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Legalisation and Regularisation of Prostitution in India

Slavery still exists, but now it applies to women and its name is prostitution.-Victor Hugo

Introduction:
In literal meaning, the word prostitution means the practice or business of engaging in sexual activity in lieu of money, and a prostitute is someone who works in this field. Prostitution is not a new profession in India. It has been in practice for time immemorial. In India, prostitution is not considered illegal in and of itself, but the activities that lead to the profession of prostitution are intimated as illegal. Since, India is a major transit country for men, women, and children been trafficked into forced labour and commercial sexual exploitation. Women and children who are trafficked for the purpose of forced prostitution are among the most vulnerable.

Prostitution occurs in a variety of structures, and its legal status varies from country to country and also from region to region within a country, ranging from being a sanctioned or unenforced wrongdoing to being unregulated to a directed profession. As seen in earlier times, only females were seen as prostitutes and males as their clients, but in recent times, males, females, and transgender people all are seen working in this profession. According to a BBC report1, the number of male prostitutes in India is rapidly increasing. It also states that when there are no female customers, they sell sex to male customers. Male prostitutes are referred to as gigolos.

There are numerous reasons that compel a woman to engage in commercial sex, with poverty and unemployment being two of the most influential. It has been observed that women from remote areas fall victim to dishonest middlemen who promise them a job opportunities and thereafter sell them as sex workers. Poverty is considered a primary motivator that forces vulnerable and helpless women into prostitution. It is widely accepted that, of all the factors responsible for prostitution, poverty is thought to be the most important reason that leads people into prostitution.

Legal Framework for Prostitution In India:

The legal framework in India do not forbid the act of prostitution in itself, but it does forbid the sexual exploitation of human beings involved in the business. All available legislation on the subject discusses prostitution and its related activity, i.e. trafficking, but no legislation provides for the legalisation of prostitution, which would allow those involved to exercise their rights. Since Indian Constitution under Article 23(1)2 prohibits any kind of trafficking of a human being thus it will also include trafficking of women and children for the commercial sexual exploitation.

In specific, special legislation is present on this issue i.e Immoral Trafficking (Prevention) Act, 19563 (PITA), which specifically provides for the prohibition and punishment of sexual exploitation for the purpose of prostitution. The summary of this legislation shown that India does not per se prohibit prostitution as an activity but it prohibits inter-related activities.
Apart from special legislation on the subject, the Indian legal framework also includes general legislation on the subject, i.e the India Penal Code, 1860. The Indian Penal Code (IPC), 1860, contains some provisions that criminalise prostitution and related activities.

The specified sections include Section 370 and Section 370A of IPC that states penalties ranging from seven years to life imprisonment for crimes relating to slavery, servitude and any forms of sex trafficking. In addition, Section 372 and 373 of the Indian Penal Code 1860 also deals with prostitution but it is restricted to child prostitution only. Thus under IPC laws related to prostitution is very limited.

Recognition & Regulation of Prostitution in India:

Many research reports discuss the plight of sex workers engaged in prostitution, as well as the availability of legal framework on the subject; however, the conditions of those engaged in the profession remain the same. Despite all of the harsh penalty provisions in the laws, the situation is deteriorating, and women and children are constantly trafficked for the purpose of sexual exploitation in prostitution.

Nowhere in Indian legislation, there is a mention of the legalisation of prostitution, where sex workers who engage in the profession of their own volition can freely practise it. The Immoral Traffic (Prevention) Act of 1956 only prohibits prostitution-related activities such as trafficking, exploitation, pimping, and the operation of brothels, but it makes no mention of the prohibition of prostitution as a sexual act.

The absence of such a mention in the Act allows for the legalisation of prostitution as a profession because, under these laws, prostitution is not criminalised and can be considered a legal activity, if it does not include sexual exploitation.

Indian legislation takes a neoconservative approach to prostitution. It only prohibits acts that sexually exploit sex workers for the purposes of commercial sexual exploitation. Prohibition of these acts is a good thing, but there should also be a system in place to legalise and regularise prostitution as a profession, so that sex workers have access to regular medical check-ups and birth control etc.

The law should provide security to consensual adults involved in sex work, allowing them to live with dignity and practise their profession with safety and security, rather than relying on intermediaries who can exploit them for the purpose of prostitution. These human beings who wish to engage in the profession should have their profession recognised as a respectable profession. Article 19(1) (g)4 of the Constitution guarantees freedom of profession and the right of every individual to choose his or her own occupation or trade. It can be said that the lack of legislation to legalise prostitution is a clear violation of their fundamental rights under Article 19(1)(g) of the Indian Constitution.

Though the ITPA of 1956 does not criminalise prostitution, there is a need for a law to legalise and regularise prostitution in order to provide security to these sex workers. The right to life under Article 215 of the Constitution has many aspects, including the right to reputation, the right to health, and the right to live with dignity, and the current legislation on the subject violates the right under Article 21 of the Constitution.

In the case of Budhadev Karmaskar v. State of West Bengal 6, the Supreme Court observed that “the prostitutes also have a right to live with dignity under Article 21 of the Constitution of India since they are also human beings and their problems also need to be addressed”. SC also observed that “a woman is compelled to indulge in prostitution not for pleasure but because of abject poverty. If such a woman is granted the opportunity to avail some technical or vocational training, she would be able to earn her livelihood by such vocational training and skill instead of by selling her body.” Further, the Supreme Court directed “the Central Government and all the State Governments to prepare schemes for giving technical/vocational training to sex workers in all cities in India.”

These law needs to be amended in the current situation where a lot of people are taking up prostitution as a profession. ITPA, 1956 is the relevant law, but it contains some loopholes that obstruct legislation implementation and further victimisation. There is a need to differentiate between sex works and commercial sexual exploitation as a result of trafficking. In order to do so there is a need to be a clear definition of “commercial sexual exploitation” and “trafficked victim”.

Conclusion:
If prostitution is not a criminal offence, then why the women who work in it lack legal identification? The debate on the subject has never come to an end, and it is in the best interests of the country to recognise this profession as a legal profession, allowing these women to live lives of dignity with the bare necessities they deserve.

India should be inspired by Germany, New Zealand, and China, where the profession is legalised and women in the profession live a dignified life. The government should take steps to educate these women and provide them with skill development training so that they can work in other fields and earn a living.

The need of the hour is to ensure these women's right to life by granting them the right to live in dignity, as well as to put a stop to human trafficking. Every person has the right to live a dignified life, which is only possible if prostitution is legalised and recognised as a profession. There is no need for any specific cure for a problem like prostitution, such as criminalising, decriminalising, or approving it.

Simply legalising prostitution will not suffice to solve the problem; rather, a uniform law must be enacted to govern its administration in our country. Prostitution regulation will help to protect sex workers and their children from being exploited. Not only will it protect the health of sex workers and society as a whole, but it will also protect the environment. In order to regulate this profession in the country, a set of rules and regulations should be established.

Reference:
  1. Gigolos speak out in Conservative India, Published at- BBC News. Available at: http://news.bbc.co.uk/2/hi/south_asia/7159759.stm
  2. Article 23(1), The Constitution of India: : prohibits any kind of trafficking of human being which will also include trafficking of women and children for the commercial sexual exploitation
  3. Immoral Trafficking (Prevention) Act, 1956, Act No. 104 of 1956.
  4. Article 19(1)(g), The Constitution of India: to practise any profession, or to carry on any occupation, trade or business.
  5. Article 21, The Constitution of India: Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.
  6. Budhadev Karmaskar v. State of West Bengal, (2011) 10 SCC 283

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