HISTORY | Evolution and Recognition of Sex Work as Profession in India

Sex Workers

As per Indian history, the previous adaptations of prostitutes were known as “Devadasi” who used to contribute their entire life to the devotion of Lord Krishna. Some religious convictions resolve that the Devadasis consider the Gods as their husbands and in this manner can’t wed other human men.

They were later called “Nagarvadhu” or the “Brides of the town” and were called upon by the royals and the rich to dance and sing.

Laws related to Prostitution in India

As per the Indian context, prostitution is not explicitly illegal as it is not specifically expressed prostitution to be punishable by law but few activities related to prostitution such as running brothels, soliciting, trafficking and pimping are all punishable offence in India under THE IMMORAL TRAFFIC (PREVENTION) ACT, (1956). As per Section 2(f) of The Immoral Trafficking Act (1956) gives the definition of “prostitution” as sexual exploitation or misuse of any persons for any business purpose. Section 372 and 373 of the Indian Penal Code 1860 also deals with prostitution but it is restricted to child prostitution only. Though under sections 366A, 366B, 370A of the IPC deals with punishing for offences of procreation of minor girl, importation of girl from foreign for sex and exploitation of a trafficked person respectively. Thus under IPC laws related to prostitution is quite limited.

The legislation which put restrictions on prostitution is The Immoral Traffic (Prevention) Act, 1956 (Act/ITPA).

Indian Penal Code, 1860 deals with prostitution as well but it majorly deals with kidnapping and child prostitution. It penalizes the buying, selling and importing of minor for the purpose of prostitution under Section 372 and Section 373. The Constitution of India prohibits trafficking in human beings, beggars and other similar forms of forced labor under Article 23(1) and any contravention of this provision shall be an offense punishable in accordance with the law under Article 23(2).

Latest Judgement in favor of sex workers

Budhadev Karmaskar vs State Of West Bengal (2011)

On July 19, 2011, the court had ordered the setting up of a panel headed by senior advocate Pradip Ghosh as chairman to suggest measures to prevent trafficking, rehabilitate sex workers who wish to leave it, and also to make conditions conducive for sex workers who wish to continue working to do that with dignity.

With the Centre yet to come up with a law on sex workers, the Supreme Court, in exercise of its powers under Article 142, has issued a series of directions on their “rehabilitation”, including for sensitizing police to treat sex workers with dignity and to avoid abusing them or subjecting them to violence. A bench presided by Justice L Nageswara Rao also asked the Centre to spell out its stand on recommendation by a panel appointed by it in 2011 to exempt sex workers — who are adults and participates with consent — from criminal action.  No law yet, Supreme Court asks cops to treat sex workers with dignity

“Prostitution is a profession like any other profession. Sex workers are entitled to equal status and equal protection under the law of the land”, said Supreme Court. In its May 19 order, the bench asked the Centre to place its views in six weeks on recommendations on which it had reservations. This came after Additional Solicitor General Jayant Sood informed the bench that the government had “certain reservations” on some of the panel’s recommendations.

Hearing the matter on May 19, the SC noted that in 2016 “the recommendations were considered by the Government of India, and a draft legislation was published incorporating the recommendations”. However, since the law has not yet been made, the court said it is exercising powers under Article 142 to direct the implementation of some of the recommendations.

The court said: “As the legislation has not been made till date, even though the recommendations were made by the Panel in 2016 and the said recommendations have to be implemented, we are exercising our powers conferred under Article 142 of the Constitution, to issue the following directions which will hold the field till a legislation is made by the Union of India.” It directed that of the 10 recommendations, six of them which “relate…to the rehabilitation measures in respect of sex workers and other connected issues” be implemented and asked states and union territories “to act in strict compliance of the recommendations”.

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