The act of prostitution basically means to offer sexual services provided in order to gain monetary or other benefits in kind, in exchange of the same. The word is generally used with a negative connotation presently, but this certainly has not always been the case. If we are to analyse etymologically, then the origin of the word ‘prostitution’ can be traced way back to the Latin word ‘prostituta’. The actual meaning of this word has been debated upon, but the usual consensus points at the combination of ‘pro’ and ‘stature’- which can be translated as ‘to place forward’, or ‘to cause to stand’prostitute seeking customer But in the modern scenario, prostitution is often considered to be violence against women, and can take many different forms- physical, digital, etc. Examples of the same will include pornographic acts, pole dancing, and other such instances. Whether prostitution should be legalised or not is an important and controversial question in many of the developing nations today. Prostitution can inevitably be the cause and the effect of human trafficking and sex slavery, and therefore it is also a really grave issue which we shall necessarily look into.
Prostitution is present in almost all the historical accounts of different civilizations, all across the world. For instance, prostitution is evidently a part of the civilizations which had thrived in the ancient east, ancient Greece, Rome, and in Asian and Hebrew culture. This can be proven through the presence of various shrines or temples dedicated to certain deities, which had evidences of some sort of sacred prostitution. This is an example of how prostitution was viewed differently in the past than it is now, commonly. In the code of the famous Babylonian emperor Hammurabi, there existed certain provisions which upheld the rights and liberties of sex workers, who can be seen as prostitutes. There are also instances of keeping records of and registrations for prostitutes in ancient Roman culture, as has been displayed by certain remaining found in Pompeii. Other marked instances were found in the countries like Greece, Japan, and India (the Mughal tradition of having tawaifs). It is well inscribed in the Urdu literature as well as in the well-known Geisha tradition of Japan and its surrounding nations. Over the middle ages, this tradition saw some changes, as the terms used to define a prostitute started to become more and more ambiguous and abstract; although, in spite of the same, certain legislative provisions are found scattered over the historical remnants of this period. However, by the time of the advent of the sixteenth century, prostitution was being treated with a stiffer attitude and certain restrictions were started to be imposed accordingly.
The following can be said to be the main categories of prostitution as it is being practiced in the present world- brothels, escort services (male and female), street prostitution, sex tourism, and virtual prostitution (mostly in digitalised forms of sex). Brothels: these are specific establishments or settlements dedicated to mass scale prostitution, and are frequently referred to as the infamous ‘red light areas’. Escort services: these are services where sexual partners can be escorted at one’s will in exchange of payments and the sexual acts often take place at rented hotel rooms or other such settlements. Prostituted who function through escort services are often referred to as call girls and gigolos. Street prostitution: this is a form of prostitution where prostitutes wait for customers whom they approach at certain street corners. Sex tourism: these occur through organised trips solely for the purpose of one’s indulgence in various sexual activities. Virtual prostitution: the main form of virtual prostitution is forced pornography, but also includes phone sex and sex through online chat rooms or websites.
In all of its essence, legal perspectives regarding prostitution include the following areas of concern- victim hood, ethics, freedom of choice, and whether it causes any benefit or harm to the society. Otherwise, legal perspectives on this topic also revolve around feminist theories of how prostitution should be looked at and dealt with. Mostly, the question which arises most often is whether prostitution should be legalised or not. This has both advantages and disadvantages- for example, some experts on this matter say that because women (or men) choose sex work freely and on their own, there is no harm in giving their professional an official recognition. On the other hand, it is also arguing upon that since prostitution inevitably brings upon whoever engages in it some sort of sexual violence, it cannot be necessarily legalised. Also, one cannot possibly overlook the probable health hazards which prostitution can cause, especially several sexually transmissible diseases (for example, HIV and AIDS). This adds on to the argument of prostitution not being legalised. The question of morality is also important in this context and should also be examined if we are to make sense of the matter completely.
The main concern which arises out of the socio-economic perspectives regarding prostitution is child prostitution. According to a recent survey conducted, it has been discovered that over 45 percent of all prostitutes in our country are underage and this poses a grave threat to the sustainable development of an entire generation. The fact that survival has become so important among the underprivileged and they need to resort to prostitution for the sake of the same is an important consequence of one of the most pressing questions- population explosion. Since we do not have enough jobs or opportunities to feed all the people in our country, they have to resort to such an extent that they have to engage in prostitution to feed themselves. This is indeed a significant and sad socio-economic problem of India. On the other end of the spectrum, prostitution among the elderly is also a serious concern, health-wise as well.
Violence against women is also rising in prostitution, and the homicide rates have been ever increasing among the same practitioners, especially in the United States. Another important concern is human trafficking, which refers to selling off people forcefully against their will to engage them in prostitution in a way that the seller makes some profit out of the victim’s sexual acts. Prostitution is a very commonplace act and I personally believe that a lot of problems relating to it can be solved if a proper recognition can be given to both the act and the people who engage in it. Therefore, a proper sensitization programme is required in order to stabilise the situation regarding prostitution, especially in India. The rate of violence is also a serious issue and can be probably curbed perhaps only through appropriate legislation and police actions, as sexual violence is an alarming criminal act. However, since prostitution can also be one’s free choice, we need to stop seeing it in a negative light all the time and try to first weigh the circumstances before we talk about prostitution.
Is Prostitution legal in India?
In the Indian scenario, prostitution is not explicitly considered as illegal, though it has been pronounced to be unethical by the Courts on various occasions, certain acts and practices that facilitate prostitution are regarded as illegal and acts like managing a brothel, living off the money procured by means of prostitution, soliciting or luring a person into prostitution, trafficking of children and women for the purpose of prostitution, etc. are made explicitly illegal by the Immoral Traffic (Prevention) Act, 1956 (ITPA). For example, running a sex racquet is illegal but private prostitution or receiving remuneration in exchange for sex with consent without prior solicitation might not be illegal.
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, 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 sexual purposes, etc. Additionally, Article 23(1) of the Constitution of India prohibits trafficking of human beings and beggars and other similar forms of forced labour. Article 23(2) of the Constitution of India declares that any contravention of clause (1) of Article 23 shall be an offense punishable in accordance with the law. It was observed in Raj Bahadur v. Legal Remembrancer, 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
The illegal activities related to prostitution-
Immoral Traffic (Prevention) Act, 1956 declares certain acts and practices to be illegal. These acts include managing a brothel, solicitation for prostitution or allowing the usage of certain places as brothels, kidnapping a girl for prostitution, living on the earnings of a prostitute’s money, inducing or detaining girls in brothels, seducing a person under custody for prostitution and carrying out prostitution within 200 meters of any public place like schools, colleges, temples, hospitals, etc.
What is the punishment and penalties for indulging in the illegal activities?
The above mentioned activities attract heavy penalties such as rigorous imprisonment even at the first instance of conviction. In Guria, Swayam Sevi Sansthan vs State of U.P. & Ors, the Supreme Court observed that, the people who commit offences under the Immoral Traffic (Prevention) Act, 1956, must be dealt with utmost strictness as pimps and traffickers enhance the immoral traffic of prostitution which is the act against the society. In case they are released, these people would again indulge in these acts because they have no other business. The minimum punishment for brothel keeping is imprisonment for a term of not less than one year and not more than three years and also with fine which may extend to two thousand rupees. Offence of procuring a girl child for prostitution attracts a rigorous imprisonment for a term of not less than seven years but may extend to life. Seducing or Soliciting for prostitution under the un-amended Act for first conviction attracts a punishment of imprisonment for six months or fine of rupees five hundred and for the second conviction, imprisonment up to one year or with fine of rupees five hundred. In addition, the Indian Penal Code under Section 370A punishes the offender for exploitation of a trafficked minor with imprisonment of five to seven years.
Main Provisions of Immoral Traffic (Prevention) Act, 1956
The main legislation governing the subject of prostitution in India is the Immoral Traffic (Prevention) Act, 1956. The constitutionality of this Act was challenged in the case of the State of Uttar Pradesh v Kaushalya. In this case, a large number of prostitutes were required to be removed from their place of residence for maintaining decorum in the city of Kanpur. The High Court of Judicature at Allahabad contended that Section 20 of the ITP Act abridged the fundamental rights of the respondents under Article 14 and sub-clause (d) and (e) of Article 19(1) of the Constitution. But the Supreme Court of India, held the Act as constitutionally valid as there was an intelligible difference between a prostitute and a person causing nuisance. The Act is also in consonance with the object sought to be achieved i.e. maintaining order and decorum in society.
Laws for protection of sex workers and their rights
The right to life enshrined under Article 21 of the Constitution of India is also applicable to a prostitute. This hypothesis was explained in the case of Budhadev Karmaskar v State of West Bengal. The Apex Court observed that sex workers are also human beings and no one has a right to assault or murder them, as they also have the right to live. The judgment also highlighted the plight and difficulties of prostitutes and sex workers and empathized with them that these women are compelled to indulge in prostitution not for pleasure but because of abject poverty and directed the Union Government and State Governments to open rehabilitation center and impart various technical and vocational skills like sewing, so that they can attain their livelihood by other means. Following the direction of the Supreme Court, the Immoral Traffic (Prevention) Act has incorporated Section 21 as a rule for the State Governments to establish and maintain protection homes and these should be regulated by licenses issued by them. It is stated in the Section 21 that, an appropriate authority should be appointed for conducting an investigation for the application of license for the protection homes. These licenses are not transferable and would be valid only for a specified period as mentioned in the Act. The Government is empowered to make ancillary rules in respect of license, management and maintenance of protection homes, or ancillary matters by virtue of Section 23 of the Act.
What are the laws to prevent forced prostitution?
Forced prostitution is generally where young children or teenagers are compelled to indulge in prostitution activities due to numerous factors. Indian Penal Code, 1860 penalizes child prostitution, namely selling and buying of minors for the purpose of prostitution. Section 372 of the Code awards imprisonment of at least ten years for a person selling a minor for the purpose of prostitution. Section 373 of the Code awards imprisonment of ten years for buying a minor person for the purpose of prostitution. The explanations to these sections indicate only the trade of minor girls and not boys. This is a clear limitation of the code.
Legalization of Prostitution-
Prostitution is considered as a taboo in India and is not discussed openly and hence, it is a topic frequently frowned upon. However, prostitution and like practices pose a huge threat to the Indian society for their role in weakening the institution of marriage, increase in sexually transmitted diseases, abduction of children, isolation of prostitutes from society, physical and mental trauma to people victims to such practices, etc. Abolition of prostitution from India is a mammoth task as it is an ancient practice and has existed for too long. Though it has been described to be illegal by the courts on multiple occasions, it is still continued. This could be due to lack of enforcement of laws or due to inability to restrict this practice. To combat against this issue, legalization of prostitution could be adopted since abolition appears to be a daydream.
Pros and Cons of legalizing prostitution-
If prostitution is explicitly legalized in the country, the State will acquire the responsibility to manage brothels and the State can full fill this obligation by issuing license to authorized persons. It would also formulate guidelines regarding the database on clientele, age of prostitutes, adequate remuneration and medical facilities to the prostitutes. Through this way, the prostitutes can acquire some rights such as right to medical care and attention, right to education of their children and themselves too, right against exploitation and rape, etc. Legalization of prostitution in an explicit manner can facilitate in the eradication of sex racquet operations, hidden and street prostitution, abuse of prostitutes, etc.
On the other side, legalization of prostitution could be misinterpreted as promulgation of prostitution. This could pave way for easy earnings for prostitutes and pimps; and would even encourage more women to practice prostitution. The legalization of prostitution may also lead to increase in sex tourism in India and even lead to rise in number of cases of human trafficking. 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.
The issue of prostitution has become the need of the hour and Governmental agencies are required to address this issue at the earliest. A more practical and feasible option seems to be legalization of prostitution rather than trying to abolish prostitution as the government has been trying it for decades and hardly struck that note. The state of lives of prostitutes is disheartening and it is in the hands of the society to evolve with time, which could be catalyzed by the Governmental Institutions. The male prostitution industry is still unrecognized under law and it also calls for due attention. On that note, existing legislations and laws shall be amended to include men along with women.
Thank You. Jai Hind.
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