
1
Cantonment Act of 1864
Yashi Verma, “Legalization of Prostitution in India” (Legal Service India- Law, Lawyers and Legal Resources) <
https://www.legalserviceindia.com/legal/article-3392-legalization-of-prostitution-in-india.html>
marginalized castes and leaves them to rot in this profession. Ill treatment by parents or bad
company also contributes this problem.
The infamous red light district of India include GB Road in Delhi, Kamathipura in Mumbai,
Sonagachi in Kolkata among others. These places account for around 2.8 million prostitutes in
India. Most of the girls here are trafficked from Nepal and Bangladesh. These girls fall victim of
the vicious cycle of prostitution, debt and slavery and by the time they are in their mid-twenties,
they are at the dead end.
THE CONDITION OF SEX WORKERS:
In India, the topic of sex in itself is considered taboo, so a profession that facilitates sex in
exchange for money would definitely be considered something against public decency and
policies. The condition of sex workers in India is extremely bad. They are grossly underpaid and
face structural barriers.
This profession is looked down upon by society. It lacks dignity and basic labour rights that the
government provides as part of the labour laws to all those who are working in both formal and
informal sectors of the country, like basic healthcare facilities, insurance, minimum wage, etc.
The people who are part of this trade are more vulnerable to catching sexually transmitted
diseases (STDs) like HIV or AIDS, which can be life threatening. As per the study 2 done in 2018
by UNAIDS, it was shown that a sex worker is 13 times more prone to the risk of contracting
HIV as compared to the general population as they are economically and financially vulnerable
and sometimes not consistent in negotiating the use of contraceptives and experience violence
and abuse and other forms of discrimination.
The kids that are born to these workers are termed illegitimate. These kids, when sent into public
institutions like schools and colleges, are often discriminated against and bullied, which forces
them to drop off in between before the completion of their education. Although prostitution in
India is not a crime, running a brothel is, so when the police raid these places, they often
forcefully separate the kids of these workers from them, which in itself constitutes cruelty.
2
UNAIDS,2018
Moreover, people who were forcefully put into this profession or are a victim of human
trafficking, often tries to evade the brothels, where the sex work is carried out, by reporting it to
the nearby police stations but in spite of helping them, the police either put them behind the bars
or send them back to their owners in return of a commission.
LAWS RELATED TO PROSTITUTION-
Prostitution in India is not explicitly considered illegal but a major part that surrounds it is
considered illegal for example, running a brothel, soliciting services of prostitution at public
places, advertising and pimping etc. This has been done through Immoral Traffic (Prevention)
Act,19563, it defines prostitution as sexual exploitation in exchange of commercial benefits.
This act was amended in 19864. It brought in new provisions like criminalization of prostitutes if
found seducing or soliciting services or making phone number public for a term of 6 months
along with penalties.
There were some other provisions that were incorporated as well, like a person cannot indulge
with a prostitute within 200 yards of public or in a sexual activity involving a minor. The
provisions of this act were challenged in the landmark case of State of Uttar Pradesh vs
Kaushalya5, where some prostitutes were asked to leave the city of Kanpur to maintain the
decorum and sanctity of the place.
The Immoral Traffic (Prevention) Act,1956 was criticized on many grounds as it involved
punishing victims of the crime instead of the perpetrator, this is in stark contrast to the provisions
of International Convention on Immoral Trafficking that prohibits punishing prostitutes.
Secondly, the provisions of this act are not gender neutral i.e., it doesn’t include any mention
about victims who are men or transgenders. Thirdly, the act provides for discriminatory or rather
differential punishment for a woman (viz.,1 year) who is involved in prostitution and the one
who procures it i.e., the pimp (viz., 3 months). The law also does not provide for any legal
safeguards to women who are involved in this profession and rather itself consider this
profession as something immoral and indecent. Lastly, this provision only talks about the street
prostitution and leaves other types of prostitutions.
3
Immoral Traffic (Prevention) Act,1956
4
Immoral Traffic (Prevention) Amendment Bill, 1986
5
State of Uttar Pradesh vs Kaushalya, 1964 AIR 416.
In 2006, the government proposed an amendment6 to the Immoral Traffic (Prevention) Act,1956.
It involved maximizing the existing fines and punishment and removing the penalization of
prostitutes for soliciting clients. The bill also included constitution of authorities at the state and
center level to combat human trafficking.
In the case of Budhadev Karmaskar v State of West Bengal7, it was held that sex worker are
also humans and they should be treated with utmost human dignity under article 21 of the
constitution. Their profession should also be treated the same way as any other profession and
that nobody has any right to ill-treat or physically assault them. This judgement highlighted the
plight of the sex workers and the problems they have to face every day. It also highlighted that
these women who go into this profession do not opt for it out of their choice but out of necessity
and daily economic hardships that leaves them with no other options.
The court in its judgment directed the state and central government to enroll these sex workers
into vocational programs and rehabilitation centers for better life opportunities. The Section 218
of the ITPA act also states the state government has the power to establish and maintain
protection houses for the sex workers. Article 239 sub-clause 1 of the constitution prohibits
trafficking of humans and beggars or any kind of forced labour and anything contradictory to the
said article will be punishable as per the provisions of the law.
The Indian Penal Code of 187210, also addresses the problem of human trafficking by making it
punishable for up to 10 years under section 370 and 370A. It also involves the issue of cross-
border trafficking of girls under the age of 21 years who have been forcefully imported to India
for indulging into sexual intercourse with another person shall be punished with imprisonment of
10 years along with fine. The provisions of rape under Section 37511 also applies to sex workers.
WHY PROSTITUTION IS CONSIDERED IMMORAL OR AGAINST
PUBLIC POLICY IN INDIA?
6
Immoral Traffic (Prevention) Amendment Bill, 2008.
7
Budhadev Karmaskar v State of West Bengal.
8
Immoral Traffic (Prevention) Act, 1986, s 21.
9
Constitution of India, 1950, art. 23(1).
10
Indian Penal Code,1860, s 370 & s 370A.
11
Indian Penal Code,1860, s 375
Though today it is legal to practice prostitution but it is viewed as an unethical activity in the
society as prostitutes are kept away from public places, they are being harassed, discriminated by
the society and progression of prostitution as a profession has eroded. Its status as sex workers is
not even considered worth of respect in our society.
The Conservatives and Religious people believe that practice of prostitution is an unethical act
and against the public policy in India the reason being that selling their bodies as a commercial
work for money is bad for society and reducing sex to a mere financial transaction erodes the
sanctity of human relationship, marriage and the family.12
Even though, some women consent to work in brothels for money, but it undermines the
modesty of women as they are considered to be a mere commodity who can be bought, sold and
abused in exchange of money. It would not only include those who willingly do this, but there
are many who does not choose this profession by themselves rather they are being forced and
coerced to go into this out of necessity, sometimes to fulfill the economic hardships of the family
and some do after being disowned by their family as surveyed by an NGO.13
It is unlawful because many a times women and girls are usually trafficked for the purpose of
carrying out prostitution in exchange of hefty amount of money, where they are being raped,
tortured and oppressed every single day. Opponents of prostitution are of the opinion that if this
practice continues it would send a very wrong message to generations of men that women are
nothing but a mere commodity and sexual slave of a man who can be used for sexual pleasure. 14
Since majority of prostitutes are women, so continuing this practice would strengthen their
oppression by male dominated societies and it will cause outrage to the concept of gender
equality.
On the other hand, making prostitution more on disadvantageous side as they will have multiple
partners which will increase the risk of sexually transmitted diseases. Many a times clients do not
12
Aishwarya Sandeep, ‘Prostitution in India : RIGHTS OF PROSTITUTES AND ITS VIOLATION’
<https://aishwaryasandeep.com/2021/07/02/prostitution-2/> accessed 10 September 2022
13
Kumari Shruti, ‘PROSTITUTION – A PROFESSION IN INDIA’ (Unique Law, 30 June)
<https://www.uniquelaw.in/post/prostitution-a-profession-in-india> accessed 10 September 2022
14
Simran Parmar and Bandita, ‘Profession of prostitution in India – Legal in Letter but Illegal in Essence?’ (Legis
Sententia, 28 August 2021) <https://medium.com/legis-sententia/profession-of-prostitution-in-india-legal-in-letter-
but-illegal-in-essence-f97fdd42243> accessed 9 September 2022
use protection while being in a sexual activity which would cause unwanted pregnancies.
Children born from that are considered as illegitimate child that destroys their meaning of life as
they can’t play like other child, they can’t go to school and study, they can’t live their life like
others because everywhere they have to face the humiliation from society and forced to live their
whole life with this guilt. The question that arises is then is who will raise their voice in support
of those children who never opt to get into all this, who will make sure that these children will
get equal treatment like others, would every single parent allow their child to play with them?
Can the support of people in favour of prostitution be able to get away with all the problems and
remove the stigma of immorality from this profession of prostitution? This is a question worth
considering for.
RIGHT TO PRACTICE PROSTITUTION AS A PROFESSION
India is a democratic country and the essence of democracy lies in its motto – “by the people, for
the people and to the people” and this essence is derived from the powers guaranteed to its
citizens by the state in the form of six major fundamental rights enshrined in our Indian
Constitution. Out of these six major fundamental rights, one such is covered under Article-19(1)
(g)15 which states that all citizens have a right to practice any profession, or to carry on any
occupation, trade or business and the ambit of this article is wide enough to cover all forms of
profession to earn livelihood by whatever means which also allows anyone to practice
prostitution as a profession.
There used to be many debates happening around the globe whether prostitution can be
considered as a profession and many feminists people also came forward to get the status of right
to carry out prostitution as a profession and indeed from time to time.
The legislature and judiciary stepped in for the rescue of sex workers and also came up with the
law that regulate prostitution in India that is Immoral Trafficking (Prevention) Act, 1956. It is the
main statue which deals with prostitutes in India and the major protection it provides is that it
does not criminalize prostitution. 16 But unfortunately, in spite of above enactment, the Indian law
15
Constitution of India, 1950, art. 19(1)(g).
16
Harsha Asnani,, ‘How are the Rights Available to Prostitute Workers in India Violated’ (IPleaders, 19 April)
<https://blog.ipleaders.in/rights-available-prostitute-workers-india-violated/> accessed 12 September 2022
proved to be unsuccessful in providing the right to carry out this profession and also in protecting
the rights and safety of people involved in prostitution because this so-called legalized profession
has still not got the same status and respect like other profession does.
Today, though prostitution as a profession is legalized but it is legal only on papers because our
Indian society still see this practice through evil eye and not only recognized this profession as a
disgraceful one but they consider sex workers as characterless and black mole who are making
the whole world impure. This guilty mindset makes it difficult for sex workers to carry out this
profession with dignity and deprived of the rights that they deserve being a citizen of India.17
It is an untold fact that society has remained indifferent on this issue and still considered
prostitution as a form of taboo hence it not recognized as a morally acceptable profession, but it
fails to take into consideration the truth that they opt for this profession because our system and
our society has failed in such a way that they have to sell their own bodies to make their living.
Hence, a lot of humiliation and stigmatization is faced by those involved in the sex trade.
Therefore, though we have covered a midway and granted prostitution as a right to profession
but still there is a long road to reach the final destination, where the sex workers can live with
dignity and respect like others do.18
The main statute that deals with prostitution in India is Immoral Trafficking (Prevention) Act,
1956. But in spite of the said legislation, the authorities failed to regulate the said profession and
proved to be unsuccessful in providing sex workers the safety and basic human rights to the
people involved in the sex trade.
Therefore, if the prostitution is criminalized it will not only lead to deprivation of their basic
fundamental right such as Right to profession as mentioned under Article 19(1)(g) of the Indian
Constitution but will also lead to violation of Article 14 19 i.e., Right to equality because they will
be discriminated everywhere and will be bereaved from getting right to fair and equal treatment.
17
Morgan Gettinger, ‘Prostitution in India – Its causes, legality and law’ (India e-travel, 31 December 2018)
<https://indiaetravel.com/prostitution-in-india-read-its-causes-legality-and-law/ > accessed 12 September 2022
18
Ankita Saria, ‘Sex Workers, Prostitution and Grey Areas in India’ (Finology, 3 March 2022)
<https://blog.finology.in/recent-updates/sex-workers-prostitution-india> accessed 13 September 2022
19
Constitution of India, 1950, art. 14.
Moreover, their right to live a dignified life provided under Article 21 20 will also be snatched
away because it will ultimately prevent them from getting proper healthcare facilities which will
lead to rampant spread of sexually transmitted diseases like HIV-AIDS and many others, right to
get education and safety standards as well.
Furthermore, Sex workers will face more abuse and will be considered as less respected people
of the society. They are sometimes called as characterless women who sell their body just for the
sake of money.
Lastly, as everyone knows every coin has two faces, pros and cons, so does legalizing
prostitution have. But that path should be approached and accepted which will have less
disadvantage. Hence, if prostitution as a profession is criminalized it will do more harm, than
good which can’t be fair for sex workers.
RECENT JUDGEMENT OF SUPREME COURT
Recently Supreme Court passed a landmark judgement delivered by bench of three judges. It
recognized prostitution as a profession and said “Notwithstanding the profession, every
individual in this country has a right to a dignified life under Article 21.” The apex court in its
order gave six guidelines for safeguarding sex workers rights, stating they are entitled to equal
protection under the law and every individual in this country has the right to live a dignified life
under Article 21 of the Indian Constitution, irrespective of what they do. The court ordered that
police officers should not arrest, penalize, harass and discriminate sex workers because voluntary
sex worker is not illegal as per the Indian Penal Code. The order mandates that police take the
complaint of sex workers seriously whether it is of sexual or of any nature. The court also
instructed that if any sexual worker is a victim of sexual assault, he/she will be given same
services as a survivor of sexual assault, including immediate medical attention.21
WHY THIS JUDGEMENT IS SIGNIFICANT?
20
Constitution of India, 1950, art. 21.
21
Kavita Chowdhury, ‘India’s Supreme Court Recognises Sex Work as a Profession’ (The Diplomat, 13 June 2022)
<https://thediplomat.com/2022/06/indias-supreme-court-recognizes-sex-work-as-a profession/#:~:text=India's
%20Supreme%20Court%20recently%20observed,'age'%20and%20'consent> accessed 13 September 2022
Sex workers in India face sexual violence, emotional abuse and physical assault by clients. They
have to face the humiliation and discrimination from society which lead to their marginalization
from communities. Their living conditions are very much deplorable which affect their health
very badly and lead to increase in number of health-related problems like HIV and STD as no
steps have been taken for their betterment. In light of all these problems, it appears that Supreme
Court judgement is a ray of hope for them. The Supreme court also hopes to remove the stigma
and the concept of immorality attached to the profession of prostitution. It is important that the
state pay heed to the directions issued by the Supreme court and implement them effectively so
that sex workers may be afforded the basic dignities enjoyed by everyone else. These directions
take one step forward to help destigmatize the profession and if accepted and implemented
properly, it will surely improve the plight of sex workers in India. By keeping in mind that one of
the oldest profession in the world is unlikely to be curbed and by taking into consideration the
circumstances prevailing that practising it is often one’s desperate last resort, this legal backing
can help further the safety and rights of the sex workers and must not at all be ignored and taken
for granted.
CONCLUSION
