SHOULD PROSTITUTION BE ILLEGAL?

INTRODUCTION

According to The Immoral Traffic (Prevention) Act, of 1956, prostitution means the sexual exploitation or abuse of persons for commercial purposes.¹ Prostitution despite being one of the world’s oldest respectable professions² faces the label of immorality and has been flagged as an institution of evil even in this ‘rational’ modern world. There is no provision under the law, which makes prostitution per se a criminal offence,³ However, other related activities are illegal. Sex work is the voluntary financial exchange of services between consenting adults. The range of these services varies from direct sexual/physical contact, companionship, intimacy, non-sexual role playing, dancing, escorting, and stripping.⁴ 

Sex workers face criticism and discrimination from all sectors of society. Their ‘work’ is not recognized and is considered shameful and indefensible. They are ostracised from society as if they are a symbol of immorality, bringing evil in society. As a result, they are also excluded from the health, legal, and social services available.⁵ Declaration of prostitution as an illegal activity increases the chances of such activities being run underground which would make it tougher for the government to trace and police. It would lead to an alarming rate of increase in human trafficking cases further deteriorating women, children, and human rights. 

This article attempts to establish prostitution as a legally recognized work by understanding how the criminalization of this work causes more harm to sex workers. To do so the article will scrutinise the problems being faced by sex-workers under the current legislation, analyse the governing statutes, and laws enacted by the Government of India on this subject and finally examine the requirement and effectiveness of decriminalisation in Indian Society. 

This article shall acknowledge and use Scarlot Harlot’s term ‘sex work’⁶ instead of prostitution in all places except where the latter is used in statutes/legislation or in criticism. The article shall mainly focus on the service of ‘direct sexual contact’ as opposed to the other possible forms of sex work. It also focuses only on female sex-workers. 

HISTORY OF PROSTITUTION: 

Prostitution has existed for a very long time. The earliest mention of prostitution occurs in the Rigveda, the most ancient literary work of India.⁷ These prostitutes are described as excellent embodiments of beauty and feminine charms.⁸ It clearly indicates that prostitution was an accepted profession during the ancient period. In fact, all the women who were once a part of this occupation were designated a high status by the palaces and temples. They enjoyed considerable respect in the social hierarchy as the courtesans of kings.⁹ By the 19^th century, the connotations in agreement with prostitution started changing. As the British rose to power there was an increased criminalization of the practice.¹⁰ With the fall of the Mughal empire, women lost their privileges and were pushed to perform only sexual labour which led to the downfall of their reputation and increase in condemnation.¹¹ Today, it is regarded as the most disrespectful act in the society. It has been ordained as a sign of society’s morality decaying over time. 

PROSTITUTION AS SEX WORK: 

In simple terms, prostitution is referred to as an activity that grants sexual favours for monetary gain. However, this derogatory definition fails to identify this activity as a work. A work that a woman chose voluntarily. Generally, prostitution is correlated with illegal trafficking, abuse, and lack of consent. However, it is paramount to understand that conflating trafficking with sex work is plainly harmful and counterproductive.¹² When sex-work is referred to, the element of consent is indispensable. Human trafficking in which women and children are coerced into sex work is straightforwardly a violation of human rights. This is not because it is sex work, but because it is forced upon. Recognition of prostitution as sex-work demands decriminalisation of prostitution and extension of labour rights to sex-workers. Sex being a private affair should not have the influence of the government. The state can not decide whom a person is supposed to have sexual intercourse with. Despite money being involved, sex for pleasure is just as valid and valuable as sex for love. 

CRITICISM OF SEX-WORK: 

Radical feminists argue that all forms of power within the society imitate the original power of men over women and hence call for a radical reordering of the patriarchal society. They contend that this industry makes a woman be valued only for sex and in turn, be controlled as a sexual instrument by men. Their major assertion is that if prostitution, as claimed by the liberals, is a free choice, then why is it that only certain types of women are found doing it?¹³ These ‘certain types of women’ are in fact the ones who have the least choices available. It is unacceptable to them that a woman would freely choose such a profession that has turned her body into a saleable commodity. A woman might presume to have chosen the profession freely however the truth is that she is inevitably acting within a male-dominant scheme where she is not free. A woman would only ‘choose’ this profession due to coercion, poverty, sexual abuse, traumatic past experiences, drug addiction etc. The activity done in the name of sex is nothing but a woman being raped repeatedly by multiple men. This interpretation is because radical feminists refuse to see money/payment as a measure of consent. It is instead a form of coercion.¹⁴ However, radical feminism blatantly ignores the fact that one day a woman might freely ‘choose’ to be a part of such a profession. It invalidates the element of ‘consent’ and overtly chooses to shut their eyes against the fact that despite being given chances and jobs, many women choose to return to working as sex-worker because she likes it. We cannot exclude that one day a sex worker will say: “I chose it”.¹⁵ 

TREATMENT BY SOCIETY: 

Prostitution is an act where two parties are equally a part of the activity. However, society has names only for women who engage in prostitution – whores, sluts, trash, fallen women. These names are glaring invitations for us to single out these individuals for ridicule and scorn.¹⁶ Men assume that they have an upper hand over all women, especially sex-workers. This is simply because of an illogical fallacy where men presume that because these women are being ‘shared’ by multiple men, they ‘belong’ to all men. Sex-workers are robbed of their identity. Unfortunately, this sect of workers continuously faces such stigma and discrimination. Moreover, sex-workers are thrown out of their own family homes since this work is too prejudiced and ‘wrong’. Society in general does not look out for these women. Sex-workers are also one of the top receivers of physical abuse. Sadly, many women have accepted this fate and silently bear all the harassment. 

TREATMENT BY LEGISLATIVE AUTHORITY: 

The majority of the sex workers do not approach the police as they are major abusers [custodial rape, physical beatings] of sex-workers in India, who threaten to file false cases against them. Sex-workers do not report rape cases since they fear apathy, stereotyping, and the community pressure of being exposed as a ‘prostitute’. ¹⁷

One of the biggest issues with The Immoral Traffic (Prevention) Act, 1956 is that it criminalises any person over the age of eighteen years who lives on the earnings of the prostitution of any person.¹⁸ On an estimation, sex workers support between five to eight other people with their earnings.¹⁹ These people are mostly the sex-workers’ family members above the age of eighteen. The police on their own whims charge sex-workers under this section to harass them. 

Sex-workers are also charged biasedly under Sections 268 and 290 of the Indian Penal Code for creating a ‘public nuisance’ causing them economic loss and psychiatric distress. Instead of punishing traffickers, the majority of ITPA convictions have been of adult sex workers for soliciting. 

NEED FOR DECRIMINALIZATION 

Decriminalization means the removal of criminal and administrative penalties that apply specifically to sex-workers, creating a safe and peaceful environment for sex workers and their families.²⁰ For proper validation of this industry, there must be a recognition of sex work as work. This would allow sex-workers equal recognition. Sex-work will then be governed by labor laws and other protections that are given to any other job. It allows them labor rights which means if they’re employed, they can expect clean healthy workplaces from their employers.

CONCLUSION

The Constitution of India guarantees the right of citizens to live with dignity and to carry on
any trade, business, or profession.²¹ Although in theory sex workers enjoy human rights
guarantees under the Constitution of India, little progress has occurred in enforcing or
applying these rights to achieve improvements in the lives of sex workers or to support
HIV responses in the context of sex work. Living with dignity is one of the basic amenities of life. To shame, disrespect, ostracize and disdain sex-workers reflects on how we see fellow human beings.

1. The Immoral Traffic (Prevention) Act, 1956, § 2 (f), [hereinafter ITPA] ↩︎
2. Prostitution In India: Laws, Rights And Legal Protection Of Sex Workers, LAWNN (Nov. 30, 2020), https://www.lawnn.com/prostitution-india/. ↩︎
3. The Hindu, https://www.thehindu.com/news/cities/mumbai/prostitution-not-a-criminal-offence-bombay-hc-orders-release-of-3-sex-workers/article32701646.ece (last visited 13th December 2020). ↩︎
4. Dr. Tlaleng Mofokeng, “Why Sex Work Is Real Work”, Teen Vogue, (last accessed 16^th December 2020), https://www.teenvogue.com/story/why-sex-work-is-real-work. 
   ↩︎
5. Open Society Foundations, “Understanding Sex Work in an Open Society”, (last accessed 16^th December 2020), https://www.opensocietyfoundations.org/explainers/understanding-sex-work-open-society. ↩︎
6. Leigh, Carol (2004). Unrepentant Whore: The Collected Writings of Scarlot Harlot. San  Francisco: Last Gasp. ISBN 9780867195842. PAGE 69
   ↩︎
7. Prostitution in Ancient India Author(s): Sukumari Bhattacharji Source: Social Scientist , Feb., 1987, Vol. 15, No. 2 (Feb., 1987), pp. 32-61 Published by: Social Scientist Stable. ↩︎
8. LAWNN, https://www.lawnn.com/prostitution-india/, (last accessed 16^th December 2020). 
   ↩︎
9. Jha D, Sharma T (2016) Caste and Prostitution in India: Politics of Shame and of Exclusion. Anthropol 4: 160. doi:10.4172/2332-0915.1000160 ↩︎
10. Id. ↩︎
11.  Id. ↩︎
12. supra note 5
    ↩︎
13. Id. ↩︎
14. MacKinnon, supra note 9 ↩︎
15. Annalisa Chirico, “Prostitution as a matter of freedom”, https://core.ac.uk/download/pdf/34704085.pdf. ↩︎
16. Jean DCunha, The Legalization of Prostitution (Wordmakers 1991). ↩︎
17. NewsMove, last accessed 19^th December 2020,, https://newsmove.in/stigma-and-discrimination-faced-by-female-sex-workers-of-urban-shillong/. ↩︎
18. The Immoral Traffic (Prevention) Act, 1956, § 4 (1). ↩︎
19. International Labor Organization, 1998, “The Sex Sector” available at http://www.ilo.org/global/publications/ilo-bookstore/order-online/books/WCMS_PUBL_9221095223_EN/lang–en/index.htm (last accessed 10th December 2020). ↩︎
20. supra note 5. ↩︎
21. India Const. art. 19,  s 1, cl. g. ↩︎