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Legalization of Prostitution: Probing an Indian Perspective



Introduction

Anything connected with sex leads stereotypical or hypocritical thoughts among people in India and so is the existence of prostitution. The extant of prostitution has long been a matter of concern for people in disparate eras and times. Prostitution is one of the oldest professions of the world and has been practiced since the birth of the Indian society. The moral ambiguity that engulfs this practice is increasingly bringing out the question of its formalization.


Prostitution is the practice or business of sexual activity in exchange for money. Basically, it refers to giving and receiving body for sexual activity with mutual consent in the exchange of money. This business has witnessed appreciations and directness, to being tolerated, prosecuted, or snubbed. It is not limited to a mere performance of sexual activities but also consists of running brothels, inviting customers, management of sex centers, agreement with prostitutes or sex worker, trafficking and similar activities to carry this trade. Prostitution is not all about the females, but males also are the part of it, although less in number.

According to the Ministry of Women and Child Development, 2008, the total number of sex workers involved in the prostitution is estimated to be 3 million which includes those who are forced and are targeted by human trafficking. Many illegal practices are done under the garb of this business and human trafficking is the worst repercussion of it. Behind this business, many practice trafficking and forced inclusion of women and children in the sex work industry.


In carrying out this profession, Sex workers face myriad challenges such as abuse, violence of police, rapes, slavery, and no right for education, no health care facility and no existence of any justice platform.

Every individual has the right to use their body according to their will. It can be said that prostitution is not oppressive; it is how it’s exercised by some that makes it oppressive.

This article mainly shoots light on the necessity of the legalization of prostitution and how conditions can be improved through the legalization.


Historical Background

Westernization has always been blamed in myriad notions and by numerous people in India. Execution of prostitution has been continuously under criticism and is still struggling to uphold the conceptions.


It is important to explore the canvas of human development and dive into the concepts to recognize whether it’s novice or a forgotten concept. Many social and legal researchers have been focusing on this matter. Sex trade has been ruling since ancient history to till date. The historical background of our nation verbalizes about the existence of prostitution indirectly.


Talking about the Vedas, there is a mention of Urvasi and Menka who used to distract enemies by their beauty and dance. From the Guptas till Aurangzeb, the females were asked to sing and dance in the courtroom and they also performed sexual activities with the king. Numerous literatures have touched this concept too. Kalidas’s Abhigyan Shakuntalam and Meghadoot entail the mention of sex worker and their rights. Arthshastra written by Chanakya also explicates about establishing well organized sector for buying and selling of sex with proper wages and also it talks about protection and dignity of sex workers. Even the sculptures depict the extant of sex in the society.


As per Indian history, the previous adaption of prostitutes was known as “Devdasi”, who were devotees of God and considered God as their husbands and can’t marry to any other human. They were later referred as “Brides of the town” who used to sing and dance in royal courts but were respected and never touched. But during the British guideline, the Devdasi changed into prostitution, as Indian economy depleted and for livelihood, many women started selling their bodies to Britishers in the exchange of money.


Perception of prostitution as profession

By dint of inspecting the configuration of respectfully addressing sex workers, it is viable to scrutinizing the practical spectrum of things in India. Violation of the basic human rights of expression and dignity is particularly prevalent in the lives of people involved in sex work. Discrimination against sex workers in India is not like discrimination faced by other marginalized groups along lines of caste, class, race, or religion. It is probably one of the most horrendous and unjust treatments of a certain group of individuals. Sex work is treated as unethical, uncultured, disgusting practice and poses a threat to the general public. The result of this stigma is a denial of basic rights for both sex workers and his/her families, who are dependent on the money earned through sex work. Constitutional safeguards and other statutes that protect civil liberties and political rights of all individuals only apparently protect the rights of sex workers.


Factors conducive to Prostitution

Exploring through the perspective of Indians on the paradigm of causes of practicing prostitution as profession, there happened to exist in numbers. It is rather difficult to enumerate as identify all factor conducive to prostitution because it has often been argued that prostitution has its roots deep in the fabric of society. The social and economic subordination of women by men has often been cited amongst the important causes leading to prostitution. Some highlighted factors conducive to prostitution were elucidated as poverty, ill condition of family, Burden of bread and butter solely on women, domestic clashes, rape or assault, unemployment, trafficking and several others.


Economic Crisis and Poverty

Most common and basic reason which drives the women is poverty. The increasing rate of poverty has driven numerous individuals’ especially young people in urban territories, finding it brisk method to deal with economic crisis. Almost 400 million people cannot meet basic survival needs like food, clothing, and shelter which is an unimaginable statistic. This desperate poverty is often cited as the root of India’s growing prostitution problem. Women enter into this for the sake of survival.

According to a survey, many women narrated that they has chosen this profession under the pressure of debt on their families and many elucidated that they had to save the lives of themselves and their families.


Unemployment

Another imperative reason for prostitution as profession tends out to be the problem of Unemployment. Through analysis it proves that the burden of bread and butter for the family, enshrouded with the slaps of poverty compelled individuals to enter into this profession. Many sex workers find it easy, to illicit deals as a way of generating income.


Rape

About 6 per cent of the girls entered prostitution after the incidence of rape. Rape on the girls is a great social stigma and in some circumstances, the victims of rape are not even accepted at home. Apart from the delay or even absence of justice, the victims have to face similar incidents every now and then. When they don’t find any safe place in society and don’t foresee any better future perspective, they find their ways in the brothels. About 8 per cent of the girls came to prostitution following the incidents of incest. The most common incest is between father and daughter, followed by uncle-niece. When the young victim of incest in exploited at home, she doesn’t foresee safety anywhere in the society and slowly ends up in prostitution. In certain circumstances, researchers came across the cases where the girls were sold by their own fathers, uncles or the brothers-in-law after subjecting them to incest.


Children of Prostitutes

Female children of the women in prostitution invariably end up in prostitution (98 per cent), as there is no safe place for the children and there is no programme for them till date, to get them out of these areas and to provide them alternation livelihood. This contributes to about 10 per cent of prostitution.


Existing legal aspect of prostitution in India

In Indian context, prostitution is legal but it is legal with certain limitations and conditions. It depicts sort of vagueness in the legal system. Prostitution specifically is legal but activities related to prostitution such as running brothels, soliciting, trafficking and pimpimg are all punishable offence under Immoral Traffic (Prevention) Act, 1956.


Immoral Traffic (Prevention) Act, 1956 (hereinafter referred to as “the Act”) is one of the Act that was introduced with the aim to control human trafficking. It was also enacted to manage and control sex work. The Act focuses on making pimping and other similar activities culpable, which enables prostitution a trading point which ultimately leads to abuse and exploitation of sex worker.


Unfair prostitution are restricted and not the prostitution per se. In order to prove prostitution, the sexual activities are offered by woman or a girl for hiring purposes is required to be shown.


Section 3 of the Act states that, “No person shall be allowed to offer the property of his own or the one that the person is in charge of for any sexual activity that is related to sex trade which are prohibited under the act”. In other words, no person is allowed to use their property for brothel purposes to carry out restricted activities under the act. Section 3 to 9 of the Act covers all the offenses under the act which cannot be performed under the Act.


Section 372 and 373 of Indian Penal Code 1860 also deals with prostitution. Basically, Indian constitution provides various fundamental rights to all the citizens including sex workers but the condition and unethical tag of sex workers, makes it worse to fight for basic rights. In civil society, people consider it an uncultured and shameless work and are not yet prepared to recognize it as a profession.


The ITPA instead of analyzing immoral trafficking seems to be focused on eliminating prostitution. This proves to be absolutely vague way of managing this profession and violations causing through it.


What is the need of Legalization of Prostitution?

There is wide debate on the issue of whether prostitution should be legalized, and whether the pros of legalization outweigh the cons. There are seemingly many different opinions and approaches to this dispute. The highlighted point is “if both the parties are consenting to have sex, then how is that objectifying?” Each individual has a right to use their body as the way they want. There exist numerable pros of legalization of prostitution which can accurately reduce the challenges suffered by sex workers and the profession itself. There is an excessive need for legalizing prostitution to safeguard rights and life of sex workers and also to stop the violation and illegal practices that happen to exist under the blanket of trade.


Pros of legalization of prostitution

As there are seemingly many anti-legalization arguments for prostitution, there are also pro legalization advocates whose argument is that the 'pros' of legalization outweigh the cons. Legalization most importantly will improve the condition of sex workers as per study of different countries, which have legalized it and have shown a positive result.


Legalizing prostitution will make lives safer for sex workers and help break the pimps and trafficking gangs who exploit them. Traffickers thrive because the sex business is driven underground. Approx 10 million children worldwide are engaged in prostitution, by legalization and taking strict measures can gradually ensure the removal of minors from this profession will definitely reduce the number of trafficking.


Proper laws enforcing management and transparency would give out a better economic boost and would provide respect and rights to sex workers. It would include regular health check-ups, medical facility access and will diminish the risk of sexual transmitted diseases. Some rights related to education of their children and themselves, rights against exploitation and right to have justice platform without any degradation of the profession.


Legalization will lend a helping hand in formulating guidelines regarding track records of sex workers, age of prostitutes, database on clientele and adequate remuneration. It can facilitate the eradication of sex racquet operation, hidden and street prostitution, abuse of prostitutes, minor prostitution and forced prostitution.


Sex workers anguish the violence of police a lot. Police compel them to stop practicing the business and also degrade them and sex workers are unable to practice right of complaining in police station without fear. Reduction of rape cases can be seen through legalization and Rhodes Island with prodigious reduction in rape cases after legalization is the example of it. Legalization can probably lead sex workers to have consideration and respect in the society.


Conclusion

Summing up the entire scenario, legalization of prostitution seems to be a positive step towards improvement in the conditions of sex workers with rights and remedies and would also improve the sex trade. Existence of prostitution is inevitable but regularizing it can prove to be a better solution. India is a country with different moral standards and prostitution is generally frowned upon when it comes to make it a part of the society. The legalizing of prostitution would definitely benefit the state and the sex workers. Various countries have legalized sex trade and have set an example of rectifying the public order and mentality. Law can precisely deal with mentality by connecting provisions with positive impact. It will also help lowering down the rate of crime as the government can keep track of the brothels and the sex trade. The sex workers who are unwilling can also be identified and rehabilitated by the state after tracing the brothels and trading in sexual activities. The general perspective for the sex trade will gradually turn in positive way; the societal norms may adopt the Prostitution as profession and as a part of society.


However, Prostitution and legitimacy adds lots of negative aspects, but again it is impossible to stop prostitution, so it’s better to regularize it. Legalization can be contentious but legalization’s only alternative may be exploitation.


Right to live with dignity mentioned under Article 21 of the Constitution is the right given to every citizen which includes the sex workers as well. Hence, there exists a need to legalize prostitution in India and reformation of the existing laws should be considered.


References



-Sakshi Agrahari



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