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The British criminalised prostitution, but sex workers' rights in India continue to remain dismal as they're not looked at as equal human beings even today.
Sex work was criminalised by the British, but sex workers’ rights in India continue to remain dismal as they are not looked at as equal human beings even today.
Sex workers in India are looked at through the orthodox patriarchal system, and considered to be on the fringes of society. Sex workers’ rights in India are therefore of the least interest to society in general.
The ‘perfect’ sanskaari woman is believed to a chaste one, who dedicates herself to the good of her family. Sex workers are not considered to be anywhere in this, and are frequently demoralized and labelled as ‘impure’ and ‘immoral’ as a result of this notion. But what one does not understand is that they are also human beings with the same desires and needs as the rest of us. Sex workers’ rights in India are therefore a subject of contention, and a grey area.
Let’s look at a short history of sex workers’ rights in India, right up to present day.
Ironically, the exact things that are now deemed alien to Indian culture were once what made our country the world’s most sexually liberated country. In ancient India, Tawaifs and courtesans were considered a sign of cultural heritage, and so many of these women fought for Indian independence. Instead of being chastised, they were treated with dignity and respect.
How did sex work, which was openly practiced in ancient India, became engulfed by regressive ideals?
It stems back to the nineteenth century when perceptions toward sex workers changed from considering them full, civilized citizens to ‘immoral criminal offenders’. The British brought with them a colonial morality and a Victorian sense of virtue, and anything having to do with sex and sexuality was deemed sinful and immoral. As a result of this, tawaifs in the north, devadasis in the south, baijis in Bengal, tamasgirs in Maharashtra, and naikinis in Goa were labelled as ‘nautch girls’.
In the year 1923, Prevention of Prostitution Act was enforced, which instilled dread and fear in the hearts of sex workers. It was so severe that it criminalized visible expressions of female sexuality into a new language of criminality.
This loss of sex workers rights in India continued even during the post-colonial period. While our country marched towards independence, regulations prohibiting prostitution became increasingly stringent.
At that time, the idea that a woman could choose a career outside of her home baffled men, and many of these were deemed to be of ‘a loose character’.
This outdated mindset was so ingrained in society that even educated women couldn’t recognize underprivileged women who had to step out of home to earn a living as self-sufficient individuals.
When women did begin to be employed more widely, recruiting ‘respectable’, ‘modest’ women who could ‘maintain decorum’ was emphasized during that period.
In 1956, the Suppression of Immoral Traffic Act (SITA) was enforced which suppressed both trafficking and ‘prostitution’ regardless of the age of consent of the person involved.
Tragically, and much to our dismay, this regulation became the principal means by which the sanctified image of a ‘virtuous lady’ had a direct impact on sex workers rights in India, although the act was later amended twice.
In 1958, Husna Bai, a sex worker, sparked a change and filed a petition contesting the laws of SITA for infringing her freedom to pursue her profession. At a time when Indian society shunned sex workers, Husna Bai forced the judges to look at women on the street, who were not taken into consideration by the many ‘learned women’ who were a part of drafting the constitution. Sex workers from various Indian cities and towns joined the protest, stating that the laws were a “clear encroachment on the right to carry on any profession guaranteed by the constitution.”.
The shock of the learned women mentioned above showed how they were blinded by their privilege as women provided for in a traditional society safeguarding its women.
While the case was dismissed, its popularity spurred many legal challenges against SITA’s unjustified limitations on the freedom to trade and the sex workers’ profession. Many questioned the excessive powers of SITA as it allowed local governments to evict any suspected sex workers from their houses.
Law Reform Commission Report of 1975 stated that: “prostitution is a threat to the family as an institution and as a means of exploitation of females, it is a social evil which leads to social injustice.”
Instead of legalizing sex work, which would have reduced trafficking, the Indian government opted for the so-called Victorian ideologies to criminalizing it.
But in the landmark judgment of the Budhadev Karmaskar case, the Supreme Court of India said unequivocally that sex workers are human beings with a right to life under Article 21 of the Indian constitution, and that no one has the right to assault or murder them.
The decision also brought attention to the situation of sex workers, emphasizing that these women are forced to engage in prostitution, not for pleasure, but because of their financial and economic situations.
The debate over sex workers’ rights in India, both within and beyond the anti-trafficking sphere, continues to be divisive, affecting the lives of tens of thousands of sex workers; the rules governing are ambiguous, leaving sex workers in the dark.
The Immoral Traffic (Prevention) Act, an amendment of SITA, was passed in 1986. According to IPTA sex workers can practice their profession but activities including pimping and running a brothel are considered a punishable offence.
Under Section-03 running a brothel or allowing premises to be utilized for a brothel is illegal. Under section 2(a) ‘Brothel’ has been defined as any house, room, or place which is used for prostitution.
Under Section-04 any person who makes an earning from prostitution is punished. Even family members are not exempt from this clause.
Under Section-05 it is illegal to procure, induce, or abduct a person for prostitution.
Under Section-06 of this act brothel owners are subject to prosecution if found guilty of leading the trade and such activities are deemed illegitimate. If it is their first offense, brothel-owners will be imprisoned for three years and if they forcibly hold someone in their brothel and exploit the sex workers they will be imprisoned for a minimum of seven years. Since IPTA criminalizes brothels, women who wish to work as sex-worker should pursue it alone.
Section-07 regulates that this practice cannot take place within a 200-meter radius of any public place. To participate in prostitution lawfully, sex-worker must choose an isolated location. This Act has made sex workers more vulnerable by forcing them to work in the bleakest, most unseen areas of cities, where they are silently exploited and abused. Where their voices aren’t even heard.
Under Section-08 sex workers who solicit their services or seduce others will be arrested under this section of IPTA.
Another important law is that Sections 372 and 373 of the Indian Penal Code prohibits the trafficking of children for prostitution.
These laws, however, have significant flaws, and fail to explain quite a few things.
When a sex worker contracts STD, what happens to them? They lose their right to pursue their profession, but do they have another way to support themselves? Most sex workers are uneducated, but even if they were educated, would they be recognized as members of society without being discriminated against? Health, safety, and legal equality are more crucial than moral objections to the nature of sex work.
While the stigma of being immoral makes it difficult for them to receive appropriate medical care. For instance, the seclusion of sex workers working in a brothel implies that they are denied access to information and treatment for sexually transmitted diseases, which they are highly susceptible to contracting.
Moreover, sex workers who are often mistreated by pimps or brothel owners are unable to seek legal redress since doing so would result in them being imprisoned under the law for working in a brothel. As a result they continue to suffer silently at the hands of brothel owners. To that end, sex workers are frequently expelled from their premises and cannot return to their residence.
However, the above two laws do not address the issues that their children suffer. In many instances schools have refused to enroll any of their children due to the fear that they might be HIV carriers. These kids of sex workers are born into doom. Their fate has been sealed from the moment they were born, and they are destined to be shunned by society as a whole with little or no hope for the future. It is only a matter of time until the small girls are pulled into the elaborate network of the sex trade.
Isn’t it fair that a community that has been stigmatized for decades deserves the fundamental rights of equality before the law and the right to civil rights protection? The recent Anti Trafficking Bill, 2021, may further push sex workers’ rights in India into a dark hole.
Will they never get their space under the sun of an independent India?
Image source: a still from the Oscar winning documentary Born Into Brothels/ CG Entertainment on YouTube
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