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Decriminalizing the Sex Trade: The Case for Legalizing Prostitution

The Latin term prostituere, which meaning to expose publicly, is where the word "prostitution" originates. Prostitution is the practise of providing sexual services in exchange for payment. Prostitution, like other male-on-female acts of violence, is a problem that is primarily a problem for women because most of the victims are female. To claim that men are not victims of sexual exploitation and violence would be a little stupid, though. Moreover, when we highlight the flaws in India's prostitution system, the transgender minority frequently remains undetected.

The majority of the billions of dollars made by prostitution in India and around the world comes from exploiting those who are weak on the social and economic front. India has long practised prostitution as a vocation. In reality, sex workers are mentioned as "apsaras" in a number of Hindu mythological references.

The devdasi system, which was prominent among Hindus throughout the pre-colonial era, required them to give their female child away as a symbol of their devotion to God. Devdasi, which literally translates as "devoted to the deity," refers to people who were married to the god and were therefore exempt from having to wed anybody else. They were highly talented artists who had achieved sexual liberation, particularly in classical dance and music.

However, exploitation and suppression were brought about by colonialism. The basics of sexual emancipation, femininity, art, and culture were transformed by the British into devotion, bhakti, and other religious practises. Additionally, as feudalism and colonialism declined, these women began to experience abuse at the hands of temple priests. Consequently, they become susceptible to both poverty and sexual exploitation.

This is among the earliest types of prostitution still practised in India. Since the fall of the Mugal Empire, things have gotten worse for those in the lowest rungs of society, particularly the women working in harems, palaces, and brothels. The primary cause of prostitution is poverty. In the patriarchal society of India, it is challenging for a woman to be financially independent, particularly if she has been denied access to education, freedom, and skills development.

As a result, the only occupation available to get money is prostitution. The fact that women are susceptible to sexual exploitation is a result of the rigid, orthodox society in India, which regards them only as an item or a commodity. The prevalent caste system in India, where marginalised women are frequently sexually exploited and left to rot in the degraded system, is another major contributor to prostitution.

Before arguing for the legalisation of prostitution, one must accept its existence and necessity in society, particularly in India, where discussing sex is still a significant taboo. The main justification for their position is typically that prostitution is unethical. Many people frequently argue against the legalisation of prostitution and demand that the behaviour be criminalised.

However, we are unaware that despite the fact that the majority of people view prostitution as unethical, the sex work sector continues to thrive on demand, just like any other industry. The firm develops successfully in terms of commercialization if demand rises.

The demand for purchasing sex has grown so strong that it has expanded from red light districts to exclusive massage parlours and online platforms. Criminalizing the conduct outright would be the equivalent of turning a blind eye to the real victims of sexual exploitation and allowing further abuse and violence toward sex workers.

Prostitution is defined by the Immoral Traffic (Prevention) Act of 1956 (ITPA) as the sexual exploitation or abuse of a female for financial gain, and a prostitute is the individual who benefits from this practise. This law, commonly known as SITA, was passed in 1956. In essence, this legislation stipulates that while prostitutes are permitted to start their business in private, they are not permitted to conduct it in public. If the clients are found guilty of having a sexual act in public, they may be arrested in accordance with the law.

Within 200 yards of a public space, a woman is not permitted to engage in commercial sex. Provided how prestigious their line of work is, sex workers cannot be covered by the current labour laws, but they do have all the same rights as any other Indian citizen, including the right to be rescued and given rehabilitation if they so choose. The 1986 Immoral Traffic (Prevention) Act updates the original law. According to this law, prostitutes who are caught soliciting business or enticing strangers will be arrested.

Call girls are also forbidden from disclosing their phone numbers. If discovered doing so, they risk receiving penalties and a 6-month sentence. Clients who engage in sexual activity with a sex worker within 200 yards of a public area are subject to penalties and a possible 3-month sentence in jail. If someone is caught engaging in sexual behaviour with a minor, they could face up to 10 years in prison.

Additionally guilty are pimps and other similar individuals who support themselves through prostitution. In addition, a guy who is an adult and lives with a prostitute may be considered guilty. He may spend two to four years in prison if he cannot establish his innocence. SITA (1956), which was later changed to become ITPA (1986), is a significant piece of legislation because, as stated in the preamble, its goal was to implement the Trafficking Convention.

The law was passed by Parliament in the seventh year of the Republic of India and is referred to as An act to provide in pursuance of the international convention signed in New York on the 9th day of May 1950, for the prevention of immoral commerce in women and girls.

The State of Uttar Pradesh v. Kaushalya was a landmark decision that questioned the validity of the ITPA. According to the facts of this case, some of the prostitutes were requested to leave their spots in order to preserve the dignity of the city of Kanpur. The Indian constitution's Article 14 and subclauses (d) and (e) of Article 19(1) were deemed to have been violated by section 20 of the act, according to the High Court of Allahabad.

Due to the clear distinction between a prostitute and a person producing a nuisance, the Act was found to be constitutionally valid. The Act is also in line with the goal of upholding social order and decency, which is what is intended to be accomplished. The act is focused on attaining a public goal to uphold morality and decorum in society, rescue the murdered women and girls, and give them opportunity for rehabilitation and becoming respectable members of society. The act basically tries to criminalise prostitution and gives the central government the authority to set up a special court to hear cases involving violations of the act.

The IPC also addresses the issue of human trafficking by outlawing the forced recruitment of women and girls into the prostitute industry and outlining severe penalties for violators. According to the IPC, anyone who purchases, sells, or acquires the possession of a person under the age of 18 for the purpose of prostitution, illicit sexual activity, or for any other illegal or immoral purpose, or with knowledge that it is likely that such a person will be employed for or used for such a purpose at any age, faces a maximum 10-year prison sentence.

According to the IPC, whoever imports a girl under the age of twenty-one into India from any country outside India with the intention that she may be forced or seduced to engage in illicit sexual activity with another person, or knowing it to be likely that she will be, is subject to a fine and a term of imprisonment that may reach ten years. When an inmate of a brothel is raped, the IPC's rape clause also applies.

According to the IPC, rape is defined as an act of sexual activity with a woman that is done against her will, without her consent, with her consent but under threat or fear of death or harm, with her consent when she is unaware of the consequences of her consent, with or without consent when she is under the age of 16 years old. According to the IPC, 7 years in jail is the minimum sentence for rape. When having sex with children or women who are being imprisoned in brothels, these rules apply to the owners, employees, and patrons of those establishments.

Following are the crimes which are related to prostitution and Human trafficking:
  • Procuration of Minor girls (Section 366-A IPC).
  • Importation of Girls (Section-366-B IPC).
  • Selling of Girls for prostitution (Section-372 IPC).
  • Buying of Girls for Prostitution (Section-373 IPC).
  • Immoral Trafficking (Prevention) Act 1956.
  • Child Marriage Restraint Act, 1929.

The primary issue with these restrictions is the perception of prostitution as something immoral, disgusting, and detrimental to social decorum. But the reality remains that performing sex acts while taking safety precautions and abiding by the law does not cause harm to anyone. Additionally, sex is a major taboo in our society, and the demand and supply of sex in a controlled manner is something to be despised, which is why prostitution is considered something immoral and the sex workers are seen as indecent.

Because there are sex-related social standards in place in India and because people continue to adhere to and benefit from these norms, the reality of sexual violence cannot be accepted by the population. The attempt to criminalise prostitution-related behaviours shows how uncomfortable the law is dealing with the true problem and is only making flimsy, half-hearted changes to address it. The fact that these laws fail to recognise that men and transgender persons are also subjected to sexual assault, exploitation, and oppression is another significant feature of Indian laws relating to prostitution that goes unnoticed.

Giving prostitution in India legal status has been the subject of much discussion. Since there is little prospect of prostitution being outlawed, it is thought that regulation is the best course of action. Many nations, including Canada, France, Germany, Denmark, Wales, and others have regulated and made prostitution legal. In fact, the occupation is both legal and taxed in Germany, where brothels are permitted to advertise and make employment offers via HR firms.

In order to safeguard prostitutes, Germany passed new legislation in 2016 that mandates a permission for all prostitution trades as well as a prostitute registration certificate. This type of system, where the industry is regulated and the protections of the sex workers are taken into account, tends to cause less harm to the sex workers, and stronger law enforcement secures the system from abuse and exploitation. In addition to being at risk for deadly STDs like HIV and AIDS, these sex workers frequently experience police brutality, a decline in pay, harassment, etc. The Supreme Court itself advocated for the legalisation of prostitution in 2009.

It would be foolish to turn a blind eye to it and act as though the system and its defects don't exist in a society where prostitution has been a long-standing profession and is still thriving as a business. Sex workers will live better lives with greater pay, health security, and protection if sex work is decriminalised with appropriate rules and regulations and made lawful.

Additionally, it will be a positive move for society as a whole, eradicating numerous societal ills like child prostitution, rape, etc. Sex trade is a very real phenomenon in our nation, and by accepting it as a genuine profession with a set of guidelines and protections, all parties involved can be assured of receiving advantages. The development of a fairer, more inclusive legal system and the application of all available safeguards can only benefit society.

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