With Special focus on Status of Sex Workers in India

-Anisha Dash

Student, Symbiosis Law School,Pune

INTRODUCTION

 

The Discussion on the Status of sex worker has always been a multifaceted debate. A sex worker is a person who works in the sex industry. The term “sex worker” was coined in 1978 by sex worker activist Carol Leigh. Sex workers may be male, female, or transgender, and exchange sexual services or favours for money or other gifts. The motives of sex workers vary widely and can include debt, coercion, or survival. There are over 8,00,000 sex workers in India. However unofficial figures place these numbers far higher. In ancient India, there was a practice of the rich asking Nagarvadhu to Sing and dance, known as “brides of the town” (grooms). Female Sex Workers (Prostitute) also enjoyed a particular status within Hindu religious practice. India’s devadasi girls are forced by their poor families to dedicate themselves to the Hindu goddess Renuka and were regarded as sanctified prostitutes. In India, prostitution (the exchange of sexual services for money) is not illegal, but a number of related activities, including soliciting in a public place, kerb crawling, owning or managing a brothel, pimping and pandering, are crimes. Prostitution is not regulated in India. The primary law dealing with the status of sex workers is the 1956 law referred to as The Immoral Traffic (Suppression) Act (SITA). According to this law, prostitutes can practise their trade privately but cannot legally solicit or ‘seduce’ customers in public. The Immoral Traffic (Prevention) Act or PITA is a 1986 amendment of legislation passed in 1956 as a result of the signing by India of the United Nations’ declaration in 1950 in New York on the suppression of trafficking. The act, then called the All India Suppression of Immoral Traffic Act (SITA), was amended to the current law. The laws were intended as a means of limiting and eventually abolishing prostitution in India by gradually criminalising various aspects of sex work. It is basically associated with women in India .Sadly, the Women working in the sex work industry – be it pornography, stripping or prostitution — sit in the cross-hairs of an enduring controversy, surfacing questions surrounding everything from sexuality and health to economics and morality and are victims of social stigma.

 

 

 

 

CASE ANALYSIS

FACTS OF THE CASE

  Tara v State,W.P. (CRL) 296/2012 before the High Court of Delhi

  1. The Andhra Pradesh Police had approached the Metropolitian Magistrate, Tis Hazari Court of  Delhi claiming that a Search Warrant had been issued by the First class Magistarte court in the course of criminal investigation of the House No 21 , GB Road New Delhi.
  2. The 15 petitioners(All Majors) appeared before this Court, claim to have been illegally picked-up along with 41 others, by the A.P. Police.
  3. It was alleged that during investigation, statement of one of the witness had been recorded in which she implicated several individuals and also stated that large number of minor girls had been lured with false promises and introduced into prostitution – Details of racket were revealed. This fact is important as several individuals were implicated by the witness but the A.P. Police discriminated and kept only these 15 petitioners in custody , thus belittling their dignity as the other 41 people were released
  4. The Application was moved before Magistrate requesting for permission to take Victims to district where they came from .
  5. The 15 petitioners did not want to return to their hometown(Anantpur,A.P.) as they had settled down in Delhi. A few of the women had children and some of them went to school In Delhi.
  6. Yet they were detained by the police and kept in custody for more than 24 hourss before producing them in front of the Magistrate .
  7. They subjected them to forcible transportation against their consent, which violates their rights under Articles 14 and 21 of the Constitution of India. Hence, Writ petition was filed.
  8. Judgement Delivered on 13 April 2012 by a Bench comprising Justice S. Ravindra Bhat and Justice S.P Garg.

 

 


ISSUE

Whether the rights under Articles 14 and 21 of the Constitution of India were violated in detaining  them in Anantpur,A.P?
 SUB ISSUE

Whether the order of learned M.M., Tis Hazari Court ,Hyderabad is valid in terms of Sections 15,16 and 17 of the Immoral Traffic(Prevention) Act, 1956 (hereafter called “the Act”) ?

RULE

CONSTITUTION OF INDIA


ARTICLE 14-


Equality before law The State shall not deny to any person equality before the law or  the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.[1]

ARTICLE 21-


 Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.[2]
 

 

 

 

IMMORAL TRAFFIC(PREVENTION) ACT, 1956

SECTION 15-SEARCH WITHOUT WARRANT-


 Notwithstanding anything contained in any other law for the time being in force, whenever the special police officer or the trafficking police officer as the case may be, has reasonable grounds for believing that an offence punishable under this Act has been or is being committed in respect of a person living in any premises, and that search of the premises with warrant cannot be made without undue delay, such officer may, after recording the grounds of his belief, enter and search such premises without a warrant.[3]
 

SECTION 16-RESCUE OF PERSON–


Where a Magistrate has reason to believe from information received from the police or from any other person authorised by State Government in this behalf or otherwise, that any person is living, or is carrying, or is being made to carry on, prostitution in a brothel, he may direct a police officer not below the rank of a sub-inspector to enter such brothel, and to remove therefrom such person and produce her before him.

(2) The police officer, after removing the person shall forthwith produce her before the Magistrate issuing the order.[4]

 

SECTION 17-INTERMEDIATE CUSTODY–
of persons removed under Section 15 or rescued under Section 16 .—(1) When the special police officer removing a person under sub-section (4) of Section 15 or a police officer rescuing  a person under sub-section (1) of Section 16, is for any reason unable to produce her before the appropriate  Magistrate as required by sub-section (5) of Section 15, or before the Magistrate issuing the order under  sub-section (2) of Section 16, he shall forthwith produce her before the nearest Magistrate of any class, who  shall pass such orders as he deems proper for her safe custody until she is produced before the appropriate  Magistrate, or, as the case may be, the Magistrate issuing the order.[5]


ANALYSIS:
From the Legal Perspective, The writ petitioners accused that they faced illegal detention & custody by A.P.  Police  to which the judge responded stating that above mentioned rescued girls are being produced before me Under 17(1) of Immoral Traffic (Prevention) Act, 1956 for necessary order for their safe custody until their production before appropriate Magistrate. It had been urged on the behalf of the women that they opposed any transit order and stated that they were unwilling to go to Anantapur. All 15 petitioners were majors and had unequivocally recorded their desire to continue to stay in Delhi. The petitioners further argues that the impugned order is unsustainable. He argues that contrary to the scheme of the Act, which visualizes a rehabilitation order and transitory orders as a part of that process under Section 17 of the Immoral Traffic (Prevention) Act, 1956, in this case, the petitioners were neither rescued pursuant to an order or proceeding under Section 16 of the Immoral Traffic (Prevention) Act, 1956 nor were they rescued pursuant to search without warrant.t was emphasised that the police subjected them to forcible transportation against their consent, which violates their rights under Articles 14 and 21 of the Constitution of India.Counsel for the State however, urged that the legality of the order cannot be challenged in the manner suggested by the petitioners. It was urged that the application by the A.P. Police was in terms of Sections 16 and 17 of the of the Immoral Traffic (Prevention) Act, 1956, which enables the Magistrate to take appropriate measures.If one understands the scheme of this enactment and its perspective, Sections 15 to 17 of the Act are part of the mechanism to assist the law enforcement machinery towards achieving its objective. Section 17 is a special provision which enables the Magistrate to pass, in the exercise of his discretion, appropriate orders for rehabilitation. It is premised upon the knowledge derived through search without warrant (Section 15) or rescue of a person on the basis of a complaint or otherwise, and a direction to the police officer not below the rank of a Sub-Inspector, to rescue the victim (Section 16). In this case, the order has, in our opinion, completely ignored this aspect; the application itself mentions that a warrant had been issued. Therefore, the case was not covered by Section 15.
According to the Schools of Jurisprudence, in the above case, we can see that the rights of the individual were violated and they were illegally detained as well as transported to A.P against their will from Delhi and being detained for more than 24 hours before being produced in front of the Magistrate. We can relate the Ethical or Philosophical School of Jurisprudence to this case. The main luminaries of this  school are Hugo Grotius and Jean Jaques Rousseau. Grotius stated that natural law springs from the social nature of man and and the natural law as well as positive morality, both of which are based on the notion of righteousness. Rousseau observed that the State and the law are a product of the will of the people and sovereign was to rule only as per law by using legislative powers. The ultimate purpose of law is to secure liberty of the individual for the attainment of human  perfection and to use law  as a gateway  for   championing of individual rights & freedom in order to have an upright living and focus on general will of the people. We can also  connect this case to the Sociological School Of Jurisprudence which has emerged as a a result of synthesis of various juristic thoughts. The main exponent  of this school of law is considered as a social phenomena. They are mainly concerned with the relationship of law to other contemporary social institutions. Sociological school of jurisprudence is a functional study of law applied concrete social problems (in this case, the condition of sex workers in India) in order to make law an effective instrument of social control for harmonising the conflicting interests of the individuals of the society. We can also associate it with the Ethical Theory of Moral Relativism which is concerned with the differences in moral judgments across different people and cultures. Here the work/lifestyle of the sex workers might be shunned by various people but we cannot question its morality because nobody is objectively right or wrong; we ought to tolerate the behaviour of others even when we disagree about the morality of it.

 

 

CONCLUSION:

The Court opined that the coercive manner in which the police dealt with the victims are offensive of their rights under Articles 14 and 21 of the Constitution of India and the impugned order is numb about the measures which prompted the Magistrate to satisfy himself about the requirement of rehabilitation of the appellants before the Court. The Court also said that when this was neither a case covered by Section 15 nor Section 16, the Magistrate should not have exercised his power of transit remand as was done in the present case. . Although they dismissed this Appeal, they opined that the Central and the State Governments through Social Welfare Boards should prepare schemes for rehabilitation all over the country for physically and sexually abused women commonly known as prostitutes as they  have a right to live with dignity under Article 21 of the Constitution of India like any other individual. The verdict is justified because sex workers are also human beings and are entitled to live a life of dignity. The word ‘life’ in Article 21 of the Constitution does not limit to Life only but also to dignity and respect associated with it.  Sex workers work for their sheer survival and consider it as a way of living.
In India, The condition of sex workers is very grave due to the pre conceived notions existing in the society which looks down on commercial sex as we live in a patriarchal society  which has sexually repressive culture.[6]

Various measures have been taken from time to time to uplift the conditions of sex workers. Rehabilitating the sex workers might not always help as they don’t find an easy acceptance in our society. The State Legal Services Authorities has provided helpline numbers to the NGOs and to the State machinery as well as to sex workers and victims of sex trade who are in distress and who are compelled to continue with sex trade. Sonagachi, Calcutta has the second highest numberof sex workers in Asia. .In Calcutta, under the Swadhar Schemes there are 17 homes and two Homes under the Ujwala Scheme and 43 Short Stay Homes for giving rescue to sex workers .The informality of sex worker’s  way of living deprives them of bank accounts, insurance, or employment security. Recognition of their labour and economic contribution is one of the first steps in mainstreaming sex workers and according them dignity and rights.  The Sangini Women’s Cooperative Bank in Mumbai’s red light area has made a good beginning towards it. All these measures have made the life of sex workers simpler and somewhat less complicated and humane to live for them.They should also be made aware about the various sexually transmitted diseases and the ways to use precautions.Sex workers are humans in the end and should not be discriminated due to their choice of profession. In a nutshell, Above All, women should be the heroine of their lives and not the victim of it as they are the key to taking forward the legacy of mankind.

 

SHOULD IT BE LEGALISED CONSIDERING THE INDIVIDUAL AND SOCIETAL ETHICS?

Quite a lot of people hold the view that prostitution should not be legalized at any cost whatsoever, as not only is this against the Indian culture, but this will also further promote it and that people who now refrain from it will do it openly. Also that legalization will not prevent AIDS as the usage of contraceptives and all has nothing to do with whether the practice is legal or not. People who do not use them now will NOT use them even after legalization, and hence it will, in fact promote AIDS even more.[7]

First of all, the researcher  refuses to consider it as a social evil or a taboo as it is the individuals’ choice to earn their livelihood the way they want to as long as they are not coerced into it.

Secondly, sex is a need and that is a fact, and people denying it know that there is no truth in the denial. Wars have been fought over it and yet many feel and say that sex, which is one of the most primal human needs after food, clothing and shelter, is not important and that seeking it is wrong. Here too the sexist, misogynistic and patriarchal notion prevails wherein the clients (males) are not blamed and usually let free whereas the prostitutes (women) are considered the culprits, even though we all know that a product comes and sustains in the market only because there is demand for it.

How can we say that people selling off their minds, ideas and time to others when they work for them is ethical and selling off their bodies is not ethical, even though we prize the mind and soul and all the abstract things much more than mere bodies?

The researcher believes that prostitution must be legalized as our society has still not grown over and above its obsolete mindset. A prostitute is still treated as a destruction of the Indian traditions, and prostitution considered as a social evil, while this is not the case. Prostitutes have the exact same rights as you or any other individual. If we have the right to speech and expression, if we have the right to live freely, so does a prostitute. We feel legalization will give a voice to the prostitutes, they will get proper representation and they will be able to fight against injustice with as much will as a person with a regular job would. This will also make laws sturdier to ensure that illegal prostitution is banned. They deserve a chance of welfare in the society, by being a part of this society, legally, without “ethical” accusations[8].

 

 


 

REFERNCE

WEBSITES

  1. Tara V. State of Delhi, 13 April 2012 http://indiankanoon.org/doc/198779515/
  2. Toward a legal framework that promotes and protects sex workers’ health and human rights http://www.hhrjournal.org/2013/10/03/toward-a-legal-framework-that-promotes-and-protects-sex-workers-health-and-human-rights/
  3. Prostitution In India http://en.wikipedia.org/wiki/Prostitution_in_India
  4. Sex workers demand ‘decriminalisation’, not legalisation http://indianexpress.com/article/cities/pune/sex-workers-demand-decriminalisation-not-legalisation/
  5. Condition of Sex Workers In India http://www.youthkiawaaz.com/2010/01/conditions-of-sex-workers-in-india/

 

LEGAL DATABASES

  1. Manupatra
  2. SCC Online

BOOKS REFEREED

  1. Salmond’s Jurisprudence
  2. Jurisprudence & Legal Theory-V.D. Mahajan

 

[1] Bare Act of Constitution of India accessed through http://lawmin.nic.in/coi/coiason29july08.pdf  on 20th July,2016

[2] Bare Act of Constitution of India accessed through http://lawmin.nic.in/coi/coiason29july08.pdf  on 20th July,2016

[3] Bare Act of Immoral Traffic and Prevention Act,1956 accessed through http://www.lawyersclubindia.com/bare_acts/details.asp?mod_id=471 on 22nd July,2016

[4] Bare Act of Immoral Traffic and Prevention Act,1956 accessed through http://www.lawyersclubindia.com/bare_acts/details.asp?mod_id=471 on 22nd July,2016

[5] Bare Act of Immoral Traffic and Prevention Act,1956 accessed through http://www.lawyersclubindia.com/bare_acts/details.asp?mod_id=471 on 22nd July,2016

[6]Status of sex workers in India by Aarthi Pai & Meena Seshu accesed on 23rd July through http://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/Ind/INT_CEDAW_NGO_Ind_17395_E.pdf

[7] ibid

[8] ibid