Should prostitution be legalized? Past and present of its law and Philosophy
The exchange of sexual activity for money is prostitution. How sex is advertised and procured encompasses a variety of acts, people and places, but its significance is often ignored in society as a whole. Although often associated with women selling sex to men, men can, of course, sell sex to other men and women. Most prostitutes, however, are women and the rest are male. Therefore, the practice of selling sex for money must be read in different countries against the social and economic positioning of women. Also today, women may capitalize on their bodies, but may not do so in exchange for money, to join the labor market or to marry well. We are “deviant,” “immoral,” or “victims” in the latter situation. Women are generally expected to enter and have children in healthy heterosexual relationships and prostitutes deviate from women’s traditional roles as wives and mothers. Yet this deviance is inextricably linked to how women are essential “bodies” and essentially “available.” Therefore, prostitution reflects both a manifestation of deviance and the structure underpinning and governing female sexuality.
At the global level, prostitution– labeled “the oldest profession in the world” – is fraught with a tumultuous history. Whether “actively prohibited, tacitly condoned, formally regulated, or a combination of these,” prostitution remains a thriving industry regardless of its legal status. Currently, many countries are considering amending their legal approaches toward prostitution, not only for the health and safety of the prostitutes and those who utilize their services, but also to profit from the revenue generated by the profession. Even though prostitution also known as sex trade is a common practice in many countries, the members of civilized society are not ready to give it a legal status but at the same time do not deny the existence of the practice. In many instances, the Hon’ble Supreme Court has expressed that this profession should be legalized in India. The Universal Declaration of Human Rights, 1948 states that “All men are born free and are equally entitled to have their basic human rights.” Denying legal recognition to this profession means denying the basic human rights of the prostitutes. The debate over whether or not prostitution should be legalized is probably as old as the practice of prostitution itself. The controversy surrounding the acceptability of such a profession and whether it ought to be tolerated by the society within a legal framework has raised some fundamental issues, particularly concerning the rights of women. Prostitution, because of its illegal status, is a particularly marginalized subset of the sex industry and presents significant physical, psychological, and legal risks to the women and men involved.
Prostitution has been one of the oldest forms of the profession since time immemorial. It is believed that during the times of early humans, there was no institution of marriages and men and women used to reside with their tribal people and would have their groups. They used to mate randomly without any obligations to each other and even then they used to fight amongst the various tribes regarding the women of their respective groups. Occasionally around the 6th century, the practice of “dedicating” girls to Hindu gods became prevalent in a practice that developed into ritualized prostitution. Devadasi means God’s (Dev) female servant (Dasi) where, according to ancient Indian tradition, young pre-pubertal girls are’ married,” given away’ in marriage to God or the local religious deity of the temple. The marriage usually takes place before the girl reaches puberty, which allows the girl to become a prostitute for members of the upper caste class. Women like these are known as jogini. This can be witnessed around the time of Indus valley civilization where we come across the statue of the dancing girl from Mohenjo-Daro which shows a sacred prostitute carrying out her duties within the precincts’ of the temple of the mother goddess. Indus valley is known for the economic progress made and hence helps us conclude how the wealthy merchants were the ones who could indulge with prostitutes as they had enough money to spend on wine and women. When we then talk about the time of rulers and kings, prostitution was very active but at the same time unlike now, back then they were treated with respect. They were even provided with security and were given money to suffice their basic needs. There was no form of an emotional relationship between the two people who used to indulge in this activity and these prostitutes were paid for their work in money or kind. Later on, when the Britishers invaded India this trade flourished and hence even after independence we could witness prostitution still prevalent. An account of the history of prostitution in India shows us that as time passed it kept on changing its course and form but the basic idea remains the same.
PRESENT SCENARIO IN INDIA
We can get a look into the scenario of our country by referring to Rohit De’s authored A People’s Constitution wherein he describes the woes of the sex workers by having a case study of a prostitute- husna bai. “The Case of the Honest Prostitute: Sex, Work, and Freedom in the Indian Constitution” provides a refreshing insight into rights struggles that have informed the legal regulation of sex work and how these continue to resonate in contemporary discussions on sex work, anti-trafficking and sexual morality.
In a northern Indian town of Allahabad, on 1 May 1958, a young woman became peculiar cyanosis from all hands. Judge Jagdish Sahai, a 24-years-old woman, told Husna Bai that she is a harlot. By hitting the livelihood of Bai, the new law had’ frozen the purpose of the Welfare State established by the Constitution in the country’ by a radical public disrespect by a poor Muslim prostitute, Bai argued. Invoking the Constitution, she had submitted a petition contesting the validity of a new law prohibiting the traffic in human bodies. At a time when Indian life had excluded prostitutes from civil society, she had forced the judges to look at women in the street. The narrative draws attention to three key features of the action by Husna Bai. The first is how it brought together feminine representatives from the Constituent Assembly and parliamentarians and social workforce who, according to Articles 14 and 15 of the Constitution, led a legal campaign to outlaw what they called “immoral trafficking” and the emancipation of a prostitute in the name of women’s equality rights. The dilemma raised by Husna Bai nearly instantly after the implementation of SITA proved she was mindful of its impact on a number of her fundamental rights. It also contributed to the agitation and similar legal threats against the infringement of the new legislation on their privileges by sex workers in both demonstrations. During this fight, the proponents of women’s equality are explicitly opposed to women’s freedoms under the current legislation. The third consequence of Bai’s action is the Court’s response to its arguments and history in the postcolonial context both for female gender subaltern and for feminist politics. Ultimately, Husna Bai’s petition was rejected but not her substantive arguments had been considered by the court. The Justice Sahai at the High Court of Allahabad thought that prostitution could be recognized as a trade under Article 19(1)(g) and that there would be unreasonable and void restrictions that prevented a citizen from doing their business. Husna Bai’s petition is an important speech in the debates on sex work and the trade, which at present have quickly reached the top of feminist national and global agendas. Bai’s story illustrates the dissonance and confusion that the sexual subordinate of a female leader introduces into the legal sphere and his straightforward and clever recommendations on the path to becoming a successful Indian woman. Indicates that her petition created an alternate conception of subjectivity between women in the juridical arena that clashed significantly with those advocated.
IMMORAL TRAFFICKING PREVENTION ACT, 1956
When we try understanding as to what are the main reasons as to why women are drawn towards this profession, we come across various reasons ranging from out of their will and also at times because of coercion. The reasons can be either due to ill-treatment by parents, or due to economic distress, psychological causes, early marriage, etc. the list is endless.
The main statute that deals with sex work in India is The Immoral Trafficking Prevention Act 1986 amendment of legislation passed in 1956 as a result of the signing by India of the United Nations’ declaration in 1950 in New York on the suppression of trafficking, which does not criminalizes prostitution or prostitutes per se but does make third party activities which have a business angle attached to it illegal like pimping, keeping of brothels, etc. the act tries to differentiate between trafficking and prostitution and also when prostitution is being talked about, it does not include the male prostitutes. Section 3 of the act talks about the punishment for keeping a brothel or allowing premises to be used as a brothel, in which case the person can be imprisoned or fined or both. The act has defined- child- a person who has not yet completed the age of majority. The act talks about that if a child is found in a brothel and after the medical examination is found to be sexually abused, it will be automatically assumed that the child has been detained for prostitution. Also if a child is found on the premises then he will be handed over to the magistrate. Customers may be prosecuted according to legislation should they engage in any kind of pleasure of the public sexual activity. Even though sex trafficking for cash is acceptable at an individual level, a woman can not do it within a 200-yard open place traverse. Sex consultants are not within the framework of common employment laws. In any case, they have every right that a person would be satisfied with and are entitled to be saved and rehabilitated if they so wish.
In the case of Ratnamala and Another v. Respondent, it was stated by the court that ITPA aims at abolishing the commercialized trafficking in women. Also in the case of Sahyog Mahila Mandal Vs State of Gujarat, the high court refused to recognize prostitution as a legitimate means of living as they thought that this would promote trafficking as a fundamental right. The supreme court has time and again talked about how there should be favorable conditions made so as the prostitutes can conduct their business with dignity.
Although there is an act to safeguard the prostitutes, we come across the very problem in the implementation of the act. The fact that trafficking is a complex activity affecting both procedure and consequence and covering many fields of trafficking in human rights makes it difficult to adjudicate and may take a slow process, as is apparent from improvements in international trafficking laws. There is a lack of coordination between the various departments which makes the entire procedure inefficient and the rehabilitation homes which are meant to be for the rescued women are not adequate. There is a need to ensure that the development and training of the women are done. Most of the women don’t speak up as they do not know their rights and for this, we must sensitize the police. It was opined by
Justice Ramaswamy in the case of Gaurav Jain v. Union of India and others that “women found in flesh trade should be viewed more as victims of socio-economic circumstances and not offender of the society, some police authorities have already set out the process of sensitization towards the sex workers and their treatment.”
This article tries giving us an understanding of the status quo of India, though we are moving towards a progressing world we still are left behind due to the old traditions and values that are still stuck onto us. This issue is something that is hardly paid attention to. The stakeholders are not only the prostitutes but also their families which also include the children who are supposedly the future of the country. They are the ones who suffer In the long run for something in which they were not even involved.
As a socialist state and above all as a welfare state, India should take strong measures to protect the interests of sex workers. We have insufficient services and have health concerns and are not entitled to necessities such as healthcare. Prostitutes are subjected to violence not only by their customers who see them as a sex toy but also by the operators of brothels who take a large part of their profits back. They often experience brutality. If the brothel owner is a female, she will always be exposed to different forms of violence. At the very least, like any other person who earns money doing work, a prostitute can live her life with integrity. Although prostitution is a fact in society; a reality that will never fade away by any statute, it is more important to know it and to embrace it. It should be known that culture can not get rid of it
We then want to outline our issues with the following points, taking into account the above. Human activity continues, and all concerned parties will obtain assured rewards by accepting it as a legal form of work. The burden for the government in implementing anti-prostitution laws and paying additional law enforcement would be effectively lowered. Moreover, by taxes, foreign exchange and an increased rate of employment, countries would increase their income. Most specifically, prostitution reform will secure sex workers ‘ interests and give them the chance to live a normal life which they deserve. Nonetheless, it would be much safer, of course, if the state allowed prostitution because the privileges and safety of sex workers on its job are ensured.
A strong o opinion that our country should legalize prostitution especially when done for the sake of occupation as when it comes to fulfilling the stomach of any person is being forwarded here, all other morals and values go away, prostitution is not a crime for the simple fact that it does not harm anyone nor does it leads to prevention of ones use to his/her property. It is indeed something that needs to be talked about more openly. The country does not need criminalization of prostitution instead what we need is providing sex education to people more openly and freely. Also, police authorities should be made to understand how they are required to treat the victims which include the prostitutes also. Further. It has to be understood that rape and prostitution are very different issues; prostitution involves a contract in which sexual services are exchanged for economic consideration and for which an explicit set of decisions on the part of both client and prostitute is required. Rape, by contrast, is the forcible, non – consensual taking of sex- unconscionable even if the rapist offers consideration for the act. This distinction makes sense if sex is seen as a neutral activity and prostitution as a transaction between equals.
Shrishti is a passionate debater and a traveller. Her interest area revolves around human rights law and constitutional law and public policy. She hails from the Institute of Law, Nirma University. For any clarifications, feedback, and advice, you can reach her at [email protected]