Should prostitution be legal?

Present

In India, one-fourth of all prostitutes are minors. 200 Indian women and girls are pushed into prostitution every day, with 80% of them doing so against their choice. Indian estimates place the number of modern slaves at above 18 million. In India, a child goes missing every eight minutes. In India, there were 198015 reported missing children between 2013 and 2015; 140769 (71%) of them have not been located. In India, some 200 women and girls join prostitution every day, 80% of them against their consent. Women are either actively or passively forced into it, making it a tyrannising career for them. This is owing to the fact that they either chose sex work as a profession out of necessity or were sold or trafficked as child prostitutes by their family.

Approximately 30% of sex workers in India now are under the age of 18, and the exploiters make an estimated Rs 11,000 crore annually. Mumbai, which is currently the location of the largest sex industry in Asia, is where 100,000 of India’s around 10 million sex workers are located. In India, 3,000 to 5,000 young people exchange sexual favours, with Bangalore and five other major cities serving as the home to 80% of the country’s youth.

Sexual workers are more likely to contract blood-borne illnesses and sexually transmitted infections (STIs). In comparison to other women of childbearing age, female sex workers are considered to have a 30x higher risk of having HIV globally. violence is also a major concern about a fifth of female sex workers in India are attacked four times a month on an average, and those with more clients and income are more likely the victims of sexual violence, finds a new study by a Bengaluru-based non-profit.^[1]

What is prostitution

Prostitution is the trade or practice of performing sexual services for cash. The term “sexual activity” is used to describe a variety of activities involving physical contact with a person, including sexual encounters, non-penetrative sex, oral sex, etc. Women who perform sexual acts for payment are known as prostitutes. Despite being one of the oldest occupations in history, prostitution lacks a precise definition. According to the Immoral Trafficking Act of 1956, prostitution is the sexual exploitation or abuse of people for financial gain. It is heavily gendered, with the majority of buyers being men and the majority of sellers being women who enter this field after working at least 4-5 jobs and failing to earn a reasonable salary.

Different type of sex work

There are different types of sex work which varies from culture to country and even geography some of which are mentioned below: –

street/Street walkers
religious prostitutes
brothel
Nude bars
massage parlour
call girls/independent

Escort
Online sites/social media
Travelling entertainers
Mujra/ dance bars

Gigolos and transgender sex worker

Male sex workers are known as gigolos; they are men who rely on the gifts or income of women, especially younger men who are supported by older women in exchange for their friendship and sexual attention. Just as transgender sex workers are rarely discussed, neither gigolos nor transgender sex workers are legally recognised. Because there are so few of them to begin with, they are unable to receive many benefits from the government programme. According to certain research, 90 percent of transgender people in India are involved in sex work, and the majority of the time, they participate in unsafe sex, which greatly raises the risk of HIV.

According to some studies, the proportion of transgender people who sell sex is as high as 90 % in India. The HIV prevalence among transgender women is up to nine times higher than that of their female counterparts, according to several studies conducted globally. Transgender sex workers are more susceptible to HIV than their female counterparts. According to a BBC investigation, the number of men working as prostitutes in India is growing quickly. They are not seen as much as their female counterparts as their clients are women or gay men so they need strict privacy to be able to work, since gigolos and transgender sex workers are not legal.

Constitution

The Directive Principles of State Policy, which are also mentioned in Part IV of the Constitution, require the State to do things like make sure that everyone, regardless of sex, has an equal right to a sufficient means of subsistence, that workers’ health and strength are not exploited, that no residents are forced to work jobs that are inappropriate for their age and strength, and that it advances the educational and economic interests of the less fortunate members of society. The State has these joint responsibilities, and citizens, including sex workers, have a similar entitlement, according to the High Court of Andhra Pradesh.

Indian Penal Code

The IPC’s Section 366 Clause (A) addresses both the crime of procuring a minor girl for unlawful sexual activity and its penalty and clause (B) addresses bringing a girl from another country into ours for any type of sex business. In Fateh Chand v. State of Haryana, a man was charged of violating Section 366 by obtaining a young girl for prostitution. The Indian Penal Code’s Sections 372 and 373 make it unlawful to buy or employ a minor female for sex labour and to sell or otherwise dispose of a juvenile girl with the intent to coerce her into prostitution.

The question of whether clients of brothels who harm a prostitute physically should face legal repercussions is unanswered. Condom use is not mandated, and there are no measures for sex workers’ healthcare, which can lead to the spread of various deadly diseases or unintended births.

The Immoral Trafficking Act (1956)

The following actions are prohibited by the Immoral Traffic (Prevention) Act, 1956, and are subject to severe fines as a result:

Anyone who owns, runs, or assists in running a brothel faces a fine of up to 2,000 rupees and a sentence of at least one year and a maximum of three years in jail.
Any person over the age of eighteen years who is living on the earnings of a prostitute shall be punished with an imprisonment which may extend to two years, or with a fine up to two thousand rupees, or both.
Anyone found guilty of inducing, procuring, or kidnapping a female for prostitution faces a sentence of harsh imprisonment for a term of not less than three years and not more than seven years, as well as a fine that might reach 2,000 rupees.
Anyone caught holding women in brothels faces a minimum sentence of seven years in prison and a maximum of 10 years in prison.
A term of up to three months in jail could be imposed on anyone who engages in prostitution within 200 yards of a public place, such as a school, hostel, hospital, temple, etc. If such offence committed is in relation to a minor, shall be penalised with imprisonment for a term of not less than seven years which may extend to ten years and also liable to fine.
Anyone soliciting for prostitution draws a punishment of imprisonment for a time not more than six months, or fine of rupees five hundred on first conviction and in second conviction imprisonment can extend up to one year and a fine of rupees five hundred.
Any individual who encourages or helps in the seduction of a girl for prostitution while she is in jail faces a minimum sentence of seven years in prison, with the possibility of a life sentence or a maximum sentence of ten years, as well as a fine.

Legalization

Recently, the Supreme Court of India affirmed sex work as a legitimate profession and gave a number of directives to protect sex workers’ dignity. Considering that sex labour is not unknown in India, this order was not only historic but also necessary. A few activities are prohibited and illegal by the Immoral Trafficking Act of 1956, including operating a brothel, living off the earnings of another person’s prostitution, pimping, and performing sex acts in or near public places. However, prostitution is neither prohibited nor legal.

Although India’s legal system does not outright prohibit prostitution, it does prohibit the sexual exploitation of those who engage in the practice. No legislation exists that legalised prostitution, which would allow persons involved to exercise their rights. All of the legislation that is currently accessible on the subject discusses prostitution and its linked activity, i.e., trafficking. As stated in Article 23(1)2 of the Indian Constitution, the trafficking of women and children for the purpose of commercial sexual exploitation is prohibited.

Pros of legalization

Few arguments in favour of legalising prostitution are as follow: –^[2]

Access to Justice
If the government does legalise it, the sex workers will have their own id cards registered with their documentation with the government.
The setting of Legalised Organizations for the sex workers to work
Health clearance and checking the spread of HIV
Regularisation of wages and working conditions.
Brothel incomes can be taxed.

Cons of legalization

Few arguments against legalisation of prostitution are as follows: –^[3]

legalisation would result in an increase in human trafficking.
legalisation would increase child prostitution.
Legalising would marginalise illegal sex workers.
Prostitution’s legalisation has no impact on the sex business. It enlarges.
Legalisation of prostitution does not protect the women in prostitution.
The demand for prostitution rises when prostitution is legalised. It promotes men to engage in sexual transactions with women in a broader and more acceptable variety of socially acceptable settings.
Legalisation of prostitution does not promote women’s health.
Legalisation of prostitution does not enhance women’s choice.

Other countries

The number of female sex workers has increased in certain nations where it is permitted, but the industry is now much more tightly controlled. Prostitution is now legal in more than 80 nations around the world, including the US, UK, Germany, Mexico, and the Netherlands. Almost all of Europe, Canada, and South America have recognised or legalised prostitution. Therefore, there are laws protecting sex workers’ rights in each of these nations. It is illegal in the majority of African and Asian nations, and it is regulated in India, where it is legal to some extent but not everywhere.

Important cases

● State of Uttar Pradesh v. Kaushalya

The High Court had invalidated Section 20 of the SITA in the 1963 case on the grounds that it violated constitutionally protected fundamental rights. If a profession or trade is an “inherently immoral activity like prostitution,” Justice W. Broome ruled, “it is open to the state to impose a total ban; and no one can claim any fundamental right to carry out such an activity. “The High Court did not examine the fundamental questions of prostitution or the various interests involved in it. The Supreme Court reversed the High Court’s decision and stated that Section 20’s restrictions are “reasonable limitations imposed in the public interest.” Justice Subba Rao invalidated several of the critical and significant arguments made by the High Court in support of their ruling in a unanimous Supreme Court verdict.

As there was an understandable distinction between a prostitute and a person causing a nuisance in this case, the Allahabad High Court determined that the Immoral Trafficking Act was constitutionally valid. The action is also consistent with the goal it pursues, namely upholding social order and decorum.

● Budhadev Karmaskar v. State of West Bengal (2011)

In the case where he was found guilty of killing a sex worker by repeatedly hitting her head against the room’s wall and floor, the appellant’s appeal was rejected. A PIL was submitted by the Court on its own initiative to address the issues facing sex workers. An advocate, professionals with backgrounds in social work, and resource people formed a panel under the direction of the advocate. With the aid of a commission created specifically for the purpose, the federal and state governments were instructed to launch programmes and policies for the vocational and skill training and rehabilitation of sex workers. The Supreme Court ruled that sex workers have the same right to a dignified life as other people and are protected by Article 21 of the Constitution. One of the Court’s main objectives was preventing sex trafficking, helping those sex workers who wanted to leave the sex trade get well, and providing decent living and working conditions for those who wanted to stay in the industry.

The Court noted that the rescue effort is doomed to fail until and unless the link between the traffickers, sex workers, and family members is severed. The Court further ordered NGOs and various state governments to offer a helpline number so that people can address their concerns and obtain legal counsel if needed.

● Manoj Shaw and Majoj Kumar Shaw v. State of West Bengal (2013)

The investigating officer was instructed to serve a notice under Section 41A of the Code of Criminal Procedure against the owner of the health spa who had employed young girls in his spa’s prostitution business by the chief judge of the Calcutta High Court. The investigating officer was reportedly present at the hearing, but it was also argued that he wasn’t, according to the records of the judicial officer. The Court made the observation that when an infraction carries a sentence of seven years or longer, the investigating officer should carefully weigh all the circumstances before deciding whether to provide the notice required by Section 41A of the Code of Criminal Procedure. The Court determined that such significant violations that fall under Section 5 of the Act—prostitution in connection with legitimate businesses like health spas, etc.—require tact and consideration and should be handled seriously. In contrast, the victims who had already been taken advantage of and came from a low-income, illiterate background were just given a warning before being locked up. The victims were juveniles, and under the Immoral Trafficking (Prevention) Act, pushing kids into the prostitution trade carries a sentence of more than seven years in prison.

The fact that the young girls who were the victims were imprisoned as though they were the accused themselves exposes the clear flaws in the legal system throughout the entire case. The court refused the petitioner’s anticipatory bail because it believed that further questioning of the petitioner was necessary. The investigating officer was issued a show-cause notice by the court, and the victims’ statements were recorded in accordance with Section 164 of the Code of Criminal Procedure. The victims were ordered to receive rehabilitation in accordance with the law and interim compensation under the state victim compensation programme.

● Gaurav Jain v. Union of India (1997)

In this particular case, an advocate filed a PIL after reading about the “red light trap” in the India Today magazine, the Court said. Because the milieu in which prostitutes live is unhealthy for children, he prayed for separate inns and schools of vocational training where the children of prostitutes may live and possibly become more integrated into society. The Court highlighted the need to eradicate prostitution as well. Additionally, it mandated the construction of separate hostels for these kids as well as juvenile homes for their vocational training. The Supreme Court Bar Association, with the help of the original petitioner Gaurav Jain, filed a review petition with the court to reflect the nature and application of Articles 32, 142, and 145 (1) of the Constitution, as well as to request that the court issue directives for the abolition of prostitution. The Court affirmed the directives for the establishment of juvenile homes for the children of these sex workers but rejected the directives for the eradication of poverty.

● Delhi v. Pankaj Chaudhry & Ors (2009)

The Delhi High Court’s judgement to clear four people accused of participating in a gang rape was overturned by the court, and the lower court’s verdict was confirmed. Due to the fact that the accused’s conviction was overturned since the women were in police custody when the alleged rape allegedly took place, the Delhi High Court. Even so, the Court ruled that no one is allowed to rape a woman, regardless of how immoral she is. She is equally shielded from harassment as any other regular citizen would be. The Court claimed that by relying on the respondent’s arguments and ignoring the allegations of the women, the High Court had erred. Also forbidden from being heard were the police officers. The grounds for perjury against the police personnel were thrown out by the court. The Court highlighted that even if a woman’s frequent sexual behaviour is established through material evidence, no one can take advantage of her and bring up questions about her character or claim that she is a woman of “easy virtue.” The Court noted that such women have the right to decline to consent to sexual activity. The trial court’s prior ruling that the accused should serve 10 years in prison was followed by the court.

● Kajal Mukesh Singh And Ors vs The State Of Maharashtra

The law does not criminalise sex workers; rather, it tries to protect them, according to the Bombay High Court. Sexual exploitation for financial gain, such as pimping, recruiting, or seduction in public areas, is forbidden by law. Additionally, it is unlawful to run a brothel or let prostitution to take place on its property. The law acknowledges that those who exchange their bodies for cash are victims, not offenders. The Immoral Trafficking (Prevention) Act 1956 does not criminalize the act of prostitution itself, but the support systems that enable and facilitate prostitution.^[4]

Conclusion

In my opinion, despite having arguments against legalisation the government should legalise and regulate this profession to get the respect it needs and also help the people and their children involved in it. Government can provide far more schemes for their betterment and legalisation can also lead to convicting criminals involved in human trafficking, the government can also tax it. Surveys can be conducted which can also provide more information on the economic and health conditions of the work, which might in turn help male and transgender sex workers also in getting recognised in the future.

Reference

Websites

The law matics
Human rights world
Ipleaders
SCC online
Youthkiawaaz
Prime legal
Legalserviceindia
World health organization (WHO)
The print

Articles

Ten Reasons for Not Legalizing Prostitution And a Legal Response to the Demand for Prostitution by Janice G. Raymond

^[1] Neglect, violence, and diseases mar the lives of sex workers in India, Hindustan times, available at https://www.hindustantimes.com/sex-and-relationships/neglect-violence-and-diseases-mar-the-lives-of-sex-workers-in-india/story-xW6ZqE8xuQQ3CeTVmZk2jI.html, last seen on 29/04/23.

^[2] Controversies surrounding the legalization of prostitution in India, ipleaders, available at https://blog.ipleaders.in/controversies-surrounding-the-legalization-of-prostitution-in-india/, last seen on 29/04/23.

^[3] Janice G. Raymond, Ten Reasons for Not Legalizing Prostitution And a Legal Response to the Demand for Prostitution, Journal of Trauma Practice, pp. 315-332 (2, 2003).

^[4] Supra 11.