Prostitution is a practice of indulging into a sexual intercourse with someone who is neither a spouse nor a friend, in exchange of cash. Prostitutes are can be females, males and transgender but mostly women are involved in this business and most clients being males. The word prostitution itself talks about the pathetic state of women in the society. Prostitution isn’t an issue which exist only India but it is an issue faced worldwide. Women involved in this practice are often deprived and they do this to earn for their living. No legislature has the power to nullify prostitution. It is a bitter reality which must be acknowledged. Over the time, laws have been introduced in the Indian Constitution to uplift the deprived condition of these sex workers, from a second-grade subject to a person who earn their living lawfully. They will be offered to live with pride. An existence without notoriety resembles to a house without a rooftop, fish living without water and tree without its root. The basic foundation of an individual’s life is his ‘selflessness’, their esteem in general public. Nobody should be harassed and called names off. Esteem is an important aspect of one’s life. The Supreme Court alluding to D.F. Marion v. Minnie Davis, in Smt. Kiran Bedi v. Panel of Inquiry held that "great notoriety was a component of personal security and was ensured by the Constitution, similarly with the privilege to the satisfaction throughout everyday life, freedom and property. The court insisted that the privilege to pleasure throughout everyday life, freedom and property.
The court asserted that the privilege to satisfaction in private notoriety was of antiquated source and was important to human society." There’s a particular section of the society which expects that legitimizing of prostitution will reduce the cases of assaults against women. Sanctioning prostitution is the best check to assaults. Authorization of practice of prostitution draws assistance from National Commission for Women and undeniable women activists. National Commission for Women official Lalitha Kumaramangalam believes that authorizing prostitution will create a better working condition for the sex workers. She also added that while sanctioning the calling, she didn’t know it would have any bearing on rape scenes.
In India, the annual business of prostitution is nearly about Rs. 40,000 crore and about 30-35% laborers are youngsters whose exploiters acquire a whopping of Rs. 11,000 crore. Around 10 million sex workers are involved, in India out of which 100,000 are in Mumbai alone, which isthe biggest sex industry in Asia. Around 3.5 to 5.5 Lacs of the youth is involved in this sex trade, with 6 noteworthy urban areas like Bangalore, together account for 75% of tyke whores in nation. These facts and figures point towards the importance of involvement of State to keep a check on this critical issue.
Prostitution is a kind of labor which requires a lot of physical tolerance, endurance and risk. Various cultural and social norms are likely to affect this profession; this means that people involved in this profession are victims of certain social stigma and poverty. Therefore, in this scenario the law needs to come forward and injects in this vicious cycle in order to strike a balance and empower and safeguard the people who are being abused. The cases related to these sex workers are of same worth, as that of any person from the LGBTQ community or any poverty stricken individual. These people much often become victims of sexual abuse, public bashing, lack of medical attention and facilities, several variances of mental diseases, etc. Just like a coin has two sides, providing a legal status to prostitution also has two sides, its pros and cons. While the pros would be: giving justice to the government’s structure of ‘equality’ by giving these sex workers a legal status, offering more security and higher level of neutrality. Whereas the cons would be: it can focus political power on to people, provides no guarantee on the quality of rule, it can discourage needed social change etc. Analyzing both the sides, one draws a conclusion to introduce a set of laws which should match the need of the situation. The constitution does not speak directly for the right of the sex workers but it does provide basic human right, i.e. article 14 which talks about Right to equality, article 15 ensures that none should be discriminated on the basis of the caste they belong, the religion they follow, their sex, their place of birth and their race, article 21 provides right to personal liberty and life and article 32 gives every citizen the right to approach the Supreme Court for enforcement of the right if they have been deprived of the same.
The Ancient Era Near East was home to a number of worship places, sanctuaries etc; devoted to different divinities. These holy places are mentioned in a western literature ‘The Histories’ where prostitution was described as a typical sacred practice. Going back to the 2400 BC, we prostitution was recorded as an occupation in the Sumerian Records. These records depict a temple-brothel which was operated back then by the ministers of Sumer, in Uruk. The sanctuary aka ‘kakum’ was established for devotees of goddess Ishtar and also, was a home to three evaluations of ladies. The first class of the ladies was to perform certain sexual ceremonies in the ‘kakum’, the second class used to approach and oblige the guests also they were allowed to discover the clients on the streets, and the third class used live on the sanctuary grounds. In the later years, female prostitution existed in some countries like, Greece, India, and Japan etc.
‘Tawaif’, who was a courtesan, were present in the Mughal era. They would dance, sing, make poetries and entertain kings and other people. Sex was not a contractual agreement at that time but was incidental. The highest classified tawaif would pick up any of the prostitutes to dance, sing and entertain their guests and to work for them.
‘Devdasi’ was the term used in India for the people who were known as the servants of Devas i.e. ‘Dev kidasi’. These devdasis would work in temples and were also considered as holy. They were married to deity or a Devi. They used to enjoy high class social status because they used to perform the rituals of the temple and also used to look after them. They used to perform classical dances such as ‘Bharatnatyam’. During the Islamic era, many temples were destroyed, due to which the high class status of the ‘Devdasis’ fell quickly and were left with no place to go, but to force themselves into the act of prostitution in order to earn their living. The 18th and19th century saw an increase in rise in the practice of prostitution in India. Devdasis used to entertain the visitors but when the British ladies started to visit India, the demand of prostitutes decreased.
LEGAL FRAME WORKS OF:
Until 1995, prostitution was considered as a criminal offence in Spain. The practice was decriminalized later on, but no public laws are written regarding the legality of sex workers. Instead of the prostitutes, the procurers there are penalized. According to a survey which was conducted in the year 2009, 90% of the sex workers were the victims of human-trafficking, which is a violation to the international law. Though the government there declared brothels as illegal during the 1956; but these days these brothels are disguised as ‘clubs’ and function normally.
The current laws related to prostitution in New Zealand are the most liberal, compared to any country in the world right now. The current law in New Zealand provides prostitution a legal status. Till 2003, the practice of prostitution was very common in the name of ‘massage centers’. But in 2003, the laws were changed and the changes were brought in to provide the prostitutes police protection in cases of emergencies. Now there are number of brothels which can be found on the streets of New Zealand. Though prostitution was legalized for a number of reasons, safe sex was one of the most important reasons. Safe sex means to use condos before engaging in any sexual activity. It is mandatory for all sex workers to take proper precautions before engaging in sexual activities in order to prevent STD’s i.e. Sexually Transmitted Diseases.
According to reports of 2020 prostitution in Canada is legal with some strict regulations. Prostitutes working independently are given a legal status. However prostitution carried out in open premises such as brothels cannot be solicited in public.
The 32 states of the country have own policies regarding prostitution. Prostitution is given a legal status under the federal law in Mexico. Out of 32, thirteen states allow regulation of prostitution; while some cities have specific ‘tolerance zone’ aka the red light area, which allow regulation of prostitution. Although pimping is still illegal in most part of Mexico.
In Germany besides legalizing prostitution, the government has also imposed tax on the activity. Brothels, advertisements and job offers through HR companies have also been allowed in the country. The country also passed ‘Prostitutes Protection Act, 2016’ which was introduced to protect the sex worker. A permit was required for all prostitution trades and a prostitute registration certificate was made mandatory.
INDIAN LEGAL FRAMEWORK
The laws related to prostitution in India are involved in the India Constitution, 1950; Indian Penal Code, 1860 and the immoral Traffic (Prevention) Act, 1956. The Constitution, along with providing its citizens, the provisions of Freedom and Equality and Right to Personal Liberty and Life; it also provides the prohibition of human trafficking and forced laborand also ensures denial of trafficking of individuals and constrained work.
The preamble of the Indian Constitution mentioned India as a sovereign, socialist, secular, democratic and a republic country and there exists equality of status, dignity and opportunity for the citizens of the state irrespective of their gender, caste, color, creed, religion etc. The Constitution provides us with certain laws related to Right to freedom of association, equality etc; they are:
a. Article 14: It ensures Right to Equality of the Citizens, which means that everyone is equal before the law and has a right to live his life free from any kind of discrimination.
b. Article 15: It ensures that no one shall face discrimination on the grounds of gender, color, religion, caste, race and place of birth. The state ‘cannot’ discriminate any of its citizens on the basis of the above mentioned grounds.
c. Article 21: It states Right to personal liberty and life. It means that no one shall be deprived of his personal liberty and life.
d. Article 32: This article gives right to every citizen to approach to the Supreme Court in case if he/she has been deprived of any of their rights.
e. The Indian Penal Code, 1860: Since cases of sexual harassment against women were rising at an alarming rate; a new section was added in the Indian Penal Code in the year 2013 through the Crime Law (Amendment) Act, 2013, which included the acts which were considered as offence of sexual harassment against women and the punishment/penalties for such offences. The person who would be found guilty of such offence will bear the punishment of 1-3 years of imprisonment or a heavy fine or both.
f. Article 354 of the IPC: This article states that when anyone, without the consent of a women, attacks her physically to offend her modesty, then in that case the offender will be punished under article 354 of IPC and would be sentenced for at least an imprisonment of 2 years or will have to bear a heavy fine or maybe convicted for both. The article ensures punishment for the people who commit crime against women and sexually abuse them.
g. Chapter 22, Criminal Intimidation (insult or annoyance, commission act): When someone tries to insult the modesty of a woman by any kind of words or gestures, the act is considered offensive and it is a cognizable, bail-able and trial-able claim. The offender in this case will be punished either by way of fine or bear imprisonment for 2 years or maybe both.
h. Part IV of DPSP: The fourth part of the Directive Principles of State Policy mentions that both men and women have the right to satisfactory method of their livelihood; their wellbeing, health and strength should not be abused, and that the citizens should not be forced to enter avocation unsuited for their age and strength, promoting the weaker section of the society in educational and economic interests, protecting them from the social injustice and exploitation, respecting the international laws and treaties signed. The High Court of Andhra Pradesh brought into observation that these principles are to be implied on both, the citizens as well as the state. When the citizens have the rights, the duties are imposed on the stat; whereas when the rights are vested with the state, duties are imposed on the citizens.
There exist at least 20 provisions in the Indian Penal Code that makes human trafficking a punishable offence. They mostly deal with abduction for illicit intercourse or wrongful confinement after abduction.
IMMORAL TRAFFIC (PREVENTION) ACT, 1956
The essential part of managing the act of prostitution is the Immoral Traffic (Prevention) Act, 1956 (herein after ITPA). This particular act ensures that several immoral activities such as pimping, which gives sex work a business angle and therefore abusing the individual; is held culpable. The act does not prohibit prostitution but actually prohibits the commercial activities of flesh. In order to prove herself as a sex worker, a woman needs to show that her body was hired for the purpose of offering sexual intercourse. Any person who allows or is in charge of the premises, uses such premises or knowingly allows someone to use it as a brothel, will be held accountable under the section 3 of the ITPA. According to this act, only a single incident is enough to prove that prostitution was being practiced in that particular place. Section 3 to 9 explains about the offences under ITPA. In one of the cases, it was held that ITPA aims at abolishment trafficking of women for commercial purpose. In one of the cases in Gujarat, the High Court refused to consider prostitution as a means of earning livelihood. This was done because such recognitions would have given an opportunity for trafficking more and more women, and also to avoid the confusion of it being a fundamental right.
The law states that prostitutes are permitted to carry their specialty in private areas and not to turn it into a business which runs in a public area. One of the important aspects of the act is that the clients involved in, will not be punished whatsoever. Under the ITPA, a Magistrate holds the right to remove any sex worker from any place for the purpose of well being of the public. Also the restrictions which are imposed in section 7 of the ITPA were held non-discriminatory. According to an article which was publishes by BBC stated that prostitution is illicit in India. The Indian Laws does not hold sex in return of cash as an act of prostitution. According to law, if a client is caught in engaged in a sexual activity in public, he will be held accountable for that act. Though the trade of sex in exchange of cash is allowable, a woman can’t do it in an open premise of 200 yards. Sex specialists do not fall under the ambit of any ordinary labor laws. Although they have the access of every right that a normal citizen has and also, they are entitled to be rescued and rehabilitated if they want so.
PROBLEMS OF IMPLEMENTATIONS
The main drawback of the act is; its implementation. Corruption among the government officials and others plays an important role in the implementation the ITPA. A major reason of this drawback is lack of knowledge of law among the people of the country. The police officers through raids, arrest the sex workers instead of the brothel owners, which is against the ITPA. Another problem rises is the rehabilitation and reformative homes which are provided to these sex workers; their condition is inadequate and cannot accommodate a large number of sex workers who have been a victim of the crimes such as sexual harassment, rapes, etc. These following factors lead them back to the same dark world from where they were rescued, making them face the assaults again. To avoid this situation, the government should increase the number of homes and should launch certain training and development programs to upgrade the situation of these victims. The government should work on counseling them and providing them with different jobs so that they can continue to earn their livelihood. The main objective of the Immoral Traffic (Prevention) Act, 1956 was to punish the brothel owners or the pimps, instead of the prostitutes .
The research study tells that there exist a number of cases of crime against women but only a few are recorded reason being lack of knowledge of law amongst the people. These victims/sex workers are still unaware of the rights which have been provided to them. According to a data, around 65% of the cases are reported in the police stations, but due to the corrupt police officials they are not been recorded. Some strict actions must be taken against these police officials so that more and more number of cases can be registered and the victims must get justice.
In a leading case, Gaurav Jain v. Union of India and ors; Justice Ramaswamy gave the judgment of the case “women found in flesh trade should be viewed more as victims of socio-economic circumstances and not offender of the society, some police authorities have already set out the process of sensitization towards the sex workers and their treatment.”
There exist several reasons why prostitution should be given a legal status in our society; one of them being in-equality in the eyes of law. Legalization of prostitution will not only provide better living standards to these sex workers, but also will benefit the nation in some ways. In a country like India, where the prostitution is being practiced for more than hundreds of years, it becomes necessary to provide it a legal status. The people of India strongly believe in concepts like moralistic prejudices, and therefore idealistic form of feminism remains silent regarding such critical issues. For a woman, to take care of her family and household becomes her responsibility, and therefore sex becomes an important part of her and her husband’s life. That’s why there are a large number of female prostitutes in India. But times are changing now; certain laws have been brought into light to tackle the issue of illegal trafficking of women (ITPA, 1965) but still not on legalizing prostitution.
For the countries that have criminalized this activity, it is important to know what impact it has on people who are indulging in this. Another important aspect of legalizing prostitution is that it will help many victims of this trap to get out of it. Since prostitution is not legalized, people try to run this sex trade illegally and that’s when human trafficking takes place.
It is also important for us to understand the reason behind assaults happening on these sex workers. It happens because criminals have better chance of escaping justice. Also such people generally clear themselves out of these charges by paying a hefty amount to the officials.
If we look from economic point of view, legalization of prostitution will result in state’s benefit. In some countries taxes are imposed on people for the activity of prostitution; like Germany. The reason behind taxing of prostitution is to increase the wealth of the nation. Now this can be explained in terms of price and demand; when price of anything increases the demand automatically decreases. In other words, the costlier the activity, lesser will be the demand. When people will start getting charged for prostitution in their daily life, it will become difficult for them to afford the activity, resulting in downfall in the demand for prostitution. Some other reasons are explained below:
a. Income: one of the main reasons of people falling in the trap of prostitution is ‘poverty’. Poverty leads to lack of education which further leads to unemployment. To overcome this condition of unemployment they unwillingly have to indulge themselves in this practice of prostitution. They are left with no other choice to earn their living. Some do it to earn for their living, some do it to look after their family and some are involved in this because they do not have any kind of financial support; like husband or parents. Sometimes these prostitutes are paid a very less amount as compared to the service provided. Legalization of prostitution will help these sex workers to earn a decent amount of money, so that they can satisfy their basic needs. This will help them to live a better life.
b. Health benefits: legalization of prostitution will provide these workers a better and a healthier life. According to a report published by BBC, it was found that clients do not make a use of condoms, even when these workers request them to do so and also get harsh with them. This leads to an unsafe sex leading to transmission of severe diseases such as HIV/AIDS/STD. Legalization would make it compulsory for the clients to use condom and the workers can also get a regular health check up for the same. Sex workers in Nevada are required to take monthly check up for HIV/AIDS and a weekly test of Gonorrhea and Chlamydia. Another research conducted in Australia stated that sexually transmitted diseases were 80 times greater in the illegal street prostitution than in legally owned brothels. This was because legally operating brothels made it compulsory to make use of condoms.
c. Reducing human trafficking: making prostitution legal will reduce human trafficking and violence against these workers such as rape, murder, forced sex etc, will also be cut short. If prostitution will be criminalized, it will reduce intentional prostitution because there will always be a danger of conviction. But this will still not put an end to trafficking as if any such case arises, the casualty will be held accountable whereas the trafficker will bear just a wage of misfortune. Further if prostitution is criminalized, the prostitutes still cannot report for trafficking as it will bear a consequence on them also. Criminalization of prostitution will reduce intentional prostitution but will also put an upward weight on value, resulting in boosting the trafficker. Thus, criminalization will only expand human trafficking.
d. Rights and Duties: when it is said that a person has a right to do something; it means that no one can interrupt him or stop him from practicing his right. Here the former has a right and the latter is bound by a duty to not to interfere him. With rights, come duties to perform. Legalizing prostitution will provide these sex workers their rights. When prostitution will be legalized, sex workers will get the right to reach out to the police in case of emergencies. If still illegal, it would become impossible for them to take the help of the police and number of cases of assaults and murder against them will keep on rising.
e. Taxes: by imposing tax on prostitution, it will benefit the state by incurring income. Prostitution incurs approximately 21 lakh crore in a year. By imposing tax the prices will rise resulting in decrease in number of customer. According to Richard Ponser, tax invasion is the best remedy for criminal offences. With this assaults against sex workers such as rapes, murders, trafficking will also decrease. Therefore, prostitution should be legalized.
f. Protection from Police: by legalizing prostitution, police will start providing them protection in case of emergencies. They will save them from violent customers and will avoid violence against them. Since these deprived women have no source of help, the pimps take advantage of it and have illegal prostitutes in their power. Also legalization will give these prostitutes access to other facilities as well.
g. Improving working conditions: legalization of prostitution will lead them to a better working environment. They will start getting proper medical attention; there will be decrease violence against sex workers.
India is a country where because of various societal ingredients; prostitution is often looked down due to its nature. Therefore, these prostitutes start living in a community formed by their own. Through this research paper, one comes to a conclusion that by legalizing prostitution; prostitutes, state and people of the state all will be benefitted. Though the history of prostitution in India is quite old, it is still looked down upon. Legalization of prostitution will help these sex workers in many ways; providing them better health facilities, imposing various rights and duties on them, providing them with better working conditions etc. The state would be benefitted by this means of earning income through which, state would have a better control over such activities. Legalization of sex work will also reduce the cases of human trafficking. The government should start distinguishing these sex workers into groups; first group will constitute the workers who willingly took up this profession. The second group should constitute workers who were forced into this profession. Both the groups should be looked after and various laws must be introduced for their better functioning. Also most importantly, instead of the sex workers the brothel owners should be held accountable for any immoral activity done, as mentioned under the Immoral Trafficking (Prevention) Act, 1956. It is also suggested to rehabilitate these sex workers with the help of government and should be provided with sufficient income; also various training and development programs must be launched to improve their deprived condition.
BBA LL.B (H)
2nd Year (4th Semester)
Amity Law School, Amity University,
Noida, Uttar Pradesh