Prostitution is a consensual sexual activity in exchange for remuneration between two consenting adults.
The police and the people in India at large think that prostitution, particularly the one involving exchange of money, is a criminal activity. They act upon any incidence of prostitution and the prostitute in accordance with their misunderstanding. This in effect causes different sorts of human right violation and unlawful aggression. In fact, prostitution is not a criminal offence in India.
Statistics shows that there are over two million sex workers many of whom are children below 18, in India. Of course, sex with children is a criminal offence.
The need for decriminalizing prostitution is a much debated topic worldwide. Many countries in the world have not only decriminalized prostitution but have legalized it.
Citizens have right to engage in sex
Citizens have every right to engage in sex for fun, to have children, to deepen intimacy, to earn a living or for such other purposes.
However, there is no consensus worldwide on how the countries should address prostitution. Prohibitionism, decriminalization, legalization, abolitionism, etc. are some of the legislative approaches adopted by nations to deal with the issue.
Prostitution not an offence
Prostitution in private is not a punishable offence in India, but organised prostitution – like running brothels, pimping and forced prostitution – is illegal. In other words an adult woman engaging in sex work behind closed doors is not an unlawful act. But it turns into an unlawful act, if anyone else is benefiting from it or runs it as a business or conducts it in public space.
Recently on 24th September 2020, the Bombay High Court observed in a case A, B & C v State of Maharashtra (Writ Petition No 6065 of 2020) that prostitution has not been made an offence under Immoral Traffic (Prevention) Act, 1956. The court added that an adult woman has the basic right to choose her vocation and she cannot be detained without her consent.
The court states that what is punishable under the Act is sexual exploitation or abuse of a person for commercial purpose and to earn the bread thereby. A person carrying on prostitution in a public place or soliciting or seducing another person is an offence.
But child trafficking in India is an illegal act. It is also on the rise. India also has the third largest population suffering from AIDS, a problem associated with sex work. These issues demand our attention to have a fresh look at the laws governing prostitution.
Prostitution objectifies woman
Prostitution, in its unrefined form, is slavery. It objectifies woman. It is not essentially a profession in its present form. Many women choose it for money out of poverty. Their involvement in it is not voluntary but they are trapped into it in most instances. Prostitution as it exists as of now involves violence - of the man over the woman. It involves selling of woman’s body in exchange of basic necessities in life. It is rather nobody’s first choice, but happens to be an alternative available.
Prostitution an organic part of living
One cannot however ignore the fact that prostitution remains as an organic part of any society existed ever despite it is having many negative impacts. Sexual needs of everyone in any society are not equal. Some are sexually hyperactive. Prostitution is a good way out for such men and women to bridle their sexual needs. If prostitution does not exist, they will experiment their sexual adventures with others in the society, causing havoc around.
Legalized prostitution, on the other hand, will serve as a societal shock absorber which would spare the unwilling ones from sexual maladies. Legalized prostitution will help many avoid exploring sexual extravaganza elsewhere.
Preventing sex trade impossible
It is quite impossible to curb sex trade in India, as in many other countries, by prohibiting prostitution.
No legislation anywhere in the world has successfully managed to stop the sex trade. Prostitutes as they exist now work in a dehumanizing condition which the existing laws cannot alter. Therefore, the two-judge bench of the Supreme Court in India, while hearing a case in 2012, suggested the government to consider regulating it. The court clarified that it was not to encourage prostitution, but to enable the government address the perpetual problem in a realistic manner.
UN opposes punitive laws against prostitution
The United Nations (UN) also wants the countries around the world get rid of “punitive” laws against prostitution terming them as “bad laws”. A UN report in 2012 on the issue says 116 countries and territories, where punitive laws against sex work existed, could not reduce trafficking or sex work by criminalizing clients. The laws increase sex workers’ vulnerability to violence.
Not less than eighty countries in the world now have some sort of legal protection for sex workers. Recognising and legalising prostitution as a profession may reduce the illegalities that come with it. If the sex worker, the seller of sex, is decriminalized, the worker can seek protection of the law whenever there is any abuse of it.
Legalising prostitution, as the court says, may help authorities to “monitor the trade, rehabilitate and provide medical aid to those involved”. It will make prostitutes comparatively free from diseases and legal tangles. The incidents of rape and harassment may also decrease.
Regulated prostitution existed since long
State regulated prostitution existed in India at the time of Arthasasthra. It says providing sexual entertainment to the public using prostitutes (Ganika) was an activity controlled by the State.
Now, prostitution has been legal in many countries like the USA, the UK, the Netherland, Germany, Mexico, Argentina, South Korea, Greece etc., with more or less similar provisions. In Phillipines, bargirls, called “Customer Relations officers”, are required to have checkups for sexual diseases. New Zealand enacted a comprehensive prostitution decriminalization law, which even made street hookers legal, in the year 2003.
Sex work a legal profession in Netherlands
The Netherlands, a good example for a case study, legalized prostitution many decades ago.
In the 1980s, the sex work was recognized as a legally permissible profession. Sex industry comes under labour laws and prostitutes are registered workers. Ban on brothels and pimping was lifted in October 2000. Municipal authorities can formulate by-laws governing safety, hygiene and working conditions in brothels and conduct searches. Brothels are being operated under the license of municipalities.
It is unlawful to force prostitutes to consume alcoholic drinks with clients, or engage in unsafe sex. The health services or interest groups have the right to access to their premises for ensuring transparency. Brothels can employ prostitutes who are above the age of consent. Child prostitution is illegal.
Nevertheless, exploitation in any form in sex industry such as trafficking, forced prostitution, involving a minor in prostitution, forcing a person to prostitution and forcing one to surrender the income from prostitution, are crimes. Street prostitution is restricted to some zones. The legalization is to protect minors, eliminate forced prostitution and combat human trafficking or other vices.
Sex workers need a better living
If we treat prostitution illegal and prosecute the sexual work that harms no one else, the brutality towards the sex worker will continue.
Sex workers too have the right to get a dignified life. Therefore, they need improved working environment and opportunity for rehabilitation.
Punishment relating to prostitution
The punishment for brothel-keeping is imprisonment for a term of not less than one year and not more than three years and also with fine which may extend to two thousand rupees.
The offence of procuring a girl child for prostitution attracts rigorous imprisonment for a term of not less than seven years but may extend to life.
Seducing or Soliciting for prostitution under the immoral traffic (prevention) act for first conviction attracts a punishment of imprisonment for six months or fine of rupees five hundred and for the second conviction, imprisonment up to one year or with fine of rupees five hundred.
The Indian Penal Code (IPC) under Section 370A punishes the offender for the exploitation, including sexual exploitation, of a trafficked minor with imprisonment of five to seven years. Trafficking is a more serious offence that comes under Section 370 of the IPC.
What happens when legalized
If we legalise prostitution, the prostitutes and brothels will get registration and the sex industry will come under the sphere of legal control. Regulated prostitution can protect the rights of sex workers better than otherwise. It will enable law enforcers to detect instances of forced prostitution and support the victims. It will ensure better, cleaner and safe working environment for both the sex workers and client.
If legalized prostitution comes into force, people having extra sexual urges will take recourse to prostitutes rather than stalking or harassing other women for their sexual gratification. Once the trade is legalized the service of pimps or intermediaries is no longer required. Consequently, sex workers can escape the criminal behavior of such persons and get better income. It will help control the spread of sexually transmitted diseases.
However, legitimizing prostitution may not change the social attitude towards it, nor does it dignify prostitute women who will face some stigma and other harms even in a legally permitted prostitution regime.
Dangers of legalizing prostitution
There is definitely a danger in legalizing prostitution. Prostitution may become an easy money making option for some lazy women. It will increase the casualness of people towards sex and women.
A report in 2012 by Professor, Eric Neumayer at London School of Economics, claimed that legalisation of prostitution in the Netherlands, Germany and New Zealand had led to increases in human trafficking and coercion of people into the industry. He called it “the dark side of globalisation”. Many fear that the legalization does not control the sex industry but will expand it. It may promote the motivation of men to buy sex in a much wider way. This fear is valid for India too particularly because India has the largest population of poor in the world. They are vulnerable to any economic offers and may increasingly turn into sex trade in preference to remaining in hunger.
The weak law enforcement and regulatory exercises existing here in India is yet another problem. The regulation on prostitution may lisp or limp when it confronts powerful people. Indian non-poor section, willing to ape anything from outside uncritically, may use the decriminalization as a way to move on to a state of sexual anarchy. Definitely India has to choose between two dangerous devils.
Legalizing prostitution not a panacea
No doubt, the decriminalization of sex work or legalizing it is not a solution to every problem the sex industry now faces, but it seems to be a better option for India when the present scheme of things hopelessly fails to contain its ever existing problems.
When prostitution becomes a visible legal activity, there is a better chance to address its abuses and problems. To make it work well, the legal framework in India in regard to prostitution must have clarity, precision and effectiveness.
Revitalization of our democratic and enforcement institutions – legislature, judiciary and policing – is also a need for the purpose of making prostitution a saner regime.
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