NEED FOR ABSOLUTE LEGALIZATION OF  PROSTITUITON IN INDIA

This article was written by Sneha Ghosh, a student of Symbiosis International University. 

INTRODUCTION

Prostitution has always been a part of the society. It is a profession that has been refused and rejected throughout history, from the Vedic era to the Mughal era to today’s contemporary world. In India, it is officially prohibited, although it is extensively practiced.

It is a tradition to make Durga’s idol for Durga Puja from of numerous sacred components such as Ganges River soil, cow urine, and so on. One of them is Punya Mati dirt, which was taken from the doorway of a prostitute’s home and is, paradoxically, the purest of all soils. For the whole year, they have been humiliated and excluded, and on this one day, they are greeted with joy and respect. There are several more historic rites and customs in our culture that value prostitutes, yet society continues to look down on them. Thus, forgetting that everyone is entitled to basic respect and dignity regardless of their occupation.

WHAT IS PROSTITUTION

Prostitution is described as the act of selling one’s physical body for immediate monetary or other valuable considerations rather than just for sexual fulfillment or bodily pleasures, as opposed to the traditional concept of copulation.[1] “The term prostitution is popularly used to refer to the trade of sexual services for payment in cash or kind, and so to a form of social interaction that is simultaneously sexual and economic”[2]. Both the genders can be involved in prostitution but it is the female prostitution which is prevalent in the society with women being the sellers and men being the buyers.

HISTORY OF PROSTITUTION IN INDIA

Prostitution is the oldest profession in India, and it has existed in some shape or another since ancient times, though not in the same form as it is today. The Aryan emperors devised a system of guest prostitution based on the celestial court system. They rewarded rulers with accomplished, gorgeous, and virgin ladies as a symbol of friendship.[3] Even references to prostitution  can be found in the Rig Veda. It was originally known as the “Devadasi system,” because it was normal practise among Hindus to donate their daughters for the sake of temple dancing and adoration of God.[4] These women did not marry mortals since they regarded Gods to be their husbands, but they were sought after by Hindu and Mughal kings to sing and dance in their palaces,  and were admired and revered. That with arrival of the British raj, slowly came to an end as the importance Devadasis was diminished significantly as the Britishers forcefully elicited sexual intercourse from them thus bringing the concept of one-night stands  into existence. They immediately began to build and manage brothels[5] for their soldiers and native Indians across the presidency towns (which eventually became known as the red light regions). The prostitutes were young females who were paid for their services by the British government.

PLIGHT OF THE PROSTITUTES

“Have you ever heard people talking about Kamath Pura in Mumbai, the Kashmiri Market in Agra, or the G.B Road in Delhi, and reacted immediately[6]?”  This is because our vision of these poor ladies is tainted with prejudice and stigma. Prostitution is often considered an immoral and unethical activity yet India is one of the largest consumers of it. “By one count prostitution is an $8 billion a year industry with more two million prostitutes and 275,000 brothels. In another count in all of India, there are as many as 10 million commercial sex workers”[7]. Each day, over 200 Indian girls and women are forced into prostitution, with 80% of them doing so against their consent. [8]Prostitution is often alluded to as the “necessary evil” because it is considered immoral but is necessary to satisfy the sexual urges of men, who are mostly from the poorer sections of society, such as migrant workers, truck drivers, and those who are divorced or separated from their families for long periods of time.

This ideology of prostitution which the society possesses prevents the sex workers from being seen as a person more so like an entity, an object; which doesn’t have a voice of it’s own. Due to which their grim realities are overlooked and their demands for justice and equality remains unheard of. They are kept in poor conditions and are often than not underpaid since they have no rights over the money they which goes to their employers, they cannot complain against it as well, because thriving on the income from prostitution is illegal in India. Most of them suffer from various types of STDs that is sexually transmitted diseases the reason being the lack of awareness. As abovementioned more than 80% of the girls involved in this business , are forced to, against their will . They are kidnapped from public places or trafficked from rural areas or foreign countries and kept as bonded sex slaves in dark measly rooms with no ventilation and no hygiene. “As many as one child disappears every 8 minute according to NCRB( National Crime Records Bureau). According to the NCRB 2019 Crime in India report, the government reported 2,088 trafficking cases under the IPC compared with 1,830 trafficking cases in 2018 and 2,854 trafficking cases reported in 2017”[9]. The fact that prostitution is misinterpreted as criminal activity or seen as such by law enforcement exacerbates the situation, pushing the industry to operate covertly in India. When a sex worker visits the police after being assaulted or abused by private individuals, the police often deny their right to remedy by refusing to file First Information Reports or investigate the acts of violence, and the societal humiliation makes seeking legal protection practically impossible for them. These clauses in the law, on the other hand, allow for “police harassment and extortion of sex workers”.[10]

CURRENT LEGAL POSTION

The practice of prostitution is not explicitly illegal or banned in India as in countries like Afghanistan, Bahrain, China, Pakistan, Jordan, Iraq etc. But it is neither freely allowed as in countries like New Zealand, Australia, Austria , Bangladesh, Belgium , Brazil etc.

India is somewhere in the midway, with ambiguous policies on the legal status of prostitutes. There are no statutory provisions or hard-and-fast rules against prostitution, although the law prohibits many behaviours that are necessary for it to function. The Immoral Traffic (Prevention) Act of 1956, for example, makes owning, operating, and working in brothels unlawful. The act, along with the Indian Penal Code, 1860, the Constitution of India, 1950, the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJA), and various state legislations, does not make prostitution illegal per se, but it does make keeping and using premises as a brothel, living off prostitution income, pimping, soliciting, or seducing a person for prostitution in custody or otherwise illegal.[11], The situation can be understood as being  analogous to current situation of cryptocurrency , the legality and authenticity of which is filled with uncertainties. This is a explicit violation of Article 19 (1)(g) of the Indian Constitution, which states that citizens have the right to practise any profession or carry on any occupation, trade, or business, subject to Art. 19 (6), which enumerates the types of restrictions that the state can impose on the above right.[12]. This phenomenon also diminishes their stature and relevance in the society as they are not deemed to be productive members of the society since taxes are not levied on their income.

 LEGALIZATION : PLETHORA OF POSSIBILITIES

1A shocking observation made by Japanese researchers, during the Great Depression was that the only two things which can bring America out of debt are alcohol and prostitution.

If prostitution as a profession gets authorized, it will make a significant contribution to the country’s economy, as India has a large market for it. Since they would be able to pay taxes on their earnings, the government would be able to tax them. As many countries such as New Zealand and Australia have experienced, this will result in significant GDP growth.

2It would enable the government to devise various schemes for the protection and enhancement of the communities involved in this profession, as well as provide numerous avenues for NGOs and other charitable foundations to work toward their development and educate them about STDs and the potential consequences of unsafe sexual intercourse and having multiple sexual partners..

3. It will also put a stop to the  emotional, social, moral and physical abuse of prostitutes by authorities and the general public. This would allow prostitutes to live with respect and dignity while also making a stand against the injustices perpetrated against them, knowing that the law is on their side. Many times, they are not paid by their customers who unjustly exploit them due to their power and position, with the proper regulations being put in place, the prostitutes would have a legal mechanism to raise their voice against such cruelty and barbarism.
4. “Human trafficking is a big problem in India, and it is growing in the prostitute business. According to campaigners, sex trafficking affects 16 million women and girls in India, out of a total of 20 million commercial prostitutes. Human traffickers seduce or abduct thousands of children each year, primarily from low-income families, and sell them to syndicates and brothels, where they are forced into sexual slavery. Legalizing prostitution in India has the advantage of providing us with a history of sex workers.” “But, if the government starts monitoring how many prostitutes work in a brothel, where they arrive from, and whether or not they are compelled to do so, it would have a major impact since brothel owners will have to manage their businesses like any other in India, following to the rules and regulations”.[13]
5. Last but not least, it will go a long way toward changing the public’s perception of prostitutes and creating a more inclusive environment for them and their families, as law has the capacity to reform society, as it has done in the past by forbidding child marriage, triple talaq, and so on.

CONLCUSION

Prostitutes are an extremely vulnerable group who are frequently exploited. They are not recognised by society and are unable to find alternative jobs and thus are forced to remain in this industry to fill their stomachs. They are frequently used and mistreated by violent customers. Apart from basic citizen rights, the Indian Constitution does not guarantee any protection to prostitutes. To sum up, I would reiterate my original intention on the necessity for the complete legalisation of prostitution. This would lead to their socioeconomic integration into society and would be a watershed moment in Indian history since it would open up much more room for conversation, inquiry, and discovery in the field of prostitution, allowing us to uncover fresh perspectives on it that have never been seen before.

[1] Copulation means the act of sexual intercourse.

[2] Wiley Online Library, https://onlinelibrary.wiley.com , (last visited on Dec10, 2021)

[3] Indiatimes, https://www.indiatimes.com/lifestyle/self/history-of-prostitution-277526.html     , (last visited on Dec10, 2021)

[4] My ADVO,  https://www.myadvo.in/blog/prostitution-in-india-read-its-causes-legality-and-law/ , (last visited on Dec10, 2021)

[5] A brothel is a place usually a building or hotel where people engage in sexual activity with prostitutes.

[6] Riya Mohan, Sex Work—Demystifying Indian Taboos and Challenges, Indian Folk, (Dec10,12:20 PM), https://www.indianfolk.com/sex-work-demystifying-taboos-and-challenges-in-the-indian-context-edited/

[7] Srishti@6, Legal Status of Prostitution in India, Legal Service India, , (Dec10,12:20 PM), https://www.legalserviceindia.com/legal/article-5637-legal-status-of-prostitution-in-india.html

[9] US Department of State, https://www.state.gov/reports/2021-trafficking-in-persons-report/india/ , (last visited on Dec10, 2021)

[10] Srishti, Supra note 7 .

[11] Diva Roy, All you need to know about the Immoral Traffic (Prevention) Act, 1956 , IPleaders,(Dec10,13:05PM), https://blog.ipleaders.in/need-know-immoral-traffic-prevention-act-1956/#Meaning_of_brothel_and_prostitution

[12] Indian Kanoon, https://indiankanoon.org/doc/935769/ , (last visited on Dec 10, 2021)

[13] Srishti, infra note 7.