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Laws Pertaining To Sex Workers In India: Contemporary Loopholes And Way Ahead

Sex work laws

The laws regarding sex work come under the ambit of the Immoral Traffic (Prevention) Act 1956. This act was made in the spirit of the 1950 New York Convention against the trafficking of people. As to the status of the legality of sex work in India, sex work or prostitution itself is legal however certain activities around the same, such as pimping are not. An interesting point to note here is that this act defines prostitution as the sexual exploitation of a person done for monetary and commercial purposes.

The legislation serves the purpose of tackling issues by codifying laws on the matter in a written manner. The effect of the legislation so created could either solve the problem or may itself become its source, which is why it becomes very important to have a proper understanding of the same. Thus, in this section of the paper, we explain in a simplified manner the provisions laid out in the Act mentioned above, which shall be referred to as the Act here on.

Punitive measures for acts surrounding sex work were first laid out in Section 3 of the act where it is laid out that either keeping a brothel or allowing a place to be used as a brothel shall be a punishable offense with a prison sentence of two to three years along with a fine amounting to ten thousand rupees.

The sentence shall become more rigorous upon successive conviction. It should be noted here that section 2 (a) of the act defines a brothel as a place which is:
Inclusive of any house, conveyance, room or place which is used for the sexual exploitation or abuse for a gain of another person or for the mutual gain of two prostitutes.

Thus, in order to convict one of the offenses of keeping or maintaining a brothel, it has to be proved that the place in question was being used for the purposes of sexual exploitation and not merely sex work itself. The subsequent clauses of this section prohibit the use and allowing use of any place or a section of any place as a brothel by any landlord, tenant, or lessee. Upon conviction, any lease agreement which happened to exist before it shall be rendered void.

Section 4 of the act makes it illegal to live on the earnings of prostitution made by another person. A peculiar feature of this section is that it includes people who are found to be habitually in the company of prostitutes to be living on their earnings. Other people considered to be living on the earnings of prostitution include people aiding the movements of another in such a way that they abet their prostitution or a person acting as a pimp on behalf of the prostitute.

Section 5 and 6 basically prescribe punishments for forcing a person into prostitution by coercive means and detaining a prostitute in a brothel respectively. Another notable provision of section 6 alludes to the protection of children from sexual abuse wherein it is specified that if a person is found with a child in a brothel, it shall be assumed that they are detaining the child there for the purposes of sexual exploitation. Section 7 prohibits carrying out prostitution in a public place or in the vicinity of a public place. For instance, carrying out prostitution within 200 meters of a place of religious worship, a hotel, or an educational institution is illegal.

There are also provisions for the establishment of corrective institutes in this act which serve the purpose of rehabilitation of prostitutes to enable them to lead a normal life if a woman is found guilty under section 7 of this act. These are the provisions regarding India's legal stance on sex work.

Judgments regarding sex work

Judges play a very important role in deciding how wide the scope of a piece of legislation shall be. This is a very important role since it has the potential to clear out loopholes that may be present in the legislation. We shall name some prominent ones below in order to further acquaint ourselves with the rights of sex workers and the limitations placed on them.

The State of Uttar Pradesh v. Kaushalya 1963[1].

This case dealt primarily with the scope of section 20 of the act which deals with the powers of the magistrate to remove a prostitute from certain localities and whether this power contravenes the fundamental rights enshrined under Article 14 and Article 19 of the Constitution which grant the right to equality and the freedom to move and reside in any part of the country respectively.

The respondent alleged that the powers of the magistrate under this section were arbitrary and uncanonized in nature and also questioned the maintainability of the suit since the information received by the magistrate did not come from a special police officer appointed for investigating prostitutes.

The apex court decided against the respondents by holding that since the magistrate under section 20 had to:
  1. Serve a notice to the accused to show why they should not be removed or deported from the locality
  2. Had to keep a copy of the record and thirdly had to allow the prostitute to represent herself and her situation appropriately and had to conduct proper inquiries so as to arrive at his decision.
Given these provisions, one could not hold that the magistrate would make arbitrary decisions by holding even respectable women to be prostitutes since his decision has to be accompanied by ample evidence.

As to this provision violating the fundamental rights enshrined under Articles 14 and 19, the court held there to be a rational difference between a woman who engaged in prostitution and one who didn't and also between a prostitute who served as a public nuisance and one who didn't, establishing an intelligible differentia in relation to the object sought to be achieved by law. Prostitution in this case was established to be a moral abomination that needed to be curbed in order to ensure moral decorum within a locality. Thus, if a prostitute were carrying on her trade in a public space, removing her from it would not be a contravention to fundamental rights as such activity could corrode the moral fabric of society.

Budhadev v. State of West Bengal [2]

This case dealt with the brutal murder of Chayay Rani Pal, a sex worker living in the red-light area on 17th September 1999. The appellant, Budhadev grabbed her by her hair and repeatedly banged her head against the floor and wall which led to her sustaining injuries on her head, nose, and ears, bleeding profusely. She was murdered in this brutal manner only because she refused to have sex with the appellant.

The court held the appellant guilty and also opined those prostitutes were human beings who deserved the right to a dignified life under Article 21. It also directed the government to come up with rehabilitation schemes for sex workers with the inclusion of vocational training for them so that they may have means other than selling their bodies to earn their bread. It was further opined that people should not look down upon prostitutes as lesser beings but sympathize with their condition since most women entered this profession not by choice but due to poverty.

Manoj Shaw and Manoj Kumar Shaw v. State of West Bengal [3]

This case dealt with the treatment of prostitutes during the course of investigation by investigating officers. The facts of the case are as follows. A person was running a brothel under the guise of a health spa and was guilty of forcing women into sex work, one of whom was a minor. Interestingly, the investigating officer proceeded to arrest the sex worker but merely served a notice to the owner of the health spa under section 41A of CrPC This was a gross error on the part of the investigating officer since the object of the ITPA 1956 was to help the victims of sexual exploitation for commercial means.

This case thus established certain guidelines when dealing with offenses under ITPA 1956 which were as follows:
  1. The investigating officer should consider that grave offenses involving sexual exploitation may have been committed and should avoid mechanically resorting to section 41 of CRPC.
  2. Use of section 41A stands prohibited if the victim in question is a minor
  3. A sex worker should not be treated as an accused but a victim unless she is proven to be a co-conspirator in the crime as well.
  4. Sex workers should not be arrested during the course of the investigation but shall be treated as victims and not criminals. They should also be given the opportunity to avail the rehabilitation programs granted to them under the act.
  5. The court recommended the establishment of sensitization programs for investigating officers to the plight of sex workers since this was a case involving immense insensitivity on the part of the investigating officer.
    Gaurav Jain v. Union of India[4]
An advocate filed a PIL in the Supreme Court for the children born to prostitutes. It is a well-established fact that prostitution is not the safest profession since it is the sex workers who face a higher risk of sexual abuse. Most people who enter this profession do so on account of abject poverty and ignorance. The advocate thus contended that the children born to prostitutes do not have access to the healthiest environment and since children are regarded as the future of this nation, rehabilitation provisions be made for them in the form of separate educational institutes for them.

The court in its decision rejected the plea to establish separate educational institutes for children since it believed that it would further isolate them from the masses. However, the court did issue directions to rehabilitate prostitutes and their children and to establish juvenile homes for the children born in the confines of this trade. It is interesting to note that Justice Wadhwa conferred a dissenting opinion in this case, opining that the contention of this PIL was not elimination and rehabilitation of prostitutes but rehabilitation of children born to them.

Loopholes in The Immoral Traffic (prevention) act, 1956

There are various loopholes in existing laws that deal with sex workers in India. Let us first discuss some of the loopholes which exist in "The Immoral Traffic (Prevention) act, 1956".
Firstly, Section 2(a) of the 1956 Act defines brothel as:
Any house, room, conveyance or place or any portion of any house, room, conveyance or place which is used for purposes of sexual exploitation or abuse for the gain of another person or for the mutual gain of two or more prostitutes.

Section 3 of the 1956 act provides for punishment for keeping, running, and managing a brothel. The term "for the mutual gain of two or more prostitutes" renders premises shared by prostitutes as illegal, even if it is for residential purposes only. Due to such laws, it becomes very difficult for sex workers to lead a normal life as many times their homes are dismantled as they are labeled as brothels even if they use such property for residential purposes only.

According to Section 4 of the 1956 Act, anybody above the age of 18 who knowingly lives off the proceeds of a prostitute is liable to a penalty. The language of this section is very inclusive as old family members and guardians of sex workers who are unable to earn due to valid reasons also come under the ambit of this section which should not be the case as in many cases many sex workers enter in this industry in order to support their family.

Section 8 holds liable prostitutes if they seduce or solicit any person in any public place words or even by gestures. The language used in this section is very vague as it can be interpreted by police or any person to exploit the already marginalized section of our society. This provision is supposed to be deleted in the immoral traffic (prevention) amendment bill,2006.

Medical examinations of persons taken from brothels are required under Section 15(5A) of the 1956 Act, among other things for the identification of sexually transmitted illnesses. sex workers are frequently forced to get tested for sexually transmitted illnesses, and the results of such tests are made public as they are disclosed in open hearings. This is in violation of national policy, which requires informed permission, as well as privacy and consultation for HIV testing. This section is also proposed to be amended and all the crimes under the new bill will be tried in camera and not in open courts.

Despite the fact that prostitution is not per se illegal, sex workers are exploited every day by the system and society as well. even though many nongovernmental organizations are working towards the betterment of sex workers, there is still much to be done, particularly with regard to the harassment and stigmatization that sex workers face. prostitutes should be regarded as equal to any other citizen of this country and their rights must not be compromised because of the work they do to earn their livelihood.

2006 Amendment Bill

Sex work is an ancient profession. Although currently seen as evil towards society, it continues to exist primarily on account of the prevalence of poverty in India. As stated, multiple times in the previous sections of this paper and re-iterated by the learned judges deciding various cases examined above, sex workers are people belonging to the poor and marginalized sections of society. Thus, laws governing them should be protective and not punitive in nature.

While some sections of the Immoral Traffic (Prevention) Act do have protective measures in the form of prescribing rigorous punishments for sexual exploitation and the provision of corrective institutions for prostitutes wishing to quit this dangerous line of work, it is a dated act in some of its aspects as having been examined previously in the loopholes given in the previous section of this paper.

Keeping this very thing in mind, the learned legislators of our country proposed some amendments to be added to this act, which shall be discussed in detail below.

The first suggested amendment to this bill was to change the definition of a child. In the act, a child is anyone who has not attained the age of sixteen years, as specified in clause 2aa of this act. However, this bill seeks to increase the required age to eighteen. It should be noted though, that the act differentiates between a child and a minor, which has been defined as a person who has not attained the age of eighteen years. Thus, the bill basically seeks to remove this differentiation. This bill also widens the definition of prostitution and trafficking in persons.

The term prostitution is made wider in scope by adding that an offense of prostitution can be constituted not only for the exploitation of one for commercial purposes but for consideration in terms of money or kind for that matter. Coming to the definition of trafficking in persons, it is defined as an act of coercion or threatening or abusing one's power in order to recruit or transfer one for the purposes of prostitution, which had not been defined in the previous act.

There are various amendments suggested regarding the penal provisions of the act as well. For instance, the fine to be given along with the prison term of one to three years has been increased from 2000 to 10000 rupees in the said amendments. On subsequent conviction, the prison sentence has been increased from three to seven years instead of two to five years with a fine up to 2 lakhs instead of 2000. Also, the offense of trafficking in persons has been given a harsher punishment with a minimum sentence of seven years on the first offense and life imprisonment upon a subsequent conviction.

Other notable provisions include the introduction of trials done on camera so that the sex workers are not subjected to public scrutiny and the suggested removal of section 8 of the act which makes soliciting or seducing by words or gestures illegal. The harmful impacts of this section have been examined in the loophole section of this paper.

These amendments aim to correct those provisions of the act which instead of seeking to reform the practice of prostitution attempted to eliminate it instead. They also keep in mind better the stigmatization and scrutiny prostitutes may be subject to.

After analyzing the Immoral Traffic Act (Prevention) 1956 and studying the various case laws pertaining to sex workers in India, it is very much clear that instead of becoming the solution of the problem, laws are becoming its source. Sex workers are not considered to be a part of civil society and that is the reason why the government doesn't focus much on their issue as other than some Non-Governmental Organizations, no other parties have any issues with the status quo.

It can be inference that complete prohibition of sex work is not the solution of this social evil by considering the examples of many other Nations and regulation is in the interest of the general public, sex workers, and the government. Therefore, it is high time for the government to treat sex workers as part of our society and introduce the necessary amendments in law and government must also work towards spreading awareness regarding sex education and should work towards the upliftment of sex workers as they are one of the most secluded and marginalized section of the society.

  1. 1964 AIR 416, 1964 SCR (4)1002
  2. (2011) 10 SCC 277
  3. Criminal Miscellaneous Case No. 5927 of 2019, High Court of Judicature at Calcutta
  4. 1990 AIR 292
Written By:
  1. Manya Manish and
  2. Utkarsh Sharma

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