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LEGALIZATION OF PROSTITUTION IN INDIA



INTRODUCTION


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.


HISTORICAL BACKGROUND

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:

Spain

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.

New Zealand

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.

Canada

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.

Mexico

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.

Germany

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 dutie