On legalization and regulation of prostitution in India

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Prostitution has been described as the world’s oldest profession. One of the first forms of prostitution is sacred prostitution where each woman had to reach the sanctuary of Aphrodite and have sex with a foreigner as a sign of hospitality for a symbolic price. In India, it was practiced extensively, so much so that Kautilya mentions it in his master piece ‘Arthashastra’ written around the 4th and 3rd century BC.

In South Asia, a tawaif was a courtesan who catered to noble men, especially during the Mughal Period. The tawaifswould sing, dance, recite poetry and entertain their suitors at mehfils. Their main purpose was to entertain their guests and sex was not always a part of the contract. High-class or the most popular tawaifs could often pick and choose between the best of their suitors. They contributed to music, dance, theatre, film, and the Urdu literary tradition.

Today the world’s oldest profession remains sketchily legal in India. Prostitution is legal under certain conditions but, a number of related activities including soliciting in a public place, kerb crawling, owning or managing a brothel, pimping and pandering are crimes. The current law allows prostitution to thrive but attempts to hide it from public.

The primary law dealing with the status of sex workers is the 1956 law referred to as The Immoral Traffic (Suppression) Act (SITA). According to this law, sex workers can practice their trade privately but cannot legally solicit customers in public. As long as it is done individually, voluntarily, sex workers can use their bodies’ attributes in exchange for material benefit. The Indian Penal Code (IPC) which predates the SITA is often used to charge sex workers with vague crimes such as “public indecency” or being a “public nuisance” without explicitly defining what these consist of. Recently the old law has been amended as The Immoral Traffic (Prevention) Act or PITA.

Currently, prostitution is not regulated. Soliciting sex is an offence though practicing it ‘in private’ isn’t. And more often than not, clients are criminalized and prosecuted. Organised prostitution isn’t allowed either. Also, Indian law doesn’t recognize male prostitution. Unlike the case with other professions, sex workers are not protected under labor laws thus, making it uncontrolled, unregulated and very unsafe. And this is not counting the huge amounts of human rights violations and human trafficking that is a part of this illegal state of happenings.

Prohibiting prostitution isn’t going to stop it from existing. Until and unless it is completely eradicated, which by and large is a very far stretched idea considering its existence and practice since ancient times, proper legalization and regulation of prostitution will not only benefit sex workers but also the society as a whole.

Most of the girls in various brothels come in through human trafficking. A firm, liable to the higher authorities, must be established, where every sex worker would undergo an interview with which her views, ideas, choice would be taken into consideration and only then can she she work in such an environment. If found forced, then the dealer who brought her could land up in jail. Secondly, regular and surprise inspection must take place. During such inspections, if revealed during conversations with sex workers that appropriate money is not being given then the brothel could be shut down and the license cancelled. Thirdly, as they also constitute under the domain of ‘ workers’ so they must be protected under labour laws, given aadhar cards, various rights under the law, voter identity card, etc. Fourth, they shouldn’t be denied the basic human rights conferred by the constitution and various central govt schemes.

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If prostitution is ‘properly’ legalised, it will help control illegal human trafficking, help fight HIV/AIDS and other STDs which are rampant in India. It will ensure better living conditions for sex workers as well as their children. Most importantly, it will give sex workers protection under labour laws. At present, they don’t have any rights and as such are forced to lead miserable lives. If the law recognised it as any other profession, violent clients could be taken to court which at present, is not possible. Brothels could be issued proper licenses and therefore regulated. Other positive points are revenue generation, choice of profession, less trafficking, better health conditions due to awareness, acceptance to achieve equality in the society, optimum satisfaction level of living in a country, employment, more of external finance to overcome the deficit, security, tax revenue and many more! Legalising prostitution will regulate the trade and help in curbing down the way HIV spreads in our country. It will officially recognise those practising it and entail them to basic human rights which they are denied till now.

Sex workers will be more respected and less abused. They will be raped less and there will be less number of reported rapes. They will be pimped less and will receive better health care. They can openly talk about their profession and not be ashamed about it. They will receive benefits from the central vis-à-vis state government. They will no longer be treated as second-class citizens because legally they will be bearer of rights. Regulation must be implemented properly in consultation with the sex workers. This will ensure good working conditions can be legally enforced, thus reducing exploitation. It will improve public health, increase tax revenue, help people out of poverty and get sex workers off the streets.

It will drive a lot of pimps out of business; women and men alike will work of their own accord and not against their wills and desires. It may also lower some forms of crime. Without legal protection, exploitation will remain unpunished, just like in any other unregulated industry. Sex workers must be directly involved in this process, they have a right to political participation.

When abortion is legal, so should be prostitution. The ‘my body, my right’ argument should apply here too. Moreover, morality is subjective and as long as no one is being forced, it shouldn’t disturb anyone. Sex work is a human right; it’s as respectable as anything else.

 

Disclaimer: This article has also been published on Women’s Web and Youth Ki Awaaz

Post Dec 16: Has Anything Changed For Women In India?

After the fatal gang rape of Jyoti Singh Pandey on December 16 last year sent shock waves around the world, India has done some self-analysis on how it treats its women. Stricter laws on sexual violence have been implemented, but even a year later, a lot needs to be done to make women feel safer.

Legal changes

The Criminal Law (Amendment) Act, 2013, recommended by Justice Verma Committee was passed by Lok Sabha on March 19, 2013 and by Rajya Sabha on March 21, 2013 and replaced an Ordinance promulgated on February 3. The Centre also amended various sections of the Indian Penal Code, the Code of Criminal Procedure, the Indian Evidence Act and the Protection of Children from Sexual Offences Act.

The new law stated that an offender can be sentenced to a minimum of 20year prison sentence for rape and, in the event the victim dies, death penalty. Perpetrators of acid attack will get a 10-year jail term. But the law refused to criminalize marital rape, which disappointed many activists. Ranjana Kumari, a women’s activist and director of the Center for Social Research think-tank, said, “If bodily integrity is the issue, and consent is the issue, than certainly rape in marriage should be included.”

The definition of rape was expanded to include penetration by objects or any body part. “Sexual abuse in all its forms including sexual harassment was made illegal,” said India’s additional solicitor general, Indira Jaising. New laws aimed at safeguarding women were passed; the Parliament overhauled its criminal code and criminalized offences such as stalking, sexual harassment and voyeurism.

Fast-track courts were established to speed up trials in sexual assault cases which earlier took years to conclude. Some ten months after the crime, such a court found four of the adult suspects guilty on all counts and sentenced the men to death by hanging.

“We have a collective responsibility to ensure the dignity and safety of women”, said Finance Minister P. Chidambaram, while announcing women’s-focused initiatives as part of the 2013 federal budget.

Delhi Police set up women help desks at police stations and a Crime Against Women Cell was established for redressal of complaints and grievances of women in distress.

In the spotlight

The gang rape triggered a wave of nation-wide protests demanding stricter laws and better safeguards to combat violence against women. The widespread media coverage of the case has also led to an increased awareness of the issue. The assault sparked public dialogue on patriarchy, which many blamed to be the crux for lack of respect of women in India. It helped alter the way many perceive victims of sexual violence as well as women who are victims of sexual violence see themselves.

“Rape victims are no longer considered outcasts. Stories of rape survivors are now being used as a medium to instil courage to fight sex crimes in India,” said Ranjana Kumari.

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“Women have been forthcoming in reporting crimes against them. They have been empowered by law and the response of civil society,” said Jaising. This view is shared by K. T. S. Tulsi, a senior lawyer practicing in the Supreme Court of India. According to the lawyer, the social stigma associated with rape is getting reduced. “Girls are becoming more assertive and they are open to complaining. They don’t feel that the society is going to stigmatize them.”

This development is supported by the latest government figures. According to local media reports, 1,330 cases of rape were reported to police in New Delhi this year until October, against 706 cases for the whole of 2012 (via The Hindu).

Safeguarding women at work

“The sense of security at the workplace will improve women’s participation in work, resulting in their economic empowerment and inclusive growth,” said the Indian government in a statement after the law was passed. The Supreme Court is one of the most high-profile bodies to have set up an internal committee to combat sexual harassment. Many other private and state-run companies have now setup a mechanism to address violence in the workplace, although many more are yet to.

Challenges ahead

Experts say that a lot still needs to be done to make women feel safe in the country, as there has been little progress made in addressing the attitudes that legitimize violence and discrimination against women. “Rape cultures are nourished by norms, attitudes, and practices that trivialize, tolerate, or even condone violence against women,” Ranjana Kumari explains.

“The subject of gender sensitization must be introduced from the grass root level in schools, colleges and the workplace. We need to educate men and women on women’s rights under the law and work with communities to develop a gender sensitive society that is underpinned by respect and equality,” the rights activist said.

This view is supported by Kamini Jaiswal, a legal expert and lawyer at India’s Supreme Court, who believes that in order to bring about real change, it is imperative to empower all women, most of whom are still financially and emotionally dependent on their male relatives. “What we see in the bigger cities and metros is not the true picture. Women can barely raise their head and voice in most households. This needs to be dealt with literacy because most women don’t even know their rights.”

Despite the increased attention on women’s issues, crimes against women are on the rise. In the latest high profile case, police arrested the editor-in-chief of India’s leading investigative magazine, Tehelka, after a female colleague accused him of sexually assaulting her. Following this was a similar case where an intern filed accusations of sexual assault against a retired Supreme Court judge.

“The concern for personal security and perceived increase danger to women as a result of the rape cases was perhaps a factor in US students’ decision regarding study in India,” said Nancy Powell, U.S. ambassador to India. Fear of violence has even deterred some students and tourists from travelling to India.

But, this is not enough. India still needs to go a long way if it wants its women to feel safe, respected and socially accepted.

 

Disclaimer: This article has also been published on Women’s Web