Legalizing Prostitution Not Brothels: A Study To Trace The Impact On The Life Of Sex Workers
The term 'prostitution' needs no explanation. It is a vocation in which sex
is engaged for commercial reasons rather than for its own sake. According to
Annual Report 2021-22 of the Ministry of Health & Family Welfare, there are 8.25
lakh female sex workers (FSWs) in India. Recently, the Supreme Court of India
has recognized sex work as a profession that includes prostitution, yet it is
seen as taboo and not so basic a profession as any other.
People who work in this profession are degraded by society and widely discriminated against on various grounds. Prostitution may be legalized by law but still, there remains many horrors relating to this field that affects the life of sex workers, mainly FSWs. The law does not recognize prostitution institutions such as brothels. Therefore, organized prostitution is still illegal in India due to which prostitutes face many difficulties in carrying out their profession.
This paper aims to analyze the impact of legalizing prostitution and the plethora of hindrances still remaining. The paper will further discuss difficulties relating to the profession and its employees.
Prostitution:
The practice of engaging in relatively indiscriminate sexual activity, in general with someone who is not a spouse or a friend, in exchange for immediate payment in money or other valuables. A person who works in this area is referred to as a prostitute or a sex worker. Prostitutes can be male, female or transgender, but historically most prostitutes have been women. The idea of prostitution differs from society to society.
Some people see it as an area of recognized profession while others see it as a crime and punish its workers for pursuing it. Many people, especially those with conservative thinking, believe that prostitution is immoral and a sign of society's moral decay. Feminists believe that prostitution is degrading to women. These people think that prostitution should be criminalized, and ask for stricter laws against it.
Prostitution has its very own history starting from 2400 BC in Sumerian Records These are the earliest recorded mentions of prostitution as an occupation. Then the rights of prostitutes are mentioned in the Code of Hammurabi 1780 BC. In 1075 BC Code of Assura distinguished prostitutes from other women. In the 6th century BC, according to Chinese traditions, commercial brothels were started by the statemen-philosopher Kuang Chung as a means of increasing the state's income.
Prostitution has had its roots in India for ages. Prostitutes have been addressed by different names. In the Mughal era, prostitutes were known as Tawaifs or High Courtesans. They have been mentioned in the Vedas, Puranas, and Mahabharata. The women prostitutes in those times were classified into three categories, namely, Kumbhadasis, which means unchaste women or a slave, Rupajivas, which means those who are living by prostitution, and Ganikas, which means maiden who made her living by means of her personal beauty, her skills in the fine arts and capacity to provide pleasure.
Types of prostitution:
Prostitution is legal but institutions related to it are illegal which becomes a hurdle for people working in it. Prostitution in India is disapproved but not prohibited by law. Such as the use of Marijuana, there is no complete ban on it under the NDPS Act, of 1985 and it can be used for making medicine.
Marijuana is illegal because it has adverse effects on society whereas the Law Commission has suggested that prostitution should be legalized to curb criminal activities related to this profession.
Prostitution is legal in India but some activities relating to it are not such as: owning a brothel, soliciting, curb-crawling, prostitution in a hotel, child prostitution, and pimping. The Immoral Traffic (Prevention) Act 1956 was intended as a means of limiting and eventually abolishing prostitution in India by criminalizing various aspects of sex work.
However, these things continue to happen despite being illegal. It should be legalized as recommended by the 64th Law Commission. Before we further extrapolate the issue, let's set up the research design for the study.
Literature Review:
Primary Source:
There exists vast literature related to prostitution, the main source of information for this work is The Immoral Traffic (Prevention) Act 1956. The law describes the definition of prostitution in section 2(f) and on what conditions it cannot be practiced. The ITPA seems to be more focused on criminalizing prostitution rather than checking on the immoral trafficking of humans, the existing law on prostitution is vague and harsh on sex workers it criminalizes every institution related to prostitution which makes it difficult for them to carry out their work. The Indian Penal Code of 1860 provides laws on kidnapping and child prostitution under sections 372 and 373.
Secondary Sources:
The book, Prostitution: An illustrated history by Vern L. Bullough and Bonnie Bullough provided information about prostitution in Chinese tradition. Another source of information for this work is the NSWP Global Network of Sex Work Projects which provides detailed information about issues affecting sex workers and provides recommendations, its Global and Regional Reports tell lived experiences of sex workers and policies for their development.
Research Questions:
The study shall endeavor to find the answers to the following questions:
Research Objective:
The study shall have the following objectives:
If organized sex institutions are legalized along with prostitution, only then the sex profession can be put on par with other professions and the fundamental rights of sex workers can be secured.
The government can step in to regularize the institutions relating to sex work on the lines of Western countries.
Research Methodology:
In order to examine the topic at hand and get a better understanding of the law relating to prostitution, doctrinal research was conducted. The primary data i.e. Acts were collected from official sources such as indiacode.nic.in and analyzed. The research also includes analysis of qualitative data such as books, articles, judgements, websites, and law journals. These were collected from online sources such as JSTOR, Live Law, and SSRN.
Present Indian Legal Scenario:
Prostitution is legal in India as section 375 penalizes only forced sex or sex without obtaining consent in a valid way. The Supreme Court in Budhadev Karmaskar v. State of West Bengal, held that:
Sex workers are human beings and should be treated with humanity and dignity according to Article 21 of the Indian Constitution. The Immoral Traffic (Prevention) Act, 1956 does not criminalize prostitution in India per se, but Keeping a brothel is illegal as per section 3, to live off on a prostitute's earnings as per section 4, to procure, induct, or detain a person for sex work as per section 5 and 6, prostitution near public places and notified areas as per section 7, and solicit prostitution as per section 8. The Indian Penal Code, of 1860 also addresses prostitution, it focuses on kidnapping and child prostitution. Under Article 23(1) of the Indian Constitution, the trafficking of human beings, beggars, and other similar forms of forced labor is prohibited.
It is not unlawful to avail or procure sex in India, but the law is silent on punishing brothel keepers for subjecting a prostitute to be mistreated by a client. The law does not contain provisions for the use of condoms and for the healthcare of sex workers.
Need To Regularize:
The need to regularize organized prostitution is to give equal opportunity of work to sex workers and to protect them from being harassed by clients. Regulating organized sex work will give legal protection to sex workers and they can practice their rights without any fear. Such rights are:- equality before the law given under Article 14, the right to protection of life and personal liberty under Article 21, and freedom of conscience and free profession under Article 25.
Like any profession or industry, organizations are important so that they can be regulated. It is more important for prostitution because it involves more chances of ethical, physical, social, and health abuses of the workers.
How It Can Be Regularised?
Prostitution is well established in several countries such as Germany, New Zealand, Greece, Switzerland, Bangladesh, Netherlands, etc.
Germany: prostitution in Germany is legal, organized, and taxed. Germany also allows the advertisement of brothels and the processing of prostitution jobs. Germany passed the Prostitutes Protection Act in 2016, which was intended to protect the legal rights of prostitutes. Part of the Act includes requiring a permit for all prostitution trades and a registration certificate for all prostitutes.
New Zealand: In 2003, the New Zealand Prostitution Reform Act decriminalized sex work. It is legal for any citizen over 18 years old to join sex work as their profession. Sex workers' rights are guaranteed through employment and human rights legislation.
Greece: Prostitution is legal and it is an employment opportunity for women in Greece. Sex workers must be up to 18 years of age, be unmarried, must be free from sexually transmitted diseases (STDs), and must be free from any mental illness.
Switzerland: In Switzerland, organized sex work is legal and regulated. The prostitutes are registered and have a legal work permit issued by authorities after confirming residence status, health check, insurance, etc.
In India, it is limitedly legal, and institutions related to prostitution are not regularized as mentioned above. There have been several cases of raids at hotels in which people involved in the activity are arrested and treated as criminals. Such as with the case of Section 377 when it was criminalized.
Sex work can be organized and regulated, if:
In every research, the researcher set an aim to be achieved through the research. After conducting the research, the researcher must test his hypotheses in order to fix the veracity of the research. This research had two hypotheses.
Criminalizing institutions related to prostitution is not the right way to regulate it and it will not help in the development of sex workers. Prostitution is a vocation that has existed for ages but is still seen as taboo and sex workers are degraded by society. Laws related to prostitution are not clear and have no proper aim.
Sex work and human trafficking are two very different things and should be focused on individually. Not every sex worker is forced into this profession, some enter it by their choice but the law does not allow them to choose their profession and forcefully send them to rehabilitation centers.
Organized prostitution will give sex workers a better and healthy lifestyle, they will have access to medical treatment and their children will have better future opportunities. The problem is not in the sex profession itself but it is in our minds, we don't accept individuals who work in this area, especially women. Nothing is going to change until we as a society do not accept that sex workers are just ordinary individuals who are doing a job they may like/ dislike to spend their life.
Also Read:
People who work in this profession are degraded by society and widely discriminated against on various grounds. Prostitution may be legalized by law but still, there remains many horrors relating to this field that affects the life of sex workers, mainly FSWs. The law does not recognize prostitution institutions such as brothels. Therefore, organized prostitution is still illegal in India due to which prostitutes face many difficulties in carrying out their profession.
This paper aims to analyze the impact of legalizing prostitution and the plethora of hindrances still remaining. The paper will further discuss difficulties relating to the profession and its employees.
Prostitution:
The practice of engaging in relatively indiscriminate sexual activity, in general with someone who is not a spouse or a friend, in exchange for immediate payment in money or other valuables. A person who works in this area is referred to as a prostitute or a sex worker. Prostitutes can be male, female or transgender, but historically most prostitutes have been women. The idea of prostitution differs from society to society.
Some people see it as an area of recognized profession while others see it as a crime and punish its workers for pursuing it. Many people, especially those with conservative thinking, believe that prostitution is immoral and a sign of society's moral decay. Feminists believe that prostitution is degrading to women. These people think that prostitution should be criminalized, and ask for stricter laws against it.
Prostitution has its very own history starting from 2400 BC in Sumerian Records These are the earliest recorded mentions of prostitution as an occupation. Then the rights of prostitutes are mentioned in the Code of Hammurabi 1780 BC. In 1075 BC Code of Assura distinguished prostitutes from other women. In the 6th century BC, according to Chinese traditions, commercial brothels were started by the statemen-philosopher Kuang Chung as a means of increasing the state's income.
Prostitution has had its roots in India for ages. Prostitutes have been addressed by different names. In the Mughal era, prostitutes were known as Tawaifs or High Courtesans. They have been mentioned in the Vedas, Puranas, and Mahabharata. The women prostitutes in those times were classified into three categories, namely, Kumbhadasis, which means unchaste women or a slave, Rupajivas, which means those who are living by prostitution, and Ganikas, which means maiden who made her living by means of her personal beauty, her skills in the fine arts and capacity to provide pleasure.
Types of prostitution:
- Escort:
An escort is a service provided by a sex worker. It not only includes sexual acts but also includes other services such as social companies.
- Brothel Employee:
This type of prostitute is not independent. They work in brothels, where people engage in sexual activities. Sex work in a brothel is considered safer than street prostitution.
- Window Worker:
In this type of prostitution, the prostitute rents a window and a workspace for a limited period of time, and uses these facilities to attract customers, negotiate and indulge in sexual acts.
- Streetwalker:
This type of prostitution involves soliciting clients on the street, in parks, or in other public places.
- Call Girls:
This type of prostitution involves independent sex workers who can be contacted using the telephone or the Internet.
- Massage Parlor:
These premises are called massage parlor but sexual services are provided to clients.
- Online Prostitution:
In this era of the internet prostitution has moved to social media platforms where middlemen called pimps connect with girls via Instagram and Snapchat and offer them to engage in this work online.
Prostitution is legal but institutions related to it are illegal which becomes a hurdle for people working in it. Prostitution in India is disapproved but not prohibited by law. Such as the use of Marijuana, there is no complete ban on it under the NDPS Act, of 1985 and it can be used for making medicine.
Marijuana is illegal because it has adverse effects on society whereas the Law Commission has suggested that prostitution should be legalized to curb criminal activities related to this profession.
Prostitution is legal in India but some activities relating to it are not such as: owning a brothel, soliciting, curb-crawling, prostitution in a hotel, child prostitution, and pimping. The Immoral Traffic (Prevention) Act 1956 was intended as a means of limiting and eventually abolishing prostitution in India by criminalizing various aspects of sex work.
However, these things continue to happen despite being illegal. It should be legalized as recommended by the 64th Law Commission. Before we further extrapolate the issue, let's set up the research design for the study.
Literature Review:
Primary Source:
There exists vast literature related to prostitution, the main source of information for this work is The Immoral Traffic (Prevention) Act 1956. The law describes the definition of prostitution in section 2(f) and on what conditions it cannot be practiced. The ITPA seems to be more focused on criminalizing prostitution rather than checking on the immoral trafficking of humans, the existing law on prostitution is vague and harsh on sex workers it criminalizes every institution related to prostitution which makes it difficult for them to carry out their work. The Indian Penal Code of 1860 provides laws on kidnapping and child prostitution under sections 372 and 373.
Secondary Sources:
The book, Prostitution: An illustrated history by Vern L. Bullough and Bonnie Bullough provided information about prostitution in Chinese tradition. Another source of information for this work is the NSWP Global Network of Sex Work Projects which provides detailed information about issues affecting sex workers and provides recommendations, its Global and Regional Reports tell lived experiences of sex workers and policies for their development.
Research Questions:
The study shall endeavor to find the answers to the following questions:
- How has legalized prostitution helped in the development of standards of living for sex workers so far?
- What is the need to provide legal status to organized sex institutions such as brothels?
- How can brothels and institutions related to prostitution be legalized?
Research Objective:
The study shall have the following objectives:
- To analyze the current status of prostitution and how it is regulated.
- To understand the impact of legalizing prostitution
- To study organized prostitution and its effects.
- To suggest policies for the regulation of organized prostitution.
If organized sex institutions are legalized along with prostitution, only then the sex profession can be put on par with other professions and the fundamental rights of sex workers can be secured.
The government can step in to regularize the institutions relating to sex work on the lines of Western countries.
Research Methodology:
In order to examine the topic at hand and get a better understanding of the law relating to prostitution, doctrinal research was conducted. The primary data i.e. Acts were collected from official sources such as indiacode.nic.in and analyzed. The research also includes analysis of qualitative data such as books, articles, judgements, websites, and law journals. These were collected from online sources such as JSTOR, Live Law, and SSRN.
Present Indian Legal Scenario:
Prostitution is legal in India as section 375 penalizes only forced sex or sex without obtaining consent in a valid way. The Supreme Court in Budhadev Karmaskar v. State of West Bengal, held that:
Sex workers are human beings and should be treated with humanity and dignity according to Article 21 of the Indian Constitution. The Immoral Traffic (Prevention) Act, 1956 does not criminalize prostitution in India per se, but Keeping a brothel is illegal as per section 3, to live off on a prostitute's earnings as per section 4, to procure, induct, or detain a person for sex work as per section 5 and 6, prostitution near public places and notified areas as per section 7, and solicit prostitution as per section 8. The Indian Penal Code, of 1860 also addresses prostitution, it focuses on kidnapping and child prostitution. Under Article 23(1) of the Indian Constitution, the trafficking of human beings, beggars, and other similar forms of forced labor is prohibited.
It is not unlawful to avail or procure sex in India, but the law is silent on punishing brothel keepers for subjecting a prostitute to be mistreated by a client. The law does not contain provisions for the use of condoms and for the healthcare of sex workers.
Need To Regularize:
The need to regularize organized prostitution is to give equal opportunity of work to sex workers and to protect them from being harassed by clients. Regulating organized sex work will give legal protection to sex workers and they can practice their rights without any fear. Such rights are:- equality before the law given under Article 14, the right to protection of life and personal liberty under Article 21, and freedom of conscience and free profession under Article 25.
Like any profession or industry, organizations are important so that they can be regulated. It is more important for prostitution because it involves more chances of ethical, physical, social, and health abuses of the workers.
How It Can Be Regularised?
Prostitution is well established in several countries such as Germany, New Zealand, Greece, Switzerland, Bangladesh, Netherlands, etc.
Germany: prostitution in Germany is legal, organized, and taxed. Germany also allows the advertisement of brothels and the processing of prostitution jobs. Germany passed the Prostitutes Protection Act in 2016, which was intended to protect the legal rights of prostitutes. Part of the Act includes requiring a permit for all prostitution trades and a registration certificate for all prostitutes.
New Zealand: In 2003, the New Zealand Prostitution Reform Act decriminalized sex work. It is legal for any citizen over 18 years old to join sex work as their profession. Sex workers' rights are guaranteed through employment and human rights legislation.
Greece: Prostitution is legal and it is an employment opportunity for women in Greece. Sex workers must be up to 18 years of age, be unmarried, must be free from sexually transmitted diseases (STDs), and must be free from any mental illness.
Switzerland: In Switzerland, organized sex work is legal and regulated. The prostitutes are registered and have a legal work permit issued by authorities after confirming residence status, health check, insurance, etc.
In India, it is limitedly legal, and institutions related to prostitution are not regularized as mentioned above. There have been several cases of raids at hotels in which people involved in the activity are arrested and treated as criminals. Such as with the case of Section 377 when it was criminalized.
Sex work can be organized and regulated, if:
- Government legislate law for sex work and sex workers.
- Institutions related to prostitution will be recognized.
- Registration for brothels and sex workers would become mandatory.
- Proper guidelines are issued for medical checkups of sex workers.
In every research, the researcher set an aim to be achieved through the research. After conducting the research, the researcher must test his hypotheses in order to fix the veracity of the research. This research had two hypotheses.
- Firstly, the legalization of prostitution has not helped in the
development of sex workers in any way as it only allows independent sex
work. There are laws that criminalize the institutions related to
prostitution that continue to exploit sex workers. The Indian Constitution
provides fundamental rights for every citizen and therefore sex workers
being also citizens of India are entitled to have those rights.
Although, society is not ready to accept sex workers as respected citizens due to which they face rejection and harassment. The need of the hour is to regulate organized prostitution and create an enabling environment for sex workers' health and safety.
Organized prostitution will remove middlemen who exploit sex workers and even charge extra money from clients for allowing them to practice violent activities with sex workers. Due to unorganized prostitution, sex workers do not have access to proper medical facilities, and their clients refuse to wear condoms which exposes them to serious diseases like AIDS. Therefore, the first hypothesis is approved.
- Secondly, however, not only legalizing prostitution will help in the
development of sex workers. Organized prostitution should be legalized such
as keeping a brothel. Independent sex workers don't have any proper
workplace to carry out their profession which leads them to harassment by
clients. Brothels should be organized and government-licensed and only
registered prostitutes can work there.
There should be a legal way of entering into the profession so that minors cannot be trafficked and no one shall forcefully enter into this work. "Sex Workers Need to be Seen as Labour, Not Victims". Government should recognize brothels as a working organization and provide them with all the facilities, protection, and duties that are given to any other profession. These places should provide education to their employees who are uneducated and want to study so that they can have a better understanding of their rights and duties.
These places should also provide training for different vocations so that if they want to leave this profession and pursue any other work of their choice. India should follow Nevada's prostitution laws to regulate organized prostitution. Thus, government intervention is required in recognizing prostitution institutions society might not be ready to accept the change yet, but it will in time. Thus, the second hypothesis is also approved.
Criminalizing institutions related to prostitution is not the right way to regulate it and it will not help in the development of sex workers. Prostitution is a vocation that has existed for ages but is still seen as taboo and sex workers are degraded by society. Laws related to prostitution are not clear and have no proper aim.
Sex work and human trafficking are two very different things and should be focused on individually. Not every sex worker is forced into this profession, some enter it by their choice but the law does not allow them to choose their profession and forcefully send them to rehabilitation centers.
Organized prostitution will give sex workers a better and healthy lifestyle, they will have access to medical treatment and their children will have better future opportunities. The problem is not in the sex profession itself but it is in our minds, we don't accept individuals who work in this area, especially women. Nothing is going to change until we as a society do not accept that sex workers are just ordinary individuals who are doing a job they may like/ dislike to spend their life.
Award Winning Article Is Written By: Ms.Aiman Siddiqui, Swami Shukdevanand Law College, Shahjahanpur
Authentication No: AG324318306940-31-0823
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