The Legal Analyst ISSN: 2231-5594 Volume 1, 2011, pp.

100- 105

PROSTITUTION IN INDIA- LEGAL AND SOCIAL RAMIFICATIONS Shashank Shekhar*

Abstract: When prostitution is the world's oldest profession and we are not able to curb it by law(s), why don't we legalize it? Under apprehension and fear of police and enforcement authorities, those in this trade are compelled to live a life of harassment, exploitation, humiliation, cruel and degrading treatment. If we legalize it, we can then monitor the trade, rehabilitate and provide medical aid to those involved. Legalizing sex trade would be a better option to avoid trafficking of women and pointed out that nowhere in the world was prostitution curbed by punitive measures. Most of us say that our society is not ready for such a radical change but how many of us honestly believe that an inter-caste marriage, which is a legal right of a couple, is not frowned upon by the society? Have we forgotten the relentless and merciless honor killings that take place every other day? That untouchabilty, which is banned by the Grundnorm that is, the Constitution of India, is not practiced in India? Perhaps none of us! So we need to legalize prostitution, social acceptance would come eventually. But if we wait for our society to be ready for it then they would be deprived of their right to live life with dignity. Key Words: Trafficking, Wo men, Law.

Introduction: Prostitution is the act or practice of providing sexual services to another person in return for payment. People who execute such activities are called prostitutes. Prostitution is one of the branches of the sex industry. 1 The legal status of prostitution varies from country to country, from being a punishable crime to a regulated profession. 2 Prostitution was a part of daily life in ancient Greece. In the ancient city of Heliopolis in Syria, there was a law that stated that every maiden should prostitute herself to strangers at the temple of Astarte.3 In India, the practice of prostitution has been prevalent since time immemorial. Originally, devdasis were celibate dancing girls used in temple ceremonies and they entertained members of the ruling class. But sometime around the 6th Century, the practice of "dedicating" girls to Hindu gods became prevalent in a practice that developed into ritualized prostitution. Devdasis literally means God's (Dev) female servant (Dasi), where according to the ancient Indian practice, young pre-pubertal girls are 'married off, given away' in matrimony to God or Local religious deity of the temple. 4 The marriage usually occurs before the girl reaches puberty and requires the girl to become a prostitute for upper-caste community members. Such girls are known as jogini '. They are forbidden to enter into a real marriage. The system of devdasis started only after the fall of Buddhism and records about them start appearing around 1000 A.D. [Bharatiya Sanskruti Kosh, IV, 448]. It is viewed that the devodosis are the Buddhist nuns who were degraded to the level of prostitutes after their temples were taken over by Brahmins during the times of their resurgence after the fall of Buddhism. According to the 1934 Devadasi Security Act, this practice is banned in India.5 India is home today to Asia's largest red-light district--Mumbai's Kamathipura, which originated as a massive brothel for British occupiers and shifted to a local clientele following Indian independence. The Mughal Empire (1526 -1857) also witnessed prostitution the word tawaif and 'mujra ' became common during this era. King Jahangir's harem had 6,000 mistresses which denoted authority, wealth and power. Even during the British era prostitution flourished the famous Kamathipura, a red light area in Bombay, was built during this era for the refreshment of British troops and which was later taken over by Indian sex workers.
*Assistant Professor, RML National Law Uni versity Lucknow, INDIA.
1 2

www.turbowars.com/people/.../should-prostitution-be-legal-in-indi www.hrmun.org/committees/un-human-rights-council 3 68articles.com/the-problem-of-prostitution-an-indian-perspective-2ffe6ce0.html 4 indianredlight.wordpress.com 5 iml.jou.ufl.edu/projects/Spring02/Chattaraj/genesis.htm

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The practice of dedicating devdasis was declared illegal by the Government of Karnataka in 1982 and the Government of Andhra Pradesh in 1988. However the practice is still prevalent in around 10 districts of north Karnataka and 14 districts in Andhra Pradesh.6 The districts bordering Maharashtra and Karnataka. known as the "devadasi belt," have trafficking structures operating at various levels. Many are devadasi dedicated into prostitution for the goddess Yellummu. Prostitution- An objective perspective: When one gifts a girl precious gifts and she returns it back with sexual favours (which could be making out with one, or even full intercourse), that is prostitution in objective terms according to the definition of prostitution. Would one really be in a relationship with a girl (or marry one) if it's made clear that one is NOT going to get any sexual favours from her'? Or if one is a girl, then would one be in a relationship with a man (or marry one) if if s made clear that he is never going to give one any gift or material benefits, both have to pay your rent separately, one will have to buy one's own clothes, jewellery etc, and just keep on giving sexual favours to him? This is prostitution from a pure Objective viewpoint. An experiment was conducted in Yale University with Monkeys.' A bunch of scientists tried to train monkeys into using money. The monkeys exchanged stuff with each other using those coins; they even showed their preference by offering different amount of money for say Jel-O v. Bananas.7 The best part was that female monkeys were having sex with male monkeys in exchange for money. This is prostitution. It exists among monkeys too. Now it didn't happen because of some inherent characteristic fault of money, after all just because monkeys traded with money doesn't mean that it was some inherent characteristics of money which made them to those things, rather it means monkey brains are wired too for understanding and performing indirect exchanges.8 Similarly it simply means that female monkeys perceive prostitution no different than any other exchange. Secondly, it's always males who have to give something to the female in order to have sex with her. When training a bunch of monkeys for using money, it comes up explicitly as prostitution. Since if money wasn't used in this concept and monkeys were only observed in their natural environment, people would have concluded that the monkey is seducing that female monkey by giving her that shiny stone. The first imprudent reaction we get when we discuss about legalizing the practice of prostitution, is, "Won't evil people force women to work as prostitutes?" Rationalization 9 : Forcing women to work as prostitutes in such a society would still be a crime, irrespective of whether you make prostitution legal or illegal. Just like forcing someone to work in your fields is a crime, forcing someone to do computer programming for one on a gun point is a crime, forcing someone to work as a prostitute will be a crime. Like forcing someone to work in your house as a maid is slavery, forcing some girl to work as a prostitute will be slavery too. So, there is no change in status for that act which is certainly a crime. Now if prostitution is made legal, then only the women who wish to work as a prostitute will be in the profession. If there will be enough number of women in such a profession, there will be no incentive for those criminals who force women to become prostitutes do continue doing it. The prostitutes will be well paid, kept much more healthy, and be less exploited. The second imprudent reaction we get from people is "Oh so would you like to see your sister or mother work as a prostitute?" Rationalization10 : Now, there is a big difference between supporting the decriminalization of a voluntary act, and wishing to see one's own family members do the same act without consent. Despite of the fact that prostitution is not legal, there are prostitutes all over the world: one's own sister might be working as one without one's knowledge. Is that idea disgusting? Why not? That's because one might think you have given one's sister some values? Well then why would they be becoming prostitutes just because it's legalized now?
6 7

www.legalserviceindia.com/.../l269-Prostitution-in-India.html www.reasonforliberty.com/.../legal-or-illegal-prostitution.htm 8 www.reasonforliberty.com/.../legal-or-illegal-prostitution.html 9 www.reasonforliberty.com/.../legal-or-illegal-prostitution.html 10 delhiwithavinash.blogspot.com/.../city -secrets-life-of-prostitutes-in.html

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A million-dollar question arises, "If having sex with a partner of your choice is legal, how come exchanging money for sex is not? What changes when money is exchanged between two people for sex? It's definitely not exchange of money because there is nothing wrong in exchange of money between two people. It's not sex either because two consenting adults are allowed to have sex." Legal temperament towards prostitution: Legal themes tend to address four types of issues: victimhood (including potential victimhood), ethics and morality, freedom of choice, and general benefit or harm to society (including harm arising indirectly from matters connected to prostitution). 11 There are various ways in which prostitution is dealt with in different countries. Some of them are as follows: Prohibitionism 12 Both prostitutes and clients are criminalized and are seen as immoral, they are considered criminals; Abolitionism13 Prostitution itself is not prohibited, but most associated activities are illegal.; Neo-abolitionism14 Prostitutes are not prosecuted, but their clients and pimps are; Regulation15 : prostitution may be considered a legitimate business; prostitution and the employment of prostitutes are legal, but regulated; Decriminalization16 : "prostitution is labor like any other. Sex industry premises should not be subject to any special regulation or laws. Indian Position-The primary law dealing with the status of sex workers is the 1956 law referred to as The Immoral Traffic (Suppression) Act (SITA). According to this law, prostitutes can practice their trade privately but cannot legally solicit customers in public. Organized prostitution (brothels, prostitution rings, pimping, etc.) is illegal. 17 As long as it is done individually and voluntarily, a woman (male prostitution is not recognized in the Indian constitution) can use her body's attributes in exchange for material benefit. In particular, the law forbids a sex worker to carry on her profession within 200 yards of a public place. Unlike as is the case with other professions, sex workers are not protected under normal labour laws, but they possess the right to rescue and rehabilitation if they desire and possess all the rights of other citizens. The Immoral Traffic (Prevention) Act or PIT A is a 1986 amendment of legislation passed in 1956 as a result of the signing by India of the United Nations' declaration in 1950 in New York on the suppression of trafficking. 18 The Act, then called the All India Suppression of Immoral Traffic Act (SIT A), was amended to the current law. The laws were intended as a means of limiting and eventually abolishing prostitution in India by gradually criminalizing various aspects of sex work. The main points of the PITA are as follows: Sex Workers: A prostitute who seduces or solicits shall be prosecuted. Similarly, call girls can not publish phone numbers to the public. (Imprisonment up to 6 months with fine, point 8) Sex worker also punished for prostitution near any public place or notified area. (Imprisonment of up to 3 months with fine) Clients: A client is guilty of consorting with prostitutes and can be charged if he engages in sex acts with a sex worker within 200 yards of a public place or "notified area". (Imprisonment of up to 3 months. point 7) The client may also be punished if the sex worker is below 18 years of age. (From 7 to 10 years of imprisonment, whether with a child or a minor)

11 12

wn.com/whore_makeup danielhaas.org/tag/matthew/ 13 dictionary.sensagent.com/prostitution/en-en/ - United States 14 en.wikipedia.org/wiki/Prostitution 15 www.plri.org/sites/plri.../Examples%20of%20different%20frameworks.do 16 hotdogfish.wordpress.com/.../human-trafficking-prostitution-our-world-4 17 www.lawyersupdate.co.in/LU/9/869.as 18 www.hrmun.org/.../HRM UN-Study-Guide-Human-Rights-Council-2010.pdf

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Pimps and Babus: Babus or pimps or live-in lovers who live off a prostitute's earnings are guilty of a crime. Any adult male living with a prostitute is assumed to be guilty unless he can prove otherwise. (Imprisonment of up to 2 years with fine) Brothel: Landlords and brothel-keepers can be prosecuted, maintaining a brothel is illegal. (From I to 3 years imprisonment with fine for first offence).Detaining someone at a brothel for the purpose of sexual exploitation can lead to prosecution. (Imprisonment of more than 7 years) Procuring and trafficking: A person procures or attempts to procure anybody is liable to be punished. Also a person who moves a person from one place to another, (human trafficking), can be prosecuted similarly. (From 3 to 7 years imprisonment with fine) Rescued Women: The government is legally obligated to provide rescue and rehabilitation in a protective home for any sex worker requesting assistance. Public place in context of this law includes places of public religious worship, educational institutions, hostels, hospitals etc. A "notified area" is a place which is declared to be "prostitution-free" by the state government under the PITA. Brothel in context of this law is a place which has two or more sex workers (2a). Prostitution itself is not an offence under this law but soliciting, brothels and pimps are illegal. Approach of the Indian Judiciary: It may be recalled that as the Division Bench of Delhi High Court in Naaz Foundation v. Govt. of NCT of Delhi 19 (July 2009) ruled that decriminalizing consensual homosexuality in private can be permitted (although SC is seized of an appeal against it), then one may argue that prostitution also deserves same footing since it is as much "a consensual act between two a dults (though heterosexual) in a private place". Undoubtedly, neither is an offence in itself. In both cases, an offence is committed only when certain conditions are violated and the conditions are common: that the sex should be consensual, between adults and it should in private. Thanks to the aforesaid verdict, gigolos catering to gay clients can come out in the open and access medical care to prevent or treat HIV / AIDS. which was the main reason cited by Naaz Foundation for asking the High Court to "read down" section 377 IPC provision against the wide-ranging offences described as "carnal intercourse against the order of nature". 20 The same logic of providing proper healthcare and medical aid in addition to encouraging employment of necessary safeguards to prevent spread of sexually transmitted diseases do hold good in respect of prostitutes too. Under apprehension and fear of police and enforcement authorities, those in the trade are compelled to live a life of harassment, exploitation, humiliation, cruel and degrading treatment under cover of secrecy as under present law they can be booked as criminal offenders. On December 9, 2009 a Supreme Court Bench comprising Justices Dalveer Bhandari and AK Patnaik while hearing a PIL filed by an NGO, Bachpan Bachao Andolan, complaining about large-scale child trafficking in the country and seeking directives to contain it, asked the Solicitor-General of India, "When you say it (prostitution) is the world's oldest profession and you are not able to curb it by la w(s), why don't you legalize it'? You can then monitor the trade, rehabilitate and provide medical aid to those involved."21 The Court further opined that legalizing sex trade would be a better option to avoid trafficking of women and pointed out that nowhere in the world was prostitution curbed by punitive measures.22 Ironically, the Supreme Court in Gaurav Jain v. Union of India (July, 1997) had explicitly described prostitution as "a crime against humanity, violation of human rights and obnoxious to the Constitution and Human Rights Act". It directed the Government to take all steps to prohibit prostitution asserting that eradication of prostitution in any form is integral to social weal and glory of womanhood. But even after more than a decade of such ruling, the successive governments have adopted a lackadaisical approach over the hypersensitive issue for reasons best known to them. We can very well notice here, the dynamic change in the approach of the India judiciary, at the highest
19 20

2009(160)DLT277 www.lawyersupdate.co.in/LU/9/869.asp 21 www.lawyersupdate.co.in/LU/9/869.asp 22 www.mightylaws.in/545/prostitution-legalized

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level. Need for legalizing prostitution in India: Taking into account the peculiar social scenario and 'different' circumstances prevailing in India, this discussion would take place in two stages, that is, the pros and the cons of legalization of prostitution in India. Pros of legalization: 1. HIV / AIDS among prostitutes have emerged as a huge cause of concern. According to a WHO report of 2001, it is estimated that 50% of prostitutes in Mumbai (the city being hub to the largest number of prostitutes in the country) are HIV positive. If it is legalized and regulated, awareness programs teaching the prostitutes the importance of protected sex and frequent health checkups can be organized. 2. Legalizing prostitution shall be a primary channel to vent out the sexual energies of men who otherwise content themselves by means of rape and other sexual violations of women in their vicinity. 3. Regulated prostitution shall put a check upon the brutal trafficking of girls where they are trafficked without their consent and are forced to serve the clients. 4. Human rights are supposed to bring every human being dignity, but women who trade their bodies are far from enjoying a dignified life. If the government legalizes the profession, gradually the outlook of society, who considers prostitution a despicable occupation, may change. Also, the women in such trade will be given a place in the closely knit Indian society. 23 5. The middlemen or 'Dalaals' who procure and sell girls for purposes of prostitution are a menace. They sell women like chattels in lieu of commission. Legalization and regulation by government shall mean abolition of the undesirable figure of middlemen. 6. Policemen extort money from brothels and prostitutes to let them work in peace. If prostitution is legalized and regulated such exploitation shall come to end. 24 7. There is no effective legislation to curb child trafficking, If prostitution is legalized, brothels indulging in child prostitution could be penalized. This shall put a check a child trafficking and prostitution. 8. Children of prostitutes cannot expect of a better life. Due to poor life conditions they are bound to enter in the same trade. Regulation of prostitution shall promise a better life for such children. 9. If the profession gains a legal status the Labour laws could be extended to prostitutes who are working with brothels. Cons of Legalization: As it is said, every coin has two sides. Legalization too has some shortcomings: Legalizing prostitution might benefit the facilities and the pimps not their victims. In India, where women are coerced into the trade and kept in it almost like bonded labour, such a move will not benefit them. 25 Commercial sexual exploitation is a form of slavery and slavery cannot be legalized. India should not compare itself with other western countries where prostitution enjoys legal status because our societal customs are most unlike those in the west. Giving this business a legal status might only mean that our society is giving approval to the flesh trade. Some critics say, prostitution wrecks personality and affects marriage relationships. Prostitution affects family life, communicates diseases like AIDS and thus brings social disorganization. 26 Concluding Observation: More dirt piles up by sweeping it under the carpet. Legalize it or not, first we need to learn to talk openly about prostitution. It is only after we learn to do that, that we will be able to form a rational opinion about it. Prostitution is a flourishing economic enterprise in India and should be recognized as such. Closeting the oldest profession known to mankind as a morality issue not only amounts to ignoring the exploitation of the commercial sex-worker by parasites, who feed on the income she generates, but the larger issue of AIDS- a scourge which is on the verge of wreaking a global apocalypse. 27
23 24

www.mightylaws.in/229/prostitution-legalized-regulated-india Ibid 25 www.indiacivilservice.com/index.php?cmd=print&recipe=173 26 www.absoluteastronomy.com/topics/Forced_prostitution 27 timesofindia.indiatimes.com/...mandate...prostitution/.../145540.cms

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What is required is a practical rather than a puritan approach. By according legitimacy to the sex-worker, millions of women who ply this trade to feed their families will be freed from the clutches of pimps, brothel-owners and cops on the take. Additionally, in traditional red-light areas, the workable practice of targeted intervention will gain effectiveness.28 Legalizing prostitution will see these women who live life on the edge everywhere, gaining access to medical facilities which can control the spread of AIDS, not only among sex-workers themselves but at a more macro level, the customer, his wife and potential progeny. Numerous nations across the globe which have legalized prostitution see strength in this argument. By failing to pay heed to the world order, India has only made prostitution a criminalized whirlpool involving various mafiosi- both governmental and otherwise - and a health hazard for women who are the victims rather than the vectors of AIDS. Voices which speak in favour of legalizing prostitution realize that a progressive society doesn't ignore certain parts of its whole, but lives and lets live. 29 Most of us say that our society is not ready for such a radical change. But we need to ponder over this for a moment ask to ourselves, 'Is the change really so radical?, after all we are talking about legalizing prostitution not seeking everyone's acceptance. Social acceptance in such cases comes next. After all how many of us honestly believe that an inter-caste marriage, which is a legal right of a couple, is not frowned upon by the society? Have we forgotten the relentless and merciless honor killings that take place every other day? That untouchabilty, which is banned by the Grundnorm that is, the Constitution of India, is not practiced in India? Perhaps none of us! First we need to legalize prostitution, social acceptance would come eventually. But if we wait for our society to be ready for it, then that is going to one long wait. Who would be answerable to those women who, due to inaction on the part of legislature, would be deprived of their right to live life with dignity, during that long wait for social acceptance? The need of the hour is to legalize the practice of prostitution, because if we wait for our society to ratify the actions of the legislature, then that might take centuries perhaps, and deprive many women their basic human right. For those who think that prostitution per se is inhuman I illustrate the example of girls who are from well-off families, but still indulge in the practice of prostitution for a little extra cash. This is happening because women are choosing prostitution as a 'profession' not as a last resort. We need to start looking at prostitution their way, not force the way we look at prostitution upon them. Ultimately, I would conclude this paper, by asking one simple question, If not now, WHEN?

28 29

www.lawyersupdate.co.in/LU/9/869.as delhiwithavinash.blogspot.com/.../city -secrets-life-of-prostitutes-in.html