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

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7 thoughts on “On legalization and regulation of prostitution in India

  1. This is one of the most debatable (and age-old as well) topics, I must say. And people often find difficulty to opine. To me, “oldest” is not a good adjective we should look for. Patriarchy is oldest too. Slavery was oldest, but almost gone now. However, it’s true, due to lack of regulation from the govt. side, the prostitutes remain far away from their human rights. But legalizing it as a profession, always leads me to one thought: Could/should I suggest my daughter to try this profession?

    Also I think, a human body is not an enough-built machine which can be served for delivering sex for several years. Just providing a legal certificate may not upgrade the present status. I’m also afraid that pimps will also get legalized in the name of agencies at the same time.

    And the foremost, we shouldn’t speak, unless we listen to the them and understand what they really want and should think, can we become one of them? If not, it’s too unfair to judge from outside.

    Anyway, a thought-provoking article, thanks.

  2. One good idea will be to open brothels where individual prostitutes(m or f) can rent rooms for definite amount of working hours. They need to pay their rents ‘themselves’. In this way, there will be no pimps in the business. It must be considered as a regular job. Their income must be made taxable and proper care must be taken to ensure that a part of it is not going to someone else. To ensure public health safety, there must be a periodic health check up for HIV/STDs for each working prostitute. The concerning health authority will issue a health certificate(valid upto 2 weeks) which will authorize him/her to work for the next 2 weeks. This certificate must be displayed on the door of every room/chamber with his/her photo. The customers should only go to the ones which have a valid medical certificate, otherwise they may have a chance of getting a STD. Also, there should be strict behavioral guidelines for customers to ensure that they do not misbehave with the sex workers.

    Similar practice is used in Germany as far as I know.

  3. Nah! I don’t think it should be legalized because it another way of telling boys to lose their virginity to an unknown person and like Himadri Burman mentioned here, daughters will think that it is okay to do that profession.
    It should not be legal. Pimping, AIDS and human trafficking should all be controlled along with it.

  4. Prostitution needs to END NOW. Men forced marginalization upon Women in every sphere to life – it is outraging.

  5. As per suggestions in this article, if brothels are legalized with licenses, pimps will be legalized too. With the bribes, it would be easy for brothels to manipulate an inspection. Those who are forced into this service will find no legal way to escape from brothels if the brothel manages the authorities with bribes. Brothels will have support of the law.
    Current PITA already legalizes prostitution on a personal level. Which is best to avoid trafficking and at the same time, allowing the personal choice of prostitution.

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