Prostitution in India and it's legal analysis

Introduction

A prostitute is a person, generally, a woman, who offers sexual services in return for payment. However, Indians, who are popular for being fond of modifications, generally according to what they are taught from the beginning, have defined prostitutes as heinous sinners. In the land of Kama Sutra, the world’s oldest profession is ironically frowned upon. 

According to the latest census, there are around 2-3 million sex workers across India. While the significant count of them have been forcefully abducted and thrown into the quagmire, most of them have voluntarily, yet forcefully, taken up this occupation due to poverty and other pressing circumstances. These women belong to backward families and/or lower social classes which means that they lack any formal education or training in anything besides being immensely poor and surviving, however, they can. To feed their family’s and their own stomachs and to provide livelihood, these women resort to selling their bodies.

 To be fair, there are a lot of male prostitutes around too, who are victims of the same fate. But as mentioned not every person ‘chooses’ to be a sex worker, a significant number of them are forced to be one. Sold to the middlemen(women), called ‘dalals’ , by their own families for money that offers temporary survival, these victims of human trafficking have no or very less choices - to obey their masters, face torture, both physical and mental, run away or perish in the attempt.

While we have mentioned sex workers who are victims of either poverty or human trafficking, there is another class of sex workers too, the victims of social customs. These traditions are old as the civilization itself. Sometime around the 6th Century, the practice of ‘dedicating’ girls to Hindu gods became prevalent in a practice that developed into ritualized prostitution. Devadasi literally means God’s (Dev) female servant (Dasi), where according to the ancient Indian practice, young pre-pubertal girls are ‘married off’, ‘given away’ in matrimony to God or Local religious deity of the temple. The marriage usually occurs before the girl reaches puberty and requires the girl to become a prostitute for upper-caste community members. Such girls are known as ‘Jogini’. It is viewed that the Devadasi`s are the Buddhist nuns who were degraded to the level of prostitutes after their temples were taken over by Brahmins during the times of their resurgence after the fall of Buddhism. According to the 1934 Devadasi Security Act, this practice is banned in India. Though that does not prevent extremists and blindly devout from practicing these immoral customs. There are several locations where prostitution happens to be the only way to generate any income. These locations are Wadia in Gujarat, Natpurwa in Uttar Pradesh, and Bachara tribe in Madhya Pradesh. Natpurwa is inhabited by people belonging to the Nat caste. They have a tradition of 400 years. At Wadia it is the menfolk of the village who find suitors for the women. In case of Bachara tribe the eldest daughter in the family is forced to become a prostitute.

While our focus should be on eradicating human trafficking and forced prostitution under the veil of traditions, and those who are forced by circumstances, we need to improve the conditions prevalent in the business for women who are in the field by choice. These are women who aren’t victims, but traders of sex. They enjoy it, and they choose to make money from something they are good at.

“If you are good at something never do it for free” – Joker.

If a maniac like Joker is so wise on the freedom of people to pursue what they are good at, shouldn’t an educated person like you be wiser?

Laws around the world

States like Canada, Argentina, Germany and Netherlands (Most prominent and earliest) have taken steps to decriminalize the profession and has initiated regulation of the industry subjecting it to the labor laws of the country like any other ‘Normal Profession’. The states have taken such steps to restore the fundamental right to life, liberty and profession and has recognized the job as noble as any other profession. The prostitutes are duly registered in the employment category and the municipality is responsible for taking care of the standard of working conditions. The prostitutes pay taxes and also charge a VAT on the services that they offer. The brothel owners have to take proper food and liquor license if they serve them.

In Canada, recently, the 3 main laws prohibiting the profession were struck down altogether by the highest court of the country by a straight 9-0 ruling. It’s a win for sex workers who’ve been seeking safer working conditions, arguing the ban on brothels which forced them out onto the streets and exposed them to more danger. The court has given 1 year of frame to the parliament for making new laws on the same.

U.K does not have the profession illegal per se, however, has made the acts related to it as illegal. Pandering, Kerb Crawling, Soliciticing, Escorting and Pimping are some of the illegal activities.

Whereas, in, the U.S.A, the act of prostitution or any job related is considered illegal and penalties apply. Any act of patronizing a brothel, exchanging sexual services and the avails from the same attract heavy fines and penalties and even imprisonment. Though, Nevada is one place where in some areas, brothels are licensed and hence legal.

Now, the most obvious question that must have popped up in every mind that reads, How fares Netherlands ( And other countries that legalized Prostitution ) after decriminalizing prostitution?

As per the reports of the Police, “ It has been really easy to control and regulate the profession since the amendments, as the transparency has increased. Middlemen can be tackled easily now. However, there are still a number of brothels operating illegally without licenses to avoid taxes.  When a few sex workers were questioned about what were the changes, the answers were positive as now they do not fear to do the job and can easily reach out to the police if they need help. A big problem prior to the introduction of new laws, “Blackmailing has also seen it’s way out of the industry”. Some people complained that whatever be the amendments, prostitution has still increased, which is not really a problem but a progress, as prostitution is now a profession and not a crime and booming of an industry is a sign of progress. So altogether, the scenario has improved, especially the conditions and standards of the prostitutes, transparency, comfort, respect and all that follows.

Discussion on Indian laws

Prostitution isn’t illegal in India. Well, not technically. Nowhere is it written that prostitution itself is illegal, though the core activities related to it are. These include but are not limited to owning brothels (Any place with more than two sex workers), kerb-crawling, offering sex in a public area, seeking sexual favors in exchange of money in a public area, illicit activities in hotels, and pandering. This places a lot of restrictions (edit: near-complete restrictions) on and around this field of work.

The most basic law regarding the prostitute’s status The Immoral Traffic (Suppression) Act was passed in 1956. It is also referred to as SITA. This law states that prostitutes are allowed to ply their trade in private but they cannot carry out their business in the open. Indian laws, however, do not regard sex in exchange of money as prostitution. As per laws, clients can be arrested if they indulge in any sexual activity in public. Even though the exchange of sex for money is permissible on an individual capacity, a lady cannot do it in within a span of 200 yards of a public place. Sex workers are not within the ambit of normal labor laws. However, they have all the rights that would be enjoyed by a citizen and are entitled to be rescued and rehabilitated if they want to do so ( But then, society comes to its good use).

Though, SITA is not used as such. At times, different sections of the IPC are employed to bring charges of supposed-criminal acts like public indecency against sex workers. They can also be accused of being ‘public nuisance’ under IPC. The most basic problem is that there is no clear definition of what these crimes constitute and sex workers are basically left to the mercy of the officials who bring the charges against them.

SITA has recently been changed to become PITA or The Immoral Traffic (Prevention) Act. There have been several attempts to change this law so that a bigger slice of the blame can be placed on the clients. However, the Union Health Ministry has opposed such developments. These days, insurance companies are coming forward and insuring sex workers. This is a very welcomed move.

The Sections 372 and 373 restricts the sell and purchase of minor for the purpose of prostitution and illicit intercourse. This doesn’t do much good as the culprits knew it was morally wrong even if it wasn’t explicitly mentioned to be illegal, but continue to exploit womanhood. According to Apne Aap, an NGO fighting against human trafficking says that around 30 percent of these women trafficked are minors. The sad thing is even when these little, innocent girls are rescued, they are again sold to the same middlemen by their own parents. There are no strict laws as to effectively stop the culprits once they have been convicted of the crime.

This law does not protect the rights of the sex worker but criminalizes the activities related to prostitution. Prostitution is legal in India but activities are not. The demand for legalization of prostitution in India is really high. But some of them consider this against the Indian Society.

Shortcomings of Indian Laws and How to Deal with them

While PITA serves to punish even the middlemen and brothel owners involved in prostitution and reduce the blame that would otherwise solely fall on the sex worker, it isn’t satisfactory. More open-minded and stringent laws need to be passed. Middlemen and culprits of human trafficking should be more severely punished. First of all the roots of the laws and the nation, that is the mindset of the wolves disguised as sheep, who hide their insecurities and prejudices under the veil of ‘Sanskriti’ (LOL remember kamasutra, devdasis and joginis?), and traditions, need to be amended. Lawmakers will have to reconsider the foundations on which the laws are passed. Laws serve to protect the people and not unrealistic customs that are artificial, and not absolute or reasonable. The focus should be on protecting sex workers and considerably improving the conditions that they survive in.

If prostitution is legally recognized as a valid occupation, and sex workers as normal wage workers, a lot of shortcomings (if not all) of the business can be tackled. Being able to legally run their services without the fear of being victimized would mean that the sex workers would not need to rely on middlemen or brothel owners who more than often personify cruelty. They would be the owners of their own body and rights, which is what everyone else but them enjoys.

In my opinion, having control of ones own flesh and blood is the most basic of all human rights, and shouldn’t even need mentioning. While prostitution cannot and need not be maintained, it needs to be regulated. A CA is good in finance and charges money for his services, a chef is good at cooking and charges money for his food, and their jobs are regulated, so why not prostitution? Isn’t the art of love making the most natural and pure of all? Why does being bare to make it so sacred otherwise? Will cooking food bare make the art of the chef illegal too?

In a country with over 2 million sex workers, legalizing their occupation would mean that this industry would be a major source of tax return. Plus more and more women who otherwise were dying and suffering due to lack of choices and fear of the terrible conditions of the job would also join it hence. While one may contradict that there would be illegal brothel establishment to avoid paying taxes, one must understand that it’s not a problem of the legislature or the occupation itself, but of administration. Effective administration is something that needs more improvement than legislation in India. To be fair, illegal establishments and methods of money laundering to avoid paying taxes exist in every single occupation in the country, but that doesn’t mean it is logical to prohibit every single one of them. The shortcomings of the government in power to manage the subjects cannot be a reason for the sufferings of the innocents.

On the other side of this argument, people like the members of the NGO Apne Aap argue that legalizing prostitution would increase the trafficking of innocent girls. They will be scared to act as if they are travelling to their hells on their own accord and not forcefully. Their fake cooperation will then ease the jobs of the culprits. To this, I may like to argue that even without the legalization of prostitution humans are being trafficked between cities and states. This isn’t possible without them being silenced and forced into cooperating with the culprits, otherwise, they would have been caught at the first traffic checkpoint. Another argument is from religiously and culturally blind and ignorant people who argue that this move will rotten the “noble” society and is against Indian culture. (HAHAHA). Don’t they know that we, Indians, invented the ancient and famous art of sex called Kamasutra. How old the tradition of forceful prostitution goes back to this cultured land? These are the same people who otherwise are the beneficiaries of these services behind the curtains. At least legalizing this field of work would mean that more women would take this up proudly and voluntarily as opposed to being forced into it by patriarchy-entitled buffoons. The concept of morality and decency is man-made and evolves with time. What today we consider normal was the evil of the past.

Conclusion

One needs to understand this loud and clear: WOMEN ARE THE SOLE OWNERS OF THEIR OWN BODIES AND HAVE THE UNARGUABLE RIGHT TO DECIDE WHAT TO DO WITH IT, AS LONG AS THEY DON’T PHYSICALLY HARM SOMEONE. YOU DON’T GET TO DECIDE WHAT SOMEONE ELSE DOES WITH THEIR OWN BODIES, STAY BUSY WITH YOUR OWN. If you hate the profession so much, don’t be a client, don’t benefit them by paying for their services. Everyone regardless of sex, colour, caste and, profession, deserves to enjoy the basic human rights, and the authority over themselves. Thus, Live and let Live!

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