India, which is one of the most ancient civilizations of the world, has a history of prostitution. With no one to openly discuss and debate about this, prostitution has become a societal taboo, which is now affecting the cultural and societal framework of the country. With the increase in sexually transmitted diseases and the avoidance of sex workers from society , there is a pressing need for a regulatory mechanism or legislation to guarantee the rights of sex workers as any other citizen in India.[1]
Decriminalizing sex work can in a way reduce gender-based violence. A study conducted by Sonke Gender Justice organisation about the violence experienced by the sex workers of South Africa stated that female sex workers are 18 times more likely to be murdered than other women. Other exploitations and violations, such as violence by police officers, are also serious issues[2].
In the Indian context, there are certain legislations, such as the Immoral Trafficking Act 1956, which does not directly criminalize prostitution but sets certain limitations. The Suppression of Immoral Traffic in Women and Girls Act 1956 defined prostitution as “the act of a female offering her body for promiscuous sexual intercourse,” whether in exchange for money or some other valuable materials[3].
India was one of the first states to join the “United Nations Convention on the Suppression of Human Trafficking and the Exploitation of Others’ Prostitution” in 1949. Later, this pact was included in domestic legislation by the 1956 SITA (Suppression of Immoral Trafficking in Women and Girls Act), which was subsequently modified and changed its name to the 1986 Immoral Traffic (Prevention) Act (ITPA).
Judicial Approach Towards The Right Of Sex Workers
In 2011, the Supreme Court of India made significant observations regarding the decriminalization of sex work In the landmark case of Buddhadev Karmaskar v. State of West Bengal, the Court decided that Article 21 encompasses a prostitute’s right to enjoy a life of dignity. The Court noted that a person becomes a prostitute because of extreme poverty, not because she enjoys it. Sexual workers ought to be accepted by society and not denigrated. According to the Court, women who engage in prostitution should be offered another chance to break free from prostitution so they can have fulfilling lives.[4] Also, the Supreme Court directed the states to provide ID cards to the sex workers and social benefits[5].
State governments have also taken initiatives for the welfare of sex workers. The Maharashtra government proposed the Shakthi bill to decriminalize sex work.[6] Kerala Government implemented sex worker-friendly policies. The Suraksha program, also known as the Targeted Intervention (TI) program, aims to lower the risk of HIV transmission among transgender individuals, males who have sex with men, female sex workers, and injectable drug users.[7]
International Framework and Success Models
The framework for decriminalisation of sex work by New Zealand through the Prostitution Reform Act (PRA) 2003 is a successful model of decriminalising sex work. It decriminalised all sectors of sex work without concentrating on social stigma but rather concentrating more on public health, welfare, and human rights. The framework advocated for a safe working environment, protection against exploitation, and also to report any form of exploitation at their work without fear, making the country a true example of progressive thinking. [8]
The Pickton murder case, where a man committed a serial of killings of women, among which most were sex workers, has led to a global outrage and the need for better laws and regulations for the protection of sex workers in Canada. This case empowered sex workers by affirming their constitutional rights and made a crucial step towards humanizing sex work in Canada.
These successful models in New Zealand and Canada have shown improved safety, rights, and health of sex workers, emphasizing the significance of seeing this from a human rights point of view rather than social stigma, which is a crucial lesson for India.
Decriminalizing sex work has been supported by international organizations such as the ILO, Amnesty International, UNAIDS, and WHO to protect the safety and health of sex workers. While UNAIDS and WHO focus on health , Amnesty International and ILO focus on human rights. Decriminalizing helps in reducing exploitation, violence, and discrimination and gives them a position in society. Adopting such models might empower sex workers in India, enhance public health , protect their fundamental rights, and promote a more inclusive legal system.[9]
From Kamathipura To Global Recognition
Gangubai Kathiawadi, a Bollywood film written and directed by Sanjay Leela Bansali, revolves around the lives of sex workers and the depreciation they face. The film also includes sex trafficking, exploitation of women by brothel owners, social stigma faced by sex workers, and violence against women. The film is adapted from Zaidis book “Mafia Queens of Mumbai.” The film depicts struggle for the rights of sex workers, including better conditions and protection from exploitation. The movie also includes the social stigma and denial of education to children of sex workers in fear of moral corruption.[10]
A legal system balancing individual rights along with public interest is of paramount importance in a country like India, which is rich in its culture, heritage, and diversity. The fundamental rights enshrined in our supreme law of the land, that is the constitution, shall be guaranteed equally to everyone; each life matters, and no one shall be deprived of a dignified life. Decriminalizing sex work is therefore necessary to safeguard the rights, respect, and safety of sex workers, as well as to enable them to fully exercise their constitutionally guaranteed rights without fear of discrimination or exploitation.
[1] Dr. Waseem Ahmed, Dr. Mohd Wazid Khan, Dr. Anas Jameel & Mohammad Nadeem, Legislative Developments and Judicial Approach Towards Prostitution in India: An Analysis, International Journal of Multidisciplinary (Oct. 2022), at 75-81, https://www.rrjournals.com/.
[2]Sonke Gender Justice, Decriminalization of Sex Work: A Position Paper (2021), https://asijiki.org.za/wp-content/uploads/Sonke-GBV-Decrim.pdf.
[3] The Immoral Traffic in Persons (Prevention) Act, No. 104 of 1986, Acts of Parliament (India).
[4] Buddhadev Karmaskar v. State of West Bengal,2011 AIR SCW 1303
[5]Issue Aadhaar, voter cards to sex workers: Supreme Court, The Hindu (Dec. 15, 2022), https://www.thehindu.com/news/national/issue-aadhaar-voter-cards-to-sex-workers-supreme-court/article37955766.ece.
[6]Maharashtra govt directs officials to help sex workers, The Hindu (May 26, 2020), https://www.thehindu.com/news/national/other-states/maharashtra-govt-directs-officials-to-help-sex-workers/article32199125.ece.
[7]Kerala State AIDS Control Society, Kerala Targeted Intervention Programme, https://ksacs.kerala.gov.in/?page_id=549.
[8]G. Abel & L. Fitzgerald, Taking the Crime Out of Sex Work: New Zealand Sex Workers’ Fight for Decriminalisation (2010), https://books.google.com/books?hl=en&lr=&id=UnRoDwAAQBAJ&oi=fnd&pg=PR3&dq=decriminalising+sex+work+new+zealand&ots=m5e5-hAgAd&sig=-ce-eCo9iI5ZnPcZvJdFUVznJZI.
[9]Amnesty International, Amnesty International Publishes Policy and Research on Protection of Sex Workers’ Rights (May 26, 2016), https://www.amnesty.org/en/latest/news/2016/05/amnesty-international-publishes-policy-and-research-on-protection-of-sex-workers-rights/.**
[10] Gangubai Kathiawadi (Netflix 2022).
Author Name- Merlin Ann Varghese, a final-year law student.
