GET IT UNDER THE SCANNER: LEGALIZING PROSTITUTION IN INDIA

THIS ARTICLE WAS WRITTEN BY BHAVANGI AGARWAL, A STUDENT OF IMS UNISON UNIVERSITY.

“Every country has made the laws to regulate prostitution so that it might remain within its legal limits and without unduly violating upon the institutions of marriage and family.” 

–     Law Commission Report of India

INTRODUCTION

Despite of the fact present society claims to be powerful, contemplated, and non-discriminatory and affirm to accept certain things easily but the reality is something different. Sometimes while looking through the pages of newspaper, one feels satisfied because we feel that the civilization has changed, the people and the world around us have changed. Yes, it is true and a lot has changed. But it leads to another thought that whether the world is moving towards the better tomorrow for everyone?

The answer to it will clearly be negative. Still the problem is unavoidable and it becomes graver when we attempt to deny it. One such problem is prostitution. Prostitution is a reality and the chance of dispensing is practically nil. Its form of existence might have changed but it still remains a bitter truth to the society. The form of existence might have changed but the perspective and vision which it is seen all the same.

The reality is that if any sex worker is found nearby a public place or even at a remote place away from the chaos and staring directly into the eyes of public it means that she is giving you a welcome smile and a slight response. This is the well-known picture of prostitutes in India. Prostitution is commonly known as “the oldest profession” which is unfortunately far from exaggeration.

Prostitution in India is a serious social problem widespread and its solution had been rendered difficult but ever existing issues. Like other forms of violence committed by men against women, prostitution is a gender specific phenomenon; the enormous majority of victims are girls and women, while the perpetrators are constantly men.

Prostitution, the word itself talks about the situation of a woman. The word prostitution has derived from the Latin word ‘prostituere’ means to ‘expose publically’. Prostitution means giving or receiving body for sexual activity for hire but excludes sexual activity between spouses. Performing for hire or offering or consenting to perform for hire when there is an exchange of value, any of the acts like sexual intercourse or other bodily contact stimulation of the genitals of any person with the intent to satisfy the sexual desires of the offender. It is the common lewdness of a woman for gain.

Moreover, due to such an extensive amount of stealthy prostitution at every level it turns into an arduous task to find out an accurate and comprehensive picture. It is a business that exploits the vulnerability of human being especially children and women, in complete violation of their human rights and makes them object of financial transaction through the use of power and pressure, whether for the purpose of sex, labour , bondage or slavery.

In today’s globalized world of human resources the world has taken a consistent stand condemning this gross human resource violation and has exhorted government to take effective measures against it[1]. This work basically tries to concentrate on the best approach to check the issue to legalize prostitution in India. Giving it a legal mandate will prompt a better and safe society for women. The point is to be understood from a different perspective.

The prostitutes should be made aware about their rights and interests, education, health, freedom to choose or deny to their regular medical check-ups, financial aid, compensation for injury and other benefits. They should also be given a platform who would give them justice in case of any gross violation.

ANCIENT HISTORY

Prostitution has a long history in India right from the ancient period[2] and generally perceived social reality today. Indian courts have identified prostitution not been an unknown event. The victims of trap are poor, illiterate and ignored sections of the society and the rich communities abuse them and harvest at their misery. Prostitution is practiced in almost all the countries and every society. In India, the Vedas, the earliest known Indian Literature, possess large amount of references to prostitution as an organized and established institutions.

In Indian folk tales there are many remarks of high class prostitution in the form of heavenly demigods acting as prostitutes. They are depicted as perfect embodiments and peerless beauty and feminine charms. They are profoundly refined in music and dance. They entertained divinities and their visitors in the court of Lord Indira, the Lord of Hindu Gods.

In ancient India, prostitutes have been referred as to Devdasi[3]. Originally, devdasi were unmarried dancing girls used in temple ceremonies and they entertained members of ruling class. Religious prostitutes were associated with the famous temple of Mahakala of Ujjain and the system of holy prostitutes become common. This class comprised the girls who had been offered by the parents to the service of God and their religion.

During the earlier time, there has been a common practice of ‘dedicating’ girls to Hindu God became prevalent in a practice that formed into ritualized prostitution. Devdasi actually means God’s (Dev) female servant (Dasi) where as shown by the ancient Indian practice, young pre-pubertal girls are offered to God or local religious God of the temple[4]. This usually happens 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 seems like our ancestors were more modern than us, earlier sex was a piece of art not like today, a taboo. The sex workers were dually respected and lived with dignity in the society not like today where they are treated no less than the garbage, humiliated, tortured and the worst part everyone turns a deaf ears towards their cries.

PRESENT SCENARIO

In India, every now and then we get to see the opportunity to see the sight of girls with their faces covered with duppattas or cloth and such a sight is not uncommon to television viewers. The daily newspapers and magazines are also not far away. Even we do not miss out the chance in giving our expert comment by saying that the society is just not the right place to live. And finally, we conclude by saying that these prostitutes are responsible for degradation of the society as a whole.

But the truth is that these prostitutes have a very ordinary dream of a peaceful life with two meals a day. Existing laws allow clients caught with sex worker to be let off easily while the women are to be held guilty of promoting and committing moral blasphemy. So, before pointing out to them let us try to find out the reasons which forced them into this cruel world of prostitution where there is no place for feeling, emotions, willingness or mercy. They are just treated as commodities to be used and thrown. It is quite obvious that no person will choose such a life on their own.

This shows that prostitution existed in India in some form or the other from ancient times and the evil has continued to persist. Today, prostitution exists in almost every big city of the country. Women are given allurements to work in India as models, artists, waitresses and cabaret performers which subsequently lead to their exploitation by flesh traders.

Various surveys have been conducted on the prostitutes in India and give out the reasons for staying in prostitution were poverty, unemployment, lack of proper re-integration services, lack of options and adverse social attitudes. Several NGO’s demonstrated that the majority of prostitutes in India working in this profession due to leading resources and to support themselves to their families. Most of them do not choose this profession out of preference, but out of necessity.

The major reason behind the constant growth of prostitution is ‘poverty’. Poverty does not create imbalances in gender and sex. It only aggravates existing imbalances in power and therefore increases the vulnerability of those who are the end of gender prejudice. Caste wars, political strife, domestic conflicts through their manifestation and repercussions reflect strong gender prejudice against women.

Violence against women, assault and rape on women are not individual sexual or physical crimes but has become a tool of a political statement for aggression and gender persecution, which amply reflects the degree of human degradation and commoditization of women in the eyes of the state, community and society.

To have the control over the whole situation of prostitution in India, effective measures should be taken by Government and other agencies and should also include the rehabilitation measures taken in this direction. In August 2012, the Supreme Court while adjudicating a petition for rehabilitation of sex workers, clarified on the last order[5] that gave impression that it seeks to legalise prostitution.

The legal background of these orders are based on Article 21 of Constitution, in which the word ‘life’ has been interpreted by Court to mean a life of dignity and not just an animal life.

These sex workers should be given an opportunity to avail the rehabilitation measures of Government and other related agencies.

EXISTING LEGISLATION

The law governing sex work in India is entailed in the Constitution of India, 1950; the Indian Penal Code, 1860 and the Immoral Traffic (Prevention) Act, 1956.

The Constitution guarantees prohibition of trafficking of human beings and forced labour[6]. Under Part IV of Directive Principles of State Policy: the State is required to direct its policies towards securing, inter alia, that both men and women have an equal right to an adequate means of livelihood[7], that health and strength of workers not be abused, and that citizens are not forced by necessity to enter avocations unsuited for their age and strength[8], promotion of the educational and economic interests of weaker sections of the society, ensuring their protection from social injustice and exploitation[9], requirement of fostering respect for international law and treaty obligations, obligation on the state to raise the levels of standard of living[10] and the renunciation of practices by citizens that are derogatory to the dignity of women[11].

The Indian Penal Code is used primarily when it comes to any issue concerning prostitution. Section 366A[12] and 366B[13] make procuration of the minor girl for illicit sexual intercourse as illegal. Section 372[14] and 373[15] make buying and selling of girls of any sage for the purpose of prostitution as a heinous crime for which 10 years punishment and fine can be awarded.

The law dealing with prostitution is the Immoral Traffic (Prevention) Act, 1956. The Act mainly makes pimping and other activities punishable, which gives a trade aspect to prostitution that is probably going to exploit the person of the prostitute[16]. The Act does not forbid sex work per se but it does forbid trade activities of the flesh trade[17]. Basically this law forbids a sex worker to carry on here activities within 200 yards of a public place so that nothing is done in a place where the normal public lives. But at the same time these sex workers do not really get any kind of rights from the legal system. These laws were intended at projecting sex work in a very wrong way in the society and gradually criminalizing it so that it can be eradicated. As per the act, sex workers can carry out their trade practices in private but cannot legally solicit customers’ publically. Organised prostitution (brothels, prostitution rings, pimps, etc.) is illegal[18]. As long as it is done individually and voluntarily, a woman can use her body attributes in exchange for material benefit. So it is clear that prostitution is neither illegal nor legally defined profession.

NEED FOR LEGALIZATION

Prostitution is one of the oldest profession professed in India and has been practiced since the birth of the organized society. Mostly prostitutes are in this profession due to poverty. There are women who are voluntarily into this profession, whereas, there are other who trafficked and forced into prostitution.

Now let us understand what does the term “legalize” actually means? Does it mean that a prostitute can open a sex-shop anywhere she likes and advertise her services? Does it mean men or women supplying call girls should be able to set up an office, proclaiming that call girls are available between such and such hours? The answer to this entire question is that legalization must be seen with a different perspective.

Legalising prostitution would mean that pimps and brothel owners would be held accountable for the treatment of sex workers, and that abused sex workers would have the option of turning to the law for protection. Legalising prostitution will also protect minors. Legalising and regulating this profession will ensure that only willing, consenting adults are employed, not trafficking children.

Legalization of prostitution can enable the government to monitor to make sure that people are not forced into this business and they only take it up by choice. Legalising would bring better working conditions and better wages for the sex workers by eliminating middle men such as pimps. It will also help to keep a tab on the spread of sexually transmitted diseases such as HIV by providing safety guidelines.

Sex workers can also be provided with rehabilitation centres and medical aid. Legalizing prostitution will make it as a profession so these benefits will also be extended to the sex workers. This will further generate income as sex workers will be liable to pay taxes and it would enable the government to utilise that money back into the profession and this will also help in protecting the rights of the sex workers and thus helping them live a life with respect and dignity.

In 2012, the Supreme Court in a case[19] clarified that it does not encourage prostitution but want it to be regulated. The court also directed the government to plan out something so that the prostitutes can live a dignified life.

While dealing with a PIL filed by Bachpan Bachao Andolan[20] about large scale child trafficking, the Supreme Court is of the view that, “when you say it is the world’s oldest profession and when you are not able to curb it by laws, why you don’t legalise it? You can then monitor the trade, rehabilitate and provide medical aid to those involved.”[21]

The court further opined that legalizing sex trade would be a better option to avoid trafficking of women and pointed out that nowhere in the world was prostitution curbed by punitive measures[22].

Prostitution should be legalized for the simple reason that this will help in improving the living standards of the women involved in this business. Legalizing the business will help the government and NGO’s to reach out to their community and provide information and financial help so that the need and necessity for using contraception filters down to the very darkest and dingy alleys where this ‘business’ mushrooms. Instead of dreaming that we can and we will stop prostitution one day, let us at least, move in that direction where we could regulate and also monitor it. And the only way to do is to legalize it.

CONCLUSION

Prostitution has existed ever since societies started to form and it will exist whether or not it is legalized. The best way to deal with the problem is to legalize it. Legalization will make prostitutes aware of their rights; they will have an option to say ‘No’ to their clients. They will also be provided with a platform where they can raise their grievances and expect quick redress.

The brothels and the prostitutes can be asked to maintain proper databases with respect to their customers and visitors. Those persons who visit a brothel now fearlessly will then under a pressure of disclosing their proper identity in the books of concerned brothel. This will lead to a more regulated and more transparent system. Thus, legalizing will make the entire system more open and sensible.

After legalization, instead of using the term prostitutes, they can be called as the ‘professional sex workers’. This would save the poor and forced ‘sex worker’ from torture by the police. This would also make ‘sex worker’ themselves take the money that they have earned instead of their pimps taking away more than half of the share and hence make them lead a better life.

Right now, the sex workers cannot ask their clients to use protective measures but if ‘prostitution is legalized’ then a law can be introduced where the sex workers are allowed to ask their clients to use protective measures so as to prevent STD’s from spreading. This would automatically improve the mortality rate and will ensure a better life to them.

It can also be said that as long as there exist in our society ‘poverty’, ‘unemployment’, ‘illiteracy’, the issue of prostitution will have its existence. So till the day we are able to eradicate those problem from its root, we can at least make prostitution legal in India. And if it is done it will act as a boon to the women who are already into this hell and are labelled as “prostitute”.

The debate whether prostitution should be legalized is a relevant issue. There may apparently different opinions and approaches to deal with this topic. It remains an acrimonious debate which can be referred, analysed and argued from different angles and perspectives. But the reality is that the arguments supporting the legalisation in India will always outweigh the one against them. Thus, it can be concluded that for the sake of our society, for the sake of humanity, for the sake of the well-being of women within our society, prostitution should be legalized in India.

REFERENCES:

• https://www.researchgate.net/profile/Vikram_Singh99/publication/307966806_Gender_and_Caste_Sociocultural_Context_in_India/links/57d41f2c08ae601b39a8a501.pdf?origin publication detail
• Vikram Singh, Gender and Caste: Socio Cultural Context in India; Retrieved from:https://www.researchgate.net/publication/307966806_Gender_and_Caste_Socio-cultural_Context_in_India
• Dharmendra, (2009) Legalization of Prostitution in India; Retrieved from: http://www.academia.edu/613653/Legalization_of_Prostitution_in_India
• Anuj Kumar, Legalization of Prostitution in India: Need of the Hour; Retrieved from: http://www.legaldesire.com/legalization-of-prostitution-in-india-need-of-the-hour/
• Shashank Shekhar, Prostitution in India Legal and Social Ramifications; Retrieved from: https://www.scribd.com/document/62739533

[1]V. Sithanan, Immoral Traffic: Prostitution in India

[2]See Sukumari Bhattacharji, Prostitution in Ancient India, 15 (2) SOCIALSCIENTIST 32 (1987).

[3]See Moni Nag, Anthoropological Perspectives on Prostitution and AIDS in India, 36 (42) Economic and Political Weekly 4025, 4027 (2001)

[4]Indian red light. wordpress.com

[5]Gaurav Jain v. Union of India

[6]Article 23, Constitution of India, 1950

[7]Article 39(a), Constitution of India, 1950

[8]Article 39(e), Constitution of India, 1950

[9]Article 46, Constitution of India, 1950

[10]Article 47, Constitution of India, 1950

[11]Article 51(e), Constitution of India, 1950

[12]Section 366A of IPC: Procuration of minor girl

[13]Section 366B of IPC: Importation of girl from foreign country

[14]Section 372 of IPC: Selling minor for purposes of prostitution, etc

[15]Section 373 of IPC: Buying minor for purposes of prostitution, etc

[16]Manoj wad, The Legal Framework of Prostitution in India,(New Delhi: SAGE Publishers, 2008)

[17]ibid

[18]www.lawyersupdate.co.in /LU/9/869.asp

[19]Gaurav Jain v. Union of India

[20]Bachpan Bachao Andolan v. Union of India, AIR 2011

[21]ibid

[22]www.mightylaws.in /545/prostitution-legalized