Protection of Prostitutes: A Shadowed Concept

– Jasmine Kaur

Curvy traces and red pouts, hair bedecked with jasmine flowers, vivacious glass bangles resembling their personalities. A similar picture flashes in a mind when the word ‘prostitute’ pops up. Prostitution is not a word that everybody is comfortable to say, nor is it a profession that people openly talk about. According to various dictionaries and social scientists, prostitution is an act of engaging with someone in sexual activity for payment. But the law in India gives prostitution another definition. According to section 2 clause (f) of The Prevention of Immoral Traffic Act, 1987, prostitution is defined as “sexual exploitation or abuse of persons for commercial purpose.” 

Despite the fact that the ‘profession’ of prostitution is said to be one of the oldest profession of an organized society, a majority of people are still very judgmental and are very stereotypical about this profession and the ones carrying it. The existence of prostitution, particularly in India, is shown and described in many mythological writings, scriptures and ancient literature works. A classic example of an ancient literature is Chanakya’s ‘Arthashastra’ from where it can be clearly inferred that prostitution was prominent in ancient times. He in his text has accurately described prostitution and its code of practice. Another scripture that can be referred to here is the ‘Vedas’ where prostitution is described as an organized and established institution. The ‘apsaras’ were mentioned in various mythologies of Hinduism who used to entertain in the court of Lord Indra. Many names like menaka, rambha, urvashi float while talking about these apsaras. 

Apart from this, Aryan rulers are said to follow the system of celestial courts and developed the system of guest prostitutes. They offered their best maidens to the fellow kings as a token of gratitude. The system of prostitutes was also very prominent during the reign of Kauravas and Pandavas as is mentioned in ‘Mahabharata’. There are numerous other texts that indicate the presence of system of prostitution in ancient India. 

This indicates that prostitution at that time was not an underground practice but a fully developed and mainstream profession of many. Also it is clear that prostitution has its roots in ancient India and is not a manifestation of debauchery, as is sometimes claimed. 

In modern India, it is estimated that there are over 20 million sex workers across the country, according to the recent Human Rights Watch Report. The numbers of persons included in this practice is definitely concerning. There are various factors that drive people in the drove of this industry. The industry, not only drives people for physical pleasures, but also an economical and psychological distress. When one thinks about the reasons of joining prostitution, poverty pops up first in every mind. There are a large number of girls and women who enter the industry of prostitution because of the hit of poverty and feed their families by taking financial benefits of their bodies. Other economic factors include illiteracy and unemployment. Actually, all the economic factors create a loop and are interconnected to each other. Illiteracy causes unemployment in people, which in turn generates poverty in people. To end the poverty, the women need employment, but because of lack of education, they are not able to find desired and reputed jobs, so they start prostitution. Other than this, there are enormous factors like prior rape, abduction, selling of girls by parents or husbands, forced sex, drug rackets, and so on. 

Despite being the oldest profession of the mankind, prostitution is, in most of the countries is far from being protected, it is not even legalized. In India, where the traces of this can be seen from ancient times like Ramayana and Mahabharata, this practice is considered ‘wrong’ by the people as well as the law. India is a country where over 20 million females are into prostitution, yet the law is vague for this industry. In the books of law, prostitution is nowhere directly called illegal, but it is stuck in the web of laws that make the sex workers vulnerable and more prone to exploitation. The most relevant law related to this is The Immoral traffic prevention law, 1987. According to law, a woman can carry out the practice of prostitution individually and no two or more women, as says section 2 clause (a), defining a brothel. This somewhere makes women more vulnerable to harassment and exploitation as there is no option of physical security left with the women. Section 3 of this act prohibits a person to practice prostitution in an organized and managed place or a brothel. This means any person who manages a brothel or who works in a brothel or who is tenant of a building which is used as a brothel, shall be punished. Now this has a two way effect. If seen on a positive note, it somewhere makes women independent and make women secure from the possible exploitation of the middleman or the pimp regulating the brothel. But the brothel can also be a safer option for a woman practicing prostitution in terms of exploitation from customers, assault and so on. 

Another section of this act that needs attention is the section 7 of this act. The act prohibits prostitutes from carrying out the practice of prostitution in public places or within 200 meters of any public places i.e. the places that are used by public in general. These include religious places, hotels, malls, etc. and if any owner tenant or concerned of that place, including hotels, knowingly allows practice of prostitution in their premises will be held liable. This means that the prostitutes will have to work in distant places, away from the localities and, we can say, in isolation. This also brings them one step closer to molestation or exploitation by the customers. 

The discussion of these rules was important so that a perspective of this law could be inferred. The law is basically protecting the society from the prostitutes and not prostitutes from the crime. The basic safety cannot be granted to the prostitutes even after seven decades of independence and a whole era of technological and social advancements. 

The judiciary too kept on being indifferent about the sex workers’ rights in the society. In 2016, the Supreme Court announced a judgment, saying that sex workers can’t cry for rape. The woman was refused payment post sexual intercourse and for seeking redressal, she moved to SC. This judgment was an indication that even in the eyes of judiciary, the prostitutes were ‘women with loose character.’ 

But there is always a ray of light. In past few years, the coins have flipped in the landmark judgment of 2018 [State (NCT of Delhi) v. Pankaj Chaudhary,2018 SCC OnLine SC 2256, decided on 30-10-2018]. This judgment gave us the famous phrase “no means no”. Four men gang raped a prostitute in a jhuggi, and took a plea that the woman was of bad character. The trial court punished them under Section 376 of IPC, but were later acquitted by the high court in 2009. Finally, in 1028, the apex court recognized the right of prostitute to refuse sexual intercourse. The court, reversing the judgment of the Delhi High Court stated that, “Even assuming that the prosecutrix was of easy virtue, she has a right to refuse to submit herself to sexual intercourse to anyone.” The Supreme Court further agreed with the trial court’s statement saying “even if the allegations of the accused that the prosecutrix is of immoral character are taken to be correct, same does not give any right to the accused persons to commit rape.”