PROSTITUION AND IT'S LEGALITY IN INDIA

ABSTRACT

Prostitution is as old as civilization itself and has been a part of Indian society ever since the idea of marriage came into existence. In recent days, prostitution has become synonymous with violence, discrimination and exploitation. In this article, we will get to know about the term prostitution, its history, its legality and the effects of prostitution.

Introduction

Prostitution is the practice or business of engaging in sexual activity in exchange for money, and a prostitute is someone who works in this field. Prostitution occurs in a variety of structures, and its legal status varies from country to country and also from region to region within a country, ranging from being an upheld or unenforced wrongdoing to unregulated to a directed profession. Prostitution in India is a complicated and contentious issue with deep historical roots that is influenced by a variety of socioeconomic factors.[1] While prostitution is not illegal in India, many related activities, such as soliciting in public places, operating brothels, and living off prostitution earnings, are prohibited under the Immoral Traffic (Prevention) Act of 1956.

In India, the plight of sex workers is frequently exacerbated by social stigma, discrimination, and a lack of legal protection. Many people involved in sex work face barriers to healthcare, education, and legal help, further marginalising them in society.

Historical background

Prostitution can be traced back to ancient India, where it was frequently regulated and even considered a legitimate profession in some communities. However, with the arrival of British colonial rule, moralistic attitudes towards sex work became more prevalent, leading to the criminalization and stigmatisation of prostitution. Prostitution exists in both urban and rural areas in modern India, and its dynamics vary by region. Some argue that the profession offers economic opportunities to marginalised people, particularly women, who may have few other options for employment and financial support. Opponents, on the other hand, see prostitution as exploitative and claim that it perpetuates gender inequality and social injustice.[2]

THE IMMORAL TRAFFIC (PREVENTION) ACT OR ITPA[3]

The Indian Government passed The Immoral Traffic (Suppression) Act (SITA) in 1956; under this Act, prostitution is legal, but soliciting people and luring them into sexual activities is not. Prostitution, as defined by the Immoral Traffic (Prevention) Act of 1956, is the sexual exploitation or abuse of others for commercial gain. It's also not a crime under the IPC. Despite the fact that sex work is legal, running a brothel is not. It contradicts the entire concept of prostitution. Because they are unable to open a brothel, they must meet their clients in a hotel. The police frequently raid such establishments and arrest both the owners and their guests. They are usually arrested and charged with violating the law. However, it is legal. One thing the act requires prostitutes to do is stay out of the public eye. The Indian Penal Code (IPC), which predates the SITA, is frequently used to charge sex workers with vague crimes like "public indecency" or being a "public nuisance" without defining what these are. The old law was amended in 1986 as the Immoral Traffic (Prevention) Act, or ITPA. It was the result of India's signing of the United Nations declaration on the abolition of human trafficking in New York in 1950.

In addition to the ITPA, the Indian Penal Code of 1860, the Indian Constitution of 1950, the Juvenile Justice (Care and Protection of Children) Act 2015, and various state laws have been enacted to combat prostitution and prostitution AND trafficking.

The law does not make prostitution illegal in and of itself, but it does prohibit the operation and use of brothels, living off prostitution earnings, pimping, soliciting, luring others into prostitution in prison or elsewhere, and prostitution in public places, among other things. A crime that is punishable by law. As a result, whether performed independently or voluntarily, prostitution is not a crime.

LANDMARK JUDGEMENTS

Gaurav Jain v. Union of India[4] :

The Supreme Court of India emphasised the importance of distinguishing between voluntary and forced prostitution in this case. Adults have the right to choose their profession, and voluntary sex work should not be considered illegal, according to the court. The decision emphasised the importance of distinguishing between trafficking and willing sex work.

Recommendations of the Supreme Court on Sex Workers (2011):

While not a decision, the Supreme Court of India made recommendations to the government regarding sex workers' rights and rehabilitation. To improve their living conditions, the court suggested that sex workers be provided with healthcare, housing, and other social amenities.

Budhadev Karmaskar v. West Bengal State[5]:

In this case, the Supreme Court ruled that adult individuals have the right to work in any profession of their choice, as long as it is consensual and does not involve exploitation or force. The decision recognised the right of sex workers to live with dignity and autonomy.

Effects Of Absolute Legalization Of Prostitution In India[6]

The complete legalisation of prostitution in India could have a variety of positive and negative effects on various aspects of society. It is critical to note that the impact of such a policy change would be determined by the specific regulations and measures in place. Here are some possible outcomes:

Positive Consequences:

Worker Rights and Safety:

Legalisation may provide legal rights to sex workers, making it easier for them to access healthcare, report abuses, and seek protection from exploitation or violence.

Health Promotion:

With the industry regulated, sexually transmitted infections (STIs) and other health risks may be better controlled. Regular health screenings and the promotion of safe practices may benefit public health.

Stigma is lessened:

Legalisation could help reduce the social stigma associated with sex work, resulting in better integration of sex workers into society and less discrimination.

Economic Independence:

Sex workers may gain economic empowerment as a result of legal recognition, which will allow them to organise and advocate for better working conditions and wages.

Government Income:

Sex industry taxation could generate revenue for the government, contributing to public funds and possibly funding social welfare programmes.

Negative Consequences:

Trafficking and exploitation:

There is concern that legalisation will inadvertently increase demand for human trafficking and exploitation, as the industry will attract people looking to profit from vulnerable people.

Concerns of a Social and Cultural Nature:

Legalisation may face opposition from conservative segments of society who hold traditional moral beliefs and may object to accepting sex work as a legitimate profession.

Considerations for Ethical Behaviour:

Some argue that, even if consensual, the commodification of the human body for sexual services raises ethical concerns, and that the state should not endorse or legitimise such transactions.

Demand has increased:

Legalisation could increase demand for commercial sex, which could have societal consequences. According to critics, it may contribute to the objectification of women and have a negative impact on societal attitudes towards relationships.

Regulatory Obstacles:

Effective sex industry regulation presents significant challenges. To protect the rights of sex workers while preventing abuse and exploitation, a strong regulatory framework is required.

When considering the effects of total legalisation of prostitution, policymakers must carefully consider both the positive and negative consequences. Individual rights, public health, and societal values must all be balanced when developing a comprehensive and ethical approach to sex work regulation. Furthermore, open and informed public debate is critical for understanding and addressing the concerns and perspectives of various stakeholders.

Conclusion

Finally, the analysis shows that there is no need for any specific cure for a problem like prostitution, such as criminalising, decriminalising, or sanctioning it. Based on previous research, it is difficult to deny that legalising prostitution has both negative and positive consequences. As a result, simply legalising prostitution will not suffice to solve the problem; rather, a uniform law for its administration in our country is required. Prostitution regulation will help to protect sex workers and their children from being exploited. To regulate this industry in the future, a set of rules and regulations should be established.

References

[1] Legalization of Prostitution in India : A Hard-Earned Victory or A Judicial Pretence, 3.1 JCLJ (2022) 267

[2] Yuktha Suresh , Legalization of Prostitution in India and its Impact on the Exploitation and Violence Against Women, 4 (2) IJLMH

[3] THE IMMORAL TRAFFIC (PREVENTION) ACT, 1956

[4] [1997] 8 SCC 114

[5] 2022 SCC OnLine SC 704

[6] Socio-legal Analysis of Prostitution in India, 1.4 JCLJ (2021) 336

The author affirms that this article is an entirely original work, never before submitted for publication at any journal, blog, or other publication avenue. Any unintentional resemblance to previously published material is purely coincidental. This article is intended solely for academic and scholarly discussion. The author takes personal responsibility for any potential infringement of intellectual property rights belonging to any individuals, organizations, governments, or institutions.