Should Prostitution Be Legalised In India? By Tranum Preet Kaur from UILS Chandigarh
What is prostitution? One may say that it is sex in exchange for money. It seems like a contractual agreement where one procures something in exchange for another by seeking consent. This proposition raises a lot of questions like, is the consent valid? Does it confer equal negotiating powers amongst the parties? Is it in consonance with labour laws? Is it legally binding? et al. One thing is certain that the consideration paid is in terms of the dignity of the sex worker. However, such contracts are not valid in India, a country where the sanctity of a cow weighs more than protecting the sanctity of its women.
In India, prostitution is legal in part. The Suppression of Immoral Traffic in Women and Girls Act, 1956 allows a woman to sell her body for money, as long as it’s done individually and voluntarily. The law, however, prohibits a woman from soliciting customers by gestures or wilful exposure of her body. Organised prostitution is illegal. Even though the exchange of sex for money is permissible in an individual capacity, a lady cannot do it in within a span of 200 yards of a public place. Sex workers are not within the ambit of normal labour laws. However, they have all the rights that would be enjoyed by a citizen and are entitled to be rescued and rehabilitated if they want to do so.[i]
To say that the law is vague would be putting it mildly. Prostitution has been legalized in the Netherlands, New Zealand, Germany, Iceland, Switzerland, Austria, Denmark, Greece, Turkey, Senegal, Venezuela, the state of Nevada in the U.S., and several Australian states. In Sweden, selling sex is not a crime, but buying sex is. The Swedish Ministry of Justice claims that prostitution across the country has halved since the Sex Purchase Act, 1999. It includes a strong welfare state, exiting services for women who wish to leave the industry, the retraining of police officers, so that they understand that prostitutes are victims, not criminals, and public education. Sweden has been partially successful in reducing prostitution and trafficking but the social stigma prevails. It’s hard for them to get parental rights, or even rent houses for that matter. But despite its shortcomings, it has worked so far and even prompted other Nordic countries like Iceland and Norway to adopt the Swedish model.[ii]
Legalisation of prostitution will help in the protection of vulnerable women in India. How? The law should include provisions like registration of the prostitute and the customer to prevent instances of rape, supply of free condoms to registered workers, regular health check-ups to detect STD’s which are common in this profession, etc.
For many, it is a personal choice as it is a means of livelihood for them. Decriminalisation will help to check malpractices like the involvement of victims of drug abuse and elimination of pimps and middlemen. In addition, it will also stop minors from entering, or being forced to enter into this profession. In the brothels of strict Singapore, every customer is provided with condoms as well as the facility to shower before and after the ‘session’. The prostitutes are also required to maintain health cards.[iii] In India, prostitution is estimated to be an 8.4 billion dollar industry. Taxing it would also enable the government to channel money back into the profession, thus enabling it to protect the rights of sex workers.[iv]
On the brighter side, India’s attitude is changing. Recently, a fashion designer, Amit Chauhan, started a campaign called 'Nath Utrai’ by engaging prostitutes as models for his project. Earlier this month, the Gujarat High Court made a commendable ruling that revolved around the vagaries of trafficking and sex work. It stated that clients of sex workers could be penalised under Section 370 (trafficking of persons) of the Indian Penal Code; however, the High Court provided a caveat that in cases where sex work is voluntary, Section 370 would not apply. The case, Vinod @ Vijay Bhagubhai Patel v. State of Gujarat (2017) is one where the judiciary looks at both the IPC as well as the Immoral Trafficking Prevention Act, 1956, and examines the crime of trafficking.[v]
The Apex Court in Budhadev Karmaskar v. State of West Bengal[vi] through its division bench headed by Markandey Katju, J and Gyan Sudha Mishra, J stated:
‘we strongly feel that the Central and the State Governments through Social Welfare Boards should prepare schemes for rehabilitation all over the country for physically and sexually abused women commonly known as prostitutes as we are of the view that the prostitutes also have a right to live with dignity under Article 21 of the Constitution of India since they are also human beings and their problems also need to be addressed.’[vii]
Sex trade cannot be uprooted from any society. It's a society's social fact. Only exploitation can be reduced, if not stopped by decriminalization. Making it illegal is only complicating the scenario and making sex a taboo. The cons of legalising it cannot outweigh the pros. It has to be seen from the point of the sex worker. We as outsiders can only make observations, however, law or no law will only affect the ones involved in the trade and studies have shown that they are demanding it. It is high time the parliament takes congnizance of this issue.
[ii] Aviral Virk, What India Can Learn From Countries That Legalised Prostitution, THE QUINT, (Jul 21, 2015 at 12:39 PM), https://www.google.co.in/amp/s/www.thequint.com/amp/story/india%252F2015%252F07%252F21%252Fwhat-india-can-learn-from-countries-that-legalized-prostitution
[iii] Palash Krishna Mehrotra, Legalisation of prostitution will help protect vulnerable women in India, DAILY MAIL, http://www.dailymail.co.uk/indiahome/article-2798508/legalisation-prostitution-help-protect-vulnerable-women-india.html
[v] Deya Bhattacharya, Gujarat High Court ruling opens doors to legal changes, recognise rights of voluntary sex workers, FIRSTPOST, (May 18, 2017), http://www.firstpost.com/india/gujarat-high-court-ruling-opens-doors-to-legal-changes-in-prostitution-recognise-rights-of-voluntary-sex-workers-3456356.html
[vi] JT 2011 (8) SC 289.
[vii] Latest Judgments by Supreme Court of India on Rights of Women, (Jul 27, 2015), https://blog.ipleaders.in/supreme-courts-on-womens-rights/
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