"Does law protect the rights of the Prostitutes ?"
TOPIC
“Does law protect the rights of the Prostitutes?"
TABLE OF CONTENTS
Introduction
Hypothesis
Definition of prostitution
Historical background
Indian legal framework
Legal framework of other countries
Aspects of legalization
Conclusion
Bibliography
1.Introduction
“Purely from the angle of economic return, the hard question is not why so many women become prostitutes, but why so few of them do.” - K. Davis (1937)
Prostitution is a complex and controversial issue that has been a subject of legal and societal debate in India for many years. The practice of prostitution is deeply rooted in the history and is practiced since the origin of organized society and is the main cause of human trafficking in india. The laws dealing with the prostitution are equally complex and often subject to reforms and debate. The main objective of this assignment is to analyze the legal framework surrounding prostitution in India , various laws and judgements.
1.1.Research Question
These are the questions which we will dealt in this paper:
• What are the laws related to prostitution in india.
• What would be the implications on the condition of women if prostitution will be legalized in india.
1.2.Research Methodology
The research is done by using various data available on primary and secondary sources which has been collected from the various websites, judgements, journals, articles and judgements. The mode of the research is doctrinal.
1.3. Research Objective
The main objectives of the research are as follow:
• To have an in-depth analysis of the legal framework governing prostitution in the country.
• Discuss the societal and human rights aspects of the laws related to prostitution.
1.4.Hypothesis
It is hypothesized that perhaps there are many laws regarding the protection of women in India, ITPA Act and many more, but still there is no improvement in the condition of prostitutes even they are deprived of their basic rights. Even many womens and Childrens are being trafficked and forced to be involved in this activity, there is lack of implementation of these acts on ground reality.
1.5.Chapterization
The research paper has been divided into ten chapters. Chapter one titled introduction, which has been added at the beginning, introduces the context of the project, and presents a detailed research methodology listing out the research objective, hypothesis etc. Chapter two deals with the definition of Definition of prostitution. Chapter three deals with the Historical background. Chapter four deals with Indian legal Framework. Chapter five deals with the Indian Penal code, 1860. Chapter six and seven deals with the Legal framework and Aspects of legalization. Chapter eight and nine deals with the why government should legalize and regulate it and Government can implement some rules which may include . Chapter ten deals with conclusion.
2.Definition of prostitution
The word prostitute is derived from Latin word prostituta. In which prostituta is composed of two words pro and situere in which pro means “up front” or “forward” and situere means “to offer up for sale”. A literal translation therefore is: “to put up for sale” or “to place forward”. According to immoral traffic prevention act section 2(f) “prostitution“ means the sexual exploitation or abuse of persons for commercial purposes or for consideration in money or in any other kind, and the expression “prostitute” shall be construed accordingly¹.
According to the suppression of immoral Traffic in Woman and Girls Act, 1956 as: “prostitution means a female who offers her body for the promiscuous sexual intercourse for the hire whether in money or in any kind”.
Mr. Geoffrey, stated “prostitution may be defined as the practice of habitual or intermittent sexual union , more or less promiscuous, for mercenary inducement.”
Elliot and Merrill, stated “prostitution is an illicit sex union on a promiscuous and mercenary basis with emotional and indifference.
3.Historical background
Prostitution is not a recent phenomenon; it can be traced back to prehistoric times through the pages of history². The earliest mention of prostitution occurs in the Rigveda³ , the most ancient literary work of India.Vatsyayan, the noted Indian sage of the Third century B.C. devoted a number of pages on prostitutes and their amorous ways of life in his monumental treatise Kamasutra⁴ .
Prostitutes are mentioned not just in the Vedas but also in the Bible, where Jesus Christ accepts a woman into his kingdom despite her status as a prostitute⁵.
One of the most significant festivals in India is Navratri, a nine-day celebration honoring Maa Durga. The event is dedicated to the worship of Maa Durga, a deity composed of eighteen soils obtained from eighteen distinct locations, including a prostitute's door. The irony is that although prostitutes are referred to as nasty people, the dirt from their doorstep is named "punya mati," or the pure soil⁶. Sex is a part of civilization, and this is seen in even the sculptures. Statues depicting different sex positions can be seen in the old Ajanta Ellora caves and the Khajuraho temples. It seems like our ancestors were more advanced than we are; in the past, having sex was considered art rather than taboo as it is today. Instead of being treated like trash, humiliated, abused, and worst of all, having everyone ignore their cries, sex workers used to be respected and had dignified lives in earlier society⁷.
Like everything else, prostitution goes through a process of evolution, and this is why prostitution and the sex industry are still growing today.
4.Indian legal Framework
The Indian Penal Code of 1860, the Immoral Traffic (Prevention) Act of 1956, and the Indian Constitution of 1950 all have provisions that regulate sex work in India.
The constitution apart from the clauses pertaining to equality⁸ , freedom of association⁹ , right to life and personal liberty¹⁰ ,ensures the prohibition of forced labour and human trafficking¹¹ .
Immoral Traffic (Prevention) Act of 1956, was legislated as a supplement to SITA. This Act made it unlawful to engage in several prostitution-related activities. The Act prohibits third parties from publicly endorsing, assisting, or facilitating prostitution in public, but it does not outlaw the provision of services by prostitutes.
There are procurements for the arrest of a prostitute for convincing others to use her services. In addition, call girls are not allowed to provide their phone numbers. These offenses result in a six-month jail sentence and fines.
The Act also imposes a two- to four-year sentence on criminals and other individuals who profit from the interest earned by prostitutes.
A minimum of seven years are prohibited by the Act from being spent coercively detaining any woman in a brothel to provide sexual help.
Moreover, it is against the law to hire prostitutes in hotels.
5.Indian Penal code, 1860
Section 354:- A two year imprisonment or fine or both was given for the offence of Assault or use of criminal force upon a women with intent to outrage her modesty.
- Section 366: - Kidnapping or abducting a woman, or any girl under the age of 18 year. In order that she may be forced or reduced to illicit intercourse with any person has been punished with imprisonment of 10 years or fine or both.
Section 372:- Selling, Letting, for hire or otherwise disposing of for obtaining the possession of a girl under 18 year of age for any unlawful purpose was made an offence.
Section 375: - Sexual intercourse with a woman under 16 years of age was treated as rape not withstanding that she may consented to it, punishable up to 10 years.
6.Legal framework of other countries
• Netherlands (legal)
Since October 2000, the ban on pimping and brothels have been repealed, and labor laws now govern the sector¹² . Prostitutes are legitimate employees¹³ . The licensing and inspection processes to guarantee high-quality, standard working conditions are handled by municipalities¹⁴ .The Dutch Penal Code makes it illegal to exploit anyone involved in the prostitution business, including forced prostitution and human trafficking, even though hiring prostitutes beyond the legal age of consent is permitted.
• Germany (legal)
Because of Germany's federal structure, each state is free to impose laws in a particular way, and cities are free to designate areas where prostitution is prohibited¹⁵ . The 2002 Act on the Regulation of Prostitutes' Legal Affairs gave adult sex workers the legal standing to sell sex in establishments that have been approved or on a freelance basis¹⁶ . Immigrants can sell sex, and single sex workers can work from home without a permit. Regulations pertaining to taxes, health insurance, planning, and labor are necessary. Different local tax collection strategies are used; some brothels collect daily standard taxes. On July 1, 2017, new laws came into effect mandating the use of condoms and requiring sex workers to register and attend counselling¹⁷ .
• United states (limitedly legal)
Buying or selling sex services is illegal in the United States, with the exception of Nevada, where brothels are licensed in select areas. Prostitution, soliciting, and consenting to perform prostitution are considered crimes in most jurisdictions.The majority of US states impose harsh fines and jail terms as penalties for encouraging, obtaining, and pandering to prostitutes¹⁸.
• Sweden
The selling of one's own body for prostitution services is permitted in Sweden, but buying sex is prohibited by law. It is still forbidden to purchase or run a brothel¹⁹. The ban did not, however, interfere with prostitutes to conduct business. in other words, it is lawful to sell sex, but paying a prostitute for it has serious consequences, including jail time²⁰. Other nations such as Iceland, Norway, and, more recently, Canada and Northern Ireland have also followed this concept.
7. Aspects of legalization
Whether prostitution should be legalized or not is quite controversial and debatable topic in India. As per law prostitution is legal in India when done individually and privately. It is necessary to regulate prostitution and place government control over brothels and related businesses. Even though pimping and brothels are illegal, they yet exist and take advantage of women²¹. Approximately three million women in India are employed as prostitutes, with 1.2 million of them being under the age of 18. Between 1997 and 2004, the number of prostitutes increased by 50%.
In December 2009 the Supreme Court of India asked the government to legalize it, saying, "If you are not able to curb it by laws then legalize it." SC added that- legalizing prostitution would help monitor the trade and rehabilitate sex workers.
8. Why government should legalize and regulate it
Legalization and regulation by government will lead to safe and secure future for sex-workers, their children and those who involved in this.
These actions will lead to decrease in
• HIV and STDs spread
• child exploitation.
• Sexual assault, harassment of women, and rape.
• Abuse of the sex workers.
Benefits of legalizing prostitution are:
• Sex trafficking will end with the legalization of prostitution and the sex industry.
• The sex industry will be under control once prostitution is legalized.
• Legalization of prostitution will decrease clandestine, hidden, illegal and street prostitution.
• Women who engage in prostitution will be protected by legalization since they will have rights.
• Women who are involved in prostitution networks want the sex business to be legalized since they are the ones who suffer the most from having no rights.
9. Government can implement some rules which may include
• Enrollment of every sexual worker
• Licenses for dalals, brothels, and the elimination of middlemen
• Mandatory checks in order to ensure safety for the sex-workers
• A girl or child under the age of eighteen may not be allowed to pursue this career.
Governance of prostitution will become simpler if it is legalized. This will assist in decreasing the forced prostitution of minors and women. Determining whether women have given their consent to engage in prostitution is challenging under the current system. It will be simpler to manage illegal behaviour and assist victims if prostitution is brought under legal scrutiny. Children can be prevented from entering the prostitution industry and paedophilia can be prevented by regulating prostitution.
Of course, these steps won't end all forms of exploitation of women. The police must take a proactive role in regulation in order to dismantle any ongoing illicit networks. The state needs to make sure that there is no corruption within the police. Prostitution regulation in this manner has the potential to greatly reduce social evils like violence and exploitation in the sex business.
10. CONCLUSION
Prostitution in India is a shameful profession, with inadequate laws and a lack of clear approach. In addition to guaranteeing the safety of minors and sex workers, regulation is required to stop violence and exploitation. While strict laws may not completely ban the practice, it is better to have regulations rather than banning it entirely. It is essential to raise public awareness of issues pertaining to women in order to stop cruel acts. These people's rights would be protected if prostitution were legalized and regulated.
Endnotes
1. The immoral Traffic (prevention) Act, 1956, s. 2(f)
2. Status of prostitution in India available at: https://iledu.in/status-of-prostitution-in-india/ (last visited 24th October 2023)
3. Sukumari bhattacharji, “Prostitution in ancient india”15 Jstor 32 (1987)
4. Prostitution in Indian society issues trends and rehabilitation available at: https://www.scribd.com/document/433077748/Women-and-Law (last visited 25th october 2023)
5. Legalization of prostitution in india available at: https://legaldesire.com/legalization-of-prostitution-in-india-need-of-the-hour/ (last visited 30th October 2023)
6. Ibid
7. Ibid
8. The constitution of india,1950, art 14.
9. The constitution of india,1950, art 19(1).
10.The constitution of india,1950, art 21.
11. The constitution of india,1950, art 23.
12. Prostitution laws around the world available at: https://globalnews.ca/news/128029/at-a-glance-prostitution-laws/ (last visited 30th October 2023).
13. Ibid
14. Ibid
15. Sexuality, poverty and law programme available at: https://archive.ids.ac.uk/spl/sexworklaw/countries.html (last visited 30th October 2023)
16. Ibid
17. Ibid
18. Supra note 12.
19. Prostitution legal in Sweden, but illegal to be a prostitute’s customer available at: https://www.vanguardngr.com/2020/09/prostitution-legal-in-sweden-but-illegal-to-be-a-prostitute customer/ (last visited 30th october 2023)
20. ibid
21. Legalization of Prostitution in India and its Impact on the Exploitation and Violence Against Women available at: https://www.ijlmh.com/paper/legalization-of-prostitution-in-india/ (last visited 30th October 2023)
BIBLIOGRAPHY
Acts & Statues:
• The constitution of india, 1950.
• Indian penal code, 1860.
• The immoral Traffic(prevention) Act, 1956
Websites:
• Legalization of prostitution in India available at: www.legalserviceindia.com/legal/article-3392-legalization-of-prostitution-in-india. (last visited on 25th October 2023).
• Legalization of Prostitution in India: Need of the hour available at: https://legaldesire.com/legalization-of-prostitution-in-india-need-of-the-hour/ (last visited 26th October 2023)
• Legalization of Prostitution in India and its Impact on the Exploitation and Violence Against Women available at: https://www.ijlmh.com/paper/legalization-of-prostitution-in-india/ (last visited 26th October 2023)
• Prostitution as an Organised Crime available at: https://www.worldwidejournals.com/international-journal-of-scientific-research-(IJSR)/fileview.php?val=February_2014_1391587360_41ca5_187%20Dr.G.S.Venumadhava%20G-1.pdf (last visited 28th October 2023)
• Prostitution in Ancient India available at: https://www.jstor.org/stable/3520437 (last visited 28th October 2023)
• Status of prostitution in India available at: https://iledu.in/status-of-prostitution-in-india/#_ftn1(last visited 30th October)
• Prostitution in India available at: https://www.lawcolumn.in/prostitution-in-india-2/ (last visited 30th October 2023)
• The problem of Prostitution an Indian perspective available at: https://www.legalserviceindia.com/article/l269-Prostitution-in-India.html (last visited 30th October 2023)
• Why prostitution should be legalized available at: Why prostitution should be legalized | PPT (slideshare.net) (last visited 30th October 2023)
• Legalization of Prostitution in India available at: http://works.bepress.com/dchatur/1 (last visited 30th October 2023)
