PROSTITUTES: According to the Immoral Traffic (Prevention) Act, 1956 voluntary sex work is not a crime. It is pimping and soliciting in a public places which is a crime. Voluntary sex workers have the right to practise their trade and live where they want and cannot be locked up in remand homes.
Voluntarily sex work is not illegal. It is only living of the earnings of sex workers which is a criminal offense. It is therefore unfair to send arrested sex workers to remand homes. The police have no right to arrest them without proving that they were forced into sex work.
Sex workers in India are always degraded and are looked down on by the society. Considering the plight of the workers involved in sex trade, the panel formed by the Hon’ ble Supreme Court has made some recommendations with respect to the conditions conducive to sex trade workers to live in dignity. The recommendations though are not accepted entirely by the Union Government, however the Hon’ ble Supreme Court has granted time till 27th of July to respond to the recommendations made by the panel so that the sex workers also live with dignity, in accordance with Article 21 of the constitution of India which envisages Right to Protection of Life and Personal Liberty. The Union Government has accepted some of its recommendations and now the Hon’ble Supreme Court has directed the States to adopt, however objections were raised regarding the following recommendations:
- The Central Government and the State Government must involve the sex workers and/or their representatives in all discussion making processes with respect to formulating any policy and/ or any change or reform relating to sex workers.
- Criminal law must apply equally in all cases on the basis of age and consent. A sex worker who is an adult if participates in sex trade with consent than the police must refrain from taking criminal action.
- During any raid on a brothel the sex worker concerned should not be arrested or penalized since voluntarily sex work is not illegal however only running a brothel is unlawful.
- No child of a sex worker should be separated from the mother merely on the ground that she is in the sex trade. Similarly if any minor found living in a brothel and if sex worker claims the said minor to be her son or daughter then test can be done to determine the claim and if the claim is found correct than the minor should not be forcibly separated.
Recommendations were made by formulating a penal as unfortunately in India sex trade workers are confined in shelter homes against their wishes for inordinate period of time. The issue of consent while indulging in sex trade is a tricky concept and in order to ascertain whether consent was obtained voluntarily and genuinely or not?, a detailed magisterial inquiry is required. In most of the cases in India under the guise of inquiry sex trade workers are unnecessarily detained in shelter homes against their will. Detaining and confining sex workers in shelter homes against their wish causes injustice to such confined sex workers. Many a times the officers involved take undue advantage of these poor and helpless sex trade workers. As per law every citizen has the right to reside at the place of his/her choice and sending someone forcefully in a corrective home against her wish is certainly causing injustice, especially when the family members of such sex trade workers are claiming custody. Per say prostitution is not a criminal offence except when a person is carrying prostitution in a public place. However, sexual exploitation or abuse of a person for commercial purpose is an offence in India and that is the reason why sex workers exploited for commercial sex trade are not arrayed as accused in a criminal case investigated and filed under the Immoral Traffic (Prevention) Act, 1956.
There are many cases wherein some sex trade workers themselves are co-conspirators and if there is material suggesting involvement as a co-conspirator then only such sex trade worker can be arrayed as an accused. When prostitution per say is not a criminal offence I feel running a brothel should also not be punishable under the criminal law in India or else it would appear that prostitution individually can be carried out, However collectively cannot be carried out which law in itself appears to be absurd. The best solution to clear this absurdity would be to allocate places to carry out prostitution or to run brothels by issuing licenses to them and by formulating and enacting certain rules and regulations to be followed while running such brothels. Many a times under the guise of providing employment consent is obtained by fraud of some of the sex trade workers and are compelled into soliciting for prostitution. Considering this it would be appropriate that all sex trade workers are interviewed compulsorily by a panel consisting of only lady experts in order to ascertain whether the consent is given voluntarily or obtained by fraud, coercion and/or other illegal means. If running a brothel is legalized then certainly offences of rape will be reduced in the country. So also exploitation of sex trade workers would decrease thereby reducing victimization of sex trade workers.
Though the Indian society does not accept prostitution on the face of it, clandestinely many visit brothels as customers and many a times if such customers are found during the raid, there are chances of the said costumers being hauled in criminal proceedings. There is no law in India favouring sex trade workers who intend to quit the said trade and as such appropriate laws are required to be enacted for the protection of the sex trade workers who intend to quit the said trade. Most of the sex trade workers out of compulsion and in order to earn their livelihood indulge in prostitution and therefore considering the plight of such sex trade workers rules and regulations are required to be formulated by the legislature.
The stigma casted on a sex trade worker is very hard to digest and hence if sex trade is legalized than the sex trade workers would not undergo the humiliation they face today in the Indian society. Though in principle I am personally against prostitution of any kind, however considering the plight of the sex trade workers and by bearing in mind the interest, well-being and health of such sex trade workers, I feel appropriate measures and steps are required to be taken in order to formulate rules and regulations governing prostitution and brothels as there is gross violation of human rights of the sex trade workers in India which is very painful and disturbing.
(This article is the personal opinion of the writer and the same is written by Adv. Vinayak D. Porob practicing in criminal law at Mapusa with the assistance of Adv. Baggio P. Monterio and Miss. Kamaxi Pai Dhungat.)