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Prostitution in India: Current Legal Position and the Road ahead

If we look upon Indian society through ages, prostitution has been a profession that has been looked down upon, it is considered a taboo and is a social stigma, the so-called morality of our society has proscribed it as a sin and it's even used as an insult, people engaged in this profession are often termed outcasts and are not allowed to take part in any social engagements. Despite various notions about this lamentable profession, as considered by society, it's a fact that it is the world's oldest profession and it continues to thrive as an unregulated and illegal underground activity which cannot be done away with.

Indian laws on prostitution

In India, prostitution is regulated by the Immoral Traffic (Prevention) Act, 1986 (known as ITPA or PITA) which is an amendment to the Immoral Traffic (Suppression) Act, 1956 (known as SITA). The laws are vague, on the face of it, prostitution seems legal in India. If we dig down deeper the laws say that prostitutes can practice their trade privately, but cannot legally solicit customers in public. Clients/customers can also be held liable for sexual activity in proximity to a public area.

Organized prostitution through brothels, prostitution rings, pimping, call services are illegal according to the law. The law says that until a woman involves in such act individually and voluntarily it is legal, but this should not be professed within200 yards of a public place, they are not allowed to publish phone numbers to the public or advertise. babus or pimps or live-in lovers who live off the earnings of a prostitute can also be held guilty of a crime and he is assumed guilty unless proved otherwise. The law also puts upon the government a legal obligation to rescue and rehabilitate any sex worker who asks for help into a protective home.

The Road Ahead

Prostitution as a profession should not be considered illegal because the act involves consent by everyone involved in the process, the act cannot be stated immoral because morality in itself is subjective. The Indian constitution provides the right to work under DPSP stated in article 41 and also under the right to freedom a person can practice any profession and occupation.

It is virtually impossible to completely curb prostitution in India because of the way the profession operates and the no. of sex workers involved, which are estimated to be around 2 million in 2019. Barring prostitution also increases the risk faced by prostitutes. They are forced to work in shady areas and under inhumane conditions and are often placed in situations where they face violence, slavery and assault. There is no regulated pay and often this leads to a poor socioeconomic situation for the workers.

All major issues could be solved through government regulations which can address issues by coming up with legislation for regulated pay for workers to improve their socioeconomic conditions, a better system could come in place which ensures that any person doesn't get involved in this profession under any kind of pressure, this can also result in better monitoring of trafficking. An effective redress system can also come in place to help those who are subjected to violence, assault and exploitation. Legislation on mandatory use of condoms and a better medical set up to ensure the health of sex workers could go a long way in curbing AIDS in a country that is 3rd on most no. of such cases.

The regulation of prostitution under labour is problematic though, because standard labour regulations cannot be applied to prostitution. The typical relation between employer and employee where the employer is in a position of authority over the employee is, in the case of prostitution, viewed by many as contrary to the physical integrity of the prostitute. It is forbidden to order a person to have sex on a given moment at a given place. Many sex operators also do not want to pay social security contributions, which comes with paid labour. Therefore, many prostitutes, in countries where prostitution is regulated, are officially listed as independent contractors. Sex operators typically operate as facilitators only and do not interfere with the prostitutes.

As an industry, it generates approximately $32 billion in revenue. If governments decide to tax the same, it could also help the economy a lot.

The Global scenario

The nations-like the UK, the Netherland, Germany, Argentina, Mexico, South Korea, Greece, Philippines etc.-that have legalized prostitution see the positive effects of the same.

It is also seen that prostitution helps in bringing down crime rates against women, countries have seen a decline in crimes like rape and sexual harassment after the legalization ofprostitution.

Amnesty international, the world’s leading organization in human rights call for decriminalization of prostitution.

Laws in New Zealand describes prostitution like any other labour and hence they feel sex industry premises should not be subjected to any special laws or regulations.

Countries like Germany, Netherlands, and most of Australia consider prostitutions and hiring of prostitutes as legal and they have laws which regulate the same.

We should also look at the US state of Nevada which is the only state in country to legalize prostitution and have strict regulations on same. The regulations states that Prostitution is only legal in licensed brothels, Brothels are prohibited in counties with more than 700,000 inhabitants, the use of condoms by prostitutes is mandatory, and the Prostitutes must be tested for STIs weekly/monthly, these legislations help them to monitor any sort of illegal activity and human trafficking, it ensures health of workersand by limiting the profession to smaller locations it also deals with public morality.

Conclusion

There might be different notions that go along with prostitution as a profession but at the end of the day it's just like any other profession and person involved in it should be entitled to rights every worker in this nation gets and for that, a better system must come in place which should include Right to seek redress in cases of exploitation, it must ensure Increase in health standards and Improvement conditions of work it should also ensure Regulated pay and in turn, it could result as an Impetus to the economy. the government should not go onto morality because morality is subjective and it may differ from individual to individual if someone is willing to do something voluntarily and with their consent and the act isn't illegal and affect someone it should be allowed. also, Indian laws are merely focused on women sex workers and males are not included in the legislation, the government should widen the scope as male prostitute industry also exists in the country and such a profession should be gender-neutral.

 

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Aman Sharma 
on 12 February 2020
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