By Adv. Shriya Maini.

Co-Authored by Pooja Jasani, Gujarat National Law University.

2017 saw the release of an exciting Bollywood flick based on the contentious subject of sex workers in India and their argumentative profession of prostitution. Begum Jaan revolved around a group of prostitutes struggling for survival amidst humiliating stares and jockstrap jibes. The female protagonist of the film ran the reigns of the brothel business and was essentially what one could call the Manager tawaif, kothewali or devdasi (glorious desi synonyms for a prostitute). Though I thoroughly enjoyed watching the film, what essentially provoked me was that prostitution was still viewed as an unlawful societal hazard, when all that the profession entailed was having consensual sex with another consenting adult, that too, behind a closed door. What truly struck me was when the shackled tawaif professed: “Sahab, humaare dhandhe mai aurat ko kabhi azaadi nahi milti.”

In this write-up, I pose a plethora of abrasive enquiries that are often brushed under the carpet, focussing on what laws govern sex workers in India? Why do they need to be ‘salvaged’ from their plight and then ‘rehabilitated’, in order to exist in the mainstream of society? With the latest Right to Privacy Judgement delivered by the Hon’ble Apex Court, wisdom ought to dictate restraint. I also propose stark amendments which are required in the current Indian legal framework that recognizes and positions sex workers as key stakeholders sans a morality argument underlining its mandate. More specifically, I believe that an avenue is required viewing sex work as a legitimate profession, including inviting complete engagement of sex workers, and integrating within itself their apprehensions to be given the status of full and equal members of the society. In other words, their means of survival seeks respect and recognition akin any other reputable profession practised in India. While I rely on secondary sources, I am inspired by a first-hand interview of Lakshmi (name changed) – a sex worker who lives in a brothel lining the bylanes of G.B. Road – New Delhi’s prime time red light area.

I reach G.B. Road at around six in the evening with a male friend who agrees (after long hours of persuasion) to be an imposter claiming to be on the look-out for some “happiness” as they like to call it. I am rather very lucky to bump into a 45 years old broad shouldered sari clad lady (Yes, I choose to call her a lady and not a whore all through this post) who instantly befriends me just as she sees me smile at her. She has significant brooding eyes, thickly lined with kohl and a hint of moustache seated above her skinny lips, which I am forced to take note of, when she mumbles “Mein Lakshmi, aapka friend ko happiness chaiye?” While I turn my embarrassing gaze right away, Lakshmi seems rather candid and fulfilled about what she does for a living. She speaks to me at length thereafter, in Hindi, introducing herself palpably as a businesswoman, the nature of whose trade involves exchange of sexual favours for a due monetary consideration.

I am forthwith transported back to my research desk, only to find out that India is a signatory to the United Nations International Convention for the Suppression of Traffic in Persons and of the Exploitation of Women, New York, 1950. An offshoot of the former, the Suppression of Immoral Traffic in Women and Girls Act, 1956 (“SITA”) though had a tolerant approach towards the topic of prostitution, yet it displayed uncompromising signs of how lawmakers viewed the subject of prostitution in the society, primarily as that of a “necessary evil”. SITA was thereafter amended twice in 1978 and 1986. Today, it is called The Immoral Traffic in Persons Prevention Act, 1986 (“ITPA”). However, one must remember that in India, prostitution is not illegal per se. If the act is carried out in a private residence and that too voluntarily, no offence can be made out. It is the other accompanying acts that supplement the   sexual act that make prostitution fall within the ambit of an ‘illegal activity’. To list a few, they areSoliciting such services in public places or hotels specifically, Kerb Crawling, Pandering, Organized Prostitution like Owning or Managing a Brothel or Pimping. In a nutshell, a woman cannot engage in a sexual act in exchange of money within a distance of 200 yards from a public place. But the doors for the law to interfere are shut if prostitution is carried out individually and voluntarily. The cumulative presence of the laws in India and provisions of ITPA have resulted in a wide disparity between how the law is crafted and how it is followed in practice. If “Public Peace”, “Morals” and “Sanctity” are not at stake while the sex workers perform the act of prostitution privately, then prostitution must not create any concern for the legislature or the executive of our nation. While the ITPA in its entirety speaks about punishment only for acts related to sexual work, it is interesting to note how it has explained the term, by stating that, Prostitution means the sexual exploitation or abuse of persons for commercial purposes, and the expression ‘prostitute’ shall be construed accordingly.”

Rather than diluting the meaning of prostitution to present it in such negative light by terming it invariably as an abuse or exploitation, one must view it as any other profession which ordinarily involves providing services in exchange of a monetary consideration, if voluntarily carried out privately between two persons. As long as the public sanctity and morality is not violated, prostitution cannot be said to be in contravention of any law. This argument assumes more importance in light of the judgement on Right to Privacy delivered by the Hon’ble Supreme Court of India on 24th August, 2017 in the matter titled Justice K.S. Puttaswamy & Anr v. Union of India and Ors’ (hereinafter referred to as the “Privacy Judgement”). The nine Judges bench, through six concurring opinions held that Right to Privacy is a Fundamental Right which flows from Article 21 (Right to Life and Liberty) of the Constitution of India. A judgement that garnered immense attention nation-wide rightly pointed out in Para (L) of Pg. 263 of Justice D.Y. Chandrachud’s judgement that:  “…Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy. While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being….”. Justice Chelameswar too, while writing the historic judgement, opined that “decision autonomy included choice of work”. This autonomy and dignity lies in choosing any kind of profession as the person so desires and not being judged for that in other facets of her life.

Though the Privacy judgement tries hard to bridge the gap between prostitution and its legality, Section 20 of the ITPA is yet another contradictory provision, which needs to be read in light of the Privacy judgement. Section 20 of the ITPA enables the Magistrate of an area concerned to summon a prostitute residing in or frequenting his area and to direct her to show-cause why she should not be removed from that area. Strange as it seems, though the Indian legislature has legalized prostitution in a private space, adding Section 20 of the ITPA does no more than making the practice of prostitution illegal in essence. 

A bare perusal of the Privacy judgement makes it amply clear that Privacy may have both, a positive as well as a negative connotation. Relevant portions of Para (I) on Pg. 264 of the Privacy judgement are extracted and reproduced hereinafter: “…The negative content restrains the State from committing an intrusion upon the life and personal liberty of a citizen. Its positive content imposes an obligation on the State to take all necessary measures to protect the privacy of the individual” which is evidently not being accomplished in light of Section 20 of the ITPA. A bare perusal of Section 20 of ITPA reveals that it alienates sex workers from the others, alongside granting unbridled powers to the Magistrate to put behind bars any such person whom he plausibly believes to be a prostitute. Such women often become subject of the whims and caprices of the officials, who under the shield of powers, misuse it and often cross their limits.

The excerpt from the judgement which is further noted in Para (R) of Pg.168 is “What enables individuals to preserve their beliefs, thoughts, expressions, ideas, ideologies, preferences and choices against social demands of homogeneity? Privacy, thereby is an intrinsic recognition of heterogeneity, of the right of the individual to be different”. This means that every individual has a right to preserve his/her choice and preference against the social demands of homogeneity. There can be absolutely no moral grounds on which the heterogeneity (including prostitution practiced as a profession) should be suppressed. Additionally, when prostitution is practiced in a private place, it should not be interfered with by the law. The argument that “privacy should be the entitlement of prostitutes also” is well understood in light of the Privacy judgement which could be said to imply, that there is not a priori moral distinction between a ‘prostitute’ and any other person involved in any other profession.

In 2016, a Panel set up by the Hon’ble Supreme Court in 2011 had recommended the deletion of Section 8 of ITPA which made ‘soliciting’ an offence. It categorically observed that: Whenever there is a raid on a brothel, since voluntary sex work is not illegal and only running a brothel is unlawful, the sex workers should not be arrested or penalised or harassed or victimised”. The panel had hit the bull’s eye so far as the policemen’s viewpoint on sex workers was concerned, which was admittedly ‘different from others’. This had led to unnecessary harassment of the prostitutes. An elaborate mechanism though was suggested stating that ‘when a sex worker makes a complaint of criminal/sexual/any other type of offence, the police must take it seriously and act in accordance with the law’, but to the misfortune of sex workers, no implementation has been done to this effect till date.

Additionally, prostitutes are not protected under any labour laws. The only umbrella clause said to be existing is the ITPA, a cursory perusal of which elucidates that it proceeds on two major assumptions. Firstly, sex work is immoral and secondly, sex work is exploitative. ITPA provides remedial measures by making provisions for ‘forcible rescue’ of sex workers, removal of a prostitute from any place, detention in ‘corrective institutions’ and placing them in ‘protective homes’. These provisions do no more than reinforcing negative social attitudes regarding sex work.

Additionally, the Hon’ble Supreme Court in Para (g) of the Privacy judgement also stated that “this Court has not embarked upon an exhaustive enumeration or a catalogue of entitlements or interests comprised in the right to privacy, the constitution must evolve with the felt necessities of time to meet the new challenges uprooting in the democratic order governed by the rule of law”. This surely can be a turning point, for the law relating to prostitution with the felt necessities of time can now be thoroughly gauged for its inconsistencies and the hardships that accompany it for the forlorn prostitutes.

Prostitution has established its place in India since time immemorial. It can be dated back to the dancing girl of Mohenjodaro; the Sadbarani of the Rig Veda and the Devadasi of the Mughal era, wherein courtesans were accorded a regal status for being prostitutes which was a matter of privilege. Ironically, while India has substantially advanced in other fields and has waved off its age-old traditions of Sati to mark its place on the world map, it has moved backwards when it comes to the idea of prostitution. Even today, prostitutes are viewed as “morally second-class citizens”, who are deprived of basic human rights. While India is trying to modernize herself, she is unwilling to fathom that prostitution may be born out of a voluntary personal choice and not coercion or exploitation. While some argue that no prostitute opts for voluntary engagement in sexual work, and hence, laws such as the ITPA are established to rescue and rehabilitate sex workers by providing alternate means of employment. However, what ITPA does is seek an improvement in the condition of the prostitutes, while they remain sex workers. The State does not mandate upon itself the provision of adequate living conditions and livelihood opportunities for sex workers. On the contrary, when these women resort to prostitution, they are penalized, adding further to their misery and agony.

The tacit moral acceptance of prostitution has to come from within the society and the society is regulated and governed by legal enforcement. Therefore, it is unwise to solely depend on the legal mechanism, as the change requires a collective effort and acceptance from all. The only good that can be done to uplift prostitutes from their current state is to acknowledge them as human beings, not only of “flesh and bone” but also as one of emotional, privileged, as one having rights and liberties in accordance with the Constitution of India that equally shields, protects and embraces them, as it does for all the other citizens of this country.

A personal interaction with Lakshmi made me comprehend at first brush that all she desired was a legal status. It is time for India to recognize all such Lakshmis and decriminalize the acts related to prostitution, especially in light of the Privacy Judgement, which mandates that privacy is not a privilege just for a few, it ought to be guaranteed to each and every one. The controversial Immoral Traffic in Persons (Prevention) Act, 1986 must be forthwith amended to provide all sex workers a respectable status as full and complete members of the society. Legalising the relevant provisions related to prostitution would place the government in a much superior position to help sex workers. Various diseases known to spread through sexual contact like HIV AIDS could be curbed effectively and their place of work could be improved substantially. We certainly need more women like Lakshmi, who can come out and say “I chose the job that suits my needs”.

About the Author

Advocate Shriya Maini is a young, bright, scholarly, advocate turned entrepreneur, currently practicing at the Supreme Court of India, the Delhi High Court and the District Courts at New Delhi.  She specializes in dispute resolution and as an unabashed feminist, particularly enjoys criminal litigation. She is a graduate of Gujarat National Law University, India who then pursued the Bachelor of Civil Laws Programme on a full scholarship (Dr. Mrs Ambruti Salve Scholarship) sponsored by Dr. Harish Salve, Senior Advocate, from the University of Oxford, specializing in International Crime. As a recipient of the Oxford Global Justice Award 2015 for Public International Law, she assisted the President of the International Residual Mechanism for the Criminal Tribunals (MICT) at The Hague, Netherlands. She is now back in the Courts of New Delhi, India to pursue her passion in litigation. Additionally, she has recently been appointed as a Visiting Professor for International Criminal Law at National Law University, Delhi, India.