Consentia on Multidisciplinary Research

Legalisation of Prostitution in India: A Viable Option

Introduction:

The story of Indian women is as old as the history of Indian civilization. In a famous Sanskrit sloka which narrates about the importance of women that “Yatra Naryastu Pujyante,Ramante Tatra Devta” ,i.e. where women are worshipped, God resides there. Further our 1st Prime Minister, Pt Jawahar Lal Nehru once stated, “You can tell the condition of a nation by looking at the status of its women.” But it is a matter of great grief that where we have such thinking about women, they are being subjected to harassment. These harassment include sexual harassment also and prostitution is nothing but a form of sexual harassment of women by men. In maximum cases, brothels are owned by males and pimps are often used to be men. It has given rise to human trafficking and government has failed to prevent it.

Prostitution is widespread in India, although it is a contentious issue. In 2007, the Ministry of Women and Child Development reported the presence of over 3 million female sex  workers in India, with 35.47 percent of them entering the trade before the age of 18 years. In 2008, Human Rights Watch puts the figure of sex workers in India at around 20 million, with Mumbai alone being home to 200,000 sex workers, the largest sex industry centre in Asia. The number of prostitutes rose by 50% between 1997 and 2004. Thus it shows a great number of women which are being subjected to sexual harassment and since there is no rule to govern this profession, minor girls are also being subjected to cruelty at a large scale.Child prostitution is a major problem in India involving around 1.2 million children.

History of Prostitution in India:

In ancient India, there was a practice of the rich asking Nagarvadhu to Sing and dance, noted in history as “brides of the town” (grooms). Famous examples include Amrapali, state urtesan and Buddhist disciple, described in Vaishali Ki Nagarvadhu by Acharya Chatursen and Vasantasena, a character in the classic Sanskrit story of Mricchakatika, written in the 2nd century BC by Sudraka.

The Portuguese In Goa, which was a former Portuguese colony in India, during the late 16th and 17th centuries, was a Portuguese strong hold which community of Portuguese slaves such as Japanese slaves, who were usually young Japanese women and girls brought or captured as sexual slaves by Portuguese traders and their captive South Asianlascar crew members from Japan.

During the British East India Company’s rule in India in the late 18th and early 19th centuries, The British set up comfort zones for British troops wishing to make child and women into sex tools to satisfy the British soldiers who frequently set up their own Prostitution rings. A write up by the BBC of England states that British troops Helped established prostitution dens across India in capitals such as Mumbai which is now the hot bed of child prostitution, Indian lascar seamen who were forced into the British military to the United Kingdom copied the masters by joining the British forces on frequent visits to the local British prostitutes there. In the 19th and early 20th centuries, thousands or even millions of women and girls from continental Europe and Japan were trafficked into British India, where they worked as prostitutes servicing British soldiers and local Indian men

 

 

Prostitution and various Indian laws:

 According to a Human Rights Watch report, Indian anti-trafficking laws are designed to combat commercialised vice. The primary law dealing with the status of sex workers is the 1956 law referred to as The Immoral Traffic (Suppression) Act (SITA). According to this law, prostitutes can practise their trade privately but cannot legally solicit or ‘seduce’ customers in public. Unlike as is the case with other professions, sex workers are not protected under normal labour laws, but they possess the right to rescue and rehabilitation if they desire and possess all the rights of other citizens.

The Indian Penal Code (IPC) which predates the SITA is often used to charge sex workers with vague crimes such as “public indecency” or being a “public nuisance” without explicitly defining what these consist of. The Immoral Traffic (Prevention) Act or PITA is a 1986 amendment of legislation passed in 1956 as a result of the signing by India of the United Nations‘ declaration in 1950 in New York on the suppression of trafficking. The act, then called the All India Suppression of Immoral Traffic Act (SITA), was amended to the current law. The laws were intended as a means of limiting and eventually abolishing prostitution in India by gradually criminalising various aspects of sex work. The main points of the PITA are as follows:

  • Sex Workers: A prostitute who seduces or solicits shall be prosecuted. Similarly, call girls can not publish phone numbers to the public. (imprisonment up to 6 months with fine,point8)  Sex worker also punished for prostitution near any public place or notified area. (Imprisonment of up to 3 months with fine)
  • Clients: A client is guilty of consorting with prostitutes and can be charged if he engages in sex acts with a sex worker within 200 yards of a public place or “notified area”. (Imprisonment of up to 3 months) The client may also be punished if the sex worker is below 18 years of age. (From 7 to 10 years of imprisonment, whether with a child or a minor)
  • Pimps and babus:  Babus or pimps or live-in lovers who live off a prostitute’s earnings are guilty of a crime. Any adult male living with a prostitute is assumed to be guilty unless he can prove otherwise. (Imprisonment of up to 2 years with fine)
  • Brothel: Landlords and brothel-keepers can be prosecuted, maintaining a brothel is illegal. (From 1 to 3 years imprisonment with fine for first offence) Detaining someone at a brothel for the purpose of sexual exploitation can lead to prosecution. (Imprisonment of more than 7 years)
  • Procuring and trafficking: A person procures or attempts to procure anybody, is liable to be punished. Also a person who moves a person from one place to another, (human trafficking), can be prosecuted similarly. (From 3 to 7 years imprisonment with fine)
  • Rescued Women: The government is legally obligated to provide rescue and rehabilitation in a “protective home” for any sex worker requesting assistance.

Public place in context of this law includes places of public religious worship, educational institutions, hostels, hospitals etc. A “notified area” is a place which is declared to be “prostitution-free” by the state government under the PITA. Brothel in context of this law is a place which has two or more sex workers. Prostitution itself is not an offence under this law, but soliciting, brothels, madams and pimps are illegal.

 

 

 

Prostitution prevalent areas in India:

Brothels are illegal de jure but in practice are restricted to certain areas of any given town. Though the profession does not have official sanction, little effort is made to eradicate or impede it. Districts bordering Maharashtra and Karnataka, known as the ‘devadasi belt’, have rafficking structures operating at various levels.

 The largest and best-known red-light districts are Sonagachi in KolkataKamathipura in MumbaiG.B Road in New DelhiKashmiri Market in Agra, Ward No. 14, Silchar Assam,Ganga Jamuna in Nagpur and Budhwar Peth in Pune host thousands of sex workers. In recent years red-light centres across India are commonplace for international sex tourism. Earlier, there were centres such as Naqqasa Bazaar in Saharanpur, Chaturbhuj Sthan in MuzaffarpurPeddapuram and Gudivada in Andhra Pradesh, Meerganj Allahabad Ganga JamunaNagpur, and Kabadi bazaar of Meerut.

Why Prostitution should be legalised:

Thus despite of all the laws prohibiting prostitution, it is going on frequently as earlier. Therefore in India prostitution should be made legal because it can’t be prevented. There’s a reason as it’s called “the world’s oldest profession”. It’s always been around and it always will be. It’ll be much easier to monitor and minimize abuse or risks when legalized.

Advantages of legalising prostitution:

There are following advantages of legalising the institution of prostitution in India:

1. Its good for the health of her customers: Legalized prostitution would allow the state to require that all prostitutes take regular health exams, helping to ensure that she or he is not carrying a sexually transmitted disease.

2. It would give the prostitute employment rights: Many prostitutes are at the financial mercy of their pimps, who often take more than half their income. Legalization would protect their rights.

3. It would open the door to unionization: Unions would probably be the best enforcer of the industry. They would help ensure that under the radar (illegal, non-taxpaying, non-health exam participants) would stay off the streets.

4. Its good for the health of the prostitute: People who live outside the law feel that they can’t turn to the law for protection. Prostitutes are regularly beaten and even killed with little recourse.

5. Illegal prostitution costs us money: While the costs involved are hard to estimate, it taxes the police force, the public defenders offices and the judicial system. All of these resources could be better utilized pursuing and prosecuting violent offenders.

6. Legalized prostitution would pay: We could tax prostitution in the same way we tax hospitality, often higher than normal sales tax.

7. The laws are arbitrary and hypocritical: It’s okay for a woman to have sex with a stranger. It’s okay for a woman to have sex with a man she hardly knows after he buys her dinner and drinks or jewellery or other trinkets, why is cash currency treated so differently?

8. Decrease in Unemployment rate: With our ever expanding unemployment rate…okay, it might not be the best idea, but you know that women and some men are turning to prostitution out of desperation. At least it would be something to legitimately put on a resume and the Obama administration could take credit for creating some jobs.

9. Reduction in  the number of illegitimate children : When the prostitution will be legalised ,there would be certain norms prescribed by the authorities such as use of condoms, precautionary measures etc which will be helpful in decreasing the number of illegitimate children.

10. Reduction the percentage of HIV: A positive outcome of a prevention programme among prostitutes can be found in Sonagachi, a red-light district in Kolkata. The education programme targeted about 5,000 female prostitutes. A team of two peer workers carried out outreach activities including education, condom promotion and follow-up of STI cases. When the project was launched in 1992, 27% of sex workers reported condom use. By 1995 this had risen to 82%, and in 2001 it was 86%.

11. Reduction in the crime percentage: I want to explain this point by the help of an illustration: A guy who was performing a social experiment on himself in regard to sex attitudes. He, a single man who wanted to have sex, went to bars and was open to women about his intentions. No women accepted his proposal. Then he told a lie that he wanted to enter in a relationship with a woman and she accepted his proposal and thus he misled her. Thus such practices increase the number of crime. If prostitution were legalized, this crime would not happen. Thus legalised prostitution will curtail the percentage of such crimes. On  Apr. 8, 2004 ,Kirbi R Condiff,on his lecture  on “Prostitution and Sex Crimes”  stated that  “It is estimated that if prostitution were legalized in the United States, the rape rate would decrease by roughly 25% for a decrease of approximately 25,000 rapes per year….

12. Prevention of the harassment of prostitutes by police and other strong peoples: A survey completed in 1988 by the All Bengal Women’s Union interviewed a random sample of 160 sex workers in Calcutta: Of those, 23 claimed that they had come of their own accord, whereas the remaining 137 women claimed to have been introduced into the sex trade by agents. The breakdown of the agents by sex were as follows:- 76% of the agents were female and 24% were males. Over 80% of the agents bring young women into the profession were known people and not traffickers: neighbours, relatives, etc. Thus legalise prostitution will prevent the harassment of women by police and strong peoples.

Conclusion:

 Therefore “Sex worker” should be included in the definition of “worker/workman” under various labour legislations so that they may avail the benefits of labour legislations. Thus it will prevent the sexual harassment of the women and will secure their dignity.

In this paper the author aims to analyze the pros and cons of legalization of the institution of prostitution and wants to make some useful suggestion so as to make a responsive law to the issue of legalization of prostitution.

Author Details:
Amitabh Srivastava
VIIIth  Sem, LL.B(Hons)
Faculty of Law,
Lucknow University

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