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Sex Workers In India: A Socio-Legal Perspective

1. Introduction:

Prostitution or sex work is most often euphemistically stated as the worlds oldest profession. In a colloquial sense, it probably would have not originated as a profession per se rather it would have begun as a way which man used to satisfy his sexual needs. However, it got commercialised and have acquired a shape of contemporary slavery, gender discrimination, a reflection of male supremacy, misogyny and a patriarchal society. Albeit the grounds such as westernisation and active sex culture for the rise in prostitution, social stigma is attached. Though it is because of the voluntary interest of women due to financial constraints and personal interest that they get into this profession, there are multiple havoc caused to the women indulging in such activities as they are subjected to physical cruelty, human trafficking, financial exploitation and lot others ill-treatments mostly by souteneurs and brothel keepers. Despite the legislation in India which illegalizes soliciting in a public place, kerb-crawling, owning or managing a brothel, prostitution in a hotel, child prostitution, pimping and pandering, there is still no sole enactment which protects the rights of sex workers. Also, exploiters are not penalised under criminal law (I.P.C., Cr.P.C.). Thus in this article, the research will revolve around the state of sex workers, the pre-existing legislation corresponding to the prostitution, post-colonial laws that were brought in and the need for criminalization with potential recommendations.

2. The need for this necessary evil:

Although people stigmatize the profession of prostitution, it has now become a very common profession that few countries in the world boost up their economy employing sex tourism. In a survey conducted on sex work, the majority of the prostitutes have stated that their sexuality, sexual curiosity and their need for money as core reasons for stepping into this profession. It is a known fact that the struggle for economic survival drives most women into this sex work.[1] Most of them say that they entered the profession to pay for housing, food and for the daycare of her child.  The reasons are multidimensional and subjective. One woman being divorced by her husband taking all the possessions sees prostitution as her only means to earn. Albeit it is indubitable that money is the primary reason, it is also very surprising to know that sexual motivation also drives a lot of women into this profession.[2] Another dark side of the cause for women entering into this profession is by coercion, trafficking and other suppressive means which is to be condemned. Further in this research, the legislations pertaining to this issue and the need for criminalization will be looked upon.

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3. Present Legislations in India:

The whole idea of human rights for women exclusively expresses concern for gender equality and it is also traceable to the Convention for Elimination of all Forms of discrimination against Women.[3] Presently in India, the laws relating to women’s security are Immoral Trafficking (Prevention) Act, 1956, Indecent Representation of Women (Prohibition) Act, 1986, National Commission for Women Act, 1990,  Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. But the issue here is that these laws don’t consider an aggrieved prostitute just before the eyes of the law. Although these legislations protect women’s rights they never heed to the lament of a prostitute who has been harmed or traumatized due to the nature and scope of the enactment. Some women voluntarily enter this profession due to poverty, family pressure illness, illiteracy where there are people who are made to enter this industry force like trafficking, coercion, kidnapping and being deceived. As the present legislation is not adequate to regulate the concerns in prostitution and protect the victimized and traumatized women, there arises a question of whether or not there is a not for the formation of new laws to stabilize the same.

4. The exigency of legislation/amendments:

There are multiple instances where these women who voluntarily enter into this field are victimised by physical harm/cruelty, injured and undergo traumas by the barbaric acts of certain sex maniacs. The prevailing law legitimises consensual sex, but it fails to see the fact that the women consented only for intercourse and not to get harmed and injured. Also, they are affected by a series of STD (Sexually Transmitted Diseases. The existing legislation and the instrument of the judiciary makes a woman unable to fight for her justice as there is no clear cut provision for the issues faced by her. “The defects of the existing system; Firstly, complaints are handled roughly and are not given much attention as is warranted. Secondly, the victims, more often than not, are humiliated by the police. The victims have invariably found rape trials a traumatic experience. The experience of giving evidence in court has been negative and destructive.”[4] “Even the evidence laws discriminate them as the testimony of women is often dismissed if she is proven unchaste”[5] Thus, the term unchastity restricts the prostituting women from her access to justice, but it fails to see her economic burden or the communal impact that coerced her to enter this field. Ergo, all these prove that the present laws lack to protect the women in the sex industry and goes along with the stigmatised society in this issue.

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5. Potential Recommendations:

The prime aim of this paper is to suggest and recommend some amendments in the existing legislations and emphasise the need for the criminalization of economical, physical and mental exploitation of women. The I.T.P. Act, 1956 was enacted in the newly independent India to deter the society from activities like soliciting in a public place, brothels and kerb-crawling. It must be amended in a way that women who voluntarily enter the must be protected by this and not be found unlawful owing to the fact that their economic condition has made her do this. Also in criminal law, Sections 366-A (dealing with the precaution of minor girl), 366-B (dealing with an offence of importation of girl from a foreign country), 372 (dealing with selling of minor for purposes of prostitution.) and 373 (dealing with the offence of buying minor for purposes of prostitution) are appreciable as it ensures the security of minor women.[6] In addition to this, IPC must include provisions which mention the criminalization of men who physically or mentally harms a woman during consensual intercourse(prostitution). Also, Section 354 of I.P.C. can include provisions that protect and the right to life of prostituting women.[7] These recommendations and its corresponding amendments would essentially enhance the legal rights of the sex workers(specifically women).

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6. Conclusion:

The factors that determine the expansion of this industry are as numerous in multi-dimension to enumerate. But, the contemporary idea of a brothel is evolving and the Indian legal system is yet to consider it. The Indian Legislation protects women who are coerced into this industry but the law remains static on women who enter into this profession voluntarily. On the other hand, offenders make use of the grey portion of the law and exploit women. The lawmakers should stop sticking to the colonial laws and must look at it as a profession and make the necessary amendments, given the law is dynamic and it evolves as per the existing social conditions.


[1]Srishti Bose,Legitimizing the illegal: sex trafficking, INTERNATIONAL JOURNAL OF LAW AND LEGAL JURISPRUDENCE,(May 2, 2014)https://ijlljs.in/legitimizing-the-illegal-sex-trafficking-srishti-bose-ii-year-b-a-l-l-bhons-rajiv-gandhi-national-university-of-law-patiala-punjab/

[2]Business Daily – Should prostitution be a normal profession?, BBC Sounds,BBC, https://www.bbc.co.uk/sounds/play/w3csy77g

[3] Mrs. Valsamma Paul v. Cochin University,  (1996) 3 SCC 545.

[4]Delhi Domestic Working Women’s v. Union of India,  (1995) 1 SCC 14

[5] State of Maharashtra v. Prakash and Anr, 1922 Cri L J

[6] Vishal Jeet vs. Union of India (UOI) and Ors,  AIR 1990 SC 1412

[7]The Constitution of India, 1950, Art. 21

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Author

Edgar Kaiser
Student - Tamil Nadu National Law University