BROTHEL WITHOUT WALLS:LEGALISATION OF PROSTITUTION
Author: Spandana Reddy Bommu, III year of B.B.A.,LL.B. from Symbiosis Law School, Hyderabad
Prostitution is a delicate topic; many arguments against it centre on concerns about women's health and safety, and such concerns are not unwarranted. Sexual assault, forced drug addiction, physical violence, and death are all regular occurrences in the sector for the (mainly) female employees. In this research, the researcher examines the problems faced by the sex workers and how legalization of prostitution can help improve the scenario. The response to such a dangerous industry drives it further underground, away from societal resources and legal protections. As few of the outcomes of research are a detailed understanding and prescription of probable solutions, research lies in the best interests to deal with the current topic. Hence, a recent study has been taken up.
KEYWORDS: Prostitution; Women; Sexual Assault; Sex Worker; Legislation
Jawaharlal Nehru was the first Indian Prime Minister to give the Indian Constituent Drafting Assembly the responsibility of discussing prostitution. Their first task as a delegate body was to set up a new constitution to free India, feed the hungry, clothe the naked, and provide every Indian with the best opportunity to develop himself according to his abilities.[i] Seventy-three years after India's independence, sex laborers are still deprived of opportunity.
Prostitution, termed the oldest profession globally, has a tumultuous history on a global scale. Courtesan remains a thriving line of business regardless of whether it is actively forbidden, tacitly condoned, formally controlled, or a combination of these. According to some estimates, global exchange prostitution generates $186 billion in annual revenue, with prostitution in India accounting for more than 8% of this total. Many countries are considering changing their legal approaches to prostitution, not only for the sake of the whores and those who employ their services but also to profit from the revenue generated by the calling.
Authorizationrecognizes the institution of prostitution and grants sex laborer’s complete legal righteousness, which is typically accompanied by enlistment, permitting, and clinical registration. It was drilled in West Germany and Nevada in the United States. In most Scandinavian countries, a fascinating legitimate method to control the sex exchange is to condemn the acquisition of sex but not its offering (thus, customers are prosecuted and not whores). This is referred to as the "The Swedish model". Several jurisdictions are attempting to incorporate business sex into legal categories such as public good, ethical quality, drafting/wellness guidelines, and disturbance. In this way, laws with a broad scope are directed at cops who force and harass women on the street for the sake of the law[ii].All forms of prostitution were condemned by the United Nations Convention of 1949, to which India is a signatory.
2.1 PROSTITUTION IN OTHER COUNTRIES:
In the United States, prostitution is a "controversial topic". Arguments against prostitution frequently centre on worries about women's health and safety, which are not unwarranted. For the (primarily) women involved, prostitution is hazardous; sexual assault, forced drug addiction, physical violence, and death are all regular occurrences. Many sex workers were sold into sex trafficking at an early age and had no resources to escape their forced prostitution or began out as sex workers by choice, only to fall prey to sex trafficking later. Furthermore, because prostitution is illegal in most parts of the United States, there are few legal safeguards in place for prostitutes; many are afraid that seeking help will lead to arrest, and many who do seek help are captured and then have to deal with the stigma of a criminal record while attempting to reintegrate into society.
When people argue that prostitution should be prohibited, they often do so out of a sense of morality, disguised as concern for women's health and safety. People say that legalizing prostitution will increase women's abuse, make it more difficult for prostitutes to leave the sector, and educate young women that their bodies are just there to be sexually exploited by men.
Legalizing prostitution, on the other hand, has benefited sex workers all over Europe. The Netherlands is the most well-known country to have legalized prostitution, having done so for nearly two decades. The safety of sex workers has improved since the profession was brought out of the shadows and tight rules were imposed. Brothels must seek and renew safety and hygiene licenses to operate, and in places like the Red-Light District, street prostitution is legal and strictly regulated. When sex work is handled, not only does it become safer, but it also helps to eliminate the black market for prostitutes, making women safer in general.
Additionally, because sex workers are not classified as criminals, they have easier access to the legal system. They are encouraged to report activities that endanger themselves and other females in the profession. Finally, legalizing sex work will result in many other benefits, including increased tax revenue, decreased sexually transmitted diseases, and a reallocation of law enforcement resources.
Indeed, several European countries' current initiatives to legalese prostitution are far from flawless. Certain aspects of the law in the Netherlands, such as the requirement that sex workers register and establishing a minimum age for prostitution at 21, may drive more sex workers to illegal marketplaces. Furthermore, research shows that legalizing prostitution might lead to an increase in human trafficking. Even individuals who oppose legalizing prostitution can see the benefits of legislation on sex workers' working circumstances. Decriminalizing prostitution will bring protection, security, and respect to a group that has traditionally been denied such things if countries with laws in place spend more time listening to present sex workers.
The accompanying questions are reasonable to be addressed eventually in this research.
i) What's the primary objective behind legalizing prostitution?
ii) What are the provisions for securing prostitutes from harassment after decriminalization?
iii) Will the legalization of prostitution mitigate the rate of trafficking in human beings, and what is the state of affairs in many other parts of the world?
OBJECTIVES OF THE STUDY
The current research aims to elucidate the legalization of prostitution and recognize their fundamental rights and consider this a vocation for a sex worker. Henceforth, the objectives of this research are as follows.
i) To evaluate the scope of rules about the legalization of prostitution.
ii) To examine the pervasiveness and boundaries of lowering illegal exploitation by legalizing sexual activities.
iii) To establish and suggest policies and procedures which must be acquired to maintain the dignity and constitutional interests of the prostitute by taking into consideration multiple international scenarios.
SIGNIFICANCE OF THE STUDY
Policy-makers who advance the legitimization of the whoredom business have contended that this arrangement makes undermined ladies and young ladies more secure and battle coordinated wrongdoing. These assumptions depend on the possibility that prostitution will happen in houses of ill-repute that can find well-being and security codes and empower simple identification of the illicit whorehouse industry that can be shut down. Close by additional damages related to prostitution exacerbated in sanctioned systems, this advancement gives a critical motivation behind why the authorization strategy is bound to fail in accomplishing its targets.
International Labor Office had shown that sex work should be perceived as an occupation,[iii] for example, when it embraced work guidelines on HIV/AIDS in 2010[iv], which included word related well-being for sex laborers. Additionally, the legitimization of prostitution held furnished prostitutes with ensured social and work advantages, for example, sufficient working conditions, a more secure workplace, and clinical consideration. Numerous nations have received "resistance zones" for sex laborers to advertise their administrations. The administrations contend that legitimized whorehouses would give safe working conditions. Furthermore, required well-being checks ensure all gatherings are included.
The present research on the legalization of prostitution is additionally on comparative balance where the protection of rights of prostitutes has brought about tolerance of nonconformity among the overall population. The exploration would assist the legal executive with taking their esteemed choices in such issues. Consequently, this exploration is critical in the present day to grasp and act appropriately on current previously mentioned irreconcilable circumstances.
LEGAL PROVISIONS UNDER THE CONSTITUTION
According to the Indian Penal Code, prostitution is not illegal in the broad sense. Still, some behaviors that are a crucial part of prostitution are punished under specific articles of the act:
Soliciting prostitute services in public areas
Operating a prostitution ring in a hotel
Owning and operating a brothel
Hire a sex worker and indulge in prostitution.
Scheduling a sexual act with a customer.
Immoral Traffic (Prevention) Act, 1956 (ITPA)
Prostitution is defined by the Immoral Traffic (Prevention) Act of 1956[v] (ITPA) as the sexual exploitation or abuse of a female for monetary gain. A prostitute is an individual who benefits from that commercial benefit. This act, commonly known as SITA, was passed in 1956. Prostitutes are allowed to start their business in private, but they are not authorized to carry it out in public. According to the legislation, clients can be arrested if they are found guilty of performing a sexual act in public.
Within 200 yards of a public area, a lady cannot engage in commercial sex. Sex workers are not covered by existing labor laws because of their unique vocation. Still, they enjoy all of the rights of any other Indian citizen, including the opportunity to be rescued and rehabilitated if they so desire.
Immoral Traffic (Prevention) Act, 1986
The Immoral Traffic (Prevention) Act of 1986 modifies the original act. Prostitutes who are seen soliciting their services or enticing others will be arrested under this act. Additionally, call girls are not permitted to make their phone numbers public. They may be sentenced to 6 months in prison and other penalties if they are caught.
Clients who engage in sexual activity with a sex worker within 200 yards of a public space face a maximum of three months in prison and penalties. If someone is caught engaging in sexual behavior with a minor, they could face a sentence of up to ten years in prison. Pimps and other people who live off a prostitute's earnings are also guilty. An adult male who lives with a prostitute may be considered guilty.
If he cannot prove his innocence, he might face a sentence of 2-4 years in prison. SITA (1956), which was later revised to ITPA (1986), is a significant law since its objective, according to the preamble, was to give effect to the Trafficking Convention. The law is described in the preamble as an act to suppress immoral commerce in women and girls, adopted by Parliament in the Seventh Year of the Republic of India, following the International Convention signed in New York on the 9th day of May 1950.
In the landmark case of The State of Uttar Pradesh vs Kaushalya[vi], the constitutionality of the ITPA was questioned. According to the circumstances of this case, a couple of the prostitutes were requested to leave their posts to maintain the city of Kanpur's decorum.
Section 20 of the act, according to the High Court of Allahabad, curtailed Article 14 and subclauses (d) and (e) of Article 19(1) of the Indian constitution. Because there was a discernible difference between a prostitute and a person producing a nuisance, the Act was constitutionally valid.
The Act is also in line with the act's goal, which is to maintain order and decorum in society. The act focuses on attaining a public objective of preserving society's decorum and decency, rescuing fallen women and girls, and providing them with rehabilitation and the opportunity to become good community members. The act criminalizes prostitution and authorizes the central government to set up a special court to try offenders.
A Proposed Amendment in 2006
In 2006, a proposal to alter the Immoral Traffic (Prevention) Act was done. The amended bill essentially repeals the rules that make it illegal to solicit customers for prostitution. This plan calls for harsher penalties and a higher acceptable sum. It proposes to do the act of visiting a brothel for sexual exploitation of trafficking victims, punishable by at least three months in prison or a fine of Rs. 20,000, which is currently not punishable under the Act.
The bill establishes federal and state authority to combat human trafficking. The phrase "human trafficking" has been defined as a provision for prosecuting anyone who engages in human trafficking for prostitution. The Indian Constitution's Article 21 The protection of life and personal liberty is stated in the article. No one's life or individual liberty can be taken away from them unless they follow the legal procedure.
Budhadev Karmaskar v State of West Bengal[vii]is a case where the plaintiff was Budhadev Karmaskar. In this case, the sex workers were human beings who deserved to be treated with respect and dignity. Nobody has the right to harm them physically. The decision also brought attention to the concerns and plight of sex workers. The court believes that these women are forced to engage in prostitution for economic and societal reasons rather than out of choice or pleasure.
The court ordered the federal and state governments to enroll sex workers in vocational and technical courses and open rehabilitation centers to improve their career prospects. Section 21 of the Immoral Traffic (Prevention)Act mandates that the State Government build and operate protective homes, which they must monitor and register. An effective authority should be in place to investigate applications for protective homes. These permits were only valid for a limited time and could not be transferred. Under section 23 of the act, the state has the authority to adopt additional rules concerning the license, management, and maintenance of these homes and other concerns.
Article 23(1) also declares that traffic in human beings, beggars, and other similar forced labor forms are prohibited. Any contravention of this provision shall be an offence punishable following the law.
PROSTITUTION REGARDINGINDIAN PENAL CODE,1860
Human trafficking is also addressed in the IPC, which forbids the trafficking of women and girls into a forcible area of prostitution and imposes severe penalties on perpetrators. Anyone who buys, sells, or obtains the possession of anyone under the age of 18 for prostitution or illicit intercourse, or for any unlawful or immoral purpose, or knowing that such person will be employed or used for any such purpose at any age is punishable by up to ten years in prison under the Indian Penal Code.
The IPC defines cross-border prostitution as importing a girl under the age of twenty-one years into India with the intent of forcing or seducing her into illicit intercourse with another person or knowing it is likely that she will be moved or drawn into illegal intercourse with another person, and punishable by imprisonment of up to ten years and a fine.
The IPC provision concerning rape also relates to the rape of a brothel inmate. The International Criminal Court defines rape as an act of sexual intercourse with a woman against her will, without her consent, with her consent but under threat or fear of death or injury, with her consent when she is unaware of the consequences of her support, or with or without permission when she is under the age of 16.
Under the IPC, the minimum sentence for rape is seven years in jail. These regulations apply when brothel owners, workers, and customers engage in sexual intercourse with children or women who are forcibly confined in brothels.
PROBLEMS WITH THE INDIAN LAWS AND THEIR PURPOSE
The fundamental issue with these rules is that prostitution is seen as immoral, indecent, and a threat to society's decorum. However, the truth remains that sex work done following safety procedures and standards causes no harm to anyone. Furthermore, the main reason why prostitution is considered immoral and sex workers are considered dirty is that sex is a big taboo in our society. The demand and supply of sex in a regulated manner is frowned upon.
Because of existing sex norms in the community and people believing and continuing to flourish on these norms, the Indian society cannot absorb sexual assault. The act attempts to criminalizebehaviors that lead to prostitution reflects the law's reluctance with confronting the underlying issue and makes only transitory and half-hearted changes to tackle the problem.
Another essential component of Indian prostitution laws that is overlooked is that they fail to recognize that sexual exploitation affects women and men and transgender individuals.
FINDINGS OF THE STUDY
In a society where prostitution has been a long-standing profession that continues to thrive as a business, it would be foolish to turn a blind eye to it and pretend that the system and its defects do not exist. Sex workers will have a better life with better earnings, health security, and protection if sex work is decriminalized with reasonable rules and regulations and made lawful.
Prostitution will be legalized, which will improve and strengthen the system. It will safeguard minors from becoming victims of sexual exploitation. Approximately 10 million youngsters are forced into prostitution around the world. Child prostitution is a sad reality in practically every country, but it is awful in Asia and South America. Strict industry restrictions can ensure that minors are excluded from the system. Intermediaries and pimps will be removed from the system, allowing sex workers to earn more money while illegal and exploitative factors are reduced to a minimum. People will choose a legal and more accessible alternative to satisfy their sexual cravings, which will minimize sexual violence, rapes, and other sexual assaults. An example of Queensland can be taken where the region experienced a 149% increase in rape rate after closing brothels. The rights of the workers will be protected. Even though the sex workers do not come into the ambit of customarylabor laws, they should get all the rights of a citizen and a laborer.
Not only that, but as a society, it will be a progressive step toward eradicating many social ills such as child prostitution, rape, and so on. The sex trade is an evident reality in our country, and by acknowledging it as a legitimate business with specific laws and safeguards, all parties involved can gain. A more comprehensive and inclusive legislative framework and applying all available safeguards will benefit society.
As a result, the researcher would like to summaries the following statements regarding the abovementioned considerations. The criminalization of prostitution and other aspects of the sex trade is not the best approach. The sex trade is here to stay, and by acknowledging it as a legal kind of employment, all parties involved can benefit. It would significantly reduce the government's burden of enforcing anti-prostitution legislation and paying for more law enforcement. Taxes, foreign exchange, and increasing employment rates would help governments raise their revenue. Countries would also ensure a secure atmosphere for their citizens by requiring sex workers to undergo medical examinations and receive proper medical treatment. More significantly, legalizing prostitution would protect sex workers' rights and provide them with the opportunity to live the regular lives they deserve. However, it would be far better if the government legalized prostitution, providing sex workers with rights and protection on the job.
Nonetheless, one should strive to create laws and carry them out not to contradict the interests of another section of the Indian Constitution. The government should first and foremost protect the rights of prostitutes who are citizens of the country.
[i]AUSTIN GRANVILLE, THE INDIAN CONSTITUTION, CORNERSTONE OF A NATION(1999). [ii] As of 2009, ninety-five countries have ratified the Convention but ninety-seven have not [iii] International Labour Office, Recommendation Concerning HIV and AIDS and the World of Work (No. 200) (2010), available at http://www.ilo.org/aids/lang-en/docName- WCMS142706/index.htm. [iv] It also includes empowerment to insist on safe and protected paid sex in their workplaces. [v] Supra note 7 [vi] State of Uttar Pradesh vs. Kaushalya 1991 SCR (1) 29. [vii] Budhadev Karmaskar versus State of West Bengal S.C.R. 577 .