Saloni Narayan is a 3rd Year BA. LLB. student at University School of Law & Legal Studies, GGSIPU.
Despite the fact that India is adopting a modern lifestyle, certain things are still prevailing in our society. We claim to be modern, promote equality, and talk of feminism but the reality appears to be something else. To talk of problems, there are a lot of it that every bracket of citizens, be it underprivileged, general, or any other class, is subjected to. Since time immemorial, discriminations have been based upon the color, caste, religion, sex, etc while others have been discriminated basing upon their occupation. One of the most disliked and unaccepted businesses is Prostitution. Perhaps the reason behind such dislike is that people who tend to be the customers, while luxuriating, disparage it. Prostitution is known to be the ‘oldest profession’ which has unfortunately become a serious social problem. It has been a part of our society since the very beginning of the Indian culture. Conditions worsen by its continuous practice that ultimately went to the pack. The term prostitute means ‘to expose publicly’. Prostitution means offering or receiving a body for the sake of sexual activity which is done in exchange for a monetary value. However, if we go by definition, it means the sexual exploitation or abuse of persons for commercial purposes or for consideration in money or in any other kind. In India, prostitution is not per se a criminal offence, yet some way or the other, it has been made punishable by virtue of different codes. Thus, it ought to be partly legitimate. It is often seen that the majority of prostitutes lie in between 15-35 years. Laws which deal with prostitution are the Immortal Trafficking (Prevention) Act of 1956 (hereinafter referred to as IT Act) and the Indian Penal Code, 1860. IT Act prohibits certain activities like pimping, pandering, kerb crawling, soliciting in public place, child prostitution, brothels etc. Regardless, it still exists in different forms like call girl prostitution, brothel prostitutes, street prostitutes, clandestine prostitution which includes bars, dance clubs, massage parlours etc. Now, the question which arises here is ‘Should it be made legal or severe?’ The answer to this question has to be analysed from both the sides.
REASONS WHY IT SHOULD BE LEGALIZED:
The supports provide numerous reasons for transforming this occupation to be like any other. One of their major claims is to not deprive workers of their right to live a dignified life. Every person has a right to live his life peacefully, but exercising this right becomes quite difficult in some cases. There are instances where prostitutes are exploited by different communities, authorities and their own families. However, there are certain norms that guide the communities to respect prostitutes. For instance, the traditional practice of making the statues of Goddess Durga during Durgo Pujo in West Bengal begins with punya maati which comes from the homes of prostitutes. It signifies purity and honour given to the prostitutes. Also, Article 21 of the Indian Constitution provides for a dignified life of the individuals. It refers to have proper health care facilities, education, job opportunities, security and much more. Prostitutes are subjected to continuous harassment in the public places. They are considered to be criminals. Prostitutes are no less than human beings, they too deserve to be treated equally. Hence, they must not be looked down upon. The Preamble of India itself states that justice, liberty and equality of its citizens are the primary concerns for the state. They are also entitled to a life of dignity in view of Article 21 and their problems need to be addressed, Budhadev Karmaskar vs State Of West Bengal. Therefore, we shall not deny prostitutes any of the rights already been conferred upon them by the constitution.
The legality of the prevention act of 1986, which restricts person from performing these acts as may be prescribed in its provision, has been challenged on many grounds. However, the said act has never been declared unconstitutional as claimed by the supporters.
Further, it may protect minors. Since prostitution is legal in Canada, France, Mexico, Australia, New Zealand and many other countries. These countries have been protecting minors from indulging in this practice by making prostitutes register themselves with the assigned authorities. Therefore, authorizing and having a control over the profession would show the actual number of the consenting and willing adults. And it will ultimately decrease trafficking. By legalizing it and introducing strict laws, we can remove children from this profession which will protect their rights and provide them safety. It would serve as an alternative for the individuals who desire to fulfil their sexual needs. They may simply resort to prostitutes rather than committing an offence. It might ensure less incidences of rape.
They argue that the state behaves to assure the safety of its citizens. Therefore, making prostitution legal would help in providing them secured environment to live in. In view of saving the interest of these sex workers, we may have special provisions maintaining this professional and providing them better facilities including healthcare. It will eventually reduce the transmission of the sexual diseases to different individuals. When stringent laws would come into play, it would be easy for a sex worker to lodge a complaint in case of gross violation of any right.
Adhering to old moralistic prejudices are not resulting in the welfare of these humans. Thus, it’s time for us to accept them and their choice of profession as it is.
POSSIBLE OUTCOMES, IF LEGALIZED:
Mere thought of legalization of prostitution is not enough for the same. Rather, proper implementation and heed of laws, rules and regulations would be a great challenge in the hands of both public and the legislature. Prostitution, by its very nature, is considered to be an unethical activity, which is strictly prohibited by our society. But even if we make it legal, there’s a likelihood of difficulties that may remain unhandled. Its legalization could be misunderstood and misinterpreted as proper license for any form of prostitution, which is not the purpose behind legalizing it. Additionally, if we might take a look at the role of authorities and police officers then we may think of the possible challenges that could be faced by these sex workers in the name of protection given by these authorities. They may be harassed and exploited by the assigned officials.
People claim if prostitution were legal and properly regulated, then it would be safe. Despite, research observes otherwise. A surge is noticed in the countries that have legalized it. New Zealand, the first country which decriminalized this profession in June 2003 through the implementation of Prostitution Reform Act 2003, indeed took a great stride for combating the stigma attached to the prostitution. But results were not so satisfactory and challenges still remain significant. The act furthered in entrenching violence against women and has failed to fulfil its primary objective of improving the lives of prostitutes. It was observed that under the veil of the enacted law, sexual violence took the form of ‘occupational hazard’. Furthermore, reports clearly show that prostitutes in New Zealand revealed that they face the ‘continuing stigma’ and ‘harassment by the general public’ with a little difference in disclosure of occupation to healthcare before and after decriminalization. To talk about Denmark, which decriminalized this activity in 1999, it was found by the government that the prevalence has increased over the followed decade. An investigation has been done to review the longitudinal effects of legalized prostitution on human trafficking. And the findings were terribly unexpected that those countries report great incidences of human trafficking inflows as compared to the countries with prohibited prostitution. Thus, irrespective of a few positive impacts, there could be manifold unforeseeable challenges on sex workers and the general public.
REASON WHY IT SHOULD NOT BE LEGALIZED:
India is considered to be an ethical country with a belief that it is an immoral activity and is opposed by the society. It is witnessed that women claiming to work voluntarily are being forced in this organized crime. National Crime Records Bureau shows that 95% of the prostitutes are forced to get involved in this activity and they are mostly of young ages. They are left with no choice but to become a prostitute. State officials state that in 70% cases, girls refuse to reveal that they were being forced by their own parents. It is reported that child victims are larger in number than the adult victims in this profession. Thus, we cannot solely allow this practice for the sake of providing occupation rights to prostitutes. There are many changes that have been made by the honourable courts in India, but legalizing prostitution will take more time to get accepted than anything else. By legalizing and recognizing it as a profession would allow the middle persons to have more power over sex workers and they can easily force prostitutes to get indulged in this profession. It will work as a fuel for illegal and prohibited sex trade, which has now assumed a level of international dimensions. Hence, there would arise problems for them, which we need to address in a far more organized and productive manner.
Legalizing prostitution would be easy but making people accept them would be a great task. We may have adopted different statutes by prohibiting different forms of prostitution and for considering the safety of sex workers. However, it is still not protecting them. Rather, the estimated numbers are growing in terms of exploitation, abuse, discrimination and diseases. There are lacunas in the present legislation with respect to forceful inclusion of women and girls into this profession. Legalizing or not legalizing it would somehow encourage the concept of bounded labour for these sex workers because there is no such instrument to detect their voluntariness into the profession.
STEPS THAT COULD BE TAKEN:
There are several arguments which goes in favor and against prostitution and there are indeed laws preventing and protecting prostitutes to a certain extent. However, the resulting outcomes of these measures are somewhere not improving the conditions of these sex workers. Women are trafficked for sexual exploitation in the name of providing jobs, money or better lives. Hence, in order to provide them safety and ensure their rights, we may opt different possible ways without legalizing it. For instance, providing them financial aid to help them get by. Steps should be taken by the States to improve the data collection, develop different methods, provide vocational training, education and identify trafficked women and children in view of implementing the ideas of the United Nations Convention against Transnational Organized Crimes (UNTOC) protocol to prevent, suppress and punish trafficking in persons.
Prostitution in India is made neither legal nor illegal explicitly in any code. Though, some of the forms are prohibited and made punishable by the Act of 1986. It is pronounced to be immoral and unethical in our society. However, it would be difficult to catch a hold of this idea at this very moment when we have no clear vision of decriminalizing it properly. It is a deep-rooted stigma that has criminal consequences. Legalizing it would make the lives of prostitutes easier is just a persistent myth because it has been investigated that legalized prostitution has expanded the prostitution market, increased human trafficking and provided benefits to the criminal enterprises who make profits from sex trafficking. Thus, prohibiting the activity is on one hand while securing the lives of these prostitutes is on another. Keeping aside famous debates on the topic, our ultimate intention is to save sex workers and their rights and not to criminalize or decriminalize the profession. However, for the welfare of both, the general public and sex workers, we need to take proper actions. The government need to take stringent actions for curbing its further exercise and should create alternative ways of livelihood for these women.
 Section 2(f) of The Immoral Traffic (Prevention) Act, 1956
 Kajal Mukesh Singh And Ors vs The State Of Maharashtra, W.P. © No. 6065 of 2020
 Cmr Appeal No. 135 of 2010
 Thomas Coughlan, ‘NZ’s approach to sex work under fire’ newsroom (22 November 2017), https://www.newsroom.co.nz/nzs-approach-to-sex-work-under-fire
 Gillian Abel, Lisa Fitzgerald, Cheryl Brunton, ‘The Impact of Prostitution Reform Act on the Health and Safety of Sex Workers’, University of Otago (November 2007), https://www.otago.ac.nz/christchurch/otago018607.pdf, pg 11 and 12
 The National Board of Health and Welfare, Prostitutionens omfang og former 2012/2013 (13/43515, 2014) pg 7
 Harvard Law School, ‘Does Legalized Prostitution Increase Human Trafficking?’, Harvard Law and International Development Society (12 June 2014), https://orgs.law.harvard.edu/lids/2014/06/12/does-legalized-prostitution-increase-human-trafficking/
 National Crime Records Bureau Ministry of Home Affairs, ‘Crime In India 201’ (Vol I, 2019)
 Adopted 15 November 2000, entered into force 25 December 2003 art 2
 Seo-Young Cho, Axel Dreher and Eric Neumayer, ‘Does Legalized Prostitution Increase Human Trafficking?’, World Development Vol 41 (2013) 67