Date: 12 October, 2020
by Sakshi Verma, UILS, Panjab University
Prostitution has been observed to be an always existing profession in the Indian society and in the present age is worth more than $100 billion globally and there are 20 million sex workers with 35.4% of them being less than 18 years old according to the annual Report of National AIDS Control Organisation, Ministry of Health and Family Welfare, Government of India.
In India, female sex workers are also referred as Tawaif or Devdasis.
Organisations of sex workers, United Nations agencies and Commissions have articulated sex work as a “contractual arrangement where sexual services are negotiated between consenting adults”.
Although sex workers are granted the same rights as any other citizen of India but they are nowhere protected under the Labour Laws. They have the liberty to claim Rehabilitation and rescue if they so demand.
Prostitution in India is primarily governed by the Immoral Traffic (Prevention) Act, 1956 and is legal according to the Act. But in most cases, sex workers are persecuted not under this Act but under the Indian Penal Code for hindering public decency or causing public nuisance. Though prostitution is legal, some other activities related to it are not such as:
Pimping and pandering
Prostitution in a hotel
Owning or managing a brothel
Soliciting in a public place
However, these activities are illegally practised behind closed doors on a large scale.
The Immoral Traffic (Prevention) Act, 1956 was originally enacted to minimise prostitution and ultimately abolish it.
The act prohibits sex workers to not conduct their business within 200 yards from a public place.
The Immoral Traffic (Prevention) Act, 1956 has been amended in 1986 and following are the provisions of the amended act:
Soliciting by sex workers: the act prohibits sex workers from seducing or soliciting clients in any way especially by publically displaying their phone number and provides with the provision of imprisonment up to 6 months.
Practice of profession in public domain: the act bars any sex worker to conduct business within 200 yards of public domain and is liable to be punished up to 3 months.
Trafficking and procuring any sex worker is strictly punishable. Even an attempt to commit such an offence is punishable.
Brothel: managing and owning a brothel is illegal and the offender is punishable up to 3 years
Babus and pimps: the act widens the context of the word ‘pimp’ and chargers any adult male who permanently lives with a sex worker unless he proves otherwise in court. All pimps and babus aiding and assisting prostitution and earning a living from such a business are punishable.
The Hon’ble Supreme Court on September 21, 2020 directed the Centre and State Governments to initiate the provision of free food and financial aid to sex workers due to the COVID-19 Pandemic in the form of dry rations, soaps and sanitizers, masks and other essential items without insisting on showing their identity proof.
The Bombay High Court on September 23, 2020 observed that there is no provision under the Immoral Traffic (Prevention) Act, 1956 which empowers the Court to consider any sex worker to be a criminal. Prostitution is not an offence per se and nobody can be made punishable only for indulging in such an act. However, abuse of a person into being a part of prostitution or sexual exploitation are what are punishable under the act.
It can be concluded that the Immoral Traffic (Prevention) Act is not an inclusive legislation as it works by taking into account the socially construed ideals of humanity and ignores the harsh reality of sex workers. It avoids the fact that cities like Bombay and Delhi have brothels and accounts for large business share of prostitution in Asia. We require a more empathetic approach and a new legislation is the need of the hour.