Legalization of Prostitution in India
This Blog is written by Shanu Agarwal from Manav Rachna University, Faridabad. Edited by Prakriti Dadsena.
“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
Prostitution is legal in India. A number of related activities including soliciting , kerb crawling, owning or managing a brothel, prostitution in a hotel, child prostitution, pimping and pandering are illegal. There are, however, many brothels illegally operating in Indian cities including Mumbai, Delhi, Kolkata and Chennai. UNAIDS estimate there were 657,829 prostitutes in the country as of 2016.
Despite the fact, present society claims to be powerful, contemplated, and non-discriminatory and proclaims to accept certain things easier but the reality is something different. Sometimes while looking through the pages of newspapers, 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 a better tomorrow for everyone?
The answer to it will clearly be negative. Still, the problem is unpreventable and it becomes when we attempt to contradict 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 harsh truth to society. The form of existence might have changed but the perspective in which it is seen all the same.
The reality is that if any sex worker is found near any public place or even at a remote place away from the chaos and staring directly into the eyes of the 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 an exaggeration.
Prostitution in India is a serious social problem. Like other forms of violence committed by men against women, prostitution is a gender-specific phenomenon; most victims are girls and women, while the victimizers are constantly men.
Prostitution, the word itself talks about the situation of a woman. The word prostitution has derived from the Latin word ‘prostituere’ means to ‘expose publicly’. Prostitution means giving or receiving a 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 eroticism 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 beings especially children and women, in complete violation of their human rights and makes the object of the financial transaction using power and pressure, whether for the purpose of sex, labor, bondage, or slavery.
In today’s globalized world of human resources, the world has taken a consistent stand criticizing this gross human violation and has urged the 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.
The prostitutes should be made aware of 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 that would give them justice in case of any gross violation.
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. History can be broadly classified into three categories namely religious, ancient, and literature. 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 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 to 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 ones who 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 a 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 to that practiced by 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 wartime, 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 battlefield.
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 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 of his paintings.
Navratre, a nine-day festival devoted to Maa Durga, is one of 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 prostitute’s doorstep is called ‘punyamati’, meaning the pure soil, but they themselves are called sinister.
Even the Sculptures are not untouched by the existence of sex in society. The historical caves of Ajanta Ellora and the temples of Khajuraho, have statutes showing various sex positions.
It is 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 a society, not like today where they are treated no less than the garbage, humiliated, tortured and the worst part everyone turns a deaf ear 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 threat in 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 sex needs a different observation because even if it is considered a taboo in society the sex industry is flourishing, and the demands for buying sex are still high. It can be termed as a vital 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 go and buys sex, even women go to the prostitute to buy sex.
The people who buy sex are usually the one who always quotes and term it as an evil against morality which is weakening the roots of the society. If prostitution is against decency, then what about the item numbers which are enjoyed by everyone publically without any indignity 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 into the following types:
Men buying sex from women: The studies show that there is a vast difference between the desire for sex in men and women. The desire of sex is divided into four stages, some women can control their desire at any stage, whereas a man 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 varies from man to man.
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 won’t marry them but due to the conflict from the society, they are unable to do so. This act could bring the worker out of 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 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 prefers the same sex for the act, for experience, and adventure.
Societies in which prostitution is legal to 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.
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.
Prostitution should be legalized because: –
1. Legalizing 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; the problem is observed in its severity in Asia and South America. By legalizing prostitution and taking strict measures to regulate it, we can ensure the 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-versa. 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 the closure of brothels in 1959, Queensland experienced a 149% increase in the rate of rape.
4. Removal of pimps and middlemen
The legalization 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 behavior and an increase in the wages of the sex workers.
5. Elimination of forced prostitution
Once decriminalized, 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 recognizing 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 behavior and significantly reduce the smuggling and slavery of women and children.
Prostitution in India is approximately an $8.4 billion industry. Legalizing 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 legalized and regulated, the government will save excess expenditure incurred on police, prison, etc. and this will facilitate the 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 to complain about the same and get it redressed.
Laws Related to Prostitution:
ITPA defines “prostitution” as sexual exploitation or abuse of a female for monetary purposes and a “prostitute” is the person who gains that commercial benefit. The Indian Penal Code of 1860 also deals with prostitution but it is limited to child prostitution. However, it attempts to combat activities such as kidnapping in general, kidnapping for the purpose of seduction and luring a person into sex, importing a girl of a foreign country for sex, etc.
In addition, Article 23(1) of the Constitution prohibits traffic in human beings and beggars and other similar forms of forced labour. Article 23(2) declares that any contravention of this provision shall be an offense punishable in accordance with the law.
It was stated in Raj Bahadur v. Legal Remembrancer, that
“Clause (2) however permits the State to impose compulsory services for public purposes provided that in making so it shall not make any discrimination on grounds only of religion, race, caste or class or any of them. ‘Traffic in human beings’ means selling and buying men and women like goods and includes immoral traffic in women and children for immoral” or other purposes.”
Legalization of Prostitution:
Prostitution is considered taboo in India and is not discussed openly and a topic frequently frowned upon. However, it poses a huge threat to the fabric of Indian society for its role in weakening the institution of marriage, sexually transmitted diseases, abduction of girl children, isolation of prostitutes from society, physical and mental trauma, etc. It is reported that there are about 38000 sex workers in Delhi. The situation in Mumbai is more depressing. Thus there arises an emergent need to control prostitution.
The abolition of prostitution is a mammoth task as it is an ancient practice and has existed too long. Though it has been described to be illegal, it is still continued. This could be due to a lack of enforcement of laws or due to the inability to restrict this practice. To combat this issue, the legalization of prostitution could be adopted since abolition appears to be a daydream.
Pros and Cons of Legalizing Prostitution:
If prostitution is legalized, the State will acquire the responsibility to manage brothels and it can fulfill this obligation by issuing a license to authorized persons. It shall also formulate guidelines regarding the age of prostitutes, a database on clientele, adequate remuneration, and medical facilities for the prostitutes. By this method, the prostitutes can acquire some rights such as the right to medical care, the right to education of their children, the right against exploitation and rape, etc. This method can facilitate the eradication of sex racquet operations, hidden and street prostitution, abuse of prostitutes, etc. There shall be protection houses established for those prostitutes who have lost their livelihood, or those who were forced into prostitution but do not want that lifestyle anymore. Also, the government can impart training and basic education to these prostitutes so that they find other means to earn money and sustain their livelihood.
On the flipside, the legalization of prostitution could be misinterpreted as the promulgation of prostitution. This could pave the way for easy money for prostitutes and could encourage more women to practice prostitution. There is a great possibility that this could be a revenue-generating industry for the Government. Thus, rules have to be stringent to regulate this industry so that it is not legitimized and that is the least the government can do to address this issue.
Thus, in light of the above points, we would like to sum up our issues with the following points. The criminalization of prostitution, including other things that surround sex work, is not the real solution. The 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 rates. Countries would also ensure a safe environment for their people because sex workers will be required to undergo medical tests and receive adequate medical care. More importantly, the legalization of prostitution would protect the rights of sex workers and give these people a chance to live the 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.