The term 'prostitution' needs no explanation. It is a vocation in which sex
is engaged for commercial reasons rather than for its own sake. According to
Annual Report 2021-22 of the Ministry of Health & Family Welfare, there are 8.25
lakh female sex workers (FSWs) in India. Recently, the Supreme Court of India
has recognized sex work as a profession that includes prostitution, yet it is
seen as taboo and not so basic a profession as any other.
People who work in this profession are degraded by society and widely
discriminated against on various grounds. Prostitution may be legalized by law
but still, there remains many horrors relating to this field that affects the
life of sex workers, mainly FSWs. The law does not recognize prostitution
institutions such as brothels. Therefore, organized prostitution is still
illegal in India due to which prostitutes face many difficulties in carrying out
their profession.
This paper aims to analyze the impact of legalizing prostitution and the
plethora of hindrances still remaining. The paper will further discuss
difficulties relating to the profession and its employees.
Prostitution:
The practice of engaging in relatively indiscriminate sexual activity, in
general with someone who is not a spouse or a friend, in exchange for immediate
payment in money or other valuables. A person who works in this area is referred
to as a prostitute or a sex worker. Prostitutes can be male, female or
transgender, but historically most prostitutes have been women. The idea of
prostitution differs from society to society.
Some people see it as an area of recognized profession while others see it as a
crime and punish its workers for pursuing it. Many people, especially those with
conservative thinking, believe that prostitution is immoral and a sign of
society's moral decay. Feminists believe that prostitution is degrading to
women. These people think that prostitution should be criminalized, and ask for
stricter laws against it.
Prostitution has its very own history starting from 2400 BC in Sumerian Records
These are the earliest recorded mentions of prostitution as an occupation. Then
the rights of prostitutes are mentioned in the Code of Hammurabi 1780 BC. In
1075 BC Code of Assura distinguished prostitutes from other women. In the 6th
century BC, according to Chinese traditions, commercial brothels were started by
the statemen-philosopher Kuang Chung as a means of increasing the state's
income.
Prostitution has had its roots in India for ages. Prostitutes have been
addressed by different names. In the Mughal era, prostitutes were known as
Tawaifs or High Courtesans. They have been mentioned in the Vedas, Puranas, and
Mahabharata. The women prostitutes in those times were classified into three
categories, namely, Kumbhadasis, which means unchaste women or a slave,
Rupajivas, which means those who are living by prostitution, and Ganikas, which
means maiden who made her living by means of her personal beauty, her skills in
the fine arts and capacity to provide pleasure.
Types of prostitution:
- Escort:
An escort is a service provided by a sex worker. It not only includes
sexual acts but also includes other services such as social companies.
- Brothel Employee:
This type of prostitute is not independent. They work in brothels, where
people engage in sexual activities. Sex work in a brothel is considered
safer than street prostitution.
- Window Worker:
In this type of prostitution, the prostitute rents a window and a workspace
for a limited period of time, and uses these facilities to attract
customers, negotiate and indulge in sexual acts.
- Streetwalker:
This type of prostitution involves soliciting clients on the street, in
parks, or in other public places.
- Call Girls:
This type of prostitution involves independent sex workers who can be
contacted using the telephone or the Internet.
- Massage Parlor:
These premises are called massage parlor but sexual services are provided to
clients.
- Online Prostitution:
In this era of the internet prostitution has moved to social media platforms
where middlemen called pimps connect with girls via Instagram and Snapchat
and offer them to engage in this work online.
Statement Of Problem:
Prostitution is legal but institutions related to it are illegal which becomes a
hurdle for people working in it. Prostitution in India is disapproved but not
prohibited by law. Such as the use of Marijuana, there is no complete ban on it
under the NDPS Act, of 1985 and it can be used for making medicine.
Marijuana is illegal because it has adverse effects on society whereas the Law
Commission has suggested that prostitution should be legalized to curb criminal
activities related to this profession.
Prostitution is legal in India but some activities relating to it are not such
as: owning a brothel, soliciting, curb-crawling, prostitution in a hotel, child
prostitution, and pimping. The Immoral Traffic (Prevention) Act 1956 was
intended as a means of limiting and eventually abolishing prostitution in India
by criminalizing various aspects of sex work.
However, these things continue to happen despite being illegal. It should be
legalized as recommended by the 64th Law Commission. Before we further
extrapolate the issue, let's set up the research design for the study.
Literature Review:
Primary Source:
There exists vast literature related to prostitution, the main source of
information for this work is The Immoral Traffic (Prevention) Act 1956. The law
describes the definition of prostitution in section 2(f) and on what conditions
it cannot be practiced. The ITPA seems to be more focused on criminalizing
prostitution rather than checking on the immoral trafficking of humans, the
existing law on prostitution is vague and harsh on sex workers it criminalizes
every institution related to prostitution which makes it difficult for them to
carry out their work. The Indian Penal Code of 1860 provides laws on kidnapping
and child prostitution under sections 372 and 373.
Secondary Sources:
The book, Prostitution: An illustrated history by Vern L. Bullough and Bonnie
Bullough provided information about prostitution in Chinese tradition. Another
source of information for this work is the NSWP Global Network of Sex Work
Projects which provides detailed information about issues affecting sex workers
and provides recommendations, its Global and Regional Reports tell lived
experiences of sex workers and policies for their development.
Research Questions:
The study shall endeavor to find the answers to the following questions:
- How has legalized prostitution helped in the development of standards of
living for sex workers so far?
- What is the need to provide legal status to organized sex institutions
such as brothels?
- How can brothels and institutions related to prostitution be legalized?
Research Objective:
The study shall have the following objectives:
- To analyze the current status of prostitution and how it is regulated.
- To understand the impact of legalizing prostitution
- To study organized prostitution and its effects.
- To suggest policies for the regulation of organized prostitution.
Hypothesis:
If organized sex institutions are legalized along with prostitution, only then
the sex profession can be put on par with other professions and the fundamental
rights of sex workers can be secured.
The government can step in to regularize the institutions relating to sex work
on the lines of Western countries.
Research Methodology:
In order to examine the topic at hand and get a better understanding of the law
relating to prostitution, doctrinal research was conducted. The primary data
i.e. Acts were collected from official sources such as indiacode.nic.in and
analyzed. The research also includes analysis of qualitative data such as books,
articles, judgements, websites, and law journals. These were collected from
online sources such as JSTOR, Live Law, and SSRN.
Present Indian Legal Scenario:
Prostitution is legal in India as section 375 penalizes only forced sex or sex
without obtaining consent in a valid way. The Supreme Court in
Budhadev
Karmaskar v. State of West Bengal, held that:
Sex workers are human beings and should be treated with humanity and dignity
according to Article 21 of the Indian Constitution. The Immoral Traffic
(Prevention) Act, 1956 does not criminalize prostitution in India per se, but
Keeping a brothel is illegal as per section 3, to live off on a prostitute's
earnings as per section 4, to procure, induct, or detain a person for sex work
as per section 5 and 6, prostitution near public places and notified areas as
per section 7, and solicit prostitution as per section 8. The Indian Penal Code,
of 1860 also addresses prostitution, it focuses on kidnapping and child
prostitution. Under Article 23(1) of the Indian Constitution, the trafficking of
human beings, beggars, and other similar forms of forced labor is prohibited.
It is not unlawful to avail or procure sex in India, but the law is silent on
punishing brothel keepers for subjecting a prostitute to be mistreated by a
client. The law does not contain provisions for the use of condoms and for the
healthcare of sex workers.
Need To Regularize:
The need to regularize organized prostitution is to give equal opportunity
of work to sex workers and to protect them from being harassed by clients.
Regulating organized sex work will give legal protection to sex workers and they
can practice their rights without any fear. Such rights are:- equality before
the law given under Article 14, the right to protection of life and personal
liberty under Article 21, and freedom of conscience and free profession under
Article 25.
Like any profession or industry, organizations are important so that they can be
regulated. It is more important for prostitution because it involves more
chances of ethical, physical, social, and health abuses of the workers.
How It Can Be Regularised?
Prostitution is well established in several countries such as Germany, New
Zealand, Greece, Switzerland, Bangladesh, Netherlands, etc.
Germany: prostitution in Germany is legal, organized, and taxed. Germany
also allows the advertisement of brothels and the processing of prostitution
jobs. Germany passed the Prostitutes Protection Act in 2016, which was intended
to protect the legal rights of prostitutes. Part of the Act includes requiring a
permit for all prostitution trades and a registration certificate for all
prostitutes.
New Zealand: In 2003, the New Zealand Prostitution Reform Act
decriminalized sex work. It is legal for any citizen over 18 years old to join
sex work as their profession. Sex workers' rights are guaranteed through
employment and human rights legislation.
Greece: Prostitution is legal and it is an employment opportunity for
women in Greece. Sex workers must be up to 18 years of age, be unmarried, must
be free from sexually transmitted diseases (STDs), and must be free from any
mental illness.
Switzerland: In Switzerland, organized sex work is legal and regulated.
The prostitutes are registered and have a legal work permit issued by
authorities after confirming residence status, health check, insurance, etc.
In India, it is limitedly legal, and institutions related to prostitution are
not regularized as mentioned above. There have been several cases of raids at
hotels in which people involved in the activity are arrested and treated as
criminals. Such as with the case of Section 377 when it was criminalized.
Sex work can be organized and regulated, if:
- Government legislate law for sex work and sex workers.
- Institutions related to prostitution will be recognized.
- Registration for brothels and sex workers would become mandatory.
- Proper guidelines are issued for medical checkups of sex workers.
Testing Of Hypothesis:
In every research, the researcher set an aim to be achieved through the
research. After conducting the research, the researcher must test his hypotheses
in order to fix the veracity of the research. This research had two hypotheses.
- Firstly, the legalization of prostitution has not helped in the
development of sex workers in any way as it only allows independent sex
work. There are laws that criminalize the institutions related to
prostitution that continue to exploit sex workers. The Indian Constitution
provides fundamental rights for every citizen and therefore sex workers
being also citizens of India are entitled to have those rights.
Although, society is not ready to accept sex workers as respected citizens
due to which they face rejection and harassment. The need of the hour is to
regulate organized prostitution and create an enabling environment for sex
workers' health and safety.
Organized prostitution will remove middlemen who exploit sex workers and
even charge extra money from clients for allowing them to practice violent
activities with sex workers. Due to unorganized prostitution, sex workers do
not have access to proper medical facilities, and their clients refuse to
wear condoms which exposes them to serious diseases like AIDS. Therefore,
the first hypothesis is approved.
- Secondly, however, not only legalizing prostitution will help in the
development of sex workers. Organized prostitution should be legalized such
as keeping a brothel. Independent sex workers don't have any proper
workplace to carry out their profession which leads them to harassment by
clients. Brothels should be organized and government-licensed and only
registered prostitutes can work there.
There should be a legal way of entering into the profession so that minors
cannot be trafficked and no one shall forcefully enter into this work. "Sex
Workers Need to be Seen as Labour, Not Victims". Government should recognize
brothels as a working organization and provide them with all the facilities,
protection, and duties that are given to any other profession. These places
should provide education to their employees who are uneducated and want to
study so that they can have a better understanding of their rights and
duties.
These places should also provide training for different vocations so that if
they want to leave this profession and pursue any other work of their
choice. India should follow Nevada's prostitution laws to regulate organized
prostitution. Thus, government intervention is required in recognizing
prostitution institutions society might not be ready to accept the change
yet, but it will in time. Thus, the second hypothesis is also approved.
Conclusion:
Criminalizing institutions related to prostitution is not the right way to
regulate it and it will not help in the development of sex workers. Prostitution
is a vocation that has existed for ages but is still seen as taboo and sex
workers are degraded by society. Laws related to prostitution are not clear and
have no proper aim.
Sex work and human trafficking are two very different things and should be
focused on individually. Not every sex worker is forced into this profession,
some enter it by their choice but the law does not allow them to choose their
profession and forcefully send them to rehabilitation centers.
Organized prostitution will give sex workers a better and healthy lifestyle,
they will have access to medical treatment and their children will have better
future opportunities. The problem is not in the sex profession itself but it is
in our minds, we don't accept individuals who work in this area, especially
women. Nothing is going to change until we as a society do not accept that sex
workers are just ordinary individuals who are doing a job they may like/ dislike
to spend their life.
Award Winning Article Is Written By: Ms.Aiman Siddiqui, Swami Shukdevanand Law College, Shahjahanpur
Authentication No: AG324318306940-31-0823 |
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