This article is written by Agniva Mandal.

Abstract

Prostitution is one of the oldest professions in this world but it is not like other jobs. If people look at the reality of life, they will understand the sex workers in Prostitution are doing their job to earn money but the sex workers are not recognized by the people due to morals and mindset of the society which clears that it is unlike any other jobs. 98% of the people involved in Prostitution are women and 99% of the buyers/employers are men. Although this paper aims at examining moral consternation and evangelism in society but it is centered on the dynamics of consternation and the social forces promoting them and the present situation where almost no attention is given to these people by the Government.

The Government and Legislature plays an important role in this process. The question which arises from this above topic is that selling our body or being a sex worker is ethical work or not? If we make it legalize then what will happen to the social moral? The answer to the same question is that they are not. In the 20th century prostitution is an illegal act which if it becomes decriminalize, would profit and preserve the sex worker and also the society. Decriminalization of prostitution is good for the economic profit of governments around the world that lack resources.

Introduction

In recent years, we have witnessed that there has been growth in the involvement of more and more people seeking to remove all the barriers in the society related to Prostitution. Till today, the position of decriminalizing prostitution in many countries has been in the aspects of many things such as the banning of sex toys, pimping and brothel. After realizing that Prostitution will become safer and empowering for women, a number of countries and organizations in the world have approved proper healthcare and facilities for the women by making new laws and orders. 

Prostitution is referred to as one of the oldest professions which have always been a controversial and challenging social issue. It is fully decriminalized and due to which many sex-workers do not get any safety or security. In countries there are exponential increasing trade for prostitution where more man are enticed by sex or more men wants to profit from the woman’s body. This leads the sex-workers to endure lots of pain and sacrifices. As the term Prostitution is increasing day by day, the female sex-workers have to face extreme brutality. In this system, men become more entitled due to the money they pay for the service and women become even more objectified and exploited than the other women who are harassed in daily life. The profession of Prostitution provides a source of income for a person (sex worker) who otherwise might have been jobless and provides a sexual alternative for men.

Sex-workers are everywhere in India, but the laws of India does not recognize sex workers. It only has a law under the Immoral Trafficking (Prevention) Act, 1956 which states that running brothels, soliciting, trafficking and pimping of woman can be held as a criminal offence but there is no mention about sex-workers. 

The pandemic time has hit millions of people and caused a great deal of suffering across communities. Due to this, many schemes were launched by the Government of India such as the Pradhan Mantri Jan Dhan Yojana where the people from the farmer’s community can take the direct benefits from the government through monetary forms. However, there is one community that has been especially hit hard which is of the sex workers. On one side their job is gone and on the other side they haven’t received any benefit scheme from the Government of India the reason of which might be that these people are not in the system due to the backward mentality of the society.

In this paper, the author would like to highlight on the topic of controversies surrounding the legalization of Prostitution in India by discussing what Prostitution is, what are its social aspects, what is the position of other countries regarding Prostitution and what can be the specific consequences if Prostitution is legalized in India.

What is Prostitution?

Prostitution is a gendered, sexualized and racialized working system which means that, it typically involves the exchange of sex services for money or other benefits. Prostitution involves both women and men in many different forms including; call girl job, convention sex worker, apartment sex worker, hotel sex worker, house sex worker, bar girls, streetwalker and parking lot lizards.

When people look at the real life in their experience, they come to know that sex workers, those involved in Prostitution are doing job to earn money without begging but still they are not recognized in the society due to its morals and mindsets. In prostitution, 98% of the people involved are women and 99% of the buyers are man. 

Prostitution is welcomed sexual advances, take request for sexual favors and verbal or physical sexual conduct as the sex workers do not get to frame the boundaries. 63% of women in prostitution experience rape and 73% of women of experiencing violence. These are not job hazards. It will be sexually and physically assaulted and will suffer mental and emotional trauma, this is not a job. It is a violation of human rights.

Sociological Aspects related to Prostitution

There have three sociological aspects in understanding social problems like functionalist theory, conflict theory and symbolic interaction. These theories offer more general insights on sex worker. They are as follows:

Functionalist Theory- A sociologist Kingsley Davis (1937) wrote that prostitution lowers the divorce rate. The profession of Prostitution provides a source of income for a person (sex worker) who otherwise might be jobless and provides a sexual alternative for men (reasoned that married men are not happy with their sex life with their wives, so many men turn to a sex worker women. And many turn an affair with another woman threatening these men’s marriages). However, according to Davis, prostitution remains impersonal and does not aim at threatening the married life of men. Therefore the sex workers exist because it serves several important functions for society in general and for certain people in our society. But this theory does not have any acceptable evidence to prove itself.

Conflict theory- As per this theory, an American social scientist S. Rosen in the year 1983 cited that, 80% of sex workers turned to prostitution as a need for source of income. According to this theory, bad economic situation and poverty in society reflects the prostitution and also reflects the continuing cultural treatment of women as sex objects who exist men’s pleasure. 80% women become sex worker when they feel compelled due to lack of money. In this view, a historical support comes from an increase in prostitution in 19th century because of war when the women lost their husband and the head of the families were left penniless. This situation compelled women to turn to prostitution to feed their families and themselves. So in the 19th century raise in the growth in Prostitution happened due to poverty. 

Accordingly feminist version of this theory, Barry (1996) wrote that prostitution reflects the continuing cultural treatment of women as sex objects who exist to satisfy men’s pleasure. The prostitution inherently get more affected by brutality and exploitation in the larger society.

Symbolic interaction- It moves away from the larger issues as mentioned above to examine the everyday understandings that prostitutes and their consumer have about their behaviour. These understandings help both prostitutes and consumer justify their behavior. For instance, indoor prostitutes specially think that they are helping their customer by given them sex along with camaraderie.

Should Prostitution be legalized in India?

Covid-19 has provided more reason for decriminalization of Prostitution to consider a long pending demand of sex worker in India. In India, National Human Rights Commission (NHRC) took a decision that sex workers should be considered as informal workers and provided all the welfares benefits. It is a very important development. National Human Rights Commission lists sex workers as ‘women at work’. If we talk officially, it is estimated that there are over eight lakh sex worker in India. However unofficial figures place these number far higher near forty lakhs. The National Human Right Commission’s recommendation came in its ‘advisory on rights of women’ issued recently as part of a series of advisories issued by the body in the wake of COVID-19.

The National Human Rights Commission advisory was based on an impact assessment by a 11 members committee of experts comprising of representatives from civil society organizations, domain experts and the government. The advisory acknowledged that lockdown has led to a sudden loss of employment, particularly in the informal sector with no alternate sources of money, food or shelter and it has disproportionately affected women who comprised a substantial proportion of such works.

The economic vulnerability of those involved in work is already stigmatized such as sex Prostitution has increased exponentially as the nature of sex workers demand physical contact which is being avoided in this pandemic time. Due to the impact COVID-19, sex workers have suffered a lot. Migrant sex workers should also have been included in schemes and benefits for migrant workers. Temporary documents should be issued to enable them to access welfare measures such as PDS (Protected Distributed Systems). 

For instance, the Maharashtra government recommended all the government organizations to provide assistance and relief to sex workers, especially locating the mothers who have a child to take care of as well; free testing and treatment of sex workers who contracted COVID-19 and free healthcare services, especially for the prevention of HIV and other STDs.

Legal Status of Prostitution in other Countries

In some country where it has been made legal, the number of sex worker females has increased, but it has become much more regulated. There are more than 80 countries in the world where prostitution has been made legal such as the US, UK, Germany, Mexico and the Netherlands. Prostitution has been recognized valid or legalized in the entire South America, Canada and most of Europe. So, there are provisions in all these countries to protect the rights of sex workers. In the majority of African and Asian country it is not legalized and it is restricted in India where it runs to some extent but is not legal.

Legality related to the Prostitution or Sex Workers in India

According to Indian Penal Code, Prostitution in its broader sense is not really illegal per se but there are certain activities which constitute a major part of Prostitution as punishable under certain provisions of the Act such as :

• Soliciting services of Prostitution at public places
• Carrying out prostitution activities in hotels
• Being the owner of a brothel
• Pimping
• Indulge in prostitution by arranging a sex worker
• Arrangement of a sexual act with a customer

Prostitution is being regulated in India by an Act, i.e., Immoral Trafficking (Prevention) Act, 1956 famously referred as SITA. This law essentially states that sex workers will be allowed to commence their trade in Private but they cannot carry their business in public. If this business is carried out in public place, then who will be entitled to get punished.

Some instances have been stated below where people can be punished in services related to Prostitution:

• Prostitute may be punished- A Prostitute or sex worker should not indulge in commercial sex within 200 yards of a public place. Prostitutes are to be arrested if they are found soliciting their services or seducing others in public. Call girls are prohibited from making their phone numbers public. They can be punished for a period of six months if they violate these prohibitions.
• Client who is seeking that service- As per Immoral Trafficking Act, the clients may be arrested if found guilty of engaging in a sexual act in public. Clients indulging with a sex worker within the area of 200 yards of a public space can be imprisoned for maximum of 3 months with fines. If clients are found indulging in a sexual activity with a minor then he/she can be imprisoned upto a time period of 10 years.
• Middle man may be punished- Pimps and similar people who live with the income made by a prostitute working under them are guilty as per Immoral Trafficking Act. Sex workers cannot be put under the ambit of the existent labour laws considering how distinguished their profession is. 

There are some problems with the Immoral Trafficking Act and due to which several comments on this Act such as-

• It discriminates against the victims themselves. It has mostly led to victims being punished instead of perpetuators. It is considered immoral or illegal and sex workers are regarded as indecent solely because of how sex is a major taboo in our society.
• A special Rapporteur by the United Nations on violence against women issued a statement that “measures to address trafficking in persons should not overshadow the need for effective measures to protect the human rights of sex workers”. This special Rapporteur has also called for a review of the Immoral Traffic Prevention Act, 1956 in India.
• UN resolutions, International agencies and commissions have stressed to make special rights based on response of sex workers and the need to protect rights not only by decriminalizing sex work, but also by eliminating the unjust application of non-criminal laws and regulations against sex workers.
• Independent Commission on AIDS in Asia, UN special Rapporteur on right to health, global commission on HIV and UNDP Asia Pacific have recommended the decriminalization of sex work involving consenting adults.

In India, there has been many cases held before the Court of law related the rights of the sex workers. Some of them has been listed below for understanding:

• State of Uttar Pradesh v. Kaushalya: This case is related to Article 15 of Indian Constitution that is a right against discrimination. In this case, the Allahabad High Court held Immoral Trafficking Act to be constitutionally valid as there was an intelligible difference between a prostitute and a person causing a nuisance. The act is also in consonance with the object it aims achieve, i.e., maintaining order and decorum in the society.
• Budhadev Karmaskar v. State of West Bengal: In this case, the Supreme Court held that sex workers are human beings and should be treated with humanity and dignity according to Section 21 of the Indian Constitution. Nobody has any right to assault or murder a sex worker.

A study was mad upon 3000 sex workers in 2014, in which the sex workers were interviewed and asked various questions. The questions was based on the following two topics-

1. Experience of Physical Violence
2. Experience of Police violence

Experience of Physical Violence- 31% of women in sex works experience domestic violence; 55.9% of the women in sex works experiencing violence from clients; 8.5% of sex worker women experience violence from employers; 14.1% of sex workers experience violence from agents; 5.9% of women in sex worker experience physical violence from brothel owners; 24.7% of sex worker experience violence from shopkeepers, auto drivers, goons; 16.2% of sex worker experience violence from neighbors; 40.2% of sex worker experience violence form lovers and partners; and 36.3% of sex worker experience violence from husband.

Experience of Police violence- 50% of sex workers experience of police violence in abusive language; 35% of sex worker women experience of police violence in beaten, hair pulled, beaten with belts; 37% of sex worker experienced of police violence from threatened; and 20% of sex worker experience of police violence from forced to bribe.

What can the possible consequences of Legalizing Prostitution?

Legalizing Prostitution can bring both positive and negative changes in India. The positive changes that can be brought about are listed as follows:

1. 1. Access to Justice– Prostitution will get access to justice to the victims.
   2. End of Middle Man– Middle man exploits the prostitution, they do not let the sex workers get much help from the police because of the lack of documentation and the exploitation is double, there is also apathy from the administration side.
   3. Licensing of brothels– If the government does it legalized, the sex workers will have their own id cards registered with their documentation with the government.
   4. The setting of Legalized Organizations for the sex workers to work– The organizations for sex workers made by the government will inform that how many workers or sex workers are working with them and are they giving all the provisions or rights and also they have defined to them as their basic working hours.

• Health clearance and checking the spread of HIV– The spread of HIV would decrease with the help of proper monthly health inspections of the sex workers and making the use of protection (condoms or pills) mandatory, to prevent the spread of Sexually Transmitted Diseases (STDs). 
• Regularization of wages and working conditions– Providing a certain fixed wage per customer as well as providing the sex workers with good and hygienic working conditions would be beneficial for their health and well-being.
• Brothel incomes can be taxed– The government may think to tax on that income of brothels as the owner and many of his men and agents have been caught many times with black money. 

Now the question that arises from this matter is that selling our body or being a sex worker is an ethical job or not? If we make it legalize then what will happen to the social moral? Those officially eight lakh sex workers will get these benefits or advantages but there has some inimical impact which can be stated as disadvantages of legalizing prostitution. They are as follows:

• Prostitution is like giving approval to the flesh trade, this will benefit the middleman who hides his information from the Government. If the middleman opens big companies and if those people are not giving documentation then there is still a chance of exploitation.

• Prostitution can be held beneficial for facilitators and the pimps. This is a moral hazard question like if this profession is legalized then the student or youth generation. Will they be motivated towards the study and for other professions? Because for the students or youth of the nation it will be very easy to enter in this profession and earn money. It is a huge moral hazard.
• Societal problems can arise such as if prostitution is made constitutionally valid, then it might wreck personality and affect the family life of an individual and may bring social disorganization.

Conclusion

India needs to regulate the system of Prostitution. In this the government does not have to ban blankets; tit has to just secure the rights and health of the sex workers so that their children and their future generation also get a right, i.e., those who do not want to go with sex working. The children of sex workers can take education so that they can choose any other profession and get employment. 

In my opinion, the government needs to decriminalize brothels like in Europe as it might change the lives of sex workers and the government may also earn a lot of money through tax from these brothels. It would also have a huge impact on our society. If Prostitution gets recognized, then it would be easier for the law enforcement agencies to catch those who are involved in human trafficking. Although UN models of legalization or decriminalization vary, the available evidence from countries like the UK or the US indicates that legalizing prostitution does, in fact, reduce the problems associated with illegal prostitution. 

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