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Legalization of Prostitution In India

The word prostitution comes from the latin word called prostituere which means to expose publicly. Prostitution basically means providing sexual favours in return of money. Like other forms of violence that are committed against women by men, prostitution is another one of the gender specific issue because majority of the victims are women.

However, it will be a little ignorant to say that men are not at the end of the sexual exploitation and sexual violence. Moreover, the transgender community often goes unnoticed when we pin point the wrongs of the system of prostitution in India. Prostitution in India and across the globe makes billions in profits mostly by taking advantage of socially and economically vulnerable people.

Background:
Prostitution in India is an age old profession. There are in fact, mention of sex workers in various hindu mythological inferences referred as apsaras. During the pre colonial period, there existed the devdasi system where it was a prevalent practice among hindus to give away their female child as a sign of their devotion towards god. Devdasi in literal sense means devoted to the god, that is they were married to god and were not required to marry any mortal being.

They were sexually liberated women who excelled in various art forms including classical dance and music. However, colonialism brought a system of exploitation and suppression. The british started reflecting their own societal restrictions on these women where they morphed the fundamentals of sexual liberation, femininity, art and culture into devotion, bhakti etc. and further, with the diminishing feudalism and the end of colonialism, these women started getting mishandled by the temple priests. Therefore, leaving them vulnerable to sexual exploitation and poverty. This is one of the oldest form of prostitution present in India.

Causes Of Prostitution:

Ever since the mughal empire collapsed, the situation started to deteriorate for the lowest strata of the society specially, the women who were serving in harems, palaces and brothels. Poverty is the biggest cause of prostitution. In Indian patriarchal society, it is difficult for a woman to be financially independent specially, when she has been deprived of education, liberty and skills. Therefore, prostitution becomes the sole profession to earn money.

Women being vulnerable to sexual exploitation is a product of the restrictive, orthodox Indian society which sees them merely as an object or a commodity. Another main cause of prostitution is the prevalant caste system in India where marginalized women are often sexually exploited and left to rot in the degraded system. Lack of sex education, kidnapping and abduction becomes other causes for prostitution.

The Practice of sex trade:

Before contending on the legalization of prostitution, one must acknowledge the existence of it and the need of it in the society and specially, the Indian one where talking about sex is still a major taboo. Various people often argue against the legalization of prostitution and demand the criminalization of the act and the rationale behind their point of contention is mostly its immoral nature.

However, we do not realise that though, a majority of people consider the prostitution as something immoral yet, the sex work industry is flourishing consistently just like any other industry functions on demand. If the demand increases, then, the business flourishes in terms of commercialization.

Demand for buying sex is so high that it has spread it's roots from the red light areas to private massage parlours and online platforms. Criminalizing the act, altogether would be like putting a blind eye to the actual victims of the sexual exploitation and giving a free passage to more oppression and violence against the sex workers.

Indian laws related to the prostitution:

According to the Indian Penal Code, prostitution in it's broader sense is not really illegal per se but there are certain activities which constitute a major part of prostitution are punishable under certain provisions of the act:
  • Soliciting services of prostitution at public places
  • Carrying out prostitution activities in hotels
  • Being the owner of a brothel
  • Pimping
  • Indulge in prostitution by arranging a sex worker
  • Arrangement of a sexual act with a customer

Immoral Traffic (Prevention) Act, 1956 (ITPA) defines prostitution as sexual exploitation or abuse of a female for monetary purposes and a prostitute is the person who gains that commercial benefit. This act was passed in 1956 and is also referred as SITA. This law essentially states that prostitutes are allowed to commence their trade in private but they cannot carry their business in public. As per the act, the clients can be arrested if found guilty of engaging in a sexual act in public.

A woman cannot indulge in commercial sex within 200 yards of a public place. Sex workers cannot be put under the ambit of the existent labour laws considering how distinguished their profession is but they have all the rights of any given Indian citizen and are entitled to be rescued and rehabilitated if they want.

Immoral Traffic (Prevention) Act, 1986 is an amendment of the original act. As per this act, the prostitutes are to be arrested if they are found soliciting their services or seducing others. Further, call girls are prohibited in making their phone numbers public. They can be punished for 6 months along with penalties if found doing so.

Clients indulging with a sex worker within the area of 200 yards of a public space can be imprisoned for maximum of 3 months with fines. In case, someone is found indulging in a sexual activity with a minor then, he/she can be jailed upto 10 years. Pimps and similar people who live from the income made by a prostitute are guilty as well. For that matter, if an adult man lives with a prostitute he can be regarded as guilty.

If he cannot prove himself to be innocent, he can face imprisonment between 2-4 years. SITA (1956) which was further amended to ITPA (1986) is an important law as according to the preamble of the act, the purpose of the act was to give effect to the Trafficking convention.The preamble refers to the law as An act to provide in pursuance of the International Convention signed at New York on the 9th day of May 1950, for the prevention of immoral traffic in women and girls, enacted by Parliament in the Seventh Year of the Republic of India.

The constitutionality of ITPA was challenged in the landmark judgement of The State of Uttar Pradesh vs. Kaushalya. The facts enumerated in this case are that a few of the prostitutes were asked to be removed from their place in order to maintain the decorum of the city of Kanpur.

The High Court of Allahabad made the pronouncement that section 20 of the act abridged the Article 14 and sub clauses (d) and (e) of the Article 19(1) of the Indian constitution. The Act was held to be constitutionally valid as there was an intelligible difference between a prostitute and a person causing a nuisance.

The Act is also in consonance with the object sought to be achieved ie. maintaining order and decorum in society. The act focuses on achieving a public purpose to maintain the decorum and morality in the society and to rescue the fallen women and girls and provide them with rehabilitation and opportunities to the fallen victims so that they can become decent members of the society. The act seeks to criminalize the prostitution essentially and empowers the central government to form special court for trial of the offences under this act.

Criticism of this act:
Contrary to the trafficking conventions, many provisions of SITA discriminated against the victims themselves as well as punished the victims instead of perpetrators. Under the trafficking conventions, victims of the prostitution cannot be punished under any circumstances. Article 1 contains provisions to punish any person who, to gratify the passions of another:
  1. procures, entices or leads away, for purpose of prostitution, another person, even with the consent of that person; (2) [e]exploits the prostitution of another person, even with the consent of that person.

Under Article 2 of the Convention, the Parties to the Convention further:

agree to punish any person who: keeps or manages, or knowingly finances or takes part in the financing of a brothel; knowingly lets or rents a building or other place or any part thereof for the purpose of the prostitution of others.

These offences mentioned in the convention and none of these laws mentions that a victim of the prostitution can be a offender. The purpose behind this was to punish the actual offenders who are involved in procuring, enticing or trafficking anyone for the purpose of the prostitution. The original international treaty aimed at prohibition and discouragement of any sort of sexual exploitation, thus stopping the trafficking of the persons into the prostitution.

However, it does not prohibit prostitution or commercial sex work by indvidual out of their consent and freedom. In India, ITPA does not directly prohibits the protitution nor does it criminalizes it in its whole sense. Although, there are many provisions which discriminate against the sex workers and in fact, punishes them. The following sentences detail the main features of SITA: Section 2(f) defined prostitution as the act of a female who offered her body for promiscuous sexual intercourse for hire...

According to this definition , there is no mention of men or trans community. This establishes the punishment for upto 3 months for a woman who engages in rpostitution within the 200 yards of the public place.

There is a discriminatory sentencing provision in the law where a woman can be imprisoned for upto one year, whereas, for the same offence, a pimp could only be imprisoned of upto 3 months. The biggest drawback about the law is that it only focuses on the street prostitution and other forms of prostitution were left without being acknowledged. Also, there is a very minimal punishment for the 'middlemen' of the industry. The closed door prostitution is somewhat inferred to be allowed but the law does not prescribe any legal safeguards or regulations and responsibilities for the protection of the sex workers.

The main problem with this provision is that it looks at the prostitution as immoral and indecent which is hampering the decorum of the society. However, the fact remains that engaging in sex work with precautions and regulations do not constitute any sort of harm on any individual.

Further, the only reason why prostitution is referred as something immoral and the sex workers are regarded as indecent solely because of how sex is a major taboo in our society and demand and supply of sex in a regulatory manner is something to be looked down upon.

The Indian society cannot digest the reality of the sexual violence happening because of the existent norms related to sex present in the society and people believing and continuing to thrive on these norms. The fact that the act tries to criminalizes the acts leading to the prostitution expresses the discomfort of the law at facing the real issue and makes the temporary and half hearted amendments in combating the issue.

A Proposed Amendment in 2006:
There was a proposal made in 2006 to amend the Immoral Traffic (Prevention) Act . The amendment bill basically removes the provisions that penalize prostitution by soliciting clients. This proposal recommends enhanced punishment and an increased fine amount. It intends to criminalize the act of visiting a brothel for the purpose of sexual exploitation of trafficked victims with imprisonment of at least three months or a fine of Rs. 20,000 which has not been criminalized in the Act.

The bill constitutes authorities at the center and state level to combat trafficking. The term trafficking in persons has been defined with a provision for punishing any person who is guilty of the offence of trafficking in persons for the purpose of prostitution.

Article 21 of Indian Constitution The article states the protection of life and personal liberty. No person shall be deprived of his life or personal liberty except according to the procedure established by law.

In the case Budhadev Karmaskar v State of West Bengal
In this case, it was held that the sex workers are human beings and should be treated with humanity and dignity. Nobody is entitled to physically assault them.The judgement also highlighted the problems faced by the sex workers and their plight. Court is of the view that these women are compelled to indulge in prostitution not out of choice or pleasure but merely out of economic and social causes.

The court directed the central and state government to enroll the sex workers in vocational and technical courses and open rehabilitation centres for the better job opportunities for them. Immoral Traffic (Prevention)Act has incorporated Section 21 as a rule for the State Government to establish and maintain the protection homes and the houses should be regulated and licensed by them. There should be an adequate authority for investigation of the application for the protection homes. These licenses were temporary and non transferable. The state has powers to make ancillary rules in respect of license, management and maintenance of these homes or ancillary matters by virtue of section 23 of the act.

Article 23(1) also declares that traffic in human beings and the beggar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with the law.

The Indian Penal Code

The issue of human trafficking is tackled in the IPC as well which prohibits the trafficking of women and girls into a forceful area of prostitution and have prescribed harsh punishments on the offenders. The IPC ennumerates that anyone who buys or sells or obtains the possession of anyone under the age of 18 years for the purpose of prostitution or illicit intercourse.. or for an unlawful or immoral purpose.. or knowing it to be likely that such person will at any age be employed or used for any such purpose.. or knowing it to be likely that such person will at any age be employed or used for any such purpose.. is to be imprisonment for upto 10 years.

The IPC identifies cross border trafficking into prostitution and provides that whoever imports into India from any country outside India any girl under the age of twenty one years with the intent that she may be, or knowing it to be likely that she will be, forced or seduced to illicit intercourse with another person, shall be punishable with imprisonment which may extend to ten years and shall also be liable to fine.

The provision related to rape under IPC also applies to the rape of a brothel inmate. The IPC defines the rape as an act of sexual intercourse with a woman against her will, without her consent or with her consent but under threat or fear od death or injury, or with her consent when she is not aware about the consequences of her consent or with or without consent when she is under 16 years of age.

The minimum punishment for rape is 7 years of imprisonment under IPC. These provisions are applicable to the brothel owners, brothel staff, and customers when they engage in sexual intercourse with minors or with women who are forcefully kept in the brothels.

Following are the heads of crime 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 Retrain Act, 1929.

Problems with the Indian laws and their purpose:

The main problem with these provisions are that the outlook towards prostitution is as something immoral and indecent and something which is hampering the decorum of the society. However, the fact remains that engaging in sex work with precautions and regulations do not constitute any sort of harm on any individual. Further, the only reason why prostitution is referred as something immoral and the sex workers are regarded as indecent solely because of how sex is a major taboo in our society and demand and supply of sex in a regulatory manner is something to be looked down upon.

The Indian society cannot digest the reality of the sexual violence happening because of the existent norms related to sex present in the society and people believing and continuing to thrive on these norms. The fact that the act tries to criminalizes the acts leading to the prostitution expresses the discomfort of the law at facing the real issue and makes the temporary and half hearted amendments in combating the issue.

Another main aspect of Indian laws related to the prostitution which goes unoticed is that these laws do not acknowledge that it is not only women who are victims of sexual exploitation but it is men and transgender people who suffer with sexual violence, exploitation and oppression.

Legalization of Prostitution:

There have been a lot of discourse regarding giving the legal status to the prostitution in India. It is observed that it is best to regulate the prostitution since, the chances of its abolishment are negligible. Various countries like Canada, France, Germany, Denmark, Wales etc. have regulated and legalized the prostitution.

In Germany, in fact the profession is not only legal but taxed as well where the brothels are allowed to advertise and send job offers through HR companies. Germany had also passed a latest legislation in 2016 which purposed at protect prostitutes by requiring the permit for all prostitution trades and a prostitute registration certificate.

This sort of system where the profession is regulated and the safeguards of the sex workers are taken into consideration, it tends to do less harm to the sex workers and better implementation of laws protects the system from abuse and exploitation. These sex workers are not only exposed to dangerous sexual transmitted diseases like HIV AIDS but they also, suffer from police brutality,dip in income, harassment etc. In 2009, Supreme Court itself suggested the prostitution to be legal.

Here are the following reasons for which prostitution should be legalised:

  • Legalisation of prostitution will protect the minors from being vulnerable to the sexual exploitation. There are almost around 10 million children who are pushed into prostitution, worldwide. Child prostitution is a bitter reality of almost all the countries but in Asia and South America, the situation is worse. Strict regulations in the industry can ensure the prohibition of the minors from the system.
     
  • Regulated health check ups of the sex workers will ensure the curbing of the sexual transmitted diseases specially, AIDS which is just so common among the sex workers. Adequate birth controls will ensure unwanted pregnancies and curbing of other health hazards. Regular health check ups and strict guidelines will ensure the cleaner and hygienic working conditions. A compulsory provision of condoms will also, be beneficial for the sex workers and the customers both.
     
  • Legalisation of the prostitution will enhance and upgrade the system. There will be a removal of middlemen and pimps from the system and the sex workers will have more wage earning and the criminal and exploitative factors would be reduced to negligible.
     
  • It will reduce the sexual violence, rapes and other sexual assaults as people will resort to a legal and an easier alternative to satisfy their sexual urges. An example of Queensland can be taken where the region experienced 149% increase in rape rate after the closing of brothels.
     
  • Eradication of forced prostitution
     
  • Prostitution in India constitutes around 8.4 billion dollar business. Legalising and taxing the process will be like an incentive for the government.
     
  • Rights of the workers will be protected. Even though, the sex workers do not come into the ambit of usual labour laws still, they should get all the rights of a citizen and a laborer.

Conclusion:

In a society, where prostitution has been an age old profession and is continuing to flourish as a business area, it will be ignorant to put a blind eye on it and pretend the non existence of the system and its flaws. Decriminalizing the sex work with proper rules and regulations and making it legal will ensure a better life for sex workers with better wages, health security and protection.

Not only this but as a society, it will be a progressive step which shall eliminate many social evils from the society like child prostitution, rape etc. Sex trade is a very evident reality of our country and by recognizing it as a legitimate profession with certain rules and safeguards all the involved parties can receive guaranteed benefits. A better and inclusive legal framework and implementation of all the safeguard methods will only cater to the betterment of the society.

References:
  1. Rupam Lal Howlder ,Uniform Civil Code Towards Gender Justice,Retrieved from:http://www.legalservicesindia.com/article/article/uniform-civil-code-towards-gender-justice-1832 -1.html
  2. Vikram Singh, Gender and Caste: Socio Cultural Context in India; Retrieved from:https://www.researchgate.net/publication/307966806_Gender_and_Caste_Socio-cultural_Cont ext_in_India
  3. Dharmendra, (2009) Legalization of Prostitution in India; Retrieved from: http://www.academia.edu/613653/Legalization_of_Prostitution_in_India
  4. Anuj Kumar, Legalization of Prostitution in India: Need of the Hour; Retrieved from: http://www.legaldesire.com/legalization-of-prostitution-in-india-need-of-the-hour/
  5. Shashank Shekhar, Prostitution in India Legal and Social Ramifications; Retrieved from: https://www.scribd.com/document/62739533
  6. Sithanan, Immoral Traffic: Prostitution in India
  7. SeeSukumariBhattacharji, Prostitution in Ancient India, 15 (2) SOCIALSCIENTIST 32 (1987).
  8. SeeMoni Nag, Anthoropological Perspectives on Prostitution and AIDS in India, 36 (42) Economic and Political Weekly 4025, 4027 (2001)
  9. Indian red light. wordpress.com
  10. Gaurav Jain v. Union of India -AIR 1997 SC 3021; 1997 (2) ALD (Cri) 199; 1998 (3)
  11. Article 23, Constitution of India, 1950
  12. Manoj wad, The Legal Framework of Prostitution in India,(New Delhi: SAGE Publishers, 2008)
  13. The Journal of Sex Research,Volume 38, 2001 -Issue 2
  14. https://www.google.co.in/search?q=JOURNALOF PROSTITUTION&ie=utf-8&oe=utf-8&gws_rd=cr&dcr=0&ei=KfzUWczJJcT3vASwubLoDw

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