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VOLUME 2 : ISSUE 5 || September 2020 ||
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WHITE BLACK LEGAL: THE LAW JOURNAL
www.whiteblacklegal.co.in ISSN: 2581-8503
NAME - Tanya Janghel & Milind Jain
CONTACT NUMBERS - 9887514049,8105623044
QUALIFICATION - STUDENT 5th Year B.A. LL.B
NAME OF THE INSTITUTION - K.L.E. SOCIETY’S LAW COLLEGE,
BENGALURU
NAME OF THE UNIVERSITY - KARNATAKA STATE LAW UNIVERSITY, HUBLI www.whiteblacklegal.co.in ISSN: 2581-8503 DECRIMINALIZING AND REGULATING PROSTITUTION IN INDIA ABSTRACT In this evolving world, we get satisfied with changes in our civilizations. The change for good or bad is a need of this hour. Are we moving towards a better tomorrow? The answer may be "Yes or No" depends on the perspective of people. One such sensitive issue of society is "Prostitution". Its existence might have changed but the peoples' perspective towards it is the same. Prostitution describes sexual intercourse in exchange for remuneration
The sex industry in Indian and global market which now includes strip clubs, massage brothels, phone sex, brothel, pimping and escort prostitution generates in multibillion dollar. The key factor for those women adopting prostitution as their lifestyle in India is lack of family support, poverty and illiteracy. Moreover, so long as women are considered as liability and sold, prostitution is assumed to be inevitable.
While some are defining men’s use of women in prostitution as a form of sexual violence, there are others who seek to normalise and legitimise “sex work” as a reasonable job for women. Such opposite views all calling themselves “feminists”. Some countries choose to ban the sex work while other countries have tried regulating prostitution and giving health and social benefits to the sex workers.
In this paper I will be discussing about types of prostitutes, some Constitutional provisions and penal provisions given in Indian Penal Code 1860 and Constitution of India. What are the factors which lead the women in Prostitution; we will also be discussing Prostitution in other countries, some of the initiatives taken by the Government of India to forbid this Activity and most importantly my take on decriminalization of prostitution.
6 www.whiteblacklegal.co.in ISSN: 2581-8503 INTRODUCTION “SLAVERY STILL EXISTS, BUT NOW IT APPLIES TO WOMEN AND ITS NAME IS PROSTITUTION” - VICTOR HUGO India is a country where all the persons, citizens and peoples of it are given protection under Constitution of India if any legal or fundamental right of them are violated. Is Prostitution against the Morale of the citizens or Constitution of India? Women who are engaged in prostitution are deprived from this right. Every citizen should be treated equally but are we treating the prostitutes equally. Women who do not go for prostitution from their own will but the circumstances force them to go for prostitution for a living or those women who are trafficked have worse condition. Bombay’s red light district, kamathipura, is considered the primary node in south Asian trafficking circuits and the epicentre of the AIDS pandemic. Around 43% of trafficked persons are used for commercial sexual exploitation of which 98 percent are women and girls1. India is also destination and transit point for sex trafficking. In 2011, it was ranked seventh out of 196 countries in the Trafficking Index in terms of risk for trafficking, where it was grouped with countries that were identified as being at extreme risk for trafficking.2
“A prostitute may be a person, who allows her body to be used for a few purposes reciprocally for payment”. Organizers of prostitution are generally called as pimps. Brothels are establishments in red light areas of big cities where prostitution takes place.
Prostitution is not only the problem in India but it’s all over the world even in the developed countries whose economies are so strong than our nation. If we trace the path of Prostitution we will find that it was a part of daily life or an activity in ancient Greece. India is also home for several people who are below poverty line; therefore the people who are not able to afford food for them in a single day are the main casualties who are trapped under these situations. In India we can see that the women are the main persons who go in such lines as they are not very well treated by their own families and are kept as burden in their own family. Therefore at the end to earn money for them and to keep alive they need to join the line of Prostitution or are forced to do so by their own family.
1 ILO, 2007
2https://wcd.nic.in/sites/default/files/Final%20Report%20Trafficking%20in%20women%20and%20girl%2C%2 0SAI.pdf
7 www.whiteblacklegal.co.in ISSN: 2581-8503 Though prostitution is a legal act it is not a celebrated one. Many NGOs, organizations and individual groups are going through a herculean task to control prostitution. Anytime the topic about prostitution comes there exists a question through all the time which is about the legalization of all such organized activities. Every time, this question becomes unanswered due to its arbitrariness. It is reported that these victims are kept in brothels without adequate food and minimal medicine.
There are instances were girls who have returned from brothels have revealed that they were forced to satisfy 20-25 customers a day and were not even given a single meal properly by the brothel owners and they had to rely on tips from customers. This form of slavery is cruel were owner controls the life of enslaved women.
Prostitution is a class of profession which involves great amount of risk and tolerance both physically and mentally. Prostitution as a profession is also affected by various norms like social and cultural, which means that women are victims of social stigma and poverty. For this it is duty of lawmakers and the Government to make some laws which can strike a balance and those persons or peoples should be safeguarded who are being abused. Just because of poverty these persons are becoming victims of sexual abuse, lack of medical facilities and mental diseases. However prostitution in India is illegal, but in some of the countries it’s a legal profession. Therefore we can say that legalizing prostitution has its own pros and cons. But what can be pros and cons of legalizing prostitution? If prostitution will be legalized then it will help Government to provide a good and strong system of equality and it can create a high level of neutrality. On the other hand the cons of legalizing prostitution can be, it does not provide any guarantee on the quality of rule, it may discourage the social changes that we need to change. If we see both the situations in this present era so we can say that only body of laws can be constructed to match the needs. If we see The Constitution of India we can say that it does not expressly says the rights of sex workers it only says about basic human rights under 3ARTICLE 14 which is RIGHT TO EQUALITY and ARTICLE 154 states that there should be no DISCRIMINATION ON GROUNDS OF RELIGION, RACE, CASTE, SEX OR PLACE OF BIRTH, and ARTICLE 215 states PROTECTION OF LIFE AND PERSONAL LIBERTY which also includes right to love
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5P M BAKSHI THE CONSTITUTION OF INDIA BARE ACT 15TH EDITION (PAGE NO. 72)
8 www.whiteblacklegal.co.in ISSN: 2581-8503 with human dignity, and ARTICLE 326 of The Constitution of India ensures that if any legal and fundamental right of any citizen is violated then they can directly approach to the Supreme Court for the enforcement of right.
HISTORY OF PROSTITUTION IN INDIA In several Indian languages, prostitutes have different names for them, depending on the historical period of their existence and the region in which they operated and professed.
Prostitution is one of the oldest professions and is regarded as the most hateful kind of work. Prostitution as an activity has traces since Indian mythology as the characters such as Menaka, Rambha, and Urvashi were described as perfect embodiment of charm and beauty and were considered to be acting as prostitutes. They entertained divinities and their guests in the court of Hindu Gods. Kautilya’s master piece Arthashastra also mentions its rules and regulation of how a prostitute should be and how their lives should be and code of conduct for people asking favors from sex workers.
Tawaif during mughal era were courtesans who would sing, dance, recite poetry, and entertain at mehfils. High class tawaif used to serve the rich and noble. This system declined during British period as they did not favored them and were called as prostitutes. Some of the famous tawaif were Gauhar jaan, Begum Akhtar, Fatma Begum.
Devdasi system in the beginning being a Devdasi had nothing to do with prostitution. In medieval India they were glamorous and had high status in society and performed sacred religious rituals and danced for the royalty in the name of goddess yellamma. Over the centuries there status diminished and later they started marrying kings and provided them sexual favors or were paid mistress of priest, kings and rich land owners. During British period kings lost their powers and these girls were left alone with no choice but to provide sexual favors to others for their living. Over the years this practice has been demolished but now also this practice is done in certain areas of south India and several girls are devoted in the name of god every year. Clearly prostitution has its root deep and has gradually developed into a big community and now they are called as prostitutes. Girls who are devoted to god now are considered filthy and polluting and do the work of sewage collecting, street cleaning and prostitution for livelihood. These devdasi are not allowed to visit others house and are considered untouchables. The people look at them and disgust because they sell their bodies. The poor families in this community think that male are the liberators of their soul
6P M BAKSHI THE CONSTITUTION OF INDIA BARE ACT 15TH EDITION (PAGE NO.109)
9 www.whiteblacklegal.co.in ISSN: 2581-8503 when the die and so they prefer male and also only educate male children. Girl children’s are treated more as a liability as there is always a cost of marriage. If any female is born they think that how can we work this liability into an asset and then devdasi system is one of the coping strategies where they feel that okay, by dedicating their child to the goddess and then the girl child will be taken over by one of the landlords. These landlords assure some kind of regular income to the family. It seems that now this religious ritual is just a justification for the poor family to pimp their daughters. These girls are either forced into it or due to financial condition they choose to do this. These girls think that if they go to school and study everyone at home would starve.
The devdasi system is still continued in India. If we check the reports of National Human Rights Commission of the Government of India because of devdasi system, women migrate in nearby towns of far away from the cities to practise Prostitution. However this practise was declared illegal by the Government of Karnataka in 1982 and in 1988 by the Government of Andhra Pradesh. But now also after declaring it illegal it is practised in 10 districts of north Karnataka and 14 in Andhra Pradesh.
The “prostitutes” first appeared as a criminal figure in laws in the colonial period. In descriptions of prostitution in ancient and medieval India, prostitution appears to have enjoyed a good standing. It is in the mid-nineteenth century that prostitutes became the target of punitive laws under British colonial administrators and the term “prostitution” was introduced in legal texts.
TYPES OF PROSTITUTES Prostitutes can be classified under four bases.7 Which are as follows:-
• BROTHEL PROSTITUTES - Their works are carried out in the brothel which is owned by some of the ex - prostitutes. Brothel in simple words means “house were men visiting prostitutes”. Prostitutes works for commission and for their living based on their sexual services.
• CALL GIRL PROSTITUTES - These prostitutes generally works alone from their own house or form her own place. They are available directly or by the help of any middlemen.
• STREET PROSTITUTES - They generally roams on the streets for finding customers and then they take them at some places.
7https://www.ugc.ac.in/mrp/paper/MRP-MAJOR-SOCI-2013-25158-PAPER.pdf
10 www.whiteblacklegal.co.in ISSN: 2581-8503 • OTHER TYPES - They are mainly found in bars, clubs, massage parlours and amusement centres.
Therefore basically these were four kinds of prostitutes we can find anywhere.
The word “Brothel” is also defined under Immoral Traffic (Prevention) Act 1956. According to SECTION 2(a) 8 Brothel includes any house, room or place or any portion of any house, room for the gain of another person or for the mutual gain of two or more prostitutes. But in some cases court held that place of prostitution does not make it brothel. Cases are as follows -
• SUSHILA vs. STATE OF TAMIL NADU9, in this case court held that any instance of prostitution in a place does not make that place a “Brothel”.
• KRISHNAMURTHY vs. PUBLIC PROSECUTOR10, in this case court held that any place used for prostitution once then that place will not be considered as “brothel”
• STATE OF RAJASTHAN vs. MST. WAHIDA11, in this case court held that any person who keeps or acts in keeping of a brothel in India shall or will be punished under the provisions of Immoral Traffic (Prevention) Act 1956.
CAUSES OF PROSTITUTION There are many causes where persons engage in practising of prostitution and main reason is Poverty as some women are discriminated on the basis of caste and religion etc. And apart from poverty some of the causes are as follows 12-
• Ill treatments by their own parents or anybody else.
• In some cases the family of a child is engaged in prostitution so they also follows same path.
• Social Customs.
• Inability to arrange marriage.
8https://indiacode.nic.in/bitstream/123456789/1661/1/1956104.pdf
91982 Cr LJ 702 (Mad)
101967 Cr LJ 544 (SC)
11 1981 RCC 42
12http://www.legalserviceindia.com/article/l269-Prostitution-in-India.html
11 www.whiteblacklegal.co.in ISSN: 2581-8503 • Lack of sex education.
• Illiteracy and poverty.
• Ill treating girl child and abandoning them.
• Many persons have their own needs or desires for physical needs, pleasure.
These were some of the causes in which a person is led in practising of prostitution. In India there are approximately 2.5 millions of prostitutes and their numbers are increasing according to the reports by Lok Sabha. Because of prostitution Human Trafficking is also involved peoples from many countries are brought in our country for prostitution. If we talk about modern era which is now in India there are different kinds of prostitution is been practised apart from prostitutes in brothel, some of them are 13-
• There are many Street Prostitutes mainly in Delhi, Mumbai and Kolkata.
• In India there are many bars and pubs therefore many of the prostitutes are also Bar Dancers.
• Call girls.
• There are many Religious Prostitutes.
• Escort girls.
• Youngsters are also involved in prostitution, child prostitutes.
In India prostitution is a very dangerously rooted down and when children’s are also send for practising prostitution it makes the situation more complex. According to the reports of Ministry for Women and Child development said that 35% of prostitutes in India are traded before the age of 18years. In GAURAV JAIN vs. UNION OF INDIA14, court has given the directions to the Government for the upliftment of prostitutes and also should establish juvenile homes for the child prostitutes.
According to reports approximately 35%-40% of the peoples living in India lives in poverty, therefore to earn for living only some of the ways are there for poor peoples and many of them are engaged in prostitution. We can say that almost 350-400 millions of peoples in India
13http://www.legalserviceindia.com/article/l269-Prostitution-in-India.html
14AIR 1997 SC 3021
12 www.whiteblacklegal.co.in ISSN: 2581-8503 are not able to meet their basic needs for survival like food, clothes, shelter. Poverty does not create imbalances between gender and sex of the peoples. India is a country where people like to pray to goddess, but on the other hand if a girl is born in some family then she is thrown out the house or is killed before she takes birth. Violence against women, torture, harassment both physical and mental, rape these crimes are not individual sexual or physical crimes. These crimes are violation of their legal and fundamental rights provided by The Constitution of India. However in some of the nations who are having prosperous economy, high standard of living, good education, no differences between men and women full equality is there in these nations also the problem of prostitution is unsolved. Therefore we can say that trade of human’s are not simply because of ignorance, illiteracy, or a like but this means that human beings choose this occupation with full conscience.
Now we will be seeing legal framework for prostitution in other countries and later of India.
LEGAL FRAMEWORK OF OTHER
● The first country we will be seeing is BANGLADESH according to some researchers and reports male prostitution in Bangladesh is illegal, and on the other hand everything else is legal. If there is consent from a girl or she is offering her own particular body for sex is lawful under no undue influence and coercion. Therefore we can say that The Government of Bangladesh is not so much concerned about prostitution as we have seen if anybody except male person offering her body for sex is lawful. So there are no such strict laws for the prevention of prostitution.
● The Second country is SWEDEN, if we see the laws of Sweden for prostitution is somehow similar that of Bangladesh. In Sweden also purchase of sex is illegal but if someone is offering his/her body for sex was legal till the sanctions placed in Sweden in 1999 after this Norway and Iceland have also made some enactments in 2009 that was followed by Canada in 2014, Northern Ireland in 2015, France in 2016 and Republic of Ireland in 2017, this enactment targets men as clients and punishes or penalizes them with imprisonment.
● The Third country is NEW ZEALAND if we see the current law regarding prostitution in New Zealand we will find that it makes prostitution a legal profession. New Zealand is having very much liberal laws regarding prostitution compared to any other countries in the world. According to some researchers and reports before 2003 there was a huge practise of prostitution in the country in message centres. But after
13 www.whiteblacklegal.co.in ISSN: 2581-8503 2003 The Government of New Zealand gave directions to the police for the protection of prostitutes in case of emergencies. Now we can see there are many brothels and sex services in the country and in major cities and towns of the country. One of the main reasons for legalizing prostitution in New Zealand was Safe Sex. Safe Sex means to use condoms while having sexual activities. Therefore it means that all the sex workers in the country are regulated to use protection while having sexual activities.
● The last country we will be seeing is AUSTRALIA if we see the current laws of the country we will find that sex work in the country varies from state and territory as there were some major reforms in New South Wales, Queensland, Victoria and the Australian Capital territory in 1970’s and 80’s. New legislation’s that were passed in Victoria continues to criminalize all forms of prostitution and is prohibited by law. In New South Wales also all kinds of prostitution and sex workers were decriminalized. According to reports the efforts done and taken by Victoria were failed.
Therefore by seeing the legal framework of all the countries mentioned above these may be far advanced in legal system concerned with morals of their own. If these kinds of laws are implied in India then would it work or not is the biggest question.
INDIAN LEGAL FRAMEWORK The laws and Acts that deals with Prostitution are The Constitution of India 1950, Indian Penal Code 1860, Immoral Traffic (Prevention) Act 1956 and Juvenile Justice (Care and Protection of Children) Act 2015. The Constitution of India apart from the provisions of equality, right to life and personal liberty etc. apart from these provisions Constitution also ensures the denial of Trafficking of individuals and constrained work.
India is a Sovereign, Socialist, Secular, Democratic, and republic country and equality of status, dignity and opportunity must be secured for all the citizens of our country irrespective of religion, caste, sex, status etc. some of the rights that are ensured to all the citizens of the country under The Constitution of India are –
CONSTITUTIONAL PROVISIONS - ● ARTICLE 14 - EQUALITY BEFORE LAW15 - This Article ensures right to equality under law that simply means that every citizen is having his own right to
15P M BAKSHI THE CONSTITUTION OF INDIA BARE ACT 15TH EDITION (PAGE NO 20)
14 www.whiteblacklegal.co.in ISSN: 2581-8503 equality before the law and also he his having right to live freely from any kind of discrimination on any grounds. Every citizen is having equal opportunities.
● ARTICLE 15 - PROHIBITION OF DISCRIMINATION ON GROUNDS OF RELIGION, RACE, CASTE, SEX OR PLACE OF BIRTH16 - This Article ensures that there shall be no discrimination on the grounds or basis of sex, caste, race, religion or place of birth. It also states that state shall not and is not having any power to discriminate any citizen of the country on the basis of above mentioned cases.
● ARTICLE 21 - PROETCTION OF LIFE AND PERSONAL LIBERTY17 - This Article ensures every citizen of the country to live with dignity, right to privacy and no citizen can be deprived of his/her personal liberty and life.
● ARTICLE 32 - REMEDIES FOR ENFORCEMENT OF RIGHTS CONFERRED BY THIS PART18 - This Article ensures every citizen of the country to approach to Supreme Court if any of his/her legal and Fundamental Right is violated. And for the enforcement of the right if he/she has been deprived.
INDIAN PENAL CODE 1860 AND JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT 2015 - ● SECTION 372 OF THE INDIAN PENAL CODE - SELLING MINOR FOR PURPOSES OF PROSTITUTION, ETC. 19 - This Section states that whoever sells, lets to hire, or otherwise disposes of any person under the age of 18 years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any age be employed or used for any such purpose, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall be liable to fine.
16P M BAKSHI THE CONSTITUTION OF INDIA BARE ACT 15TH EDITION (PAGE NO. 41)
17P M BAKSHI THE CONSTITUTION OF INDIA BARE ACT 15TH EDITION (PAGE NO. 72)
18P M BAKSHI THE CONSTITUTION OF INDIA BARE ACT 15TH EDITION (PAGE NO. 109)
19UNIVERSAL’S CRIMINAL MANUAL 2016 (PAGE NO. 545-546)
15 www.whiteblacklegal.co.in ISSN: 2581-8503
● SECTION 373 OF THE INDIAN PENAL CODE - BUYING MINOR FOR PURPOSES OF PROSTITUTION, ETC. 20- This section states that any prostitute or any person is keeping or managing brothel who buys or hires or otherwise obtains possession of any person under the age of 18 years shall, until the contrary is proved, be presumed to have obtained possession of such female with the intent that she be used for the purpose of prostitution.
One of the landmark cases under Section 373 of The Indian Penal Code is DOWLAT BEE v. SAIKH ALI21; in this case the question in front of the court was that as girl of 17 years used for prostitution is within the meaning of Section 373. Scotland Chief Justice said that the definition and terms of Section 373 are wide enough to penalize such sufferings. This case is used as precedent in Indian laws.
In EMPEROR v. VITHABAI SUKHA22, in the facts of the case are a brothel keeper used to allow a girl under 18 years of age to visit brothel for some hours at night and allows her to prostitute to the customers for money, the court held that the brothel keeper was guilty of an offence under Section 373 of The Indian Penal Code 1860.
SECTION 2(14)(viii) OF THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 201523 states that - child in need of care and protection means, a child who has been or is likely to be abused, tortured or exploited for the purpose of sexual activities or any other illegal acts.
SECTION 81 OF THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 201524 states that - Any person who sells or buys a child for any purpose shall be punishable with rigorous imprisonment for a term which may extend to five years and shall also be liable to fine of one lakh rupees:
Provided that where such offence is committed by a person having actual charge of the child, including employees of a hospital or nursing home or maternity home, the term of
20UNIVERSAL’S CRIMINAL MANUAL 2016 (PAGE NO. 546)
215 MHCR 473
22(1928) 30 BOM LR 613
23UNIVERSAL’S THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT,2015 BARE ACT 2019 (PAGE NO. 5)
24UNIVERSAL’S THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT,2015 BARE ACT 2019 (PAGE NO. 44)
16 www.whiteblacklegal.co.in ISSN: 2581-8503 imprisonment shall not be less than three years and may extend up to seven years. Also if we see the RULE 3225 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 provides rehabilitation and social reintegration of the Juveniles. Although Rule 32 primary aim is to help children in restoring their dignity and mainstream them through rehabilitation within the family or any where it is possible or any alternative care programmes and long- term institutional cares will be the last resort.
If we talk of rehabilitation of prostitutes and their children, it is provided under SECTION 16 OF THE IMMORAL TRAFFIC (PREVENTION) ACT, 195626. Under Section 16 it provides for the rescue of the persons who are living or made to carry prostitution in a brothel. Section 16 states that a Magistrate can and may direct police officer not below the rank of a sub-inspector, to enter such brothel, and to remove them from such person and produce him before him.
In BUDHADEV KARMASKAR v. STATE OF WEST BENGAL27, in this case Supreme Court has made some observations and passed a vital order dated 2nd August 2011, held as - “we are fully conscious of the fact that simply by our orders the sex workers in our country will not be rehabilitated immediately. It will take a long time, but we have to work patiently in this direction. What we have done in this case is to prevent the situations of the sex workers in the country in the correct light, so as to educate the public. It is ultimately the people of the country, more specifically the youngsters of the country, who by their idealism and patriotism can solve the massive problems of the sex workers. We, therefore particularly appeal to the youth of the country to contact the members of the panel and to offer their services in a manner which the panel may require so that the sex-workers can be uplifted from their present degraded situation”.28
IMMORAL TRAFFIC (PREVENTION) ACT 1956 - This Act’s primary aim is to prevent the immoral traffic like human trafficking. This Act does not allow commercial activities of flesh but on the other hand it does not prohibit prostitution also. In order to prove prostitution the women is required to show that she has offered her body for sexual activities and
25UNIVERSAL’S THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2015 BARE ACT 2019 (PAGE NO. 124)
26https://indiacode.nic.in/bitstream/123456789/1661/1/1956104.pdf
27(2011) 10 SCR 577
28https://www.legitquest.com/case/budhadev-karmaskar-v-state-of-west-bengal/580B3
17 www.whiteblacklegal.co.in ISSN: 2581-8503 intercourse for hire. If we see SECTION 329 OF THE IMMORAL TRAFFIC (PREVENTION) ACT, 1956 it provides punishment for any person who keeps or manages, or acts or assists in the keeping of the management of, a brothel shall be punishable on first conviction with rigorous 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 thousands rupees and in the event of second or subsequent conviction, with rigorous imprisonment for a term of not less than two years and not more than five years and also with fine which may extend to two thousand rupees.
According to this act, we can say that even a single incident is enough to prove that prostitution has been held at a particular place. Offenses under this Act are provided under Section 3 to Section 9. In RATNAMALA AND ANOTHER v. REPONDENT30, in this case it was explained that Immoral Traffic (Prevention) Act, 1956 was aimed at abolishing the commercial trafficking in women. In SAHYOG MAHILA v. STATE OF GUJARAT31, the High Court of Gujarat refused to recognize prostitution as a legitimate way of living and earning.
Under SECTION 732 of Immoral Traffic (Prevention) Act, 1956 we can see that some of the limitations have been imposed and were held not to be discriminatory in nature. Under Immoral Traffic (Prevention) Act, 1956 a Magistrate is having full power to remove any prostitute from any place for public good. And on the other hand we can see that this act does not punish the clients who go for their sexual needs. This law also states that prostitutes can carry out their speciality in private but they are prohibited to carry put there speciality in open. Therefore we can say that Indian laws don’t respect sex in return of cash as prostitution. According to laws a person or customers can only be arrested if they indulge in sexual activities at public places. So we have understood that Sex specialists are not covered inside the ordinary Labour Laws. But in any case, they are also having rights as other citizens are entitled to be rescued and rehabilitated if they want to do so.
Despite the legal status there are illegal brothels running around the country. Police and goons file false cases against them and don’t even have anywhere to go as what they do is not
29https://indiacode.nic.in/bitstream/123456789/1661/1/1956104.pdf
30AIR 1962 MAD 31
31(2002) 2 GRL 1764
32https://indiacode.nic.in/bitstream/123456789/1661/1/1956104.pdf
18 www.whiteblacklegal.co.in ISSN: 2581-8503 recognized in the eyes of law. Also when these women send their child to school and the school authority gets to know what the mother does for her living then the children’s are either not admitted in school or face discrimination. What happens to the future of these children? If they are not given basic right to education and live with dignity don’t you think we our harming our self as our future generation is in danger? These children don’t have any other option rather than prostitution for living or to commit suicide. We are creating a stigmatic situation around them and they fall back in the trap of prostitution. Here we are not advocating to blindly legalizing prostitution but now it’s high time that we amend our laws and regulate it.
As we have seen the Legal Frame works of other countries as well as of India. Now the question lies upon us is that Should India legalize Prostitution? And if Prostitution is legalized than what are the benefits of legalizing that?
SHOULD INDIA LEGALIZE PROSTITUTION? Some people in our country are in the opinion of legalizing prostitution and are ready to accept them as a part of the society this is because the problem of prostitution is very much deep rooted inside our country and it’s very difficult to remove it. If prostitution in India will be legalized than the best outcome or benefit of that can be we will have all the track records of Sex workers, according to reports when the dance bar was closed in Mumbai most of the Bar Dancers migrated to Gujarat and Karnataka and some other states and started their business as undercover. If prostitution will be legalized then we can see that these women, who practise prostitution for their living and earning they will get access to medical facilities which can help for controlling of the sexually transmitted disease. Prostitutes are discriminated on the basis of their works and living standards but what we need to do is we need to protect them through legal safeguards and we should empower them. If prostitution is legalized then it will not only be beneficial for sex workers or sex industry but it will be benefiting society as a whole. If prostitution is kept illegal then it will attract many criminals because many criminals view prostitutes and their customers as a medium for robbery, fraud, rape or other criminal acts. It is because criminals know that the victims will not report any crime committed to them as they are involved in illegal activity of prostitution already, but now if prostitution will be legalized then victims can also go and report this things to police.
19 www.whiteblacklegal.co.in ISSN: 2581-8503 BENEFITS OF LEGALIZING AND REGULATING PROSTITUTION - ● If prostitution will be legalized then victims of sex trafficking can be indentified and protected easily.
● If prostitution will be legalized then there will be control on sex industry.
● Legalizing of prostitution will decrease other hidden, illegal and street prostitution.
● The Legalization of Prostitution will protect the women in prostitution as they will also have legal rights.
● Legalization of prostitution will help the women health as they will get easy access to medical facilities which they are not having right now.
● Legalization and regulating sex industry will reduce sexual transmitted disease as government can make it compulsory to use protection.
● Regulating prostitution will ensure women in sex industry are not exploited by the customers, agents, pimps, or anyone else. In every brothel customers identity should be kept in record by installing biometric machine.
● Legalizing prostitution will raise the economy of country as we know it generates a lot of income. We can tax the individuals for the purpose of regulating the sex industry so that there is no extra burden on the government to regulate it.
● Legalizing prostitution will ensure that women in sex work earn for themselves not for some agent or pimps.
Women in the system of prostitution wants the sex industry to be legalized as they only suffers the most as they don’t have any rights to protect themselves. Government should take all the essential steps to ensure the safety of these women and also in reducing other impacts of illegal prostitution like STD.
20 www.whiteblacklegal.co.in ISSN: 2581-8503 CONCLUSION Prostitution is a perfectly reasonable choice that women should be free to make even if most prostitutes have been exploited, this does not mean that others should be prevented from freely choosing this kind of work. What we have is a mixed picture- a lucrative industry that employs many individuals and attracts numerous customers but is regarded by many people as immoral or harmful and in need of either stricter control or total elimination. This step can be immoral to certain section of society but here most important factor is what the women inside the industry want as they are the one facing problems. And we should consider their opinions regarding this matter and amend laws as per the need.
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