“Prostitution will always exist in every society, so I believe in a fair trade. Open the doors for women to earn their money without having pimps. The worst thing is to criminalize it, because then you open the doors for pimps, criminals, and trading.”
Michael Glawogger
by Aditi Singh 25 June 2021
INTRODUCTION
Prostitution, is often characterized by coercion, trafficking, violence, poverty and destitution. Unlike the popular opinion, prostitution in India is considerably more diversified. Women enter the profession, not merely out of coercion, but out of necessity and will. They practice prostitution, to support their families, to obtain a stable source of income and also to be independent. Recognition of prostitution as “not an illegal” profession under the Immoral Traffic (Prevention) Act, 1956, does not help in reducing and removing the stigma attached to the same. Though, prostitution is legal in India, it can only be practiced privately and independently. Solicitation and brothel keeping are illegal under the Indian laws. Existing difficult lives of the sex workers have turned devastating with the onset of the pandemic.
Social Inequality has been a part of lifestyle for sex-workers. The taboo around sex and the criminalization of sex-work as a commercial activity adds to the miseries of the prostitutes amidst the pandemic. Exclusion from public welfare policies, is a staunch example of ostracization not just by the community, but by the government as well. These actions and discrimination against the sex-workers, also acts in violation of multiple international Human Rights treaties signed and ratified by India.
RECOGNITION OF SEX WORKERS IN INDIA
India has been a home to prostitutes even before Independence. Ever since, they have been neither been respected nor been considered a part of the inclusive society. The introduction of the Immoral Traffic (Prevention) Act, 1956, was expected to be a relief for the sex workers. However, the expectations did not yield to positive results. Commercial sex-work, including brothel keeping and solicitation was made illegal. Sex Workers in India are either considered as “criminals” or “in need of rehabilitation and recue”.
Another devastating problem for sex-workers in India is the vulnerability to HIV/AIDS infection. The lack of a proper law concerning HIV for years in the country made the lives of sex-workers vulnerable to infection. The HIV and AID (Prevention and Control) Act, 2017, does not explicitly include the marginalized and vulnerable section of prostitutes in its ambit. It fails to consider the special needs and the high risk marginalized groups. The country still works on policies framed or adopted or publicized by non-governmental organization for protection of sex-workers against HIV infection. There is an urgent need of protection against immunocompromised diseases among the sex workers of the country.
Violence against sex-workers in India, is one of the most under researched topics regarding protection of prostitutes. They are ostracized by the Police authorities encroaching upon their right to proper custody and life. A research study by the World Health Organization (WHO) reported that 70% of sex workers in India were beaten by the police and more than 80% were arrested without evidence. Inhumane treatment and inclination towards coerced sex have also gone unnoticed and ignored. Prostitutes are often subjected to violence by their clients, pimps, and even their families. The atrocities against sex-workers call upon series violation under The Criminal Law (Amendment) Act, 2013. Section 375 of the Act is violated every time, the modesty of a sex worker is threatened and not is forced into sexual activities. Profession of sex workers prevents them accessing justice and reporting the same to officials. Since the job of sex workers is to indulge into sexual activities, they being raped and coerced into sex, are not paid attention to. The last issue with recognition of sex work in India is that it does not recognize male prostitutes or transgender prostitutes in the country. Thus, a majority of perspective and protection in the country revolves around female sex workers. The blanket ban and silence on recognition of prostitutes belonging to all sections of the society, acts as a hinderance to the recognition of prostitution in the country.
India is working on a faux punishment and relieve based policy. The right based approach needed towards sex-workers is absent and pushes them deep into the hole of vulnerable and helpless prostitution.
PLIGHT OF SEX WORKERS IN THE PANDEMIC
As of 2016, according to an estimate survey conducted by United Nations AIDS Population Atlas, there were more than 657,800 sex workers in India. The onset of the pandemic in the country added to the already miserable lives of the sex-workers. The COVID pandemic has stripped sex workers off their means of livelihood. Women who depended on prostitution for their daily bread could not reap benefits by the Government for the informal labor sector as well as the marginalized section of the society. Absence to support and provide relief to sex workers in India, is an encroachment of their Fundamental Right to Life under Article 21. Domestic violence by abusive partners and severe shortage and occasional customers is adding to the mental agony of women.
The pandemic has left sex workers to the mercy of the Internet. A sudden and unprepared shift has been seen from the physical provision of sexual pleasures to a virtual world of sharing pictures and videos with clients. The virtual world is neither equipped nor safe for prostitution. The lack of specific laws governing cyberspace in the country, make it a hassle to track and accumulate crimes. The fear of being revealed and recorded online, prevents sex workers to offer services online. Contravention between Information and Technology Act, 2000 and the Indian Penal Code, makes the virtual world unsafe for prostitution. Sex Workers have already been ostracized by the society, unsolicited publication of their photos and videos on the Internet would end up encroaching upon their Right to Privacy as well.
Deprivation of bank accounts and credible sources to prove their identity, places prostitutes at a disadvantageous stand to claim benefits from banks and government schemes. The lack of documents prevents them availing medical and health care facilities. To avail the benefits of the Public Distribution System (PDS) by the government, furnishing of official documents is a necessity. Violating these principles goes against the spirit of the Indian democracy and amidst a global pandemic puts the lives of thousands of individuals at jeopardy.
Cramped up in tiny rooms of brothels or colonies that house hundreds, rate of infection remains considerably high. A large number of prostitutes are already suffering from immunocompromised diseases like HIV and tuberculosis. Lack of medical facilities, ruthlessly violates their Right to Life. Pandemic taking lives was less severe for sex workers, who were already struggling to for medicines to sustain their immunocompromised condition.
Loss of livelihood along with no resources or recognition from the authorities, came as a severe blow for the prostitutes of the country. The pandemic revealed that the indifferent behaviour of the society and the authorities towards the sex workers.
HUMAN RIGHTS VIOLATIONS
The ignorance portrayed by the society and the Government through the years and especially during the pandemic, leads to several Human Rights Violations. It also has a negative impact on the International Relations that India has fostered.
Right to Life and Livelihood is violated through consistent neglect. Human Trafficking amongst Sex Workers, is one of the prime violations of Human Rights. Most sex workers enter the industry before the age of 18, and are often forced into the profession. Prostitution robs children, women of their childhood and right to a dignified life. These actions go against the Article 6 of the Convention on the Elimination of All Forms of Discrimination against Women, which elaborates upon the evil of Human Trafficking, as it encroaches the Right to Live with dignity of the sex workers. Trafficking of Sex workers and forcing them into prostitution also violates also violates Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, 2000 (Trafficking Protocol). The sex workers have not only been neglected but also been denied recognition by the State. The current condition of sex workers, if not rectified or looked into by authorities, would push prostitutes into an unending chain of debt bondage.
Ostracization by the society, has also affected their children in an immense manner. Children of prostitutes, are not allowed to be admitted into normal schools. Most of these children, do not have access to basic and primary education. This encroaches upon the Right to Education of young minds. Right to education is a fundamental right of kids. The same was enunciated by the Supreme court in Mohini Jain and Unnikrishnan vs State of Andhra Pradesh Though it is in clear violation of Article 26 of the Universal Declaration of Human Rights. It affirms that education is a fundamental human right for everyone and this right was further detailed in the Convention against Discrimination in Education. The system of discrediting and ignorance against the sex workers of the community, is not only encroaching upon the individualistic rights of prostitutes, but also diminishing an entire fleet of upcoming generation.
Sex workers suffer from endemic diseases like HIV/AIDS. This compromises their immunity to a huge extent, the lack of proper treatment, through financial assistance and also through societal inclusion. The same is also in violation of General Comment 19 provided by the Committee on Economic, Social and Cultural Rights (CESCR). It includes social security as a human right of individuals. Sex workers are one of the most severely affected section of the society. The intolerance portrayed towards them during the pandemic and as well as through the years, violates the guidelines by Joint United Nations Programme on HIV/AIDS (UNAIDS). India being a signatory of the same is bound by these guidelines and should strive to achieve the means of economic and social security to sex-workers.
Police apathy towards women being subjected to violence by families, is belittled by officials because they are prostitutes by profession. Police apathy to the plight of sex workers results in denial of access to provisions under the Protection of Women from Domestic Violence Act (PWDVA 2005). The actions by the authorities are in clear violation of human rights under International Covenant on Economic, Social and Cultural Rights (ICESCR) and Universal Declaration of Human Rights (UDHR). The reporting of such brutality remains negligible. More than a year to the beginning of the pandemic, and yet no proper implementation and support towards the sex-workers.
JUDICIAL AND LEGISLATIVE SAFEGUARDS
The major legislation safeguarding prostitutes and their livelihood in India is the Immoral Traffic (Suppression) Act, 1956. It allows them to perform their profession in private. The Contagious Diseases Act of 1864, which legislated mandatory testing of sex workers for venereal disease and restricted their movement and practice to specifically allocated areas, offers one example of conferring a “legal” status on sex work.
Though, there are no proper legislations upholding the rights of prostitutes. The honourable courts of law have upheld the rights of sex workers in landmark cases. In State of Uttar Pradesh v Kaushalya, the court upheld the constitutionality of ITP Act. The court reiterated that sex-workers are human beings and possess the Fundamental Rights guaranteed by the Indian Constitution. In Budhadev Karmaskar vs State of West Bengal, the court talked at length about the rights of sex workers. Any assault, torture or use of force on them, is a violation of the Constitutional principles. It was after this landmark judgement that Sections 21 and 23, were incorporated and strengthened in the ITP Act. In Gaurav Jain v Union of India, the court gave directions to protect the children of prostitutes and make adequate provisions to rehabilitate them. Following the judgements given by the Supreme Court to uphold the integrity of sex workers in India, A panel formed after the Budhadev Case in 2011, to look into the status of sex-workers in India. It was discovered that the criminalization of sex-work ostracizes them and makes prevents them from being legally recognized and reputed in the society. Rehabilitation for sex workers was also recommended by the Supreme court. Amidst the pandemic, a Supreme Court bench consisting of Justices L Nageswara Rao and Ajay Rastogi, directed the governments to provide dry rations to the sex workers identified by the National AIDS Control Organization and legal services. Through the years, Supreme court has re-iterated to uphold the integrity of sex-workers.
Government Protection
The biggest development in the official frontier, has been the recognition of the sex workers as informal labour by the National Human Rights Commission (NHRC). The commission released a 11-page advisory to recognize sex workers as women at work in the informal sector The advisory was important since it made sex workers eligible to be beneficiers of the policies began by the government in support of the labourers. Secondly, it gave sex-workers an identity that had been lacking for years. However, just like every other NHRC order, this remains an advisory notice and not binding on the Government to implement. The Central Government did not come out with a centralized and uniform system to support the prostitutes of the country. The responsibility was fulfilled by state governments in a limited manner. Continuance of Targeted interventions and regular health checkups for marginalized societies, especially sex workers, was a sign of relief for the community. NACO guidelines to protect the lives and health of prostitutes not just from the pandemic but also from HIV/AIDS was a necessary step by the government. The Government succeeded half-heartedly to provide ration and necessities to the prostitutes to survive. However, the bigger question of sustenance remains unanswered. Though provided food to survive, the financial assistance and the recognition to avail benefits through proper paper work are nowhere to seen.
The Indian Government has time and again ignored the statistics regarding sex-workers in their reports. Their condition is not just discredited by the society, but their existence is put to question by the Government reports.
Community Efforts
The lack of government efforts and sympathy towards the sex workers in the country, called for community intervention. When the authorities failed to take cognizance of the rights of its citizens, various NGOs and community help groups rose to action.
Durbar Mahila Samanwaya Committee (DMSC), Kat-Katha, have been working relentlessly in educating and liberating sex-workers. Saheli, has been counselling sex workers and providing them amenities to return to their home towns. The step remains crucial in the lives of prostitutes, since their families are unaware of their professions, they are the only bread bearers of their family and returning home would be a step that would eventually lead to their doom in form of starvation. DMSC, has been working tremendously for the upliftment and liberation of sex-workers in West Bengal. National Network of Sex Workers (NNSW) is an initiative by the sex workers of India themselves.
Efforts by the society, to secure a continuous and dignified way of life for the sex workers of the country, is a clear example of conscience and good will in the country.
SUGGESTIONS
It is essential to remember that the daily battle of sex workers in India is not simply to gain access to structural resources but ‘to be productive and contributing members of society. It is not a fight against society, but rather…it is a fight to be a part of society or to be allowed to be good citizens within society’.
The first step towards sex-workers would be decriminalization of prostitution in India. This would not only give them the liberty to practice their profession with dignity, but also help them reap benefits under the labour policies. Decriminalization of prostitution would also help in reducing the stigmatization around sex workers in the society. It would act as in impetus to obtain recognition documents, like Aadhar, Ration Card, Pan Card, etc. without much problems. Challenging stigma against sex work and addressing the HIV risk that sex workers face should involve greater emphasis on structural interventions that seek to alter the social context of risk for sex work.
Decriminalization would also help the country economically. Instead of bribes and unwarranted means of payment, the economy can be flourished through the taxes recovered from prostitutes. “Rescue and Rehabilitation” cannot be the sole way to reduce violence against sex-workers. Acceptance and Legal framework need to be adequately combined with the same. Strengthening of the Cyber Laws in the country, would also be a beneficial to maintain a continuous clientele without fear of being revealed on the Internet.
Above all, no country can sustain on legal safeguards, till the society agrees to evolve. The mindset of the people needs to change. Acceptance of sex-workers as a respectable part of the society is a necessary step for upliftment of sex workers in the country.
CONCLUSION
Prostitutes have been fighting for them since a number of years. Their struggle is not against the society, but to be a part of the society. The lack of resources and support has not only violated the Human Rights of Prostitutes, but also pushed them to the verge of an indefinite bonded labour. The pandemic brought out the worst and the best for prostitutes in India. On one hand, they were ostracized by the Government policies, and on the other hand they were helped by community efforts. The directive by the NHRC to recognize sex-workers as women in informal labour, is a moment of celebration for the community. The onus now lies on the authorities to ensure proper implementation and execution of the directives. If the alarming situation is not looked into by the authorities and the community does not accept sex workers as dignified human beings, the country would soon see a “single largest movement of human beings pushed into debt bondage and irreversible slavery.”