Author: Ravina Raj, I year of B.A.,LL.B. from NMIMS, Hyderabad.
Slavery still exists, but now it only applies to women and its name is prostitution.
The source of the English word "prostitution" is the Latin verb "prostituere," which meaning "to expose openly." Prostitution is defined as the sale of one's sexual services for a fee. When it comes to violence against women, men are more likely to target women than women, which makes prostitution a gender-specific issue. It would be naive, however, to assert that men are immune to sexual exploitation and violence. When we talk about the issues with India's prostitution business, we often overlook the plight of transgender persons. By exploiting the socially and economically poor, prostitution produces billions of dollars around the world.
In India, prostitution has been conducted for millennia. In reality, sex workers are attributed to as apsaras in various Hindu mythical passages. The devdasi system existed throughout the pre-colonial period, and it was widespread practise with hindus who start donating their female kid as only a mark of their devotion to god. Devdasi literally means "devoted to the divine," meaning that they were betrothed to God and were not required to marry mortals.
They were sexually liberated ladies who succeeded in a range of creative areas, including dance and music. Colonialism, on the other hand, brought with it a system of exploitation and tyranny. The British began to reflect their own cultural restraints on these women, changing the basics of sexual freedom, womanhood, artistry, and culture into devotion, bhakti, and etc, and all these women began to be abused by temple priests when aristocracy faded and colonialism ended. As a consequence, they are at risk of sexual exploitation and poverty. In India, this is one of the earliest types of prostitution.
A lot has changed for women who worked in palaces, harems, and brothels since the Delhi sultanate empire collapsed. Poverty is a major contributor to prostitution. Being economically independent as a woman in patriarchal India is challenging, especially if she has been denied an education, freedom, and the opportunity to use her gifts. So, prostitution is the only source of cash for them.
In India, women are more vulnerable to sexual abuse because of the traditional society's view of them as nothing more than an object or a resource to be used. As a result of the caste system in India, many women are forced into prostitution and left to rot in degraded society. Additionally, prostitution might be caused by a lack of sex education or kidnapped.
The practice of sex trade
In order to make a case for legalising prostitution, one must first acknowledge its existence and necessity in society. This is especially true in India, where talking about sex is still a major taboo. Prostitution is regularly attacked as morally repugnant and should be outlawed by a variety of groups and individuals. Even though most people think prostitution is wrong, the sex industry, like all others, depends on demand. We just don't see it. If demand increases, the business succeeds in commercialising its products.
Red light districts, private massage parlours, and the internet have all become places where people can buy sex for a fee. As a result of criminalising the practise, the real victims of sexual exploitation would be denied justice, opening the door for more oppression and violence against the industry.
Indian laws related to prostitution
To be sure, prostitution as a whole is not prohibited by India's penal code, but some behaviours that constitute a large component of prostitution are.
i. Prostitution soliciting in public places.
ii. Hotel prostitution is a sort of prostitution.
iii. Thirdly, owning a brothel and running it.
v. Hire a sex worker to help you prostitution.
vi. Arranging a sexual encounter with a client
According to the 1956 Immoral Traffic (Prevention) Act, a prostitute is someone who profited from the sexual abuse or exploitation of a female for financial gain. A bill known as SITA was signed into law by the U.S. Congress in 1956. According to this guideline prostitutes are authorised to begin their careers in secret but are not allowed to do their business in public. A sex encounter in public may result in a client's arrest, according to the legislation.
Within 200 yards of a public place, a woman cannot engage in commercial sex. It is illegal for sex workers in India to be regulated by the country's existing labour laws, but they are entitled to the same rights as any other Indian citizen.
The original law was amended in 1986 by the Immoral Traffic (Prevention) Statute. If prostitutes are spotted advertising or luring others, they will be penalised under this law. In addition, call girls are not allowed to reveal their personal information to the public. If they are detected, they might be sentenced to six months in prison and fined.
Sex workers who engage in sexual activity with clients within 200 yards of a public place can be jailed for up to three months and fined up to $1,000. Those found in sexual conduct with a minor face a prison sentence of up to ten years in prison. Also at fault are pimps and those who make a living off the work of prostitutes. An adult man may be found guilty of prostitution if he lives with a prostitute.
In the event that he fails to prove his innocence, he will be sentenced to between two and four years in prison. According to the preamble of SITA (1956), which was later changed to ITPA (1986), the purpose of the legislation was to pay attention to the Trafficking Convention. in accordance with an international treaty signed in New York on the 9th of May 1950, Parliament adopted this legislation as An Act to legislate to prohibit the sale of immoral goods and services to women and girls.
Constitutional questions were raised about ITPA in the landmark case, "The State of Uttar Pradesh versus Kaushaliya." This case was a test case for the ITPA. A few of the prostitutes were asked to quit their positions in Kanpur in order to maintain the city's decorum, according to the evidence.
India's High Court of Allahabad found that Section 20 of the Act violates Article 14 of the Indian Constitution as well as Article 19(1) subclauses (d) and (e). A legal distinction could be drawn between a prostitute and a disruptive individual, hence the Act was judged to be valid.
The objective of the Act, which is to promote social order and decency, is also consistent with the Act. It is the goal of the act to preserve the public's morality and decorum, as well as to rescue fallen women and girls and provide them with the opportunity to reintegrate into society. As a result of the law, the central government is empowered to establish a special court for the adjudication of cases involving prostitution.
Criticism of this act
Many SITA policies discriminated against trafficking victims and penalised victims rather than perpetrators, contrary to the trafficking treaties. Trafficking conventions do not allow for any penalties to be imposed on prostitution victims. According to Article 1, anybody who: (1) obtains, entices, or leads away another individual for the purpose of prostitution, even with that individual's consent; or (2) exploits a person's prostitution to satisfy the needs of another, even with that individual's consent, is subject to penalties.
Under Article 2 of the Convention, the Parties to the Convention further
Adopt a policy of criminalising anyone who: runs or controls a brothel; knowingly funds or participates in the funding of a brothel; purposefully lets or leases a building or another site, or any portion of it, for the prostitution of other people's bodies.
A prostitute victim cannot be considered a criminal in any of these statutes, which are established in the convention. True criminals who are involved in recruiting, enticing or trafficking someone for prostitution were the target of the legislation. The goal of the original international convention was to stop the trafficking of people into prostitution by outlawing and discouraging all types of sexual exploitation.
Prostitution and commercial sex work can still be done without the permission or freedom of the individual. As far as prostitution is concerned, the ITPA in India neither prohibits nor criminalises its practise in its totality. However, despite this, there are numerous policies that discriminate against sex workers, and even punish them. SITA's most important features are outlined in the following sentences: Section 2(f) defines prostitution as the act of a female providing her body for sexual intercourse with a client in exchange for monetary gain.
This definition does not include men or transgender people. The maximum term for a woman who engages in prostitution within 200 yards of an open area is now three months in prison. Women can be imprisoned for up to a year for the same crime, but pimps can only be imprisoned up to three months. This is a discriminatory sentence clause in the statute. The law's primary flaw is that it focuses solely on street prostitution, neglecting to address other forms of prostitution. On top of that, the "middlemen" in the industry get off easy. There are no legal protections for sex workers in closed-door prostitution, which is implied to be legal in the statute.
Fundamentally, this restriction violates society's decorum since it views prostitution as wicked and repulsive. With that said, it is nevertheless true that engaging in sexual activity when it is done in accordance with applicable laws and precautions is not harmful.
Due to the widespread taboo around sexual activity in our society, it is considered sinful and deplorable to engage in prostitution or hire a sex worker.
The Indian culture is unable to accept the reality of sexual assault occurring as a result of existing sex norms in the community and those who believe and continue to live on these standards of behaviour. There's little doubt that the law's inability to face the underlying issue is demonstrated by its inability to punish those who engage in sexually motivated behaviour, which leads to prostitution.
A Proposed Amendment in 2006
The Immoral Traffic (Prevention) Act was reformed in 2006. The elements that make prospecting clients a criminal have been removed from the modified draught. In this approach, the penalties will be tougher and the fines greater. As a result of this proposal, a person who goes to a brothel for the intention of sexually exploiting a victim of human trafficking will face at least three months in prison or a fine in the amount of Rs. 20,000.
In order to combat human trafficking, the bill establishes federal and state authority. Anyone found guilty of human trafficking for the purpose of prostitution will be punished under the term "person trafficking."
Article 21 of the Constitution of India Personal freedom and safety are highlighted in this article. If a person is deprived of his or her life or liberty, it must be done in line with the law.
The case was Budhadev Karmaskar v. West Bengal. Sex workers are people who need to be treated with respect and dignity, according to the court ruling in this instance. No one has the right to physically harm them in any way. Also, the verdict exposed the hardships and misery endured by sex workers. The Court believes that these women are not forced to prostitute themselves out of choice or pleasure, but rather because of economic and societal pressure.
Federal and state governments were instructed by the court to enrol sex workers in vocational and technical courses and to create rehabilitation centres in order to improve their job prospects. Immoral Traffic Prevention Act Section 21 requires the State Government to establish and operate protective homes, which are regulated and licenced by them. Protective housing should be investigated by a competent authority. Only a limited number of these permits were available and they could not be transferred. According to Section 23, the state has the ability to enact auxiliary legislation on matters such as the licencing, management, and maintenance of these residences.
Code of Criminal Procedure (CPC) of India
An important part of IPC's anti-trafficking provisions deals with the trafficking of women and girls into prostitution under duress, which is expressly forbidden. Prostitution or illicit intercourse with a minor is a crime punishable by up to ten years in prison under the IPC if it is committed by anyone who buys, sells, or acquires the possession of a minor, or who knows that such a minor is likely to be employed or used for such purposes at any time in the future.
A person who brings a young woman under the age of twenty-one into India with the intent or knowledge that she will be forced or seduced to engage in sexual relations with another individual is subject to up to ten years in prison and a fine under the Indian Penal Code, which defines cross-border prostitution trafficking.
For the IPC's rape provision, a brothel prisoner is likewise covered. According to the International Penal Code, rape is defined as an act of sexual intercourse with a woman who does not want it, or with her consent but under threat or fear that she would be harmed, or with her consent if she is under the age of 16.
The minimum term for rape is seven years in prison, according to the IPC. There are new regulations in place for brothel owners and staff members, as well as for those customers who have sex with children or women who are being held in brothels.
The following are the types of crime associated with prostitution and human trafficking
i. Procuration of Minor girls (section 366-A IPC).
ii. Importation of Girls (Section-366-B IPC).
iii. Selling of Girls for prostitution (Section-372 IPC).
iv. Buying of Girls for Prostitution (Section-373 IPC).
v. Immoral Trafficking (Prevention) Act 1956.
vi. Child Marriage Retrain Act, 1929.
The fundamental issue with these rules is that the public perceives prostitution as immoral and disgusting, as well as a threat to society's decorum. However, the reality remains that indulging in sex work with safeguards and laws does not do any harm to anybody. Furthermore, prostitution is viewed as immoral, and sex workers are regarded as disgusting, merely because sex is a big taboo in our culture, and the producers and consumers of sex in a regulated manner is something to be despised.
The Indian culture is unable to comprehend the reality of sexual assault occurring as a result of existing sex norms in the society and individuals believing and continuing to survive on these standards. The fact that the act attempts to penalise behaviours that lead to prostitution reflects the law's uneasiness in confronting the true issue and makes transitory and half-hearted modifications in tackling the issue.
Another significant feature of Indian prostitution laws that goes unnoticed is that these laws fail to recognise that it is not just women who are victims of sexual abuse, but also males and transgender persons who are victims of sexual violence, exploitation, and oppression
Legalisation of prostitution
Prostitute legalisation has been hotly debated in India. Controlling prostitution is necessary because the chances of its elimination are small. It is allowed in Canada, the United States and other countries including France and Germany, as well as in Denmark and Wales to engage in prostitution.
Bodineries are allowed to use HR agencies to market and make job offers in Germany because the industry is not only taxed but also regulated. As of 2016, all prostitution in Germany required a permit and a certificate of registration for prostitutes, as part of new legislation designed to protect these women.
When the profession is regulated and the needs of sex workers are taken into account, the harm to these workers is reduced, and the system as a whole is better protected against abuse and exploitation. In addition to the dangers of HIV AIDS and other sexually transmitted diseases, these workers often suffer police aggression, a decrease in pay, harassment, and other difficulties. Prostitution was proposed to be legalised by the Supreme Court in 2009.
Providing legal status to prostitutes has sparked much debate in India. Controlling prostitution is necessary because the chances of its elimination are small. Prostitution is regulated and legal in Canada, France, Germany, Denmark, and Wales.
It's legal and taxed in Germany, for example, and brothels are allowed to advertise and make job offers through human resources departments. In 2016, Germany also implemented new legislation to protect prostitutes, requiring a permit for all prostitution trades and a certificate of registration for prostitutes.
As a result of this form of system, which is more heavily regulated and takes into account the protections of sex workers, less harm is inflicted on sex workers, and better law enforcement protects the system from abuse and exploitative. In addition to the dangers of HIV AIDS and other sexually transmitted diseases, these workers suffer police assault, a loss in pay, harassment, and other difficulties. Prostitution was proposed to be legalised by the Supreme Court in 2009.
The following are some of the reasons why prostitution should be legalised
i. Legalizing prostitution protects children from being sexually victimised. The number of child prostitutes in the world is at around 10 million. Nearly every country has some form of child prostitution, although Asia and South America have the worst problems. Minors can be kept out of the system by enforcing rigorous industry regulations.
ii. There would be a significant reduction in the incidence of HIV/AIDS among sex workers with mandatory health screenings. Unplanned pregnancies can be avoided, as can other health hazards, with the use of effective birth control methods. In order to keep the workplace as clean and sanitary as possible, it is important to conduct regular health checks and impose strict restrictions. Both the sex industry and the general public would gain from making condoms readily available.
iii. Legalizing prostitution will bring the system up to date and enhance it. When middlemen and pimps are eliminated, sex workers can earn more while the unlawful and exploitative components are minimised.
iv. It will reduce sexual violence, rapes, and other forms of sexual assault because people will look for a legal and easier means to satisfy their sexual needs. In Queensland, for example, rape rates rose by 149% when brothels were shut down.
v. Forced prostitution must be abolished completely.
vi. The prostitute industry in India is estimated to be worth $8.4 billion dollars. The government will be compelled to legalise and tax the procedure as a form of incentive.
vii. Employee rights shall be protected. Workers in the sexual prostitution industry should have the same rights as everybody else, regardless of whether or not standard labour rules apply to them.
viii. Legalizing prostitution protects children from being sexually victimised. The number of child prostitutes in the world is at around 10 million. Nearly every country has some form of child prostitution, although Asia and South America have the worst problems. Minors can be kept out of the system by enforcing rigorous industry regulations.
ix. There would be a significant reduction in the incidence of HIV/AIDS among sex workers with mandatory health screenings. Unplanned pregnancies can be avoided, as can other health hazards, with the use of effective birth control methods. In order to keep the workplace as clean and sanitary as possible, it is important to conduct regular health checks and impose strict restrictions. Both the sex industry and the general public would gain from making condoms readily available.
x. Legalizing prostitution will bring the system up to date and enhance it. When middlemen and pimps are eliminated, sex workers can earn more while the unlawful and exploitative components are minimised.
xi. It will reduce sexual violence, rapes, and other forms of sexual assault because people will look for a legal and easier means to satisfy their sexual needs. In Queensland, for example, rape rates rose by 149% when brothels were shut down.
xii. Forced prostitution must be abolished completely.
xiii. The prostitute industry in India is estimated to be worth $8.4 billion dollars. The government will be compelled to legalise and tax the procedure as a form of incentive.
xiv. Employee rights shall be protected. Sex workers, even though they don't fall within the jurisdiction of traditional labour laws, deserve the same rights as any other citizen or worker.
In a culture where prostitution has been a long-standing profession and is still prospering as a business, it would be unwise to turn a blind eye to it and pretend the system and its problems do not exist. Decriminalizing sex work and making it legal will give a better life for sex workers by providing higher earnings, health security, and protection. Not only that, but as a society, it will be a progressive move that will remove many societal ills such as child prostitution, rape, and so on. Sex trade is a widely visible reality in our nation, and by identifying it as a legal business with certain standards and protections, all parties involved may gain. A more complete legislative framework, as well as the acceptance of all protective procedures, will only serve to benefit society.