Author: Harshit, Uttar Pradesh State Institute Of Forensic Science, Lucknow
Linkedin Profile: https://www.linkedin.com/in/harshit-vashishtha-00686a303?utm_source=share&utm_campaign=share_via&utm_content=profile&utm_medium=android_app
To the Point
According to the UN there are estimately three million sex workers in India. However prostitution is now legalized in india but there are many things related to prostitution is considered as illegal like solicting, brothel keeping, pimping etc. Due to which there are many confusion around the sex workers and the work of prostitution. When we talk about the sexworkers there are always two side social morality and the constitutional morality. In 21st century also sex work is consider as a taboo in the society which is the reason why sex workers have to face social stigma, discrimination, exploitation. The ground reality of prostitution is far more way from what is written in the legal statutes. In this article we understand how the prostitution governs in india, about their implementation and the atrocities faced by them.
Use of Legal Jargon
In India, work of prostitution is considered as a socially immoral act but it is constitutionally a moral act. The acts which governs this act is not that clear which is by there are so many ambiguities around prostitution. The immoral traffic (Prevention) act, 1956 (ITPA) legalize the prostitution but it has terms like brothel keeping, solicitation etc which is illegal and they are related to the prostitution. This act does not make clear distinction between the consensual sex and the forced sexual exploitation. We should also ensure the Article 21 which state right to life with dignity and Article 19(1)(g) which states right to practice any profession. In this work of prostitution, de facto criminalization often prevails.
The Proof
According to the ITPA, sex work is not punishable if it is conducting with the consent of the adults in private. However there are certain activities around it which is punishable according to this act like running a brothel(section 3), soliciting in public places(section 8), living on the earning of a prostitute(section 4) etc. This paradoxical approach in the legal act makes this profession difficult to conduct. Now a days, The Supreme Court also emphasize on the dignity and constitutional protection of the adult sex workers. The Article 21 which states the right to life with dignity should also prevail. In the absence of unambiguous regulation, sex workers often face harassment and exploitation by brothel owners, police ect and they also face discrimination in health care, housing and education of their children.
Abstract
This article examines the paradoxical legal approach to the prostitution wherein conduct of prostitution is not criminalize but activities which conducts it is criminalised. In this we talk about how it violates the fundamental rights of sex workers, discrimination they have to face, limitation to get justice, how they are not considered morally equal as other professions. It a lso evaluate the conflict between the constitutional morality and the social morality. It also discuss about the judiciary view on the prostitution and the policy loopholes. It talks about regulation and the inclusion of sex workers in the mainstream labor law framework so that they can get deserved dignity, safety and empowerment.
Case Laws
1. Budhadev karmaskar v. State of West Bengal (2022)
– In the case of Budhadev karmaskar v. State of West Bengal, there was a issue on whether sex workers are entitled to dignity under article 21. The Supreme Court held that all the sex workers have the right to live with dignity and directed the government to ensure it.
2. Gaurav jain v. Union of India (1997)
– In Gaurav jain v. Union of India, there was a issue on rehabilitation of children of sex workers. In this, SC said that children should get education and welfare regardless of their parents profession.
3. State of Maharashtra v. Madhukar narayan mardikar (1991)
– In State of Maharashtra v. Madhukar narayan mardikar, the issue was credibility of sex worker as witness. SC held that a sex worker is entitled to privacy and cannot be denied justice simply because of her profession.
Conclusion
The legal status of prostitution in india is paradoxical. On the one hand they say it is not criminalize by law on the other hand they prohibits activity which is kinda essential for the conduct of it. This contradicts with the various constitutional guarantees given under the Indian Constitution. There is a immediate need for the change in the law to make sure the dignity, safety, autonomy and empowerment of the sex workers. There are various judgements which ensure the rights of sex workers. Law has to be constitutionally right rather than just socially right. By the upliftment of this labor society we eventually uplift the society as whole. They are the part of the society and law has to ensure their rights as it ensure rights of other profession.
FAQS
1. What the word prostitution means?
It is an act or practice of engaging in sexual activities and especially sexual intercourse in exchange of pay.
2. Is prostitution legal in india?
Yes prostitution is legal in india but the related activities like solicting, running a brothel, are criminalized.
3. Can a sex worker file a police complaint?
A sex worker can file a police complaint. They have same and equal rights like other citizen in india. If there is a voilation of there rights then they can file police complaint.
4. Does the constitution protect the sex workers?
Yes, Article 21 of the Indian Constitution gaurantees the right to live with dignity which applies to every citizen of the country.
5. What reforms are being proposed?
In the 21st century, country demands decriminalization of sex workers, labor rights of sex workers, access to health care, housing and protection from police voilence.
6. What is the role of ITPA?
The Immoral Traffic(Prevention) Act, 1956 aims to prevent trafficking but it enventually criminalize the profession indirectly by targeting related operational activities of sex workers.
7. Are there any international examples of better models?
Yes, countries like New Zealand and some parts of australia have legalized and regulated sex work by offering greater protection of their rights.
