This article is written by Sidra Khan, a student of Amity University, Noida. The article discusses the legal prostitution in India, what are the laws governing it & whether legal prostitution in India should be taxed or not.
Prostitution in the Indian situation, although declared by the court not explicitly illegal, is regarded as illegal in certain actions related to it, such as the management of brothels, the subsistence of the money obtained through prostitution, the application or luring into prostitution of an individual or trafficking of children or women for prostitution, etc. It is illegal to facilitate a sex racket, but prostitution in private with one’s consent may at times not be illegal. Prostitution is a severe social problem and its solution has become complicated. As India legalises prostitution by putting certain restrictions on it in the country but the meaning is yet to be more clear. The vagueness in defining legal prostitution is still a problem. The truth is that if any sex worker is located near a public place or even at a remote location away from the chaos and looks straight into the eyes of the public it means she gives you a warm smile and a mild reaction. This is India’s well-established image of prostitutes. Prostitution is generally referred to as the “oldest occupation” which is sadly far from being misunderstood.
Meaning of legal prostitution
In Indian private escort services may be conducted on a voluntary basis. The Suppression of Immoral Traffic in Women and Girls Act 1956 (SITA) allows a woman to sell her body for money, so long as she is doing it individually and willingly. It requires her body to be sold individually and voluntarily. The Indian policy is one of tolerance because sex-workers per se are not an offence and the private and voluntary practice of sex-work is not a crime. In a way, this Act provides for punishments for sex workers who solicit in the public and deal with excesses of abuse in the industry. Sex is permitted because it does not have to be legal or illegal, since they operate individually and privately, sex workers do not commit a crime, but they are not legally allowed to solicit in public.
Difference between legal and illegal prostitution
Prostitution in India is commonly misinterpreted as immoral, rather than legal, but pimping, running or owning a brothel and so on, is illegal and is commonly considered to be immoral. Mumbai, Delhi and Kolkata are the largest cities in India, where large numbers of brothels run illegally. Prostitution is not illegal or punishable by the act in itself. The Immoral Trafficking Act of 1956 states that certain acts such as requesting for prostitution, the management of a brothel or the use of certain places as brothels, live on the proceeds of a prostitute’s income, induction or abduction of girls for prostitution, detention of girls in brothels, seducing an individual who was in custody for prostitution, and to carry out prostitution within 200 metres of any public places like schools, hospitals, religious places etc, is illegal. Nevertheless, if it is proven that the behaviours mentioned below have the right, in compliance with existing laws, to be punished:
- Requesting sex facilities in general
- To carry out activities for prostitution in hotels
- Being an owner of a brothel
- Support prostitution by paying for a sex worker
- To arrange a sexual act with a customer
- Soliciting in public
Immoral Traffic (Prevention) Act, 1956
This Act came into existence in the year 1956 which earlier was known as Suppression of Immoral Traffic Act (SITA). The Act puts forth the definition of prostitution as sexual exploitation or misuse of female property, and the person to whom the commercial profit is provided is a prostitute. The law specifies that prostitutes can engage in private practices but can not conduct their business in the open. According to regulations, clients will be arrested if they participate in any public sexual activity. While sex for money may be exchanged for one male, a lady can not do so in a span of 200 yards from a public place. Sexual workers are not protected by ordinary labour laws. Nonetheless, they have all the privileges a person would deserve and if they so wish they could be saved and rehabilitated.
In 1986 was The Immoral Traffic Act (Prevention Act), which amends the SITA. Prostitutes are imprisoned for offering their services or seducing others according to this statute. In the same way, telephone numbers can not be made available to call people. Customers who consort to prostitution or participate in such practices within 200 yards of the specified area shall be kept for up to 3 months and they must also pay fines for the same. they may also be subject to a maximum of six months imprisonment and financial penalties if found doing so. In case someone indulges in these activities with someone under the age of 18, from 7-10 years he or she may be jailed. Pimps and similar men who live on a prostitute’s revenue are also guilty. In this way, a man who lives with a prostitute may be considered guilty if he lives with it. If he is not able to prove innocent, he can face 2-4 years imprisonment.
The aim of this Act is to suppress prostitution among women and girls and achieve a public objective viz. rescuing the fallen women and girls and stamping them out of prostitution, and also supplying them with every opportunity to become respectable members of society. The Act seeks to criminalize the activities of prostitution as mentioned above and authorizes the police to prosecute them, close brothels and transfer them to facilities that will transform them. It empowers the Central Government to set up a special tribunal to prosecute crimes under this Act.
Indian Penal Code, 1860
Indian Penal Code, 1860 is limited to child prostitution. Nevertheless, they continue to fight against practices such as kidnapping, kidnapping in general and sexual intercourse, import for sex of a girl from a foreign country, etc.
Forced prostitution is where young children or teenagers and women hailing from poor background are forced into this. How girls are often brought from villages with the false hope of jobs but are later sold off to some brothel owner. Indian Penal Code, 1860, punishes child prostitution, including the selling and purchase of minors for prostitution purposes. Section 372 of the Code provides at least ten years of imprisonment for a person who sells a minor for prostitution purposes. Section 373 of the Code gives ten years in jail for the procurement of a minor for prostitution purposes. The reasons given to these parts suggest only minor girls, not boys, in trade. Whereas it also covers committing public nuisance under Section 290 or committing an indecent act in a public place under Section 294 of the Code.
Constitution of India
Article 23(1) of the Constitution bans human trafficking, begar trafficking and other related forms of forced labour. Article 23(2) states that any violation of this section shall be punishable under the law. The right to life enshrined in Article 21 shall also extend to a prostitute. This has been clarified in the case of Budhadev Karmaskar v West Bengal State. It claimed that sex workers are human beings and no one has the right to harass or kill them, as they have the right to live. The judgment also highlighted the plight of sex workers and empathizes that these women are forced to engage in prostitution not for pleasure but because of abject poverty, and directed the Central Government and State Governments to open rehabilitation centres and to impart technical and vocational skills such as sewing in order to attain other means of living.
In that direction, Section 21 has been incorporated in the Immoral Traffic (Prevention) Act as a provision for the State Governments to create and maintain safe homes and these should be governed by licenses issued by them. An appropriate authority will be named to perform an inquiry into the application of the safety homes licence. These licenses can not be moved, and are valid for the specified time only. Through virtue of Section 23 of the ITPA, the government is empowered to make ancillary rules for licensing, operating, and maintaining security homes or ancillary matters.
In the case of the State of Uttar Pradesh v. Kaushalya, the constitutionality of the Immoral Trafficking Act had been questioned. In this case, to preserve decorum in the city of Kanpur, many prostitutes were required to be removed from their place of residence. The High Court of Judicature in Allahabad contended that the constitutional rights of the respondents under Article 14 and subclauses (d) and (e) of Article 19(1) of the Constitution were abbreviated by Section 20 of the Act. The Act was considered legally legitimate because an intelligible distinction existed between a prostitute and an individual causing a nuisance. The Act is indeed in accordance with the goal to be achieved i.e. maintaining social order and decorum.
Subsidy and taxation on condoms and sanitary napkins
The tax reform which encompasses the idea of “one country, one tax, one markets” influenced the different industries in India with a four-story GST system with 5, 12, 18 and 20% tax rates. The launch reportedly reached the broad red-light area in Sonagachi, in Kolkata, which unexpectedly transformed into a tax generator for goods and services. Although the GST was welcomed with null% GST on condoms, it also raised concerns about the problem of sanitary napkins at the same time.
The sanitary napkin tax is now 12 pcs, which ensures that Usha Multipurpose Co-operative Society Ltd will avoid providing the services of the companies that used to supply them. Usha Multipurpose is the largest cooperative bank run by sex workers in India, according to an Indian Express survey. It has 30,222 members from Sonagachi and from other Bengali red lighting regions and offers healthcare services and condoms at a subsidized rate for thousands of sex workers.
Santanu Chatterjee, the finance manager of the bank, said that the companies that sold exclusive discounted goods to a Bank had now turned away and that the rates they used to sell condoms or sanitary napkins for would now be that. Dr. Smarajit Jana, mentor to the Durbar Mahila Samanwaya Committee, and mentor of Indian Express’ brain, said that it took years for sex workers to persuade them to use health care facilities and that most poor sex workers have now come to rely on the company for drug procurement.
Women tried to keep sanitary products free of tax, but that wasn’t the case and they actually were taxed 12% under the GST. In Sonagachi, according to Durbar, the majority of sex workers in the country rely on such subsidised condoms and health napkins, which comprise around 15,000 sex workers and 28 red-light areas in the state. According to the study, the bank had a toilet for Rs 3.33 and sold it in 63 countries. The bank would have to pay Rs 8 for a napkin after GST. It would raise chances for sex workers not to use napkins and become more vulnerable to health risks. A sex worker said, ‘Condoms are our lifeline, and it is good that they do not have GST. But now they say that prices for sanitary are going to increase. I don’t understand GST but consumers already are fewer girls can’t just use napkins and make the effort to save money on fabric.
Bharati Dey, a former Durbar minister, says only a few A-grade sex workers charging customers of Rs. 2,000 do not need health facilities at these banks. But other sex workers from category B use subsidized sanitary bins who charge about Rs. 500 and category C, who charge between Rs.100 and Rs. 200. and so they’re going to be hit hardest.
Sangini Mahila Cooperative bank
Sangini, which was founded in Mumbai in 2007, was only the country’s second bank of its kind, after a similar initiative in Kolkata. The bank allows sex workers to open accounts without a minimum deposit and gives homeless girls savings accounts. There were a small group of 10 volunteers who would go to brothels to collect deposits from the account holders, including sexual workers in Kamathipura and three to four dealers. Sangini bank, which got its name from the Hindi word for “friend” or “companion,” catered specifically to sex workers, offering them access to financial services when most conventional banks would turn them away.
Thousands of sex workers have paid in their Sangini Mahila Cooperative Bank interest on their warehouses Rs 15,370. They began with the US non-profit Population Service International in July 2006. This cooperative bank collects savings from sex workers and deposits them with the Bank of India, which deducted interest taxes at source. The sum is negligible; it’s not the act of payment.
So impressed is the micro-credit scheme offered by the life insurance corporation that more than 250 sex workers are entitled to policy. Only one other Indian city, Kolkata, was offered policies by the state-run insurer. The regional manager of (LIC microfinance division), D.S.Rawat said: “the bank is doing an excellent job. “The loan recovery record has been set at 49 percent. This is better than a lot of company banks. The bank has made (non-audited) income of Rs 5 lakh in less than three years and is now more than 3,200 account holders. Total Rs 2.29 crore deposits.
But Sangini had a hard time making money, and was forced to close in November 2017. Now more than 5,000 sex workers who used the bank in Kamathipura are left with no place to store their “dirty” money.
Should legal prostitution in India be taxed
Prostitution in India is a multi-million-shilling-a-year earning industry and no-one gets any taxes off it. Sex workers complain they are being abused and removed from hotels and nightclubs and detained by police. To continue operating, they also have to pay bribes to the police. Why not remove it and turn it into a money generator, rather than having to pay it to the police. Prostitution is booming and a massive amount of money is changing hands every day and none of it is taxable. This means that if legal prostitution will come under the taxable slab the governments will benefit from millions of shillings. Prostitution is a working form and should be treated as such. Many types of employment are paid according to how much money is being made.
According to me, a prostitute should report all of her profits, and pay the correct tax. Sex traders will be a self-employed person, most likely rank for filing a single proprietorship. Therefore, they would report all the money they received from their “job” as profits, take deductions for any expenses incurred in the way of it (renting the rooms, clothes, probably surgery for “enhancements”), and then pay the remaining usual self-employment taxes and income taxes. So, as per my opinion legal prostitution should be taxed in India. As the government made prostitution legal after stating certain acts which will fall under the illegal prostitution. Prostitution is around $8.4 billion industry in India. Legalizing it and taxing the proceeds like any other company would provide the government with an opportunity and make it easier to provide routine medical tests and protect the interests of people who are engaged in this profession. Hence, the government has every right to collect the tax from legal prostitution only.
In Indian sense as far as it is concerned, prostitution is not expressly illegal because prostitution is not stated clearly as punishable by law, but few prostitution-related practices such as operating brothels, soliciting, trafficking and pimping are all punishable offences in India under the Immoral Traffic (Prevention) Act (1956). Sex trafficking is here to stay and all interested parties will obtain guaranteed benefits by accepting it as a legal mode of employment. It will help relieve the government’s burden of enforcing anti-prostitution laws and paying extra law enforcement. Additionally, the country will raise their income through taxation, foreign exchange, and a higher rate of employment. Taxing what is estimated to be an 8.4 billion dollar industry in India, could allow the government to channel the money to protect the rights of sex workers. Moreover, it will also provide their citizens with a healthy environment as sex workers would be forced to undergo a medical examination and proper medical treatment and provide these people with an opportunity to live a normal life which they deserve.
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