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Published : October 05, 2017 | Author : MD SAHABUDDIN MONDAL
Category : Miscellaneous | Total Views : 593 | Rating :

Final year student of MAB Institute of Juridical Science.

Legalization of Prostitution in India: Need of the hour

“Every country has made the laws to regulate prostitution so that it might remain within its legal limits and without unduly violating upon the institutions of marriage and family."
–Law Commission Report of India

Despite of the fact present society claims to be powerful, contemplated, and non-discriminatory and affirm to accept certain things easily but the reality is something different. Sometimes while looking through the pages of newspaper, one feels satisfied because we feel that the civilization has changed, the people and the world around us have changed. Yes, it is true and a lot has changed. But it leads to another thought that whether the world is moving towards the better tomorrow for everyone?

The answer to it will clearly be negative. Still the problem is unavoidable and it becomes graver when we attempt to deny it. One such problem is prostitution. Prostitution is a reality and the chance of dispensing is practically nil. Its form of existence might have changed but it still remains a bitter truth to the society. The form of existence might have changed but the perspective and vision which it is seen all the same.

The reality is that if any sex worker is found nearby a public place or even at a remote place away from the chaos and staring directly into the eyes of public it means that she is giving you a welcome smile and a slight response. This is the well-known picture of prostitutes in India. Prostitution is commonly known as “the oldest profession" which is unfortunately far from exaggeration.

Prostitution in India is a serious social problem widespread and its solution had been rendered difficult but ever existing issues. Like other forms of violence committed by men against women, prostitution is a gender specific phenomenon; the enormous majority of victims are girls and women, while the perpetrators are constantly men.

Prostitution, the word itself talks about thesituation of a woman. The word prostitution has derived from the Latin word ‘prostituere’ means to ‘expose publically’. Prostitution means giving or receiving body for sexual activity for hire but excludes sexual activity between spouses. Performing for hire or offering or consenting to perform for hire when there is an exchange of value, any of the acts like sexual intercourse or other bodily contact stimulation of the genitals of any person with the intent to satisfy the sexual desires of the offender. It is the common lewdness of a woman for gain.

Moreover, due to such an extensive amount of stealthy prostitution at every level it turns into an arduous task to find out an accurate and comprehensive picture. It is a business that exploits the vulnerability of human being especially children and women, in complete violation of their human rights and makes them object of financial transaction through the use of power and pressure, whether for the purpose of sex, labour , bondage or slavery.

In today’s globalized world of human resources the world has taken a consistent stand condemning this gross human resource violation and has exhorted government to take effective measures against it. This work basically tries to concentrate on the best approach to check the issue to legalize prostitution in India. Giving it a legal mandate will prompt a better and safe society for women. The point is to be understood from a different perspective.

The prostitutes should be made aware about their rights and interests, education, health, freedom to choose or deny to their regular medical check-ups, financial aid, compensation for injury and other benefits. They should also be given a platform who would give them justice in case of any gross violation.

In this paper we will be focusing mainly on the relation of prostitution and Indian history along with the psychology of the person buying or selling sex, the problems faced by the sex workers and how legalization of prostitution can help improve the scenario, and not forgetting that prostitution is not all about the female prostitutes but also the male counter-part, although less in number and not in a miserable condition as that of the former but as Article 14, of the Indian Constitution says, “The state shall not deny to any person equality before law or the equal protection of laws within the territory of India. " , while making laws for female sex workers we cannot eliminate the male sex work.

History of Prostitution

Everything which exists today has a history of its own. Some practices started in history and ended in history and some are followed even today. The history can be broadly classified into three categories namely religious, ancient and literature.

The religious history is all about the supreme power which we worship in the name of god, their sayings, teachings, habits and character.

Indra, the god of rains and also the king in gods, had beautiful dancers called Apsaras. They were the biggest assets of Indra's court; the Vedas do mention some of them, of which Urvasi and Menka are the most beautiful. Whenever his throne was in danger, he asked the Apsarasto seduce and distract his enemies with their beauty and dance. At times they lived together without any marriage ceremony. If we look closely, these Apsaras are the one which are called prostitutes in today’s world. The Apsaras were among the courtesans and highly respected and even today their names are taken with due respect. Not just the Vedas but also the Bible has the mention of prostitute, where Jesus Christ welcomes a woman in his kingdom knowing that she is a prostitute.

Nothing has changed but our attitude which has made the prostitutes suffers. If we worship God and follow their sayings, then why do we have such a different approach for prostitution and prostitute, from that of our Gods?

Prostitutes were even common in ancient times, from the Guptas till Aurangzeb. The practice was similar as that practiced by the Indra. The prostitutes were asked to sing and dance in the courtroom to entertain the courtesans and at times they held important positions as well. The king and other courtesans used to spend time with them to release their stress and at war time they went along with the troop to provide sexual services to the soldiers to boost them up and keep them motivated so that they give their best on the battle field.

The literature is not untouched from the practice, in earlier days we had codified the practice of prostitution. For instance the well-known work of Vatsyayan’s Kama sutra, all about human sexual behavior. A text defining the physical attraction, seduction, sex, sex positions and other aspects of sex in detail. We have Chanakya’s Arthashasatra, establishing a well-organized sector for buying and selling of sex, mentioning the minimum wages and the taxes to be paid by the prostitutes. Ensuring the protection of the sex workers and the dignity of women. And the mention of prostitutes and prostitution can also be found in Kalidas’s Abhigyan Shakuntalam and Meghadhoot. One will be amazed to know that the goddess, we worship today, got her face through the paintings of Raja Ravi Varma, when he portrayed a prostitute as goddess Saraswati and Lakshmi in one his paintings.

Navratre, a nine day festival devoted to Maa Durga, is one the most important festival in India. During the festival, the people worship the deity of MaaDurga, made of eighteen soils, taken from eighteen different places, one of which is from a prostitute’s door. The irony is that the soil from a prostitutes door step is called ‘punyamati’, meaning the pure soil, but they themselves are called sinister.
Even the Sculptures are not untouched from the existence of sex in the society. The historical caves of Ajanta Ellora and the temples of Khajuraho, have statutes showing various sex positions.
It as if our ancestors were more modern than us, earlier sex was a piece of art not like today, a taboo. The sex workers were dually respected and lived with dignity in the society not like today where they are treated no less than the garbage, humiliated, tortured and the worst part everyone turns a deaf ears towards their cries. Are we moving towards modernization or orthodization?

Psychology of Person Buying and Selling Sex

Before legalizing prostitution we need to understand why we need it, why not eradicate it altogether, why not criminalize the act if it is creating such a menace in the society. Arguing that it was practiced by our ancestors does not justify it to be legalized, as every practice cannot be legalized, for example the practice of ‘sati’, burning the widow alive on the pyre of her husband, abolished by Raja Ram Mohan Roy in 1829.

As everything cannot be treated equally and cannot be viewed from the same angle and perception as the other, the practice of buying and selling of sex needs a different perception because even if it is considered a taboo in the society the sex industry is flourishing, and the demands for buying sex are still high. It can be termed as a necessary evil.

The reason as to why a person buys sex, what pleasure does the person gets from sex, and the most important of all, why a person sells sex needs to be answered. In the above statement, the term person is deliberately used instead of men/women, as we cannot forget that it is not only a female who sells sex, we also have male prostitutes in the industry, and it isn’t that only men goes and buys sex, even women goes to the prostitute to buy sex.

The people who buy sex are usually the one who always cites and term it as an evil against morality which is weakening the roots of the society. If prostitution is against morality then what about the item numbers which are enjoyed by everyone publically without any shame or hesitation. If a child says something about sex, immediately he/she is made to shut the mouth, but if the same child sings or dances on an item number, the talents are appreciated.

The sex buyers can be categorized in following types:
Men buying sex from women: The studies show that there is a vast difference between the desire of sex in men and women. The desire of sex is divided into four stages, a women can control her desire at any stage, whereas a men cannot control himself after the second stage. Thus, the income of men does not affect how frequently he visits the prostitute and how much does he spend. Although the desire vary from men to men.

1 Types of male buyers
1.1 Occasional buyer, as the name suggests they are not the daily customer, but do not hesitates when given an opportunity, like in a party or around a festive season.
1.2 Adventurous buyers, they are regular buyers but visit different prostitutes in different markets, at different locations and of different nationalities.
1.3 Regular buyers, they are the most loyal customers as they visit the same sex worker again and again over a large period of time.
1.4 Sugar Daddies, they do not only buy sex but the sex worker also. They bear all their expenses so that the worker does not provide services to any other buyer.

The regular buyers keep the flesh trade alive but the regular visits bring a sense of belongingness towards the sex worker, they even fall in love with them and want marry them but due to the resistance from the society they are unable to do so. This act of them could bring the worker out from the sex industry.

Men buying sex from men: The buyer or the seller cannot be termed as gay or bisexual but as heterosexual. This is something more about experiencing sex with the same sex.
Women buying sex from men: The main reason behind women buying sex is the incapability of their husband in the act, the busy schedule of their partner or the long distance relationship. The women buying sex are usually from a well-family and could afford such services easily. The idea of exploitation of only women in the intercourse is totally vague as even the male prostitutes are exploited by the female buyers.
Women buy sex from women: The woman buyer like the male buyer prefer same sex for the act, for experience and adventure.

National scenario
Societies in which prostitution is legal have concluded that it is best to regulate a profession, which will never disappear. India should learn from these societies, rather than pretend that prostitution doesn't exist here. Especially when figures reveal that the business of sex-workers takes a dip when it is vacation time for colleges. There are over 2.5 million prostitutes in India and a quarter of them are minors! Child prostitution is one of the issues facing our country today. The increasing incidence of the HIV virus is on the verge of a threshold, which, if crossed, could see the epidemic affecting, perhaps, everyone in the world. This profession makes the sex-worker the most vulnerable.

Global scenario
Globally prostitution is legal in Canada, France, Wales, Denmark, Holland, most of South America, including Mexico (often in special zones), Israel, Australia, and many other countries. It's either legal or tolerated in most of Asia; Australia has a sex-service company whose stocks are traded on the stock exchange.

Laws Governing
There are many laws in India which govern the prostitution in India they are:

The Immoral Traffic (Suppression) Act-This act was passed in 1956. It is also referred to as SITA. This law states that prostitutes are allowed to ply their trade in private but they cannot carry out their business in the open .As per the laws, clients can be arrested if they indulge in any sexual activity in public. Even though exchange of sex for money is permissible on an individual capacity, a lady cannot do it in within a span of 200 yards of a public place. Sex workers are not within the ambit of normal labour laws. However, they have all the rights that would be enjoyed by a citizen and are entitled to be rescued and rehabilitated if they want to do so.
Immoral Traffic (Prevention) Act – ITPA-The Immoral Traffic (Prevention) Act was passed in 1986 and is an amendment of the SITA. As per this law prostitutes will be arrested for soliciting their services or seducing others. In the same vein, call girls are not allowed to make their phone numbers public. They can be imprisoned for a maximum of 6 months along with financial penalties if they are caught doing so.Clients who consort with prostitutes or indulge in such activities within 200 yards of a designated area can be imprisoned for a maximum of 3 months and they need to pay fines for the same as well. In case, someone indulges in such activities with someone under 18 years old, he or she can be jailed between 7-10 years. Pimps and similar people who live from the income made by a prostitute are guilty as well. For that matter, if an adult man lives with a prostitute he can be regarded as guilty. If he cannot prove himself to be innocent, he can face imprisonment between 2-4 years.

Prostitution should be legalised because:-

1.Legalising will protect minors.
According to suggestions of various researches carried out globally, it can be estimated that as many as 10 million children are engaged in prostitution worldwide. Child prostitution exists in all the countries, irrespective of their level of economic development; theproblem is observed in its severity in Asia and South America. By legalising prostitution and taking strict measures to regulate it, we can ensure removal of minors from the profession, thus protecting their rights and confirming their safety.

2. Regular medical checkups will reduce the spread of STDs.
Regulation of prostitution would include conducting regular medical checks ups of sex workers and provision of adequate birth control tools, which will reduce the risk of sexual diseases being transmitted from workers to customers and vice-verse. It will promote cleaner working conditions and the process will thus become healthier and safer, which will be beneficial to both parties involved, as well as the society.
In 1998, a study carried out in Australia highlighted the fact that the prevalence of sexually transmitted bacterial infections was 80 times greater in 63 illegal street prostitutes as compared to 753 prostitutes working in legal brothels.

In the brothels of Singapore, every customer is provided with condoms as well as the facility to shower before and after the session.The prostitutes are required to maintain health cards which should be up-to-date. When a prostitute is tested positive with any sexually transmitted disease or infection, she is immediately required to stop providing services. The brothels have also implemented various measures to ensure the security of both parties.

3.It will reduce the number of rapes and other sexual assaults.
With a legal and easier alternative available, people who wish to satisfy their sexual urges will resort to prostitutes rather than committing heinous crimes such as rapes for the same purpose. With closure of brothels in 1959, Queensland experienced a 149% increase in rate of rape.

4.Removal of pimps and middlemen.
Legalisation of prostitution will lead to a systematic upgradation of the industry. The service of pimps and middlemen will no longer be required, leading to a decrease in criminal behaviour and an increase in the wages of the sex workers.

5. Elimination of forced prostitution.
Once decriminalised, the entire industry will come under the sphere of legal control which will enable law upholders to detect instances of forced prostitution and help victims of the same. Not all ‘johns’ who visit sex workers hold criminal records or have the tendency to assault them, most of them are normal men with no criminal record and they wouldn’t want to indulge in the act with someone who they know or suspect isn’t willing to do it. As far as the question of recognising the ones who are forced into the flesh trade and those who aren’t goes, the current hapless system makes it impossible to determine willingness. A legal system in place will check criminal behaviour and significantly reduce the smuggling and slavery of women and children.

6. Taxation.
Prostitution in India is approximately an $8.4 billion industry. Legalising it and taxing the proceeds like any other business will provide an incentive for the government, and facilitate it in providing regular medical check-ups, and protecting the rights of people engaged in the profession.

7. Right to Use Body according to free will.
Every person has the right to use his or her body according to their will. Portraying it as morally wrong does now depict anything but a skewed value system. If a person finds prostitution wrong, it is perfectly acceptable for them to stay away from it. Nobody has the right to force a person to adhere to somebody else’s moral standards. It can be said that prostitution is not oppressive, it is how it is practiced by some people that makes it oppressive.

8.Police can do better work then.
If prostitution is legalised and regulated, government will save excess expenditure incurred on police, prison etc. and this will facilitate redirection of police resources to bigger problems.

9. No downsides.
Alcohol, drugs, weed etc are prohibited because they impose serious threats to the health of a person. But unlike them, prostitution does not harm a person either physically or mentally, which is why placing a prohibition on it does not stand justified.

10. Rights of workers will be protected.
Regulated prostitution protects the rights of sex workers. When a sex worker is sexually assaulted or not paid the agreed dues, he/she will have the right complain about the same and get it redressed.

Thus, in the light of the above points, we would like to sum up our issues with the following points. Criminalization of prostitution, including other things that surround sex work is not the real solution. Sex trade is here to stay, and by recognizing it as a legitimate form of work, all involved parties can receive guaranteed benefits. It would effectively lessen the burden on the government in terms of executing anti-prostitution laws and paying additional law enforcement. In addition, countries would increase their revenue through taxes, foreign exchange, and increased employment rate. Countries would also ensure safety environment for their people because sex workers will be required to undergo medical tests and receive adequate medical care. More importantly, legalization of prostitution would protect the rights of sex workers and give these people a chance to live a normal life they deserve. But of course, it would only be a lot better if the government will legalize prostitution because it will give the sex workers rights and protection on their job.

1.RupamLalHowlder ,Uniform Civil Code Towards Gender Justice,Retrieved from:http://www.legalservicesindia.com/article/article/uniform-civil-code-towards-gender-justice-1832-1.html
2. Vikram Singh, Gender and Caste: Socio Cultural Context in India; Retrieved from:https://www.researchgate.net/publication/307966806_Gender_and_Caste_Socio-cultural_Context_in_India
3. Dharmendra, (2009) Legalization of Prostitution in India; Retrieved from:http://www.academia.edu/613653/Legalization_of_Prostitution_in_India
4. Anuj Kumar, Legalization of Prostitution in India: Need of the Hour; Retrieved from:http://www.legaldesire.com/legalization-of-prostitution-in-india-need-of-the-hour/
5. ShashankShekhar, Prostitution in India Legal and Social Ramifications; Retrieved from:https://www.scribd.com/document/62739533
6.Sithanan, Immoral Traffic: Prostitution in Indi
7. SeeSukumariBhattacharji, Prostitution in Ancient India, 15 (2) SOCIALSCIENTIST 32 (1987).
8. SeeMoni Nag, Anthoropological Perspectives on Prostitution and AIDS in India, 36 (42) Economic and Political Weekly 4025, 4027 (2001)
9. Indian red light. wordpress.com
10. Gaurav Jain v. Union of India -AIR 1997 SC 3021; 1997 (2) ALD (Cri) 199; 1998 (3)
11. Article 23, Constitution of India, 1950
12. Article 39(a), Constitution of India, 1950
13. Article 39(e), Constitution of India, 1950
14. Article 46, Constitution of India, 1950
15.Manoj wad, The Legal Framework of Prostitution in India,(New Delhi: SAGE Publishers, 2008)
16. The Journal of Sex Research,Volume 38, 2001 -Issue 2
17.https://www.google.co.in/search?q=JOURNALOF PROSTITUTION&ie=utf-8&oe=utf-8&gws_rd=cr&dcr=0&ei=KfzUWczJJcT3vASwubLoDw
18.https://www.researchgate.net/profile/Vikram_Singh99/publication/307966806_Gender_and_Caste_Sociocultural_Context_in_India/links/57d41f2c08ae601b39a8a501.pdf?origin publication details

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