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INDIA ON PROSTITUTION; LEGALIZATION AND ITS CONSEQUENCES

DEFINITION

Prostitution may be defined as the practice of habitual or intermittent sexual union, more or less promiscuous, for mercenary inducement.” Prostitution as the world’s oldest profession has existed in the world from time immemorial, in an attempt to regulate and control sexual relationships within the institutions of marriage and family. But it continued to exist without any formal recognition because with that, comes a train of personal and social disorganization of the individuals and their primary institutions of socialization. 

CAUSES OF PROSTITUTION

The reasons behind Prostitution can range from vested interests in its financial success to a desire to escape the monotony of monogamy, from an escape from the social stigmas associated with the sex to ignorance of the issue that results in being coerced into the trade against one’s will, but they tend to vary depending on the gender. Prostitution brings with itself, an inherent stigma and boycott, mostly towards women, which accelerates gender discrimination and ignores a woman’s bio-psychological demand.

STATUS OF INDIAN LAWS REGARDING PROSTITUTION 

Indian Penal Code does not penalise prostitution in its broader sense but certain activities related to the trade, are considered punishable: 

  • Soliciting services for prostitution in public places
  • Carrying out prostitution activities in hotels
  • Being the owner of a brothel
  • Pimping

 Prostitution is defined by the Immoral Traffic (Prevention) Act of 1956 (ITPA) as the sexual exploitation or abuse of a female for financial advantage, and a prostitute is the one who benefits commercially from it. According to this Act, prostitutes are permitted to start their business in secret but not do it in public.

The Immoral Traffic (Prevention) Act 1986 updates the original law. To make the Trafficking convention a reality, prostitutes who are caught soliciting business or enticing strangers will be jailed. Call girls disclosing their phone numbers; customers engaging in sex with a sex worker within 200 yards of a public location; pimps, and other individuals who depend on a prostitute’s revenue; would all be susceptible to fines and/or jail time. The State of Uttar Pradesh v. Kaushalya questioned the validity of the ITPA.

CRITICISM OF THE INDIAN LEGISLATION

Several SITA regulations discriminated against the victims themselves and penalised the victims rather than the offenders, which is against the agreements against human trafficking. Prostitution victims are not permitted to be penalised in any way under the trafficking treaties. A woman can be sentenced to up to a year in jail under a discriminating statute, while a middleman or pimp can simply receive a three-month sentence for the same offence. There are no legal protections or controls for sex workers provided by the legislation.

A proposal to alter the ITPA by deleting the clauses that punish prostitution via client solicitation was proposed in 2006. This suggestion suggests tougher penalties and higher fines. In Budhadev Karmaskar v. State of West Bengal, it was emphasized that sex workers have issues and should be handled with respect.

Human trafficking is addressed in IPC Sections 366-A366-B372, and 373, which impose severe penalties on offenders. When brothel proprietors, employees, or clients have sex with juveniles or women who are imprisoned in the brothels against their will, they are subject to the punishment(s), including the rape of a brothel inmate.

Sex is a huge taboo in our culture, and the demand and supply of sex in a controlled manner is something to be despised, resulting in prostitution being considered as something immoral and the sex workers being seen as dirty. The present sex-related social standards and people’s adherence to and benefit from them refrain people from accepting the reality of sexual violence. The attempt to criminalize prostitution-related behaviours shows how uncomfortable the law is in dealing with the true problem and is only making flimsy, half-hearted changes to address it. Nevertheless, the reality remains that performing sex acts while taking safety precautions and abiding by the law does not cause harm to anyone.

STATUS OF COUNTRIES WITH PROSTITUTION LAWS

In China, sex work is governed by criminal as well as administrative law, which prohibits organising, forcing, or inducing prostitution under Penalties for Administration of Public Security 2005 (Article 66) of China.

In Croatia, there are majorly two types of offences: permitting a person to participate in prostitution on one’s property or encouraging or assisting a person to engage in prostitution (under Article 7), and taking part in or succumbing to prostitution (under Article 12) under the law of Misdemeanors against Public Peace and Order Act was passed in 1977.

Depending on the state, prostitution is either decriminalize, legally controlled, or illegal in Australia. All of the various prostitution laws in Australia were summarised in a report written by the Coalition against Trafficking in Women Australia.

In Canada, purchasing sex is now banned with the passage of House Government Bill C-36 in 2014. Selling sex is still seen as lawful in Canada.

The Indonesian Penal Code makes it unlawful to trade in women (Article 297), benefit from others’ obscenity (Article 296), and live off the earnings of a female sex worker (Article 298). (506 Article).

 The Prostitution Reform Act of 2003 in New Zealand overturned previous legislation that forbade the establishment of brothels, escort services, and solicitation in favour of a patchwork of regulations and criminal penalties intended to cut down on hazardous sex and the participation of children, immigrants, and non-consenting individuals. 

LEGALIZATION OF PROSTITUTION

The legal status of prostitution in India has been the subject of much discussion. As there is little prospect of it being outlawed, it is thought that regulation is the best course of action.

Several nations, including CanadaFranceGermanyDenmarkWales, and others have regulated and made prostitution legal. In reality, the occupation is both legal and taxed in Germany, where brothels are permitted to advertise and make employment offers via HR firms. To safeguard prostitutes, Germany approved new laws in 2016 that mandate permission for all prostitution trades as well as a prostitute registration certificate.

This type of system, where the sex industry is controlled and the protections of sex workers are taken into account, tends to cause less harm to the sex workers, and stronger law enforcement secures the system from abuse and exploitation. In addition to being at risk for deadly STDs like HIV and AIDS, these sex workers frequently experience police violence, a decline in pay, harassment, etc. The Supreme Court itself advocated for the legalisation of prostitution in 2009.

IS LEGALIZATION A BOON?

A report in Queensland shows a 149% increase in the rate of rape after the shutting down of brothels. Hence legalization might help in reducing various forms of sexual violence and assault. 10 million children who are pushed into prostitution globally (with worse situations in Asia and South America) could be safeguarded against child prostitution.  Prostitution alone contributes to 8.4 billion dollars in India. Legalization results in taxation as an incentive for the government.

IS LEGALIZATION A BANE?

Legalizing prostitution has a conflicting impact on the prevalence of trafficking, with an uptick in trafficking as a result.

Women and girls constitute the majority of victims of international human trafficking. Most of them eventually become involved in prostitution where they are sexually exploited. Several authors contend that prostitution is the root of trafficking and that by outlawing it, trafficking would be reduced. “Normalizing the act of buying sex also debases men by assuming that they are entitled to access women’s bodies for sexual gratification. If paying for sex is normalized, then every young boy will learn that women and girls are commodities to be bought and sold” said Jimmy Carter, 39th President of the United States

“It is rarely the media-approved version of prostitution, a sexy and highly-paid adventure where business is conducted at upscale bars and in hotel rooms; though some sex workers do have that experience, most do not. For the vast majority of prostituted women, prostitution is the experience of being hunted, dominated, harassed, assaulted, and battered.” “Ultimately, viewing prostitution as a genuine ‘choice’ for women, such as secretarial work or waitressing, diminishes the possibility of getting women out and improving their lives,” said Katie Pedigo, JD, Executive Director of New Friends New Life

CONCLUSION

It would be foolish to turn a blind eye to it and act as though the system and its defects don’t exist in a culture where prostitution has been a long-standing profession and is still thriving as a business. Our nation’s glaring reality of the sex trade may be addressed by recognising it as a legitimate profession so that sex workers live better lives with greater pay, health security, and protection, and societal ills like child prostitution, and rape are eradicated. The sex trade is an evident reality of the world, and legitimising it in a better way will only cater to the betterment of society.

Author(s) Name: Kasturi Bhowmick (University of Calcutta)