Law · Public Policy · Society

Legalising Prostitution in India: A critical analysis

Prostitution has existed in our country since ages. The words ‘Prostitute’ and ‘prostitution’ are mentioned even in early Indian literature; they have been addressed by different names in the Sanskrit literature. They have been referred in Vedas, Puranas, Mahabharata and Ramayana. The Puranas state that the very sight of prostitutes brings good luck. The women prostitutes in those times were classified into three categories, namely, Kumbhadasis, Rupajivas, and Ganikas. Prostitution as a profession has a long history in India.[1] There are reasonably good records of prostitution in large Indian cities during the 18th and the first-half of the 19thcenturies of British rule; prostitution was not considered as a degrading profession in that period as it was from the second-half of the 19thcentury. Indian Prostitution was completely independent of the British and other foreigners. Temple dancers, noble courtesans, independent village girls and big brothels could be found in every corner of Indian subcontinent. Thus, prostitution has existed in the society since ages and is still dominant in modern society.

The definition of prostitution in the Indian law is unclear and ambiguous. It is defined as “the sexual exploitation or abuse of persons for commercial purposes or for consideration in money or in any other kind”. The main statute dealing with prostitution or sex work in India is the Immoral Traffic (Prevention) Act 1956 (the amended version of the Suppression of Immoral Traffic in Women and Girls Act 1956. The act came into force on 26th January 1987. The purpose of the law is to limit and eliminate prostitution in India by progressively criminalizing various aspects of sex work.

The law does not refer to the practice of selling one’s own sexual service as “prostitution”. So the act, as of now, does not criminalize prostitution per se, but it intends to punish acts of facilitating prostitution like brothel keeping, living off earnings and procuring by third parties.

Currently, prostitution is not regulated. Soliciting sex is an offence though practising it ‘in private’ isn’t.[2]  And more often than not, clients are criminalised and impeached. Organised prostitution isn’t allowed either. Also, Indian law doesn’t recognise male prostitution. Unlike the case with other professions, sex workers are not protected under labour laws thus, making it hysterical, unregulated and very dangerous. And this is not counting the huge amounts of human rights violations and human trafficking that is a part of this illegal state of happenings.

Prohibiting prostitution isn’t going to stop it from existing. Until and unless it is completely eliminated, which by and large is a very far hard-pressed idea considering its existence and practice since ancient times, proper legalisation and regulation of prostitution will not only benefit sex workers but also the society as a whole.

There are certain reasons as to why it would be beneficial to legalise prostitution in India. Regulation of prostitution would include conducting regular medical checks ups of sex workers and provision of adequate birth control tools, which will reduce the risk of sexual diseases being communicated from workers to customers and vice-versa. It will promote cleaner working conditions and the process will thus become healthier and safer, which will be advantageous to both parties involved, as well as the society.

Also, Legalisation of prostitution will lead to a systematic advancement of the industry. The service of pimps and middlemen will no longer be required, leading to a decrease in criminal behaviour and an increase in the wages of the sex workers.

Once decriminalised, the entire industry will come under the sphere of legal control which will enable law upholders to detect instances of forced prostitution and help victims of the same. As far as the question of recognising the ones who are forced into the flesh trade and those who aren’t goes, the current unfortunate system makes it impossible to determine willingness. A legal system in place will check criminal behaviour and significantly reduce the smuggling and slavery of women and children.

Prostitution in India is approximately an $8.4 billion industry. Legalising it and taxing the proceeds like any other business will provide an incentive for the government, and facilitate it in providing regular medical check-ups, and protecting the rights of people engaged in the profession.

Issues like human trafficking something directly related to prostitution are hard to investigate keeping in mind the both sides of prostitution. Without legal protection, exploitation will remain unpunished, just like in any other unregulated industry. Sex workers must be directly involved in this process, they have a right to political participation. Even so, a good number of countries today allow prostitution legally. Countries like Netherlands, New Zealand, Venezuela, Indonesia, Greece, Germany, Ecuador, Canada, Nicaragua, ten counties of Nevada in the United States etc. allow prostitution along with pimping and brothel owning.

Countries like Argentina, Armenia, Austria, Belize, Bolivia, Brazil, Chile, Czech Republic, Denmark, Ethiopia, Finland etc. allow prostitution but do not allow brothel owning and pimping.[3]

If we look at it, prostitution, if done willingly by both parties, is a ‘victim-less’ crime. Prostitution when done voluntarily by adults, in-door, in a legal way, has no reasons to be unacceptable. When abortion is legal, so should be prostitution. The ‘my body, my right’ argument should apply here too. Moreover, morality is subjective and as long as no one is being forced, it shouldn’t disturb anyone. Sex work is a human right; it’s as respectable as anything else.

[1] V. Sithanan, Immoral Traffic: Prostitution in India, 9-14

[2] http://www.womensweb.in/2014/01/why-prostitution-should-be-legalised/

[3] http://www.youthconnectmag.com/2014/04/21/should-prostitution-be-legalised-in-india/

About the Author

IMG_27202521762269Mansi is a 5th year law student studying in Amity Law School, Noida. She aspires to become a corporate lawyer. She likes reading books, listening to music and learning new languages. She is currently working as the Research Associate at Alexis Centre for Public Policy and International Relations.

4 thoughts on “Legalising Prostitution in India: A critical analysis

  1. I had always been supporter of legalizing prostitution male and female. We pretend that we are very sensitive about sex and offences relating to sex. But prostitution is one of the medium to reduce sex offences as such type of offences occur just spur of moment and then every one the offender and the victim repaint also but the women fearing social problems make report.

  2. I strongly believe prostitution should be made legal in our country as it can help reduce crimes against women.It will also help reduce AIDS cases and better the life of sex workers all over the country.Please do read my article here and take part in the poll:

    legalprostitution.in

  3. nice article but legalising means more people will forced in this.
    as a result only poor people will be targeted ( now it happens but it is less, if we legalised then number will shoot up like anything.

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