Sunday, August 14, 2022

Prostitution: Should it be legalized in India?

It is a tyrannizing profession for women, as they are either actively or passively forced into it.

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By Dimple Kaushalya

Prostitution has been around in civilization even before the idea of marriage came into existence. Nowadays, it’s thought to be synonymous with exploitation and violence. Prostitution is taboo in Indian society and prostitutes are its unwanted section. They are the result of poverty, illiteracy and ignorance of society. It is a significant social problem widespread and its solution had been rendered difficult, like other forms of violence committed by men against women, it is a gender-specific phenomenon and the majority of its victims are girls and women, while the perpetrators are constantly men, who even exploit children for their sexual pleasure.

This research paper aims to find whether, it is possible to legalize commercial prostitution in India, while considering the constraints of various societal and legal frameworks in our country. It will discuss the pros and cons of the legalization of commercial prostitution, the rights of prostitutes and the need for the introduction of either new policy or change in current policy to be brought to make their life better. This research paper will adhere to the question, of whether it is possible to legalize commercial prostitution and will not study other issues such as customary prostitution, child prostitution, male sex work or transgender sex work.

In India, prostitution is not a new phenomenon. It has been here in every era from the time of the Vedas to the British rule.

There are statements in the Rig Veda that indicate that prostitution existed then. It is known from the Rig Veda that there were women who were common to several males.

Prostitution was also accepted in the Muslim Era though the treasury did not consider the practice to be a source of revenue. During Akbar’s reign, a separate quarter called shaitanpura was set aside for prostitutes. Prostitution flourished under royal patronage at this time.

Prostitution did not change much throughout the British time, and it was sustained with the support of Nawabs, Rajas, Zamindars, and others. When the Europeans arrived in India, the sex trade’s business centre shifted to the port districts, as they were perceived as new buyers for women’s flesh, increasing the number of prostitutes in the coastal region and the establishment of a huge number of brothels. To fulfill the sexual appetites of British soldiers, Lal-bazars or red-light districts were built in most of the temporary military housing quarters.

Prostitution in India today

It is a tyrannizing profession for women, as they are either actively or passively forced into it. This is because they were either sold or trafficked as child prostitutes by their families, and it could be because they choose sex work as a vocation to make a living due to necessity. These poor women are exploited and coerced into sex work in this way. Under the guise of marriage or work possibilities, these underprivileged women are either forcefully pushed or lured into sex work.

The sex industry in today’s India:-

  1. is worth Rs 40,000 crores per year,
  2. Around 30 percent of sex workers are minors,
  3. The exploiters earn around Rs 11,000 crores.
  4. India has over 10 million sex specialists, with 100,000 of them concentrated in Mumbai, which is today Asia’s massive sex industry.
  5. In sex exchange in India, there are between 3,00,000 to 5,00,000 young people, with Bangalore and five other major cities accounting for 80 percent of the country’s juveniles.

These findings are stunning, and they highlight the significance of a government-certified intervention to check this neglect.

Indian legal framework for sex workers

In India, activities such as solicitation or any other form of organized prostitution is held illegal. But to determine its rate is difficult as it is a profession that operates secretly. Even though operating a brothel is illegal in India, the government is yet to make little effort to determine them and smash them. But there operate certain laws that keep them under control.

There are several laws about prostitution entailed under the Constitution, Indian Penal Code, 1860 & Immoral Traffic (Prevention) Act, 1956.  According to the Constitution, apart from equality protections and other freedoms such as the right to life and personal liberty clauses, the Constitution protects the prohibition of human trafficking and forced labour, as well as the denial of individual trafficking and confined work.

The Constitution

Also as mentioned in Part IV  of the Constitution, the Directive Principles of State Policy require the State to ensure among other things, that every person irrespective of sex has an equal right to a sufficient means of subsistence[i] that workers’ health and strength are not exploited, and that no residents are compelled to engage in occupations that are unsuitable for their age and strength[ii],  promoting both educational and economic interests of poorer members of society while ensuring their safety from any kind of social injustice and exploitation [iii],  the imperative of developing respect for international law and treaty obligations [iv], the state’s commitment to increase living standards[v], and citizens’ repudiation of activities that are insulting to women’s dignity[vi]. The High Court of Andhra Pradesh has also confirmed that the State has these joint responsibilities and that citizens, including sex workers, have a similar entitlement[vii].

Indian Penal Code

The IPC’s Section 366 Clause (A)[viii] deals with the procuration of a minor girl for illegal sexual intercourse and the punishment for it. Clause (B) of the same law deals with bringing a girl from another nation into ours for any kind of sex work. In Fateh Chand v. State of Haryana[ix], a man was charged with procuring a minor girl for prostitution under Section 366. Sections 372[x] and 373[xi] of the Indian Penal Code criminalize selling or disposing of a minor girl with the intent to compel her into prostitution and as well as criminalize buying or employing a minor female forcefully for sex work.

The law is quiet on whether clients should be punished by brothel owners for inflicting bodily injury on a prostitute. It also does not require the use of condoms and does not include provisions for the healthcare of sex workers, resulting in the spread of several lethal diseases or unwanted pregnancies.

Immoral Traffic Prevention Act & problems with its implementation

In India, prostitution is not fully illegal as practicing the profession in private is allowed, and here the main problem with this law is encountered as it never addressed the condition of a sex-worker operating alone. These women face several harsh challenges such as:-

  • They are more exposed to exploitation at the hands of clients and police in comparison to other sex workers who are working together on a premise.
  • They are exposed to the most heinous forms of torture by clients, as evidenced in multiple interviews conducted by researchers and social workers with Indian prostitutes.
  • Neither does the provision have any measure to rehabilitate these women with their consent nor are they provided any compensation for their exploitation by their clients.
  • It does not even provide the facility for the rescued to connect with health services. 
  • There are no guidelines to supervise the investigation into trafficking. . 
  • They are not provided competent legal aid services.

Rather than outlawing prostitution per se, the flesh trade and the vice of woman trafficking are prohibited. ITPA had declared practicing prostitution in public places illegal under section 7 of  ITPA[xii] & all acts required for prostitution such as seducing or soliciting are held to be punishable under Section 8 of  ITPA[xiii]. Further, a sex worker is not allowed to exercise her job within 200 meters of a public area. The flesh trade and the vice of woman trafficking are prohibited. In contrast to other professions, sex workers are not afforded any protection under the law.

The main flaw in ITPA is that the law which is intended to protect sex workers from exploitation works exactly in the opposite direction by exempting the client, the ultimate exploiter, from legal action[xiv], and the legal sufferings are all faced by these prostitutes. The fact that the behaviour of both the Executive and the Judiciary has not changed explains why the legislation has had such a limited impact and reach. The ITPA’s inconsistent enforcement against prostituted women is attributable to several factors classified under three heads:-

  1. Corruption

The nexus between elected officials, law enforcement agencies, and brothel owners is the main flaw that ultimately obstructs the application of the Act’s requirements. Also, the officers in-charge are notoriously corrupt. Scrutinisation of the investigation by police under ITPA cases, as well as a closer examination of their corrupt activities, could result in a more desired outcome. The police must be made aware of this to achieve this goal. There is a need to expose and explode such collusion.

2. Complexity in the collection of sufficient proof

The difficulty of gathering sufficient evidence to establish an unequivocal conviction. According to some police personnel, there is a huge disparity between the number of crimes reported and the actual number of crimes committed (around 60 percent)[xv].

3. Inadequate corrective homes

The inadequacies of the reformative (corrective and rehabilitative) houses established under the Act. These facilities are overloaded and unable to handle the enormous number of people sentenced for prostitution under ITPA cases. Vocational courses and educational programmes with occupational training should be made mandatory in protective homes, counselling that aids in the redefining of inmates as surviving human beings must be provided; and subsidized hostels and care homes must be established to house women discharged from corrective homes. The goal of decriminalization is to hold brothel owners accountable instead of sex workers[xvi].

Moreover, the act seems more biased toward women prostitutes in comparison with male prostitutes. The act offers stricter punishment for women for soliciting as distinct from men. However, there is no logic behind this but with legislation like this, bias creeps into the law. The Act overtly treats women in prostitution as an offender rather than as a victim, which is seen to be contrary to its objectives itself.

Poor condition of corrective homes

Corrective homes in Indian have been established to rescue women in prostitution but, these themselves require several corrections before helping these women. Corrective homes are defined under Section 21 of Immoral Traffic (Prevention) Act, where the government holds power to detain a women in sex work against her will for certain period in the corrective home.

It should be noted that a lot of these women have infants and they are compelled to live away from them. All this happens when the Constitution provides its citizens the right to personal liberty[xvii].

In one such case where a woman was detained against her will, the Bombay High Court held that, although the fundamental rights do have some reasonable restrictions but the rights sustained under Part III are to be kept at a higher pedestal in comparison with other rights by general law. So, the court released the woman and said that as a major, it is her fundamental right to move freely & cannot be detained against her will[xviii].

Moreover, the poor condition of corrective homes was exposed in the Upendra Baxi and Lotika Sarkar v. State of Uttar Pradesh case, which is a public interest litigation. It was a letter by Upendra Baxi and Lotika Sarkar about the deplorable condition of Agra’s Protective home, which was published by The Indian Express, from where the Supreme Court converted the letter into a writ petition.  The letter stated that:-

the average strength of the Home varies between 100- 125 women. The building, a rented one, has two underground cellars about twelve feet by twelve feet. The rooms lack ventilation and drainage facilities. There is only one latrine with a flush. There is no bathroom and the kitchen is without wire gauze. The girls live like animals………..

The conditions of the protective homes in others places are similar or worst. It is reported that many inmates in Liluah protective home sleep under beds and floors because of lack of space and furniture. The Nepali girls who have been rescued from Bombay brothels have reported that the conditions in the protected homes are worst than that of the brothel.”[xix]

Also in another shocking incident, the in-charge of the home released 19 inmates after the Supreme Court started to look into a similar case. It was revealed that all of these 19 inmates were found to have gone insane. Their hasty release by the in-charge of the corrective home was suspected to be to cover up the evils visited upon these women at the home.

Such are the condition of corrective homes in India for women, where instead of feeling secure and gaining mental peace, these women are subjected to more such torture & other basic necessities such as food, latrines and medical check-ups are also denied to them. They are kept like animals in cages with almost none or meagre food and water.

Effects of legalizing prostitution in India

Legalizing prostitution in India is a vexed issue as prostitution per se is not illegal as long as it is a private affair. The point is whether commercial prostitution should be legalized, as it still remains a disturbing job for every woman. These women are tortured and are subject to various physical and verbal abuse. They are even exposed to every sort of heinous assault, no matter where they work.

In a Dutch research study, it was found that about 40 percent of women in legal prostitution face sexual violence and a similar percentage is estimated for women coerced into the business. Further, about 70 percent faced threats of physical abuse and 60 percent of them were even assaulted.

The act of legalizing prostitution won’t change the behavior of pimps and convert them from exploiters into law-abiding citizens in one day. More importantly, in a country like India where sex education in school is treated as taboo, sex work is equal or worse than committing a murder.

Many studies have shown that most of the sex workers enter sex work by force and not by choice, in such a case legalizing sex work would makes these women feel caged. Further legalization would result in an increase in human trafficking. It should also be kept in mind that sex workers operate in the shadows, where women are exploited and their earnings are taken away by pimps or brothel owners.

Further, a report found that if prostitution is legalized then there would be a disturbing increase in child prostitution. Victoria, Australia and the Netherlands recorded a rapid growth in child prostitution after legalizing sex work [xx]

Many feminists even criticized that licensing it would make it more difficult to monitor. Legalizing would marginalize illegal sex workers. Many of these hidden workers never wanted the work to be legalized as it would portray them as prostitutes in public and be demeaning to them[xxi]. Moreover, it would make them feel like their life is being controlled by the government, making them feel trapped. A lot even feel that regulating it would be akin to legalizing child labour[xxii].

Legalizing prostitution would not be the best way to solve the problems of prostitutes. But some changes in the current law & policy would make a significant difference in their life. It would help them come out of the pit they are made to fall into and are trapped for years.

The present act is not enough effective to catch the men involved in it as they go free and all the hardships are imposed and faced by women. The important note is that there are many more women arrested as against pimps and touts. All this represents the inefficiency of the ITPA. Hence, either the Act needs to be amended or there is a need to introduce completely new legislation. The amendments that are needed in the Act are:-

The names of women living in red-light districts should be added to the voter list as they are also citizens of this country & like any other citizen it’s their right to enjoy universal adult franchise[xxiii].

For those women living in red-light areas, the government should introduce a group insurance scheme[xxiv].

There is urgent need to make the law enforcement agencies more effective to rescue girls who are likely to be forced into prostitution.

There should also be a provision to differentiate between girls who are thrown into this business either by abduction or sold by their families, or by rape. In such a case, if it is not easy to trace the first person who violated her, then the brothel owner and pimps should be held liable, and the burden to prove that they are not abettors who have forced these women into prostitution by rape, should be on them.

Further, there is no provision for free education for rescued prostitutes, even they can avail vocational training programs so that they can earn by themselves.

Also, a need for help from the side of police personnel & other related department is felt by the NGOs & such communities that are willing to work for these women.

Dimple Kaushalya is a third-year student of the University Five Year Law College, University of Rajasthan.

[i] Article 39 (a), Constitution of India, 1950

[ii] Article 39 (e), Constitution of India, 1950.

[iii] Article 46, Constitution of India, 1950

[iv] Article 51, Constitution of India, 1950.

[v]Article 47, Constitution of India, 1950

[vi] Article 51 A (e), Constitution of India, 1950

[vii] P.N.Swamy, Labour Liberation Front, Mahaboobnagar v. Station House Officer, Hyderabad 1998 (1) ALD 755.

[viii] The Indian Penal Code, 1860. 366, No. 45, Acts of Parliament, 1860 (India).

[ix] Fateh Chand v. State of Haryana, (1977) 2 SCC 670.

[x] 372, The Indian Penal Code.

[xi] 373, The Indian Penal Code.

[xii] Immoral Traffic (Prevention) Act, 1986, Section  7,

[xiii] Immoral Traffic (Prevention) Act, 1986, Section  8,

[xiv]  Poonam Pradhan Saxena, Immoral Traffic in Women and Girls: Need for Tougher Laws and Sincere Implementation, 44 JILI 504, 523 (2002).

[xv] NHRC-UNIFEM-ISS Project, A Report on Trafficking in Women and Children in India 2002-2003, Volume 1, 248.

[xvi] Mellisa Farely, „BAD FOR THE BODY , BAD FOR THE HEART”; Prostitution Harms Women even if legalized or discriminalized, 10(10) VOILENECE AGAINST WOMEN 1087, 1090(2004).

[xvii] Article 21, The Constitution of India, 1950.

[xviii] Nurjamman Lokman Lashkar vs The State Of Maharashtra, CRIMINAL WRIT PETITION NO.4781 OF 2018.

[xix] “Home for the girls or Jail?” from Dr. R.S. Sodi to the Editor of the INDIAN EXPRESS, Apr. 6, 1981.

[xx] Janice G. Raymond, Prostitution, Trafficking and Traumatic Stress (Mellissa Farley ed., Binghamton: Haworth Press, 2003).

[xxi] Geetanjali Gangoli, Prostitution, Legalisation and Decriminalisation: Recent Debates, 33(10) ECONOMIC AND POLITICAL WEEKLY 504,505 (1998).

[xxii] 4 Prabha Kotishwaran, Preparing for Civil Disobedience: Indian Sex Workers and the Law, 21(2) BOSTON COLLEGE THIRD WORLD JOURNAL 161, 170 (2001).

[xxiii] National Commission for Women has suggested that sex workers in red-light areas should be included in the voter’s list as a proposal to amend the Immoral Traffic (Prevention) Act, 1956

[xxiv]India Sex Workers get life cover, BBC News, May 1, 2008

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