Md. Faraz Ahmad studied law at Sikkim University, and is currently enrolled as an : advocate under Calcutta State Bar Council. Ahmad is also a debator, writer, singer and human rights activist in general (special areas of interest or concern relates to sex workers).
One of the most marginalized and unaddressed sections of Indian society are prostitutes or sex workers. Prostitution is an ancient institution which has an interesting past but unfortunately became the biggest challenge for the modern civil society.
Sex workers are denied or forcefully deprived of their very basic rights which is required to live as a human being i.e. education, health, privacy and most importantly dignity or respect. The simple understanding of Universal definition of ‘human rights’ is that every human being irrespective of his/her caste, creed, religion or any form of identification has certain basic rights which is a priority (from the very beginning). But when it comes to the sex workers we simply ignore everything and declare it against our morality or civilization without even knowing it.
Many questions raised in the past are still unanswered as to why it is considered as immoral therefore illegal activity? If it is an immoral activity what is our role as a society to resolve it? Is criminalizing prostitution just and not inhumane idea? Without understanding its reasons and subsequent consequences relating to it how can we jump into any conclusion? Or, are we as a civil society responsible for increasing the population of sex workers? The debate of legality of prostitution is not a new invention, it was debated even in the Constituent Assembly before the adoption of Indian Constitution by Shri Brijeshwar Prasad who argued in favour of legalizing prostitution considering it as an old institution which according to him cannot be abolished, if it is done it will create black market and this will go underground.
History of Prostitution in India
The correct way of understanding the roots and history of any institution lies in its power to deconstruct it from the prevailing notions of moral perceptions. There is no well documented source on prostitution as it was never taken seriously for the purpose of research or study. However, there are many known ancient traditions where sex workers enjoyed high degree of agency, they were categorized differently as per their role in the society. S.M. Edward in his writing titled ‘Crime in India’ discussed how Indian society was tolerant towards prostitutes which surprised him. Some references are found even in the Ramayana, Mahabharata and Buddhist scriptures such as Jataka Tales which proves the existence of prostitution in India.
As time passed, some developments happened in terms of regulating prostitution. Accordingly, prostitutes were categorized into Kumbhadasi (a lower class prostitute woman who will be a maid and sexually please the household), Rupajiva (higher in the hierarchy, ranging from household heads to professional dancers) and Ganikas (a high seat honor attained through beauty and intellectual attainment).
When the British came to India they were amazed to see the position of sex workers. Unfortunately, without understanding the nature of prostitution in India, they pushed forth their colonial project with the intention of exploiting prostitute women or to satisfy the natural sexual desires of their troops. Slowly they succeeded in manipulating the people with moral values and public order. The British enacted a legislation called ‘The Contagious Disease Act, 1868’, this act gave them unlimited power to arrest, detain and torture them physically. They made certain camps known as Chaklas where they were detained. They also categorized certain areas as Red Light Districts which were totally absent in ancient Indian society.
Legal Landscape in India
The very purpose of law is to provide justice to the aggrieved person. But law does not always mean justice, sometimes it is used as a tool to satisfy collective conscience of the society. There is something ‘right’ about prostitution, which the law violates by criminalizing it.
India became a signatory to the United Nation International Convention for the Suppression of Traffic in Persons and of the Exploitation of Women, New York, 1950. Subsequently, in 1956 India enacted a legislation called the Suppression of Immoral Traffic in Women and Girls Act (SITA), this act dealt with sex workers in a tolerant manner however, considered it as a necessary social evil. Debates started around the world and this led to the amendment of the existing law and enacted the Immoral Traffic in Persons Prevention Act, 1986. The new Act replaced the word ‘suppression’ with ‘prevention’ which simply shows the strictness towards the sex workers. Though prostitution in India is not completely illegal but everything relating to it is criminalized except prostitution by choice. This created many confusion among the people and led this institution to go underground.
Society, Morality and Prostitution
One of the main reasons why people formed society was to eradicate the injustice done by one person or persons to another and people came together by agreeing not to harm each other which is known as ‘Social Contract Theory’. As time changed, the concept of religion, morality etc. evolved.
The main reasoning behind criminalizing prostitution in India and other parts of the world is that it is immoral. It sounds good when we hear about morality but unfortunately, criminalization of prostitution does not decrease the population of sex workers in India. Thus, question arises whether we really want to end the prostitution, if yes then what did we do so far except torturing by way of criminalizing it?
We do not allow the children of sex workers or children coming from red light areas to be admitted to schools. Our self-made criteria of admission rejects them when they cannot provide their father’s name, address etc. Most disturbing fact is that we are so obsessed with our self-created morality and ideology which can be different to different people or society, we restrict them from education which is a Fundamental Right under Article 21 of the Constitution. If we do not allow them to come into the mainstreams how it is going to end? With the denial of getting admission the children are forced to join the same profession and it continues.
Why Decriminalization of Prostitution is urgently needed?
The reasons for supporting decriminalization may differ from person to person or society to society. Firstly, legalizing prostitution will allow sex workers to demand their basic rights which includes right to education, dignity and overall developments as a normal citizen which will build a sense of confidence and self-respect thereby bring them back to the mainstream society. Secondly, it will reduce cruelty and harassment of the women working as a sex worker. Thirdly, legalizing prostitution will guarantee them a right to proper health checkup which is needed to keep our society healthy. Lastly, they can continue their work in a normal environment which will create a sense of equality among people.
“There is no greater tyranny than that which is perpetrated under the shield of law and in the name of justice”