VOICES OF THE UNHEARD
The present this essay, I examined the issue of the rights of the prostitutes in India. I found out that the conditions of the prostitutes around the world and in India are overwhelmingly abhorrent and too often violate their constitutional right, depriving their right to live with dignity. The essay contain guidance for the state,authorities and other actors on how to ensure that their obligations under international human rights law regarding the right to live with dignity are met in conformity with the United Nations Charter.
Prostitutes face significant barriers to their constitutional right to live with dignity compared with others. They are more likely to suffer negative health outcomes as a result, they have disproportionately high rates of exploitation and they are extremely vulnerable to forced sex, rape and the effects of low wages. When they defend their rights, they are often the targets of extreme violence.
In the present essay, I assert that the right of prostitutes must be interpreted in a manner that recognizes the interdependence and indivisibility of the right to live with dignity as articulated in International human rights law.
The meaning and application of the right to live with dignity must therefore integrate the right to livelihood, the principle of fair wages, prior and informed consent, the right to health, and access to justice. In the essay, I assert that this occupation must be defined and determined by the authorities and redressing the grievance of sex workers. I also assert that human rights claims framed using the Declaration will be strengthened if the accountability mechanisms and the legal obligations attached to the right to live with dignity are deployed. I conclude with a set of recommendations to guide State, authorities and other actors in ensuring that prostitutes can live in peace, security and dignity and enjoy the rights without discrimination.
(A) Prostitution is one of the most grave and multifaceted problem. It’s one of the oldest professions the world practiced since the birth of an organized society. Prostitutes are found and prostitution is practiced in almost all the countries and every type of society.
(B) Kautilya’s famous ‘Arthasasthra’ contains rules for prostitutes and their activities. A code of conduct was prescribed for them and the people coming to them.Vatsyayan, the noted Indian sage of the Third century B.C. devoted a number of pages on prostitutes and their amorous ways of life in his monumental treatise Kamasutra.
(C) In Medieval India, The word ‘Tawaif’ and ‘Mujra’ became common during this era. After the downfall of Mughal Empire and they were not trained for any profession and society had no jobs to offer them. When faced with economic problem they had no choice but to take recourse to the trade of sex.
(D) The place of women in India did not improve during the British regime. Conditions continued to deteriorate and in the absence of state control and regulation prostitution thrived on a large commercial scale.
(E) The oxford university defines prostitution as “The practice or occupation of engaging in sexual activity with someone for payment”.
UNDER INTERNATIONAL HUMAN RIGHTS LAW-
International Human Rights Law recognises prostitution as a violation of human rights and prohibits their exploitation.It is the obligation of the states that acceded to the conventions and are the members of United Nations to oppose and work for the elimination of the exploitation of prostitutes.
· Respect for human dignity is a fundamental human right and a constituent principle of the United Nations System.
The first sentence of the Universal Declaration of Human Rights (UDHR) states that “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”.
The protection of the dignity and worth of the human person is not only stated as a fundamental principle by the UDHR but is also cited as one of the “ideals and common goals of all People whose Governments have gathered to create the United Nations” in the Preamble of the Charter of the United Nations (1945).
· Prostitution is recognised as a violation of human dignity under human rights law
The General Assembly of the United Nations adopted the Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others (hereafter UN 1949 Convention). This Convention is part of the UN universal human rights instruments and is a binding treaty.In its preamble, the UN 1949 Convention states that prostitution and traffic in persons are “incompatible with the dignity and worth of the human person”.
“Whereas prostitution and the accompanying evil of the traffic in persons for the purpose of prostitution are incompatible with the dignity and worth of the human person and endanger the welfare of the individual, the family and the community”. UN Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others (1949).
· Two binding UN Conventions prohibit the exploitation of the prostitution of others: the UN Convention on the Elimination of All Forms of Discrimination against Women – CEDAW (1979) and the UN Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others (1949). Both Conventions have been adopted by the general assembly of the United Nations and thus have universal scope. Furthermore, they are directly legally binding upon the States that have ratified, or acceded to them.
· The “exploitation of the prostitution of others” includes pimping, procuring and the running of a brothel are The scope of States’ obligations to suppress all forms of exploitation of the prostitution of others is defined in the UN Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others.
Article 1 prohibits the exploitation of prostitution in all its forms. States are obliged to punish any person who makes a profit from, or facilitates, the prostitution of another person, even with the consent of that person.
Articles 1 and 2 explicitly state that the elimination of the exploitation of the prostitution of others includes the prohibition of all forms of pimping, procuring and the running of a brothel. It is essential to note that the exploitation of the prostitution of others is recognised as a “form of sexual exploitation” under international law by the Palermo Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, which supplements the United Nations Convention against Transnational Organized Crime (2000).
REASONS FOR PROSTITUTION-
· Destitution-Starvation force woman to a life of prostitution.A woman deserted by her husband or her relatives, Prostitution is the last resort in despair of women who find themselves thrown on the streets with no other means of fighting destitution. The widows of lower castes are migrating from their village homes to the city to earn their livelihood and fall for this evil profession.
· Hereditary Prostitution-The daughter of prostitute almost always carries on the trade of her mother.
· Connivance of Husband-Cases of connivance of husband is more among low class people. In most of these cases the husband is only the primary agent in leading hiswife to a life of prostitution
· Devadasi System-The word Devadasi means the servant of god. A devadasi isa girl whose life is dedicated to the service of God. In course of time the devadasi became the class of women of loosecharacter. The modern devadasi, they are treated as prostitute by the society.
· Parental abuse-Parental neglect is widely considered to be a typical childhood experience of women who become prostitutes.
· Orphan Girls – Treatment of parents, relatives or husbands is one of the most important causes of prostitution.
· The Hard Lot of Widows – Widows left penniless by their deceased husbands is sometimes considered as a burden by their relatives.
· Treatment of husband – Due to beater, drunker and violent tempered husband’s women have to face miserable life. To get rid of this miserable life some of them leave home and found their way to brothels.
· Means-Threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power etc.
· Kidnapping of Little Girls-It is one of methods of procuring girls for trafficking
is kidnapping of little girls by beggars, servants etc. These girls are sold to brothel keepers.
· Marriage Fraud-Marriage is one of the methods by which girls are recruited for the brothels by pimps.
· Traffickers use this trick for securing those girls whose parents are in poor circumstances. The pimp poses as well – to – do man and offers marriage.
· Gang Rape-Rape is the most damaging and heinous crimes andrecognized as the most serious offence against the dignity of women. Rape is theonly crime in which the victim faces more degradation and social unacceptability.
· Forcing trafficked girls to join prostitution by pimps-Girls are subjected to continuous rape which is intended to develop their sexual urges. In the process if they get unconscious they are left in that state. As soon as they regain consciousness, they are brutally raped again.
When the girls can no longer go through these barbaric ordeals, they give up and are transformed into a commodity for the sex market.
KEY GUIDING PRINCIPLES IN INDIA-
THE IMMORAL TRAFFIC (PREVENTION) ACT, 1956 ACT–
· The objective of the act is to abolish commercialization of women, men and children for the purpose of prostitution as an organized means of living.
· This current legislation extent to whole of India, it defines child, minor, prostitution and etc under section 2 of the act.The act not only penalises the offences but also provide the guidelines for rehabilitation.
· Sex work in private is not illegal, but the Immoral Traffic (Prevention) Act 1956 (‘ITPA’) creates a range of offences affecting people involved in the sex industry. Offences include brothel keeping, living on the earnings of sex work, procuring, inducing or detaining persons for the purpose of sex work with or without consent. The Act provides a framework for police to conduct ‘raid and rescue’ operations.
· Sections deals with Punishment-
3.Punishment for keeping a brothel or allowing premises to be used as a brothel,
4. Punishment for living on the earnings of prostitution,
5.Procuring, inducing or taking person for the sake of prostitution,
6.Detaining a person in premises where prostitution is carried on,
7.Prostitution in or in the vicinity of public places,
8. Seducing or soliciting for purpose of prostitution,
9. Seduction of a person in custody.
· Section dealing with rehabilitation-
10A. Detention in a corrective institution,
15. Search without warrant,
16. Rescue of person,
17. Intermediate custody of persons removed under section 15 or rescued under section
17A. Conditions to be observed before placing persons rescued under section 16 to parents or guardians,
19. Application for being kept in a protective home or provided care and protection by court,
20. Removal of prostitute from any place,
21. Protective homes.
· In 2018 Ministry of Women and Child Development introduced an amendment bill which got lapsed in Rajya Sabha. The focal point of the amendment was, the definition of ‘CHILD’s Age’ to increase it to 18 years,clause 2(k) is suggested to be added.
INDIAN PENAL CODE
· Section 370.Trafficking of person.-
Under IPC 1860,Section 370,it gives five categories of TRAFFICKING and the punishment for the same corresponding with the gravity of the respective category.
· Section 372.Selling minor for purpose of prostitution, etc-Under the section it provides punishment for selling a person under the age of eighteen years of either sex for the purpose of prostitution,illicit intercourse or for any other immoral purpose.
Provisions of section 372 requires that a person under the age of eighteen years is being sold or let for hire with the intention and knowledge that the person would be used for either of the purpose mentioned in the section shall be punished accordingly.
· Section 373.Buying minor for prostitution, etc-Under the section the language of the section is quite applicable to an agreement or understanding come to with the person without the intervention of a third person,and the vice against which the section is directed is certainly not of any less anonymity in the latter case .The offence is complete so soon as the obtaining of possession of the person with the requisite intention or knowledge specified in the section is accomplished.
· Example – a person who steals minor girl under 18 years of age with requisite intention obtain possession of her within the meaning of this section.
Section 366 A –Procuring of minor girl
Section 366 B –Importation of girl from foreign country
They are intended to punish the export import of girls for prostitution section 366 A, deals with procuring minor girls from one part of India to another. Section 366 B makes it an offence to import into India from any country outside India girls below the age of twenty – one years for the purpose of prostitution.
· By applying the principles of common law we see that the women who are involved in the occupation of prostitution,they are deprived of equal protection of law.
For instance, In Mumbai –Kamathipura, In Kolkata-Sonagachi, In Delhi-G.B.Road and etc.
Under the act procurement of person as described under section 5, living on the earning of prostitution under section 4, carrying out the profession by detaining a person as defined under section 6 is punishable under this act.
The person as described under section 3 of IT (prevention) act is liable for the imprisonment and fine.
The concerned authorities are aware about these acts but the lack of proper implementation is the denial of the fundamental rights as specified by Article 14 to them.
· This can be substantiated by article 21 that they also have the right to livelihood by any means as it is equally important how other people of the society are attaining their own livelihood through different occupations. Right to livelihood is an integral facet of the right to life (Narendrakumar v. State of Haryana)
· Adoption of universal declaration of human rights
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, or to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. It was eventually decided to remove the right to privacy from the chapter.
Article 12 UNHR.
A cherished constitutional value and all human being residing in the territory of India are free of public scrutiny unless they act in an unlawful manner.(Ram jethmalaniv.Union of India).
· Under the nine judge bench of the SC has unanimously delivered its judgement in Justice K.S.Puttaswamy (retd.) v. Union of India holding that privacy is a constitutionally protected right which emerges from Article 21 of the constitution but also recognised and guaranteed by the fundamental rights contained in Part three of the Constitution.
· The right to privacy initially focused on protecting “private” spaces. These included spaces such as the home, from state interference. However, this idea of privacy is not limited simply to a person’s home. Privacy rests in ‘person’ and not in ‘places’. Therefore, even outside one’s home, other spaces could also acquire the character of private spaces, and even public spaces can afford a degree of privacy. The person in this occupation is denied this facet of privacy.
· Privacy protects us from the state’s power to enter our premises and conduct search of our properties and persons, and seizure of documents etc. The right to privacy requires that such actions must always be backed by a just and fair law, with safeguards and protections for individuals. Under IT (prevention) act, u/s 3(2A)(a) it gives the right to the state to enter into the premises on the basis of a report published in any leading newspaper.
· Privacy of body is fundamental to our understanding of our bodies as private. The understanding of where bodily privacy extends is contextual and our boundaries may start at our skin, or the point where we can feel breath, or even till the other side of the room. It is the point where we feel touched and physically affected by another person. Similarly, intrusions into our psychological space without consent and control violate our bodily privacy. Everyday numerous trafficked persons are cohered to join prostitution by subjecting them for continuous rape.
· Privacy requires that no individual can be coerced to undergo a medical examination, which are by nature, intrusive. The use of tools such as narco analysis and brain mapping to invade into an individual’s mind without their consent or control violates their privacy.
· Privacy also covers personal data, private communication, and sensitive personal data involving biometrics. It covers the choices of food, gender identity and religion. These are all private matters of the individual which had been covered under the article. After facing continuous abuse in the hands of their owner and undulation leave them with no option.
· Article 21 also covers rights to health,right to adequate pension, right to shelter, food, water and education which is a necessary requirement for life. As a prostitute they are facing dangers of HIV/AIDS, shelter in the ownership of their abuser, education is unreachable to their area and no pension rights.
· Right to reproductive choices is also covered under article 21 evenif the single woman is denied this right under this profession then it is the violation of human rights. (Suchitasrivastava v. Chandigarh Administration).
· The word life in article 21 means a life of dignity and not just an animal life. (Budhadevkarmaskar v. State of West Bengal).
The Directives of state policy
Under Article 38(1) and 38(2) and 39(a)
38(1) It is the responsibility of the state to promote the welfare of the people by securing and protecting a social order in which justice, social, economic and political, shall inform all the institutions of the National life.
(2) The State shall strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.
39 (a) The State shall, in particular, direct its policytowards securing— that the citizens, men and women equally, havethe right to an adequate means of livelihood.
In State of Uttar Pradesh v. Kaushalya, the Supreme Court upheld Section 20 of the ITPA, which empowers a magistrate to direct a sex worker to move away from an area in the interests of the general public and to prohibit the sex worker from re-entering an area without written permission from the magistrate. Section 20 was challenged on the ground of violation of guaranteed fundamental rights to equality, to move freely and to reside in any part of India. The Supreme Court observed that one of the objects of the Act is to control the ‘growing evil’ of sex work and the restrictions imposed by Section 20 were found to be in the public interest, taking into account ‘morals and health’. The court held that the difference between a sex worker and a non-sex worker is a reasonable classification, which justifies the difference in treatment.
Budhadev Karmaskar v. State of West Bengal
In 2011, the Supreme Court declared that sex workers are protected by the right to live with dignity guaranteed by Article 21 of the Constitution of India. The Court ordered all states and union territories to inform the Court of steps taken to rehabilitate sex workers. The Court directed the Central government, states and union territories to prepare rehabilitation schemes for the welfare of sex workers.
Tara v. State (2012)
The Delhi High Court overturned the forcible detention and transportation of 15 adult sex workers to Andhra Pradesh, because it was in violation of their right to live with dignity under the Constitution.
LEGISLATION IN OTHER COUNTRIES-
In South Asian countries, (Bangladesh, Nepal, SriLanka,and India) it is legal in private and others criminalises it in all forms.
Bangladesh-follows a system of quasi-legal brothels .Certification of sex workers involves endorsement of an affidavit. To obtain the certificate, the sex worker must swear an affidavit with her name, village, age, religion, and nationality, stating she is unable to find other sources of work, and affirming that the choice to become a sex worker is made freely and without any duress, pressure or undue influence. After paying a fee to police, the woman is issued a certificate by a magistrate and is permitted to work as a sex worker, provided she does not solicit in public.
Australia- Sex work in South Australia, Western Australia, and Tasmania is largely criminalised. In Victoria, Queensland and the Northern Territory sex work is licensed. Territories sex work business owners are required to undergo probity checks and to license their businesses with an external authority in order to gain approval to operate. Owners are also required by law to enforce mandatory HIV and other STI testing of sex workers who work in licensed businesses. The Australian Capital Territory has mostly decriminalised sex work, requiring private sex workers to register.
New Zealand- Sex work is recognized as legitimate work by government under Prostitution reform act,2003 by promoting the welfare and occupational health and safety of sex workers and is conducive to public health alsoprohibits the use in prostitution of persons under 18 years .
Germany- It is legal, regulated and their incomes are also taxed. The country allow brothels, there advertisement and job offers through HR companies. Germany passed the ACT- PROSTITUTES PROTECTION ACT in 2016 came into force since 1 July 2017.
Highlights of the Act-
· Obligation to register
· Prostitute business permit
· Health advice-Before registration they have to attend health consultation. It will be the responsibility of the authorities.
· Condom requirement-It must used during all sex acts like oral ,anal, andvaginal.They have a right to refuse acts without condoms. Clients not using condoms may be fined. Unprotected sex should not be promoted.
Netherlands-De Walled the prostitution street of the Amsterdam is famous for it.Prostitution is legal in the Netherlands as long as it involves sex between consenting adults. Abuses like forced prostitution, underage prostitution and unsafe working conditions still occur.
The problem of this profession is very complex and is deeply rooted in all countries including India. Non acceptance by the society even when they are working for them in one way or the other. So the possible solutions could be –
· Rehabilitation programmes- A concrete strategy and action plan isrequired.It is both physical and psychological. The Government with the NGOs must imbibe awareness among the sex workers about their legal status and rights. The immediate requirement of the sex workers is financial security, as after leaving their old profession they are even unable to earn their livings. Thus, a co-operative credit society lead by the NGOs on their own or with the support of the government is the need of the hour.
· Sex education in schools- The young girls are the biggest victims of the trafficking and later on pushed into the profession so imparting sex education in school as well as about the profession so that the children must be aware and empathetic towards there issues.
· Community Awareness- government through collaborating with NGOs in making people of the society aware about the problems, health issues and the constant exploitation faced by the prostitute. Working in synergy together by forming a policy. The way country stood together for SWACCH BHARAT.
· Stopping the Hereditary occupation- By stopping the next generation from taking the profession the government should take up awareness programmes and invest in the red light areas infrastructure by creating more schools , hospitals and help centres.
· New Policy Targets of government-Ensure availability of free, good quality condoms in the areas, Allotment of ration cards and other privileges and subsidies under the Public Distribution System of the Government. Provision of counselling of prostitutes, Provide free legal aid, any legal proceedings involving these women and girls should be held in camera and any prostitute who wishes to leave the profession must be assisted to do so.
· Toll free helpline for prostitutes because inspire of NALSA act prostitutes are either unaware or left out of the legal aid.
· Corruption-Even having the strong penal provisions against pimps, solicitors and information regarding trafficking there is no action by the police that is signalling towards huge corruption.
· Imposing Responsibility on sex buyers- By introducing new sections in the act.
· Health – The Union Ministry of Health and Family Welfare launched the National Strategic Plan 2017-24 aimed at eradicating HIV/AIDS by 2030, Mission SAMPARK which is in line with the narrative of UNAIDS programme and National AIDS control programme are steps in right direction but no inclusion of prostitution by the government under such programme indicate towards ignoring of the realities.
· Sex workers union-In several states, sex worker collectives or unions engage in advocacy on legal and human rights issues in addition to activities relating to health, education, livelihoods and protection from violence. Example- inBangalore, sex workers have formed the Karnataka Sex Workers Union (KSWU) to advocate for improved working conditions,AshodayaSamithi is an organization of sex workers in Mysore and many more.
· Misuse of provision should be checked- Sections of IT (PREVENTION) ACT 15 and 13 are constantly misused by the authorities.
SHOULD INDIA LEGALIZE PROSTITUTION-
· Whether a sex worker can ask for safe sex with their clients?
· Why they are not treated as an employee and ask for pensions? But the question will rise who is their employer?
· Sex work is also an occupation, it is probably one of the ‘oldest professions’ in the world .So shouldn’t it be legalised?
· U/A 19(1)(g)-to practise any profession, or to carry on any occupation, trade or business.
· The word ‘occupation’ refers to the vocation, profession, trade or calling in which a person is engaged for hire or for profit, and that a person’s principal business and chief means of obtaining livelihood constitutes his occupation. The term expresses an idea of continuity continuous series of transactions.
· In the case of T.M.A. Pai , it is held that Article 19 (1)(g) four expressions viz. profession, occupation, trade and business. Their fields may overlap, but each of them does have a content of its own and can be regulated by article 19(6).
Test of Reasonability–
· No universal standard of reasonableness being possible to be laid down, it differ from case to case.
· It involves the exercise of balancing the interest of the individual with that of the public interest i.e. individualism v. collectivism.
· Whether a restriction is reasonable or not shall depend on many factors
a) The nature of the right infringed
b) The purpose of the restriction
c) The extent and the nature of the mischief required to be suppressed
d) and the prevailing social and other conditions at the time.
· Legislation which is arbitrary or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedoms guaranteed in Article 19 (1) (g) and the social control permitted by Clause (6) of Article 19.
· It has to be seen firstly, whether there is any proximate connection or nexus between the restrictions imposed and the evil sought to be remedied and secondly, that assuming the first whether the restrictions are within the limit.
The 64th Law commission Report advocated for–
· It cannot be eliminated by law.
· Sumptuary laws that cannot be enforced lend themselves to extortion and arbitrary and episodic prosecution.
· Failure to provide a professional outlet for male sexuality will result in more rape and other sexual crimes.
· Registration and periodic health inspection are the best means of controlling venereal diseases.
· Legalized prostitution offers less opportunity for official corruption.
So if it is legalized there are numerous positives of this action starting from the health benefits to their rights, options of joining and learning other occupations and denying to have sex with their clients for their sadist demands.They can demand for fair working conditions, protection from violence and exploitation. India is lagging behind, neither have they considered them as a labour nor the country is considering it as a work issue. The gender nature of this occupation needs an analysis. Some say it is a social necessity but there is no justification for it.
If we look at the problem it is a service provided by the poor women in the same way household women are paid for their services and surrogate mothers in other country for lending their womb. The country is considering for regulating informal sectors, recently lok Sabha passed surrogacy (regulation) bill but the country never mentioned them as depressed class and in reality their status is lower than the untouchables in our country. So the need is to recognize this problem and fight for there human rights. A French writer Victor Hugo said “Slavery still exists, but now it applies only to women and its name is prostitution.”
(A).PROSTITUTION IN INDIAN SOCIETY: ISSUES, TRENDS AND REHABLITATION-(ugc.ac.in)
(B).MINOR RESERACH PROJECT –BY DR.SMT. S.R.SARODE
(A).CAP INTERNATIONAL FEBRUARY 2016 REPORT
(A).MINOR RESEARCH PROJECT – BY DR .SMT.S.R.SARODE
ACTS AND JUDGEMENT-
(A).IMMORAL TRAFFICKING ACT, 1956
(B).MINISTRY OF WOMEN AND CHILD DEVELOPMENT, GOI
(C).MINOR RESEARCH PROJECT – BY DR .SMT.S.R.SARODE
(D).IPC – P.S.A.PILLAI
(E). CONSTITUTION OF INDIA BARE ACT
(F).CIS PRIVACY BOOKLET 2018
(G).UNDP –SEX WOK AND THE LAW
PROSTITUTION IN OTHER COUNTRIES-
(1).UNDP –SEX WORK AND THE LAW
64th LAW COMMISSION REPORT
Author Details: Shruti Tripathi (Law centre 1, University of Delhi-110009)
The views are personal only, if any.