ILSJCCL

THE OLDEST PROFESSION IN THE WORLD- A STUDY ON THE LEGALITY OF PROSTITUTION: SAGNIK SARKAR

Your Admin

THE OLDEST PROFESSION IN THE WORLD: A STUDY ON THE LEGALITY OF PROSTITUTION

Author: Sagnik Sarkar

National Law University, Odisha

ISSN: 2581-8465

Prostitution has been not only the oldest profession in India but has been a flourishing industry in the past, where the workers were given the same respect, as given to any other profession. It has been an honourable and highly respectable profession, but with the passage of time, it has been the dark truth of our society, which we fail to acknowledge. Due to the extreme societal norms and culture, they have been marginalized and have been treated as an outcast. They are now among us, but we fail to even look at them with sympathy, let alone be an active member of their cause. We have made them ‘ghost people’ whose recognition comes at night, and as dawn comes, their existence starts to fade away. Due to government’s inefficiency, kids and teenagers can be part of something big and make nation proud, are either lured, or coerced, into this horrors/evils of society which is like a quicksand, and one’s they steps through, how hard they try, they are in it for life. They are part of something, which shall be with them even after the fruitful release of death, as these are hereditary and children of a prostitute are even worse as they have no or parental or cultural identity or existence, which our society considers too important to disregard one’s life. So, it is important that the outlook towards the prostitute should be changed, more importantly, it should be legalized. Only after legalization that they will be considered for all the benefits which government offers to all professions, their only way out is to be legalized so that they can come out of that veil, which has been nothing but the veil of negligence.

I.            Introduction

Prostitution as we know, it means selling of one’s body for the act or practice of sexual relationship in exchange for any definable commodity, but especially for the money. The word “Prostitution” comes from the Latin word ‘prostituere’ means to ‘expose publically. Now as per Black’s law dictionary, prostitution means. ‘The act or practice of a woman who permits any man who will pay her price to have sexual intercourse with her.’ Prostitution is defined as per Prevention of Immoral Traffic Act 1987, as ‘Sexual exploitation or abuse of persons for commercial purposes’. In the case of The People v Rice prostitution was defined as, the act or practice of a female of prostituting or offering her body to indiscriminate intercourse with men for money or its equivalent. It is an act which is usually looked down upon in the society and the workers in that sectors are taken for granted and are treated with disgrace and are usually marginalized, discriminated in the society, even in many cases the parents of the worker, coming under the pressure of moral fiber of the society are forced to disown their daughter and in some society, they are even publicly executed. It is even been considered as a threat to the institution of marriage as marriage is considered the most sacred bond and prostitution just the opposite.

Those women who perform these acts have been labeled with certain terms like, “Whore, or Slut” and their dignity, respect are taken for granted, as the common argument is since they take money for sex, they will be willing to sex with any men in the road, but here it is important to bring it to notice that in the former case, the sexual act was done keeping in mind the consent of the women, there the women it as a part of her job like any service done by any other profession like doctors or lawyer as per consumer protection act[1], but forcing her to do sexual act without her consent is like forcing doctor treat a patient whenever they see him on the roads. In the latter case, it is an act of molestation or even rape and it is punishable under law.

This industry has been running since the ancient times and has been continuing ever since, though the form of existence might have changed it is still the bitter truth of the society & so to govern this sector, the first step should be taken is to acknowledge the fact that prostitution industry not only exists in Indian, but it is also booming at a very high rate rather than, just ignoring it, as ignoring will make the industries more uncontrolled and it will serve as a haven for different crimes like human trafficking, child rape,  or even slavery, which are strictly forbidden in Indian Penal Code. Prostitution industry as such does not exist, but it is a different act, which is collectively called the prostitution industry and different national & international legal framework governs it, which shall be dealt in the following section. 

        I.I       History of Prostitution[2]

Prostitution is considered one of the world’s oldest professions and its existence can be marked since the start of organised civilisation, though the forms may have changed, but the essence remained the same. In the earliest known Indian literature, i.e. Vedas there is reference to organised prostitution. Even the famous Indian poet, Kalidasin his book, Abhiguan Shakuntalam, has written about an apsara named Menaka who caused the downfall of the great sage Vishwamithra, and became the mother of Shakuntala.

 In mythology also, there have been instances were prostitution was used for entertainment purposes, like in the court of Indra, Apsara, used to entertain divinities and their guests. Prostitutes were also used to distract the enemies when the throne of Indra was in danger. They were also used in testing the penance of great saints and only then they were considered as to have attained the nirvana. Prostitution is inbuilt in every fabric of society in the sense that, during the Navaratri, the idol of Maa Durga is made from 18 different soils and one of those places is from the prostitute’s door which ironically also called, “punyamati” meaning pure soil. Bible also has the mention of a prostitute, when Jesus Christ welcomes a woman in his kingdom despite knowing that she is a prostitute[3].

Aryan rulers also used prostitutes in a variety of ways. Some were used for the entertainment of guests. In some cases, the most desirable prostitute was given to the victor as a reward. But the most important use was the Vishkanyas (Poisonous virgins), who were fed poisons from infancy & were used to destroy the empires. They were also used by the soldiers at wartime to relive their tension &stress.

In the period of Pandavas & Kauravas, prostitution was a very common profession. Kings used to have harems that used to house different concubines and they were used for the relaxation of kings and entertainment of the guests. It was even written by famous Kautilya in his book, ‘Arthasasthra’ which contains rules on how to govern their activities & how they ought to behave. A code of conduct was prescribed on how prostitutes were to offer their services and how they were to be paid. The same was also done by the great Indian sage, Vatsyayan, who drafted rules of conduct for the popular and successful practice of their trade have been prescribed.

One of the forms of prostitution, which has been used for a long time in history & is still continuing, is religious prostitution. Religious prostitution has been associated with famous temples of Mahakala of Ujjain and the system of holy prostitutes became common. In this type of prostitution, young girls are often offered by their parents in these temples as dancing girls, who were considered essential at the time of offering prayers and were given the place of honour. They were known as Devadasi in south India, &Mukhies in North. But with time, the morals of priests degraded & they started to abuse & molest those young girls & thus prostitution was developed clandestinely.

With the emergence of the medieval period, the development of the position of prostitutes also took place. By this period, Mughal rulers had established themselves as rulers and all the Mughal rulers, except for Aurangzeb, had supported prostitution allowing it to flourish like any other arts. During this time the words like ‘Tawaif & Mujra’ were used to use to denote dancing & singing girls. But after the downfall of Mughal, those hoards of concubines became jobless & started to seek other jobs. But since they were not trained in any other skill, eventually they were forced to sell their body for money & thus the trade of sex was born. And it reached its peak at the time of the British era due to the absence of any state control laws to protect it. Thus this proves that the trades of sex were not new in modern India but were present since the Vedic ages and it evolved with time and it is high time that it should be controlled.

       I.II      Prostitution in India- An Overview Analysis

India has the largest market for prostitution in South Asia, with Mumbai being the capital as its home to 1, 00,000 prostitutes. As per HRW, 15 million prostitutes of different age groups work in India. The net worth of this sector is whooping $8.4 billion. More importantly, it is growing faster than ever before. Some of the largest red-light areas are Sonargachi in Kolkata, which has 11,000 prostitutes, Kamathipura (Mumbai), Budhwar Peth (Pune) inhabiting around 5,000 commercial sex-workers. Now, as per the National Crime Records Bureau (NCBR), crimes against prostitutes are ever-increasing. It has increased by 18.2% from 2015 to 2016. Furthermore, 8,000 cases of human trafficking have been reported in 2015 and 23, 000 victims was rescued in 2016. The data further states that maximum percentage of crimes (65%) were registered under Immoral Trafficking Act, under which 31.1% of the crimes are related to procurement of minor girls under section 366-A of Indian Penal Code, 1860[4]. Further analysis states that West Bengal is the hub of human trafficking in India with 3579 cases in 2015, which accounts for 44% of the total cases in India[5].

     I.III    Classification of Different Types of Sex-Workers

Prostitution does not only mean sex-workers, but it is a very broad term & it covers different types of acts that may or may not be sexual in nature. They can be broadly classified into 4 types, which can be further sub-categorized into 7 different types:-[6]

Types of male purchasers:-

  1. Occasional purchaser: – As the term suggests, they are not regular customers, but if offered, they will accept it.
  2. Adventurous purchasers: – They are the regular customers, but they visit different sex-workers, in different markets, in different nations.
  3. Regular purchasers: – These customers visit the same place & too same sex-workers over & over again over an extended time period.
  4. Sugar Daddies: – These customers are somewhat different than those mentioned above. These customers not only pay for sex but also buy the exclusive right to have sex with the sex worker so that she does not give service to other customers. They also provide for her education, food, and shelter.
  5. Escort service/Call girls: – In this case, the service of a woman is sought as a companion for any event or any gatherings or any outing. Here the companionship is in more focus than that of any sexual act. In some places, escort services are legal[7].
  6. Stripper: – In this case, it is all about exotic dancing, teasing, and temptation. It is more like a professional actor. Here there is a strict prohibition to touch let alone have any sexual contact. It is all about looking.
  7. Pornstar: – They are actors/actress who works in adult-themed movies, playing the role of someone is a sexual situation. It is mainly to make a movie about pleasure.
  8. Other types: – These include clandestine prostitution like massage parlours, dance clubs, etc.[8]

Types of prostitution were further classified by Rajendra Sharma in his book on Criminology & Penology[9] into 7 different types, which are as follows:-

  1. Camp followers: – These are the prostitutes who operate in places where a large number of soldiers and other servicemen are stationed serving the sexual needs of those men.
  2. Interracial prostitutes: – Are prostitutes who specialize in having sexual intercourse with people of races different from their own. They take advantage of such racial barriers that exist, or unconsciously exploit the racial difference by fulfilling a client’s sexual fantasy.
  3. Beat prostitution: – Here, the women belong to the beat generation and they engage in prostitution as a principle, and in accordance with an ethic which may or may not is rightly adhered to.
  4. Elderly prostitution: – These are the prostitutes who are much older than their Partner and they crave the need for incestuous cravings. This sexual act is also called Gerontophillia.
  5. Gimmick prostitution: -This prostitution is somewhat different than others in the sense that these are special techniques of marketing prostitution and unusual modus operandi are used by prostitutes. These include billboards and newspaper advertisements and call girl directories.
  6. Fricatrice and Feliatrice: – This prostitute is found mainly in the US where, Fricatrice are those who masturbate their customers, and Feliatrice is those who specialize in performing fellating her customer.
  7. Men purchasing sex from men: – Here the purchaser or the merchant can’t be named as gay or indiscriminate however as hetero. This is something more about encountering sex with similar sex.
  8. Laddies purchasing sex from men: – Usually these type of sexual acts takes place because either her male counterpart, is unable to fulfill her sexual needs or due to a long-distance relationship.
  9. Laddies purchasing sex from ladies: – The lady purchaser like the male purchaser leans toward the same sex for the demonstration, for experience and enterprise.

     I.IV    Psychology of Prostitution

The psychology of why women sell sex and why men buy their service should be understood from the viewpoints of each respective gender.

In the first case, as to why women sell sex, the reasons are multi-fold. It should be understood that at one end of the scale, there are women who are in acute poverty, having none of their basic needs fulfilled; they see the trade of sex as the way to make things better in life and to provide for herself and her families. There are also those women who are drug-addicted and need money for their regular supply and due to that are forced into prostitution. Then comes, those young under-aged girls, who are kidnapped from their native place when they are as young as 10 and are forced into prostitution.  It is important to note that the sex industry is a multi-billion dollar industry and to make it sustain such steps are taken. And at the other end, there are women, who work as a high-end escort service or professional sex workers either to pay their university tuition fees or to make as much money as they can till they are young. In the latter case, they can earn a few thousand dollars for a few hours’ of service, as their clients are high–profile wealthy men. Then in the middle of that scale are women who entered the service as helping men save their marriages by supplying something they cannot get at home or helping them chase away loneliness when they are on business trips. Also, somewhere on the scale are those women who are sexually abused during their childhood and because of that have entered such an industry. So it would be wrong to generalize that only women with no standards get into prostitution as they can be varying reasons as to why they have entered into prostitution.

Now, as of why men buy such service, there can be reasons which can be differentiated into primary & secondary. The primary reasons are that though they pay for sex, they are blind as to the plight of those women who are sexually abused. They convince themselves that prostitution is a choice and that none of the women they see are exploited, and that false sense of belief makes them accept their service. The secondary reasons are as follows[10]:-

  1. They believe that they are so ugly that they cannot get laid unless they paid for it.
  2. They want casual sex with no obligations attached. Sex with girlfriend brings all unwanted emotions.
  3. Being convinced that their genitalia is too small and that an average woman would laugh at it and reject them,
  4. Working for long hours, leaving no time for dating and romance.

II.            causation OF PROSTITUTION

Prostitution is a harsh reality in today’s society and since it is intertwined with the very fabric of society, so cherry-picking any particular factors responsible for prostitution shall be a flawed analysis of the statement. But its multitude of factors and conducive factors of it are as follows[11]:

  1. Economic Causes:- this includes the followings-
  2. Poverty: – Poverty has a direct correlation with the chances that women or sometimes even teenage girls are forced into prostitution. Women often, to fulfil the basic needs are left with no choice but to join the path of prostitution. Desperation seems to characterize the lives of India’s poor. This desperate poverty is often cited as the root cause of prostitution. Here, it is important to point out that even in wealthy countries having a prosperous economy and standard of living, continues to have the problem of prostitution. This means that prostitution is not a standalone feature of any poor economic country, but it does alleviate the same.
  3. Underage employment: – Many young girls have to work prematurely before their working age to support their family, and lack the required maturity to differentiate between what’s right & what’s wrong and thus are easily misguided to these sectors.
  4. Bad-working condition:-Young girls often get into jobs through intermediaries, who keeps them at their mercy and start to exploit them. They are kept in a very unhealthy, dismal condition and are not taken care of.
  5. Wage gap: – Women are usually paid less in industrial work than what is paid to men. So contractors make a point to hire more & more women so that they are forced into prostitution to earn a few more hundreds to make their end meet.
  6. Trafficking: – Many younger girls are kidnapped from their homes and trained in prostitution and sold when they mature. Most of the time, these girls are from a poor background as they live in slums so they become easy prey for these gangsters.
  7. Social Cause:- this includes the following
  8. Family factor: – A study of London Prostitutes published as Women of the Street stated that most of the times children of troubled familial relationships have higher chances of indulging in prostitution. In these cases, the parents are either living separately or the daughter does not get required love and affection, so she is ready to bare clothes for anyone showing a slight amount of love and attention to her.
  9. Marital factor: – In India, there is still taboo for widow remarriage. So, when they are widowed, their physical needs are not meet and thus start to indulge in prostitution.
  10. Bad neighborhood: – Children when they grow up near the surrounding of the brothel, they are exposed to sex trade at a very early stage and thus are lured to this business, as they see it as an interesting activity. The children who get exposed to sex businesses want to have these exhilarating experiences at the first available opportunity.
  1. Psychological Causes:-  some of the psychological facts which tend people to prostitution are-
  2. Frigidity:- If a woman is frigid, she tries one man after the other as she is unable to express her sexual desire and thus gradually becomes a prostitute,
  3. Independence: – Some women under the false garb of asserting independence consort with other men.
  4. Troilism: – Husband who suffers Troilism wishes to watch her submitting to the embraces of other men, sometimes he wants another woman to embrace his wife sexually.
  5. Biological Factor: – when a person is born with a defective sex organ, he/she is compelled to gratify their sexual needs through the use of a prostitute.
  6. Religious Factor:-
  7. Devadasi system: – As discussed earlier, in the Devadasi system young girls are forced into prostitution and are even threatened not to disclose the horrors happening behind those temple walls. It is prostitution happening in the name of religion & can be called “religion prostitution”. After this brief period of clandestine prostitution, these girls then were available to urban-prostitution.

III.            international legal framework[12]

There are numerous international treaties and conventions to regulate & govern the interest of sex-workers and also to ensure their dignity is maintained.  Most important of all these treaties is that of the UN Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others[13]. The main aim of the convention, as described in Article1 (1), is to punish any person who entices any person for the purpose of prostitution, even if that’s with the consent of the person. It also provides punishment for those people who run a brothel as per Article 2 (1) or knowingly rents a building for the purpose of prostitution[14]. This shows that the convention reflects the view of the Abolitionist viewpoint, as per which they have failed to recognize the human rights of these sex-workers and also regarded them as victims who have to be saved and rehabilitated.

The most recent instrument on this aspect is the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children[15], supplementing the United Nations Convention against Transnational Organised Crime but this has not yet been ratified by India and not in force so far. The protocol defines that a situation will be trafficking in human beings if it has 3 conditions:-

  1. Act (recruitment)
  2. Means (use of force)
  3. Purpose (forced labour)

This convention is in the line with the previous convention of 1949, but it fails to draw the distinction between forced prostitution & trafficking on one hand & wilful prostitution on the other.

Another provision relating to the sex workers is the Supplementary Convention[16] in which as per Article 1, it states that working condition of sex worker may fall under the debt bondage & other forms of tied labour.

Apart from these specific conventions, there are general conventions which provide the guideline as to how to protect the human & fundamental right of these sex-workers. The most important convention in this regard is the Universal Declaration of Human Rights (UDHR)[17] which provides explicit guidelines as to the protection of individual’s basic human rights. UDHR outlines a series of important rights for the protection of sex workers like equal rights & dignities for men & women, equal protection from slavery. And for the protection of women against different discrimination, there is CEDAW[18] (Convention on the Elimination of all Forms of Discrimination against Women) which is perhaps the best basis for the protection of sex workers. There are specific provisions under CEDAW which talk about trafficking & prostitution[19]. It further acknowledges that poverty and unemployment can force many women into prostitution as they are very vulnerable.

India has also ratified the SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution which acts as a combatant in the prevention of trafficking and sexual exploitation.

III.I THE WORLD CHARTER FOR PROSTITUTES’ RIGHT[20]

The Universal Declaration of Human Rights adopted by the International Committee for Prostitutes’ Rights (ICPR) in the year 1985, to protect the rights of prostitution. This charter calls for the decriminalization of “all aspects of adult prostitution resulting from the individual decision”. The charter further states that all prostitutes should be guaranteed human rights and liberties. It also makes provisions for providing tax benefits to prostitutes. It has further criminalized fraud, coercion, violence, child sexual abuse, child labour, rape, racism across national boundaries, whether or not in the context of prostitution. Furthermore, the World Charter calls for protection of “work standard” under which it mentions that there should be no law which implies systematic zoning of prostitution. The charter also provides the freedom to choose their place of work and residence. It ensures that prostitutes provide their services under the conditions that are determined by themselves and no one else.

IV.            comparison with different countries

  1. Netherlands: – In the Netherlands, prostitution is legal as long as it does not disrupt public life, and it is treated like any other commercial business. It has further legalized the organizations of the voluntary prostitution but penalizes the involuntary prostitution means of coercion or fraud, for which the punishment is imprisonment. Furthermore, the local authorities are conferred with the power to control and regulate prostitution in their respective jurisdictions. Though such law provides a tolerant picture of Dutch society, in reality, prostitutes are still the victims of marginalization.
  2. Sweden[21]: – in Sweden, buying of any ‘sexual service’ constitutes a criminal offence. The Swedish laws are aimed at discouraging prostitution and put an end to the industry. Unlike other jurisdictions, the law also punishes the customers with imprisonment, inturn adding another layer of deterrence to prostitution. Apart from deterring, the law also tries to help sex workers get to socially accepted behavior.
  3. Victoria, Austria: – These countries have criminalized all forms of prostitution, except for the ‘escort service’, and through ‘licensed brothels’. The country legal system has failed in controlling prostitution for two primary reasons:-
  4. The authority to issuing and canceling the brothel license operates under the municipal authorities which, due to societal pressure, are hesitant to issue these licenses.
  5. Another reason for its failure is that since the legal brothels are very less number, due to which there has been an increase in illegal prostitution.

V.            Indian legal framework

There is not one standalone law that governs human trafficking, but different laws cumulatively govern various aspects of it. The main law regarding prostitution is the Immoral Traffic (Prevention) Act, 1956, (ITP) which makes the commercial aspect of prostitution, which includes pimping & other such activities that are likely to exploit the person of the prostitute, illegal. The act does not prohibit prostitution per se but it prohibits its commercialization. It has been held in a case[22] that to prove prostitution, it has to be proved that women have offered her body for any sexual act for compensation, irrespective of whether or not the intercourse took place.

Sec 3 of the Act is based on the Art 2(1) of the UN convention, which states that any person in charge of any premise who uses or knowingly gives it to someone for using it as brothel shall be punished.

It was held in a judgment[23] that ITP Act does not abolish prostitutes or prostitution nor does it make criminal offense for women to prostitute herself, but its only aim is to abolish the commercialization of prostitution. In another case of Gujarat High Court[24], refused to accept prostitution as a legitimate source of earning as that would open the floodgate of forced prostitution and also right to prostitution is not a fundamental right to women. Section 20 states that the magistrate, if he deems fit, in the interest of the public, can remove prostitute from any public place. Section 13 also talks about reformative homes to female offenders by placing them in rehabilitation homes. It is important to note that the client in this matter faces no legal sanction as per this Act[25].

The government has recently proposed a new ITP Bill 2006, which proposes a certain amendment to the original Act. The section which made soliciting or seducing for prostitution an offence was removed[26]. It also removed section 20, which talks about removing prostitute from public place. But this new bill solves the most criticized aspect of the original Act. As per the new bill, section 5(c), it provides for punishment to anyone visiting a brothel for any sexual act. One of the criticisms of this section is that this may reduce the clientele of the prostitute and thus affecting their income.

Now, under the Indian Penal Code (IPC), certain sections are there which prohibits the trafficking of women. Under Section 354, 2 years imprisonment is given for the offence of intending to outrage the modesty of women.  Moreover, under section 366, states that kidnapping, abducting or inducing a woman to compel to the marriage shall be imprisonment for a term extended to 10 years and also liable for fine.

Another provision is that of Section 375, which deals with selling, letting for hire, buying or having possession of any girl under the age 18 for any lawful purpose shall be an offence.

Again, Section 375, states that sexual intercourse with any women under the age of 16, even with consent is to be treated as rape. Also, under section 497, talks about the offence of adultery, which shall be punishable with imprisonment up to 5 years or finer or both. Furthermore, under section 498, states that if a man entices a married woman to have sexual intercourse or detaining her for that intent shall be punishable for 2 years or fine or both, where women are free from any liability as abettor[27].

VI.            human rights of sex-workers

The human rights of every individual are important, whether he is a well-dressed lawyer or a sex-worker.  Human rights are natural rights and should not under any circumstances, should be denied to any human being. Prostitution all over the world faces a constant risk of harassment and abuse. They are the victims of physical abuse, rape and all other forms of mistreatment[28]. Often, they are also denied access to adequate health care, housing. Also under the World Charter of Human Rights, it mentioned that prostitutes should have all human rights and civil liberties including freedom of speech, travel, immigration, work, marriage, and motherhood and the right to unemployment insurance, health insurance, and housing. It further states that to grant asylum to any prostitute who is denied human rights. Furthermore, the preamble of the Universal Declaration of Human Rights (UDHR) states that ‘recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world’.

It is even written in the preamble of the UN that dignity and worth of human beings should be protected.

There has been growing awareness of protecting the human rights of prostitutes, and many courts around the world have given judgments in support of the movement. For example, in New Zealand, a sex-worker won a sexual harassment case against the brothel owner. In New York, 1,900 strip dancers won against their employers regarding labour rights issue. The European Court of Justice has also ruled that prostitution is an economic activity’ and European members can’t restrict their freedom of movement. And In 2011, Swedish Court held that the deportation of a citizen of the European Union selling sex in Sweden is illegal. However, it is ironic that Scandinavian countries receive tax from sex workers, but fail to recognize it[29].

Moreover, in many judicial pronouncements, Supreme Courts have held that just because one is a prostitute, it does not mean there are not entitled to be treated with dignity and respect. In the case of Madhukar Narayan Mardikar[30], it was held that the unchastity of woman does not make her open to any person to violate her as and when he wishes.  She is entitled to protect herself if there is an attempt to violate her body. Merely because she is of easy virtue, her evidence cannot be thrown overboard. Again in the case of Gurmit Singh[31], it was held by Punjab High Court that even when the victim is shown habituated to sex, the Court should not describe her as a loose character.

VII.            pros and cons of legalizing prostitution

There are different schools of thought regarding the legalization of prostitution, but Prohibitionist system & Tolerationist system are the most popular ones. The former one aims at imposing a criminal sanction to control the social evil of prostitution & to countenance it by amending the criminal law. This system bans prostitution and criminalizes all the people involved in it, including the client and the prostitute[32]. The later one state that prostitution is not a criminal activity, but a sexual act between two consenting individuals, and state is there to control the coerced/forced prostitution. It aims to prohibit trafficking of women for prostitution, pimping & under this act prostitutes are not criminalised for their work and have rights same as any other citizen[33].

In support of legalising prostitution[34]:-

  1. The decrease in STDs: – Legalisation of prostitution would mean regular health check-ups for sex-workers and this will help in reducing STDs. Not only that, but it will also help in giving adequate birth control measures which shall in-turn help in preventing transmission of sexual disease to other customers. It will also provide a cleaner working environment with proper hygiene facilities and thus reducing the risk of any disease, causing an unhygienic environment. In Singapore[35], every customer is provided with a condom as a part of safer sex and prostitutes are required to maintain health cards.
  2. Elimination of forced prostitution: – The main objective of legalizing prostitution is to support the prostitute who works out of their own volition and to see that they are not coerced to it. The law shall aim at prohibiting forced prostitution, i.e. prostitution done by the way of kidnapping young girls and selling them in the brothel. A legal system in place will check criminal behavior and significantly reduce the smuggling and slavery of women and children.
  3. Taxation: – Prostitution industry is an untapped resource for the government. It is an industry with a whopping $186 billion worldwide, and India, its $ 8.4 billion, 7th largest in the world[36]. By legalizing it, the government can easily impose a tax and facilitate in providing regular medical check-ups, and protecting the rights of people engaged in this profession.
  4. Removal of pimps: – By legalizing prostitution, there will be no longer a need for any pimps and middleman in the industry and thus there will be decrease criminal behavior and an increase in the income of the workers.
  5. Reduction in sexual assaults: – By legalizing it, people will be able to satisfy their sexual urges more in the legalised manner and this will reduce the heinous crimes committed against women like rape. In research conducted by UCLA and Baylor University[37], it was found that when Rhode Island decriminalized prostitution, there was a 31% decrease in rape.
  6. Human rights: – By legalizing prostitution, it will change their class from second-class citizens to those who earn through legal means. They will be entitled to dignity and respect, which is one of the basic natural rights to all human beings. They will be entitled to reputation, which is an important part of one’s life. In the case of Lal Krishna Advani[38], it was held that one is entitled to preserve and protect one’s reputation. Also, the right to self-preservation now has been considered under the ambit of Article 21[39] of the Indian Constitution.

In against legalization of prostitution[40]:-

  1. Status of women degraded: – If prostitution is legalized, it will encourage men to buy women for sex and thus legalization of prostitution will increase the demand for prostitution and thus the status of women will be degraded to just sexual merchandise and it will lead to the commodification of women.
  2. Uncertainty of wage: – The legalization of prostitution will not enhance the wage earned by sex-workers in any way. If the law does not determine the wage to be earned for their act, they will be harassed in terms of their wage.
  3. Social stigma: – Women in systems of prostitution do not want the sex industry legalized as this would increase their chance of getting humiliated by society and thus they would be more discriminated and marginalized.
  4. Sexual abuse: – Though legalization can save women in getting into forced prostitution and from different sexual abuse, in the case of consensual prostitution, there is no safeguard regarding abuse during sexual contact.
  5. Child prostitution: – It has been shown in many countries that by legalizing prostitution, child prostitution has increased at an alarming rate. Like in Germany, where prostitution was legalized a decade ago, human trafficking crimes have increased by 70 percent, and much of this involves youth. In the Netherlands, which legalized it in 2000, it is estimated that child prostitution increased by more than 300 percent between 1996 and 2001[41].
  6. Dangerous and unhealthy: – Legalising prostitution won’t make it less risky and dangerous. By legalizing it, it will encourage men to solicit sex and have multiple partners, increasing the chances of STDs. Moreover, health checks are there to protect the clients, not the workers. And at the end of the day, being alone with a stranger in a room always increases the chance of violence.

VIII.            measures to tackle the menace of prostitution

The government has taken both the legal measure and non-legal measures to tackle the problem of prostitution. The legal part has already been discussed above, so here the non-legal aspect shall be dealt with. It is important to note that the purpose of the non-legal measure is two-fold:-

  1. Preventing entering of any new prostitute in the prostitution industry
  2. Rehabilitating those who are already in that industry.

The following are some of the non-legal measures:-

  1. Sex education: – Both men & women need sex education to understand the harmful effect of not practicing safe sex and how to identify if suffering from any venereal diseases & if they are they what should be done. Also, make them aware of the impact of such disease on the marital & familiar life. The values of self- control should be taught at an early age.
  2. Employment opportunities: -Most of the time, because of poverty and lack of employable skills, women are forced into prostitution. So the government should not only provide for jobs but also provide for the learning center, where they can be trained for practical work and thus can increase their employability in the market.
  3. Breaking of social stigma: – Even with the widow remarriage Act, which gives the right to widow to remarry, they are unable to exercise their right due to strict moral codes dictating society. So the government and NGOs should encourage widows to remarry, as its high time that society traditional attitude towards women should be changed, to curb the problem of prostitution.
  4. Establishment of Venereal Disease Clinics: – Special Venereal Disease Clinics should be opened & made accessible to the sex-workers so that they can be physically fit.
  5. Public notices: – The public should be enlightened about the legislation in force and if any such nuisance is found happening in the surrounding, the police should be informed at once. The public should also be made aware of the flesh trade which is very prevalent in society so that they can be active members to prevent such crimes. And they should also be made aware of the different symptoms of venereal diseases so that they can seek treatment at the earliest.

IX.            conclusion

There cannot be any clear cut answer as to whether prostitution should be legalized or not as each of it has its merit and demerit. It is should be kept in mind that prostitution is the untold truth of India, which exists at the night, but disappears in the morning. It is the evil which people know it exists, but are afraid of the morals dictated by the society to acknowledge it. Under such circumstances, the merit of the legalization of prostitution outweighs the demerits of criminalizing it. The most important thing which will take place by legalizing is that it shall be acknowledged in the society that prostitution exists, and the dark world shall be flashed in public eyes. By legalizing the growth of that industry shall be control & regulated, which was previously a haven for criminals. By legalizing it, the workers shall be treated at par with any other people who shall allow them to be able to avail the government benefits, as ‘employed citizens’. But it is equally important to keep in mind that legalizing prostitution does not mean legalizing child trafficking or forced prostitution, but rather it means consensual prostitution. But the duty of government does not end here, the government has to also provide rehabilitation to the victims of prostitution and also discourage people from entering the industry. The government should also regulate earning to prevent any inequality of earning. Consensual prostitution is nothing but one’s way of expressing sexual desire and it will be remedied when women and men in this culture can celebrate their unique identities, as it is only the society’s view that needs to be changed, not the prostitute’s job.

[1]Consumer Protection Act,No.68 of 1986, India code (1986), s 2 (b).

[2] Tulsing Sonwani, Prostitution in Indian Society: Issues, Trends and Rehabilitation, University Grants Commission (2013).

[3] Md Sahabuddin Mondal, Legalization of Prostitution in India: Need of the Hour,LEGAL SERVICE INDIAhttp://www.legalservicesindia.com/article/2460/Legalization-of-Prostitution-in-India:-Need-of-the-hour.html (last visited Mar. 20, 2020).

[4]Shilpa Rao Rastogi, Ill-Legal Traders: Prostitution and Its Aftermath, 5 Human Rights International Research Journal 60, (2018).

[5] Pankaj Jaiswal, 8132 Cases of Human Trafficking Reported In 2016: Average 63 Victims Rescued a Day,HINDUSTAN TIMES, Dec. 03, 2017, https://www.hindustantimes.com/india-news/8132-cases-of-human-trafficking-reported-in-2016-average-63-victims-rescued-a-day/story-OguqzIq50jiFZrvg51hrmL.html.

[6] Nitish Chandra Tiwari, Legalization of Prostitution in India, 4 International Journal of Advance Research, Ideas and Innovations in Technology 192, (2018).

[7]What’s the Difference between a Call Girl, Prostitute, Courtesan, Escort, and Stripper?, VIVASTREET https://blog.vivastreet.co.uk/whats-the-difference-between-a-call-girl-prostitute-courtesan-escort-and-stripper/ (last visited Mar. 25, 2020).

[8] Sonwani, supra note 1.

[9]RAJENDRA KUMAR SHARMA, CRIMINOLOGY AND PENOLOGY(1998).

[10] Allan Schwartz, Why Do Women Become Prostitutes and Why Do Men Go To Them?,MENTAL HELPhttps://www.mentalhelp.net/blogs/why-do-women-become-prostitutes-and-why-do-men-go-to-them/(last visited Apr.7, 2020).

[11] Haveripeth Prakash, Prostitution and Its Impact on Society-A Criminological Perspective,2 International Research Journal of Social Sciences 31, (2013).

[12]Dharmendra Chatur, Legalization of Prostitution in India,60 Kings & Patridge 8, (2009).

[13]Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others,Mar. 21, 1950,96 U.N.T.S. 271.

[14]Id. art 2(2).

[15]Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, Dec. 12, 2000, 96 U.N.T.S. 271.

[16] Supplementary Convention on the Abolition of Slavery, Slave Trade, and Institutions and Practices Similar to Slavery, Sept. 07, 1956, 266 U.N.T.S. 40.

[17]Universal Declaration of Human Rights, Dec. 10, 1948, U.N.G.A.G.A. Res. 217 A(III).

[18]Convention on the Elimination of All Forms of Discrimination against Women, Dec.18, 1979, 1249 U.N.T.S. 13.

[19]Id. art 6.

[21]Id.

[22]Gaurav Jain v. Union of India and others, A.I.R. 1997 S.C. 3021.

[23]In Re: Ratnamala and Anr. v. Respondent, A.I.R. 1962 Mad. 31.

[24]Sahyog Mahila Mandal v. State of Gujarat, (2004) 2 G.L.R. 1764.

[25] Prabha Kotishwaran, Preparing for Civil Disobedience: Indian Sex Workers and the Law, 2 Boston College Third World Journal 161 (2001).

[26]Immoral Traffic (Prevention) Act, No. 104 of 1956 India code (1956), s 8.

[27] Prakash supra note 10.

[28]Swagata Sen, Gen-Me: Word by Word, INDIA TODAY, Feb.20, 2006 http://indiatoday.intoday.in/story/ideas-and-trends-that-explain-the-indian-youth/1/181898.html.

[29]Sonja Dolinsek, The Rights of Sex Workers, AL JAZEERA, Dec.08, 2014 https://www.aljazeera.com/indepth/opinion/2014/12/sex-workers-human-rights-201412882622177228.html.

[30]State Of Maharashtra and Anr.v. Madhukar Narayan Mardikar, A.I.R. 1991 S.C. 207.

[31]State of Punjab v. Gurmit Singh, (1996) 2 S.C.C. 384.

[32] Jean D’ Cunha, Prostitution Laws: Ideological Dimensions and Enforcement Practices, 17 Economic and Political Weekly 34 (1992).

[33]Id.

[34] Sonwani supra note 3.

[35] Benjamin Lim, Petain Road: Where Singapore’s Working Girls Go to Be Forgotten, RICE MEDIAhttp://ricemedia.co/culture-people-petain-rd-singapores-working-girls-forgotten/ (last visited Mar.28, 2020).

[36]Prostitution Revenue by Country, HAVOCSCOPE https://www.havocscope.com/prostitution-revenue-by-country (last visited Apr. 27, 2020).

[37]Alison Bass, Legal Prostitution Zones Reduce Incidents of Rape and Sexual Abuse, HUFFPOST,https://www.huffingtonpost.com/entry/legal-prostitution-zones-reduce-incidents-of-rape and_us_58c83be1e4b01d0d473bce8a (last visited Mar. 20, 2020).

[38]State of Bihar v. Lal Krishna Advani, A.I.R. 2003 S.C. 3357.

[39]Surjit Singh v. State of Punjab, A.I.R. 1996 S.C. 1388.

[40] Janice G. Raymond, Ten Reasons for not Legalizing Prostitution and a Legal Response to the Demand for Prostitution, 2 Journal of Trauma Practice 315, (2003).

[41]Kevin M. Ryan, Legalizing Prostitution Doesn’t Help Sex-Trafficked Youth, HUFFPOST   https://www.huffingtonpost.ca/kevin-m-ryan/legal-prostitution-canada_b_4482060.html (last visited Apr. 02, 2020).

Exit mobile version