• The Law Gazette

Prostitution – Legal or Immoral?

Gloria Alfred once said, why is it illegal to be paid for an act that is perfectly legal if done for free? The debate of legalizing prostitution is a long one. It is an area where legality fights morality. Prostitution is one of the world’s oldest professions. However, earning money and accepting kinds in return of offering sexual activities is looked down upon by many. The irony here is that in a religious country like India professions very closely related to prostitution have been glorified since ages.


People, especially women, have been practicing the art of being Devdasis and Tawaifs in temples and courtrooms. As time passed, these same women started getting exploited and this in turn eventually degraded the profession. According to official estimates, there are over 12,00,000 sex workers in India, though the actual figures are well over that.[i] Around 30% workers are made to enter this profession without their consent when they are minors and become vulnerable to sexual violence and economic exploitation.[ii] This article focuses mainly on separating voluntary sex work from human trafficking and forced prostitution.


CRITICISM OF THE ITPA

In Indian law, the Immoral Traffic (Suppression) Act (SITA), later amended as The Immoral Traffic Prevention Act (ITPA) noted sterner rules for seducing in public. It also assigns strict punishments to brothel landlords and runners, pimps, human traffickers for commercial sex trade, clients engaging in sexual activities with a sex worker publicly or in areas within 200 yards of public places. After reading this act, we often come under the illusion that this act, as a whole, is beneficial for prostitutes. While many aspects of this act protect sex workers, it also prohibits sex workers to solicit their service publicly. This in turn limits their prospects in the service. In the name of morality, these acts claim to ‘protect’ the sex workers. However, the truth is that it discriminates voluntary prostitution from all other services or businesses and demeans it.


It puts this service in a shameful light and hence creates many obstacles and setbacks for prostitutes to live a life with basic human rights. The ITPA act is of an unconstitutional nature as it violates Article 14 which is right to equality because sex workers are highly discriminated and are not given opportunities even remotely close to people who are not involved in this profession. It violates Article 19(1) (g) which provides freedom of trade but in this case the trade that prostitutes have chosen is not acknowledged whatsoever. It violates Article 21 which gives Right to Privacy. The privacy of prostitutes is invaded by police and government authorities at unreasonable times and with unreasonable manners. Finally, the Act violates Article 39(a) of the constitution which does not discriminate between men and women when it comes to earn their livelihood. The ITPA restricts women (who represent majority in the total number of prostitute) to have an adequate mean of livelihood.


LEGAL STATUS OF PROSTITUTION

Since many countries like Canada, New Zealand, Australia and France have legalized prostitution; does it pave the way to legalize it in India? The answer to that lies in the fact that legal status of prostitution in India is ambiguous. However not illegalized, it is not thoroughly seen as a legitimized profession as well. Prostitution has no separate laws under Labour laws hence proving that prostitution has never been given equal status as to other professions.


WHY LEGALIZE PROSTITUTION?

One of the most important reasons to legalize prostitution is to give sex workers a life of dignity and respect. Because of the stigma against their profession, prostitutes are denied basic human rights. They are not only exploited, oppressed and blackmailed by their clients, pimps and brothel owners but also by the police and authorities. The brothel owners and pimps live off their earnings and the police take huge sums of money in the name of punishment or blackmail them and eventually end up taking bribes. This leaves meager amount of money the hands of the prostitutes. These officials also take advantage of their position to exculpate this act which is seen as immoral and unlawful.


In a raid of a brothel, women who had been picked up and incarcerated in the so-called ‘rehabilitation home’ were kept inhuman conditions. They were fed sub-standard food and were in extreme confinement. These women were prohibited from meeting their families and not even allowed to stand near the window and were beaten up for doing so. In some instances in Kerala, sex workers were incarcerated in mental hospitals in extremely unsanitary and miserable conditions. [iii] Legalizing prostitution will eliminate the other illegal activities that tag along with it. These include, human trafficking, coercing girls and women into the trade, physical and mental abuse, denial of basic medical facilities, denial of information, deprivation of education, denial of the right to vote and isolation from the outside world.


CRITICAL ANALYSIS

In 2014, the SR-VAW following a visit to India observed that sex workers in India are exposed to a range of abuse including physical attacks and harassment by clients, family members, the community and state authorities; they are forcibly detained and rehabilitated and consistently lack legal protection; and they face challenges in gaining access to essential health services, including for treatment of HIV/AIDS and sexually transmitted diseases.[iv] The above study shows how brutally prostitutes are treated. Even after all the mal treatment prostitutes hesitate to file a complaint. They fear of being judged and dealt with in a gruesome manner. Several prostitutes who have entered this profession voluntarily have testified that they have been wronged several times during raid or otherwise by the authorities. This behavior should be shown towards people who force prostitutes into this trade instead.


The whole idea of this article is to illuminate the fact that earning money by selling sexual service is not wrong but forcibly using prostitutes as a tool to earn money is. People always confuse prostitution and human trafficking. According to research, from around 4 million sex workers, 35% are below the age of 18 and around 95% have been coerced into this business through human trafficking.[v] Governments fear that the rate of prostitution will increase if it is legalized. But by looking at the above statistics we come to know that if prostitution is distinctly and strictly separated from human trafficking, the number of prostitutes will reduce relatively.


Human traffickers will become apprehensive and this will diminish human trafficking. There will only be workers who are in this profession by choice carrying out their trade in an orderly fashion with negligible contempt of the law. It is very obvious then that the number of workers who voluntarily choose to remain in this service will be negligible. Giving legal status to prostitution will hopefully help it getting separate set of laws under Labour Laws. Prostitutes will be able to report unfavourable clients. They will be able to raise their children in environment favourable to them. Children of prostitutes who are organically compelled to join the same world as their mothers will now have education opportunities.


CONCLUSION

Not only children but people who are trapped in the shackles of human trafficking will be set free and will be able to choose a profession of their choice. While on the other hand it will provide a safe circle for people who wish to sell sexual services or money. Legalization of prostitution will enable the sex workers to know their rights and not get exploited by the hands of brothel owners and pimps. They will be able to choose their own clients and rate of their service. They will be free to work in times that are convenient to them. Prostitutes will be able to get regular checkups without any unnecessary embarrassment. Medical staffs will be obliged to treat them as they should. These people will be able to educate and enlighten themselves with knowledge. It is said that your profession empowers you.


Similarly, if prostitution is acknowledged as an authorized profession, representatives of this profession will get empowered. No government has been able to ban prostitution completely. If we continue to give an illegal status to prostitution, unwanted crimes related to it will occur at an increased rate. Tawanda Mutsah, a human rights lawyer and senior director for law and policy at the Amnesty International Secretariat said, “In too many places around the world sex workers are without protection of the law and suffering awful human rights abuses. This situation can never be justified. Governments must act to protect he human rights of all people, sex workers included.


Decriminalization is one of several necessary steps governments can take to ensure protection from harm, exploitation and coercion.”[vi] Every human being deserves a decent quality of life. If millions of people earn money through different vices like corruption and money laundering, why is it wrong to use your own body to earn? Sex workers have done nothing wrong to not deserve a holistic social and economic development. Sex workers should be considered as citizens of the nation instead of criminals of the nation. It is high time to get over our moral superiority and see the world through a lens free of prejudices.


ENDNOTES [i] National AIDS Control Organization, Ministry of Health and Family Welfare, Government of India, Annual Report 2009-10 [ii] K. Mukherjee, Flesh Trade: A report, Ghaziabad India, Gram Niyojan Kendra, 1989 [iii] UNHRC , Report of the Special Rapporteur on violence against women, its causes and consequences, Mission to India 2014 [iv] Rasheeda Manjoo, Human Rights Council, Report of the Special Rapporteur on Violence Against Women its causes and consequences, Twenty sixth session [v] Kat Katha, Trafficking and Prostitution, Be informed, http://www.kat-katha.org/be-informed/#trafficking. [vi]Catherine Murphy, Sex Worker’s Rights Are Human Rights, 2015, https://www.amnesty.org/en/latest/news/2016/05/amnesty-international-publishes-policy-and-research-on-protection-of-sex-workers-rights/

ABOUT THE AUTHOR

This blog has been authored by Masira Lulania, who is a 2nd Year B.L.S., LL.B. student at Rizvi Law College, Mumbai.


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