ABSTRACT
Sex work means Prostitution ,It is as old as civilization itself and has been part of Indian society ever since the idea of marriage came into existence . in recent days prostitution has become synonymous with violence discrimination and exploitation . prostitution is after seen as a taboo in Indian society, and requisite attention has not been paid for its regulation. this paper examines the connection of prostitution with exploitation and violence and looks into the possible effects of the legalization and regulation of prostitution on the legalization and regulation of prostitution on the exploitation and assault on sex workers. there have been various acts by the post and pre-independence governments regarding Prostitution ,and also various books and articles on its legislation. while these works examine a broader aspect of the problem, two very specific aspects are scrutinized in this research papers . prostitution is here to say, whether criminalized or not .prostitution is a gendered, sexualized and racism working system which means that, it typically involves the exchange of sex services for money or other benefits. prostitution involves both women and men in many different forms including; call girl job, convention sex work, apartment sex work, hotel sex work, house sex work, bar girls, streetwalker and parking lot lizards. when people look at the real life in their experience, they come to know that sex workers, those involved in prostitution are doing job to earn money without begging and still they are not recognized in the society due to its moral and mindsets. in prostitution 98% of the people involved are women and 99% of the buyers are man. prostitution is welcomed sexual advances, take request for sexual favor’s and verbal or physical sexual conduct as sex workers do not get to frame the boundaries. 63% of women in prostitution experience rape and 73% of women of experiencing violence. these are not job hazards. it will be sexually and physically assaulted and will suffer mental and emotional trauma, this is not a job. it is a violation of human rights. voluntarily giving consent and setting boundaries are central to sex work. physical, sexual, and psychological violence as well as financial discrimination against sex workers is rampant. the growing visibility of transgender and male sex workers in the industry has also made them extremely vulnerable to violence and harassment due to dominant ideas of masculinity and heterosexuality. forms of sexual violence against sex workers include rape, gangrape, physical or mental coercion to engage in sex or sexual acts against their will or acts that they consider degrading or humiliating. in spite of a aforementioned, the Indian legal system has failed to ensure significant protection for sex workers. In light of this , one might be tempted to question why sexual violence against sex workers is treated differently from sexual violence against others. it is also raises pertinent questions regarding their safety and socioeconomic well being. the image of a sex work is constructed with ideals of “availability” and narratives that revolve around the notion that “if they have consented to multiple partners or commercial sex, they has given up the right to refuse other partners or other acts” . in other words , “sex work is tolerated, meaning that it is neither legal nor illegal: sex workers are not committing a crime when they practice privately and independently, but legally they can not solicit in public” . the current policies on sex work ensure that services provided by sex workers are publicly inaccessible . this makes it clear that laws and regulations are more concerned with morality rather than the socio- economic wellbeing and safety of sex workers. moreover, the ITPA primarily imparts penal sanction for sex trafficking and provides the opportunity for rehabilitation of individuals coerced into this sex industry .
INTRODUCTION
Prostitution can be define as non selection sex work done for money or other material assets. In twenty one century, female are not the only ones practicing this profession men and transgender persons are also involved in prostitution, although in lesser number than women. In the context of India there ,is a of prostitution in the rig Veda . prostitutes often undergo health care because of the stigma about prostitution . this includes unwanted pregnancies HIV/AIDS and other STIs (1) among prostitutes . thus the regulation of prostitution and brothels will help in curbing this menace. sex work as an organized trade which involves pimping soliciting exploitation ,renting out of property for sex work are all punishable are per the Indian penal code (IPC)(2) and the immoral trafficking prevention act (ITPA)(3) India has nearly 3 million sex workers, with an overwhelming majority in the 15-35 age group. the demand for minors increases year on year and such demand is highest among older men . Mumbai(4) and Kolkata have the country’s largest brothel based sex industry ,which over 100000 sex workers in Mumbai alone. prostitution is regarded as the worlds oldest profession , but its permissibility has historical been contentious. the dominant attitude has been one of condemnation; with prostitution been considered immoral and profane. India has adopted a prohibitionist outlook towards prostitution , as a manifestation of this moral condemnation. this is evidence through the provisions of the immoral traffic (prevention) act,1956.at the time where providing financial relief packages as well, alternative job opportunities to commercial sex workers are needed more than ever as physically distancing is a privilege and not very inclusive of marginalized communities such as this one, the government has yet again provided no assistance . the distribution of masks and dry ration to 1500 sex workers in sonagachi , announced by the ministry for child development and social welfare of west Bengal is one of the few and only instances of government assistance for sex workers during the pandemic as of march 2020. It is argued that this moral perspective is dismissive of the rights of sex workers, and also endangers their lives and liberties. towards that end this piece firstly outlines natural law’s disapproval of prostitution, using john finnis views on the exclusive legitimacy of marital intercourse. the pandemic time has hit millions of people and caused a great deal of suffering across communities. due to this, many schemes were launched by the government of India such as Pradhan Mantri Jan Dhan Yojana where the people from the farmers community can take the direct benefits from the government through monetary forms. however, there is one community can take the direct benefits from the government through monetary forms. however, there is one community that has been especially hit hard which is of the sex workers. on one side their job is gone and on the other side they have not received any benefit schemes from the government of India the reason of which might be that these people are not in the system due to the backward mentality of the society.
MORALITY: India has adopted a prohibitionist outlook towards prostitution, as a manifestation of this moral condemnation. this is evidenced through the provisions of the immoral traffic (prevention) act,1956. though poorly defined, morality policy typically describes any policy field where emotion and ideology rules over rationality and reason. any attempt to regulate the consumption of sexual services can be read as an attempt to draw boundaries between ‘good’ and ‘bad’ behavior’s based on the understanding that the commodification of the sexual relationship is sinful or wrong . this given, ‘expert’ or close knowledge of the sex industry is not necessarily sufficient to displace the deeply held moral views of politicians, with public opinion believed to be as valid as the views of academics or researchers in this morally fraught field. from the perspective of the policy maker, there are no absolute rights and wrongs, just different perspectives on the ethics and morality of selling sex . this means sex work legislation is determined by the beliefs and convictions of politicians and politicians and policy makers and not evidence per se.
Also Read Cyber Crime in India and Abroad
LEGALITY: Voluntary sex work is legal in India but trafficking for sex is punishable under the law. sex work in India is governed by the act to include “any house, room, conveyance or place, or any portion of any house, room, conveyance or place which is used for the purposes of sexual exploitation or abuse for the gain of another person or for the mutual gain for two or more prostitutes. “the act criminalizes any sex work within a 200m radius of any public, including hotels. moreover, the act also penalizes any entity who owns or knowingly supports prostitution in his/her premises and also prosecutes any adult over eighteen years of age, who lives on the earnings of a prostitute. surprisingly, prostitution is often deemed to be the oldest profession and can be traced back to the ancient babylons. ancient Indian literature is also replete with references to prostitution, a prominent example of which is chanakya’s ‘Arthashastra’ where he clearly and meticulously writes about prostitution and its code of practice. this clearly suggests that prostitution has its roots in ancient india and is not a manifestation of decadence, as is sometimes claimed. further,it is important to emphasise that the fact that this practice found a place in sacrosanct literature, including the Vedas and the arthashastra , implies that prostitution was not an underground practice. rather, it was a well-acknowledged, mainstream activity . this should raise some eyebrows the next time ‘culture’ is put forth as a reason to look down upon sex workers.
IS PROSTITUTION IS LEGALISED IN INDIA
In India, prostitution is not explicitly illegal and not made punishable by law . “there is no provision under the law, which makes prostitution per se a criminal offence or punishes a person because he indulges in Prostitution “ observed Bombay HC in 2020 . However few activities related to prostitution such as running brothels ,soliciting ,trafficking and pimping are all punishable offence in India under the immoral traffic (prevention) act (1956) ITPA. according to Indian penal code, prostitution in its broader sense is not really illegal per se but are certain activities which constitute a mojor part of prostitution as punishable ubder certain provisions of the act such as:
1. soliciting services of prostitution at public places
2.carrying out prostitution activities in hotels
3.being the owner of a brothel
4. pimping
5. indulge in prostitution by arranging a sex workers
6. arrangement of a sexual act with a customer.
Prostitution is being regulated in India by an act, i.e., immoral trafficking (prevention) act, 1956 famously referred as SITA. this law essentially states that sex workers will be allowed to commence their trade in private but they cannot carry their business in public. if this business is carried out in public place, then who will be entitled to get punished. covid-19 has provided more reason for decriminalization of prostitution to considered a long pending demand for sex workers in India . in India national human right commission (NHRC) took a decision that sex workers should be considered as informal workers and provided all the welfares benefits it is very important development . national human rights commission lists sex workers as ‘women at work’. if we talk officially, it is estimated that there are over 8 lakh sex worker in India . however unofficial figures place these numbers far higher near 40 lakh . The national human right’s commissions recommendation came in its ‘advisory on rights of women’ issued recently as part of a series of advisories issued by the body in the wake of COVID-19.
Also Read about Advocate Govind Bali
The national human right commission advisory was base on an impact assessment by a 11 members committee of experts comprising of representatives from civil society organizations, domain experts and the government. the advisory acknowledged that lockdown has led to a sudden loss of employment , particularly in the informal sector with no alternate sources of money, food or shelter and it has disproportionately affected women who comprised a substantial proportion of such works. the economic vulnerability of those involved in work is already stigmatized such as sex prostitution has increased exponentially as the nature of sex workers demand physical contact which is being avoided in this pandemic time. due to the impact COVID-19, sex workers have suffered a lot. migrant sex workers should also have been included in schemes and benefits for migrant workers. temporary documents should be issued to enable them to access welfare measures such as PDS (protect distributed systems). for instance, the Maharashtra government recommended all the government organization to provide assistance and relief to sex workers, especially locating the mothers who have a child to take care of as well; free testing and treatment of sex workers who contracted COVID- 19 and healthcare services, especially for the prevention of HIV and others STDs.
PROBLEMS FACED BY SEX WORK IN INDIA
In case of sex work “a prostitution is a person “who allows her body to be used for lewd purposes in return for payment “ Prostitution is the sale of sexual services, such as oral sex and sexual intercourse , for money . Prostitution the world itself speaks about the plight of the women .the main cause of prostitution is the struggling economy of one individual. sometime due to acute poverty many parents and husband compel their daughters and wives to indulge in to the practice of prostitution . former sex workers whp employ their children in the same are, owner of most of brothels – causing generational prostitution. it is due to perveance of the thought that it is the only mean to avoiding living in complete penury. It is not a problem which exist in India but exist throughout the world . prostitution was a part of daily
life in ancient Greece . in the more important cities and particularly the many parts , it employed a significant proportion of the population and represented one of the top levels of economic activity. in the ancient city of Heliopolis , there was a law that stated every maiden should prostitute herself to strangers at the temple of Astarte .legalizing prostitution can bring both positive and negative changes in india. the positive changes that can be brought about about are listed as follows:- In case of access to justice the prostitution will get access to justice to the victims.- End of the middle man , the middle man exploits the prostitution, they do not let the sex workers get much help from the police because of the lack of documentation and the exploitation is double, there is also apathy from the administration side.
-Licensing of brothels, if the government does it legalised, the sex workers will have their own id cards registered with their documentation with the government.
-The setting of legalised organizations for sex workers made by the government will inform that how many workers or sex workers are working with them and are they giving all the provision or rights and also they have defined to them as their basis
working hours.
-Health clearance and checking the spread of HIV, the spread of HIV would decrease with the help of proper monthly health inspections of the sex workers and making the use of protection (condoms or pills) mandatory, to prevent the spread of sexually transmitted diseases (STDs).
-Regularization of wages and working conditions, providing a certain fixed wage per customer as well as providing the sex workers with good and hygienic working conditions would be beneficial for their health and well being.
-brothel incomes can be taxed, the government may think to tax on that income of brothels as the owner and many of his men and agents have been caught many times with black money.
RELEVANT CASE LAWS
Even when the constitution guarantees and grants equal rights and powers to every human being in the country, it is time and again that because of indifferences and exploitation of some sections of the society this right need to be reclaimed with the facilitation of judicial intervention and/or legislations protection. such in the case of Budhadev karmaskar v . state of west Bengal where a sex-worker had been brutally murdered for refusing to have sexual intercourse with appellant which led the courts to not only convict him for the act that he
had committed and challenged to be innocent of but also to considered the bigger picture of plight of sex workers , prostitutes and the forced victims of sex trade in the society . this lead to the landmark judgement of the apex court passes for protection of sex workers life by
giving a wide interpretation to article 21 of the Indian constitution and stabilizing their right to dignity of life being accessible to them and their off – springs as well, which also led the court of highest virtue in Indian to Comtemplate on regulation of prostitution in Indian
jurisdiction. In this case the supreme court to hold that sex workers have a right to dignity under article 21 of the constitution, which ensures the right to life and livelihood. in 2019, the Calcutta high court stated that under ITPA, no sex worker exploited for commercial sex can be tried as an accused unless there is substantial evidence that she was a ‘co-conspirator’ in the crime . in September 2020, Bombay high court ordered the immediate release of three women sex workers jailed at a state correctional institution , stating that sex work was not a criminal offence under the law and that an adult woman had the right to choose her profession. Now, in 2022, a three-judge bench of the supreme court issued a historic order that recognized sex work as a profession and said that sex workers are entitled to dignity and equal protection under the law. the apex court elaborated that voluntary sex work was not illegal. it is issued commendable guidelines along the lines that when a sex worker makes a complaint of an offence, the police must take it seriously and act in accordance with law; that when a brothel is raided, the sex workers concerned should not be arrested; that no child of a sex worker should be separated from the mother merely on the ground that she is in the sex trade; that the police should treat all sex workers with dignity and should not abuse them; and more other positive directions. irrespective of the debate around the topic, the orders issued are revolutionary and will herald change but the real challenge lies in the execution and implementation of these directions. prostitution or sex work has always been stigmatized and the persons who engage in such occupations have had to bear the brunt of the consequences that follow for such stigma and face discrimination, besides the emotional, mental, sexual, or physical trauma they may face. it is essential that the centre pay heed to the directions issued by the apex court and accept them so that sex-workers may be afforded the basic dignities enjoyed by all others. these directions take one step forward to help de-stigmatize the profession and if accepted, and implemented, will help improve the plight of a sex worker in India. by keeping in mind that one of oldest professions in the world is unlikely to be curbed and by realizing that practicing’s 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 be ignored.
CONCLUSION
It is one profession that has been considered shameful by the society, while the prostitutes are considered impure and shameless individuals .In india ,laws related to prostitution are inadequate and have no clear approach due to this , there is an utmost necessity of regulation for such activities. India needs to regulate the system of prostitution. in this government does not have to ban blankets; it has to just secure the rights and health of the sex workers so that their children and their future generation also get a right, i.e., those who do not want to go with sex working. the children of sex workers can take education so that they can choose any other profession and get employment .In my opinion, the government needs to decriminalize brothels like in Europe as it might change the lives of sex workers and the government may also earn a lot of money through tax from this brothels . it would also have a huge impact on our society. if prostitution gets recognized, then it would be easier for the law enforcement agencies to catch those who are involved in human trafficking . although UN models of legalization OR decriminalization vary, the available evidence from countries like the UK or the US indicates that legalizing prostitution does, in fact, reduce the problems associated with illegal prostitution.
By SUNAINA SHARMA
