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Legalization of Prostitution in India

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Legalization of Prostitution in India From the SelectedWorks of Dharmendra Chatur January 2009 Legalization of Prostitution in India Contact Start Your Own Notify Me Author SelectedWorks of New Work Available at: http://works.bepress.com/dchatur/1 TABLE OF CONTENTS CHAPTER CHAPTER PAGE NUMBER NUMBER 111 INTRODUCTION 222 222 INTERNATIONAL LEGAL 444 FRAMEWORK 333 INDIAN LEGAL FRAMEWORK 999 444 ASPECTS OF LEGALIZATION 131313 555 CONCLUSION 171717 666 BIBLIOGRAPHY 181818 LEGAL METHODS RESEARCH PAPER 1. INTRODUCTION According to the Immoral Traffic (Prevention) Act, 1956, ‘prostitution’ means the sexual exploitation or abuse of persons for commercial purposes. 1 Prostitution in India is a Rs. 40,000 crore annual business and thirty percent of the sex workers are children whose exploiters earn a whopping Rs. 11,000 crore. 2 According to a survey, there are approximately 10 million sex workers in India out of which 100,000 are in Mumbai alone, Asia’s largest sex industry centre. 3 There about 300,000 to 500,000 children in sex trade in India 4 among which Bangalore along with five major cities together account for 80% of child prostitutes in the country. 5 These figures are startling and point towards the importance of a genuine intervention of the State to curb this necessary evil.6 Prostitution has a long history in India right from the ancient times 7 till the 19 th Century 8 in British India and a widely recognized social reality today. Indian Courts have also recognized “[P]rostitution in society has not been an unknown phenomenon... The victims of the trap are the poor, illiterate and ignorant sections of the society and are the target group in the flesh trade; rich communities exploit them and harvest at their misery and ignominy in an organized gangsterism, in particular, with police nexus...” 9 It was also said that “[A] class of women is trapped as victims of circumstances, unfounded social sanctions, handicaps and coercive forms of flesh trade, optimised as ‘prostitutes’.” 10 Throughout this research paper, the term ‘sex worker’ will be used wherever possible. The term ‘prostitution or prostitute’ may be referred to, however, when discussing case law or legislative text that has adopted this term. This research paper aims at exploring aspects of legalization of commercial sex work in India and whether it is a possibility in light of the various social and legal constraints that are existent in our country. The paper will start with a broad overview of the international legal framework with regard to prostitution, sexual exploitation and trafficking and the safeguards entailed within them. This international legal framework would include various 1 § 2(f), Immoral Traffic (Prevention) Act, 1956 (hereinafter ITPA). 2 S. Sridevi Goel, Girl Child Prostitution, Society’s Responsibility – Indian Scenario , 7 CBI BULLETIN 14 (1999). 3 Robert I. Freidman, India’s Shame: Sexual Slavery and Political Corruption Are Leading to An AIDS Catastrophe , The Nation, April 8, 1996 c.f. Donna M. Hughes et al, Factbook on Global Sexual Exploitation , Coalition Against Trafficking in Women (CATW), http://www.catwinternational.org/factbook/india.php. 4 Donna M. Hughes et al, Factbook on Global Sexual Exploitation , Coalition Against Trafficking in Women (CATW), http://www.catwinternational.org/factbook/india.php. 5 Robert I. Freidman, Supra note 3. 6 Asim Sarode, Contesting legal positions on prostitution from a human rights perspective , Prostitution and beyond: an Analysis of Sex Work in India (New Delhi: SAGE Publishers, 2008) 231. 7 See Sukumari Bhattacharji, Prostitution in Ancient India , 15 (2) SOCIAL SCIENTIST 32 (1987). 8 See Sumanta Banerjee, The 'Beshya' and the 'Babu': Prostitute and Her Clientele in 19th Century Bengal , 28 (45) ECONOMIC AND POLITICAL WEEKLY 2461 (1993). 9 Gaurav Jain v. Union of India and others AIR 1997 SC 3021 (K. Ramaswamy J.,). 10 Id. 08D6015 Page 2 LEGAL METHODS RESEARCH PAPER conventions and treaties that India has ratified and the steps in respect of legalization that have been adopted by countries such as Netherlands, Sweden and Australia. This paper will consider such steps of legalization that could be implemented in India. After looking at the international legal framework, the picture in India with regard to the legal framework and ground realities will be considered including issues of inadequacy of the legal framework and misuse thereof. The decisions of the Supreme Court and various High Courts will be looked at where the problems of sex work have been contemplated and addressed. The directions of the National Human Rights Commission and National Commission for Women with regard to trafficking and the ITPA will also be looked into. The final chapter will include questions of legalization, decriminalization and total prohibition of commercial sex work; the effects of such legalization on our country, the policy changes to be brought in if commercial sex has to be legalized or if the current law should be strengthened leading to stricter regulation of the sector; the questions of individual rights and civil liberties of the sex workers including their right to employment, right against discrimination, voluntary prostitution inter alia ; and analogy with other countries would be drawn where the steps of legalization and their drawbacks, backlashes will be answered. The Conclusion would contain a summary of the issues brought forth in the paper. This will be followed by a Bibliography. The paper will be limited to the question of legalization of commercial sex work and will not involve issues such as customary prostitution (the Devadasi system 11 ), Transgender Sex Work and Male Sex Work. The system of citation will be uniform throughout. 11 See Moni Nag, Anthropological Perspectives on Prostitution and AIDS in India , 36 (42) ECONOMIC AND POLITICAL WEEKLY 4025, 4027 (2001). 08D6015 Page 3 LEGAL METHODS RESEARCH PAPER 2. INTERNATIONAL LEGAL FRAMEWORK There are numerous international treaties and conventions that protect the interests and human rights of sex workers. Among them, the primary international treaty dealing with sex workers is the 1949 UN Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others.12 This Convention reflects the Abolitionist 13 view to the point that it has failed adequately to recognize the human rights of sex workers and that it is based on the promise that sex work should end and that all sex workers should be regarded as victims who must be saved from themselves and be rehabilitated. 14 Under this Convention, it is an offence to procure or entice another person even with their consent into prostitution, 15 to exploit the prostitution of that person even with their consent, 16 state parties shall agree to punish any person who keeps or manages of finances a brothel 17 or knowingly rents or lets a building or other place for purpose of prostitution.18 The most recent international instrument on the issue is the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime 19 but this has not yet been ratified by India and not in force so far. This Protocol criminalizes acts of receipt, transportation, harbour, recruitment, and transfer of persons; by means of use of force, abduction, threat of use of force, frauds, deception, and abuse of position of vulnerability; for purposes of prostitution, forced labour or other forms of sexual exploitation. 20 This protocol is still couched in language similar to the 1949 Convention and does as little to respect the rights and agency of women in the industry. It fails to draw a line between trafficking and forced prostitution on one hand and unforced prostitution on the other -- providing justification for criminalization and denial of basic rights of these workers. 21 Similarly, the Slavery Convention of 1926 22 and its Supplementary Convention of 1956 23 have some provisions relating to sex workers. Article 1 of the Supplementary Convention as including debt bondage and other forms of tied labour, under which the working conditions of sex workers may fall. 12 96 U.N.T.S. 271 (1949) [hereinafter 1949 Trafficking Convention]. 13 The Abolitionist approach declares that the institution of prostitution itself constitutes a violation of human rights, akin to the institution of slavery. The Abolitionist approach requires governments to abolish prostitution through the penalisation of this 'third party', which profits from the transaction between prostitute and client. The prostitute cannot be punished, as she is the victim of a process she does not control. See Jo Bindman & J Doezema, Redefining Prostitution as Sex Work on the International Agenda , http://www.walnet.org/csis/papers/redefining.html. 14 Laya Medhini et al, 2 HIV/AIDS AND THE LAW (New Delhi: Human Rights Law Network, 2007) 715. 15 Article 1 (1), 1949 Trafficking Convention. 16 Article 1 (2), Id . 17 Article 2 (1), Id . 18 Article 2 (2), Id . 19 G.A. Res. 55/25, U.N. G.A.O.R, 55 th Session, U.N. Doc. A/RES/55/25, (2000) (hereinafter Trafficking Protocol). 20 Id Article 3 (a), Trafficking Protocol. 21 Laya Medhini et al, Supra note 14. 22 International Convention to Suppress the Slave Trade and Slavery, 60 L.N.T.S 253, 46 Stat. 2183 (September 25, 1926). 23 Supplementary Convention on the Abolition of Slavery, Slave Trade, and Institutions and Practices Similar to Slavery, 266 U.N.T.S 40 (April 30, 1956). 08D6015 Page 4 LEGAL METHODS RESEARCH
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