Cover Story

Should Prostitution be abolished or Regulated?

The term ‘Prostitute’ is derived from the Latin word, ‘Prostituta’. The other related slang terms of a prostitute are; hooker, call girl, whore, harlot, tort, hustler, strumpet, lewd woman, bawd, streetwalker, courtesan, white slave, trollop, tramp, concubine, doxy, floozie and scarlet woman, etc. Although, the majority of prostitutes are females; there are also gay male prostitutes, lesbian prostitutes and hetero male sexual prostitutes (Gigolos).

In a practical sense, Prostitution is the business or practice of engaging in sexual relations in exchange for money or some other material benefit. In legal term, according to S/2 (f) of ITP Act, 1956. “Prostitution” means the sexual exploitation or abuse of persons for commercial purposes and the expression “prostitute” shall be construed accordingly.

Prostitution is euphemistically referred to as the world’s oldest profession, which is not a fact. Prostitution may, however, be termed as one of the oldest professions of the known civilised world.

Sumer is the earliest known civilisation in the historical region of southern Mesopotamia, modern-day southern Iraq. As the polytheistic religion practised by Mesopotamians included both gods and goddesses, women were also priestesses. The list of women professions includes weaving and selling of clothes, food production, beer and wine brewing, perfumery, incense making, scribes, physicians, midwives, judges, court witnesses as well as prostitution. Families could sell their daughters for prostitution, both for sacred prostitution in temples and also for secular prostitution.

Prostitution was not regarded as vile or degraded at that time.

Leonard William King, in the Code of Hammurabi, says in 1780 BC, out of 282 Hammurabi’s codes, six codes: 178-80, 187, 192, 193, mentioned the rights of a prostitute or her children. In 1075 BC, the Code of Assura distinguished prostitutes from other women by prescribing dress code. If the wives or daughters of a man go out into the street, their heads are to be veiled. The prostitute is not to be veiled. Veiled harlots shall have their garments seized and 50 blows inflicted on them and tar-like substance poured on their heads.” According to Prostitution: An Illustrated Social History (1978), in China, legal brothels were started in the 7th Century B.C; by a State official, Kuang Chung, as a means for increasing State’s income. Paul Valley in “A Brief History of Brothels” mentioning about legal brothels in Ancient Greece during 594 B.C; says, “The celebrated Athenian lawmaker Solon founded State brothels and taxed prostitutes on their earnings in the 5th Century B.C.”

Sarah B. Pomeroy, in Ancient Greece- A Political, Social and Cultural History, 1999, mentions, “Hetaira….a ‘female companion’… was the term normally used for courtesans in classical Athens. They were generally more cultivated than citizen women. Some hetairai functioned as entrenched mistresses, but others less fortunate were essentially prostitutes.

W. C Firebaugh, who translated Petronius Arbiter’s work, The Satyricon, referred therein the Roman Regulation of (80 B.C); which says, “Rent from a brothel was a legitimate source of income…. Procuration also had to be notified before the aedile (government regulators), In the year 180 B.C. Caligula inaugurated a tax upon prostitutes (Vectigal ex capturis).

In ancient India, there was a practice of the rich people asking for ‘Nagar Vadhu’ (the bride of the town) to sing and dance. The famous examples are of Amrapali and State courtesans described in ‘Vaishali ki Nagar Vadhu’, as Vasantasena, a character in the classic Sanskrit story of Mricchakatika (the little clay cart), written in the 2nd Century B.C; by Sudraka, an ancient Indian king and playwright.

However, the prostitution culture in India proliferated during the British East India Company Rule, in the late 18th and early 19th Centuries. British set up comfort zones for British troops, wishing to make young girls and women into sexual activity for the pleasure of soldiers and during the subsequent British Rule, the British Army established and maintained brothels for its troops across the country. British government enacted the Cantonment Act of 1864 to regulate prostitution. These prostitutes were issued licenses by Army authorities. Thousands of girls from Continental Europe and Japan were also trafficked into British India. The Britishers though quit India but left the legacy of evil behind in a country where ‘stree’ is treated as ‘devi’.

Prostitution is a close-knit web-world, with its own customs, a subculture, cut-off from rest of the world. The entry into it is dreadful and the exit is a far distant dream. Even if the government and society struggle to ease them out from their quagmire and provide them with the socio-economic security, still it is hard to re-establish physical and psychological links with the past, she had severed her links. Moreso, the stigma of being branded as a prostitute is most likely to be retained in case she reverts to the same environment she had come from. There is some truth in an old saying, “once a prostitute always a prostitute.” The brothel cannot be explained more than that it is a flaming inferno on earth. What then is the way out? Should this profession be abolished completely or else it should be regulated?

Mayank Austen Soofi, journalist of The Hindustan Times and author of the book: Nobody Can Love you More- Life in Delhi’s Red Light District, speaking to Lawyers Update said, “In my considered opinion this profession of sex work is not possible to abolish as it is very deep rooted. However, it can be regulated for preventing the exploitation and health hazards of sex workers, as well as to ensure educational facilities and care of their children. They do not have access to Sexual and Reproductive Health (SRH) service, they have to struggle hard to access safe abortion service, family planning, anti-natal, post-natal service. They also need to access HIV testing and treatment. They are also subjected to all kinds of physical and emotional violence by brothel owners, pimps, visitors and police. All such nightmares can be contained by regulating the profession and empowering them collectively, addressing their economic, political and social exclusion.”

Renowned Supreme Court lawyer Vijay Panjwani said, “Prostitution, espionage, and corruption are all banned by laws, Immoral Traffic (Prevention) Act, Official Secrets Act & Prevention of Corruption Act. These all are age-old crimes. By the very nature of heinous acts, spying and corruption

cannot be treated in a similar manner as prostitution. Prostitution can be regulated, and it is partially regulated, like regular health checks, creche for young children, elementary & secondary schools in the neighbourhood. However, the serious offence of child trafficking has to be strictly regulated to punish the guilty and to provide children with a life free of fear in the safe & secure shelter. Therefore, prostitution by a central law ought to be regulated by law to protect sex workers and their children. In the past, in Delhi, there was and is one GB Road known for dancing girls. Now it appears to have spread all over. Drugs, alcohol, pornography, prostitution, child trafficking, homosexual sex, child sex, are all available at a small price. The corruption of police, municipal officials and pimps has to be kept as low as possible through counterintelligence measures and assistance of NGOs.”

The prostitution is not running from brothels only but from five-star hotels and spa centres as was alleged by one Ateet Bansal in a PIL filed in High Court of Delhi, on August 14, 2018, through Advocates Abhishek Yadav and Mashika Singh. The Bench of Justices Rajendra Menon and V. Kameswar Rao issued notices to Lt. Governor and Delhi Police seeking their responses. The Petitioner alleged that trafficking of young women and girls into sex rackets has become a common occurrence in Delhi. “Most of these rackets are running in the garb of massage parlours, high-class model escort services in various hotels around Delhi-NCR.”

Trisha Kadyan, Legal Advisor, Department of Trade and Taxes, Govt. of Delhi, pursuing PhD on : Legal Responses to the Problems of Sex Workers in India said, “Prostitution is world’s oldest modes of earning easy money. Generally, a woman enters into this profession either forcibly or by her own choice when all other modes of earning bread are blocked, this comes as the last resort. It is true that sexual desire is like other natural body requirements such as food, clothing and shelter. It should not be suppressed. However, there is a lot of difference in natural sex instinct and the commercial sex. As such, commercial sex is not free from associated problems, which need to be regulated and not abolished. The woman in the form of sex worker is the worst affected and persecuted human being. According to new information from the International Labour office published in June, 2012, there are 21 million victims of forced labour and human trafficking. Among them 4.5 million are sexually exploited. Hence, regulation is the only answer.”

Trisha sighted the example of recent report on gambling submitted to law minister by law commission which said that it was not possible to completely prevent the (Betting & Gambling) activities, ‘effective regulation’ seemed to be the only viable option. Similar strategy can be opted for prostitution.

The dragon behind prostitution is ‘Trafficking’. In the world of crime, trafficking of women and children is one of the gravest crimes. It is also a violation of human rights. The Constitution of India prohibits trafficking under Article 23, which states that traffic in human beings and beggar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.
According to the laws related to trafficking in India, trafficking is an organised crime extending beyond boundaries. Trafficking is a bundle of crimes, such as selling, buying, physically incapacitating for begging and trade in human organs, sexual abuse, kidnapping, abduction, wrongful confinement, assault, intimidation, rape and murder. All the aforementioned offences are covered in the Indian Penal Code, 1860.

Trafficking and prostitution are again not limited to brothels. The sexual assault of 34 girls in the Bihar government funded Muzaffarpur shelter home recently came to light after a social audit was conducted by the Mumbai based Tata Institute of Social Sciences.

The Supreme Court on August 07, 2018, pulled up Bihar government for failing to prevent the above at Muzaffarpur shelter home. Justice Madan B Lokur told the counsel appearing for Bihar, “You seem to be funding the activities (sexual abuse) there. You have been giving money to the NGO for running the shelter home and do not even check its background.”

In another scandal similar to the one of Muzaffarpur shelter home in Bihar,  24 young women were rescued from a shelter home in Uttar Pradesh’s Deoria. As many as 18 girls are still missing and the shelter home has been sealed. Home’s director Girija Tripathi and her husband Mohan Tripathi have been arrested on August 06, 2018. According to police, the matter came to light when a 10-year-old girl escaped from the shelter home and narrated her ordeal to the police. She also said that cars came to pick up girls above 15 years of age and the girls came back crying the next day.

Renowned Advocate Navin Kumar Jaggi and his associate Ritika Chaudhary sharing their views with Lawyers Update said, “As far as laws are concerned, prostitution in India is not illegal per se. However, the Indian Penal Code states that certain activities related to prostitution are contraventions of law. They may be enumerated as : pimping, running a brothel, ancillary services at public places, pandering & kerb crawling Viewing prostitution in social purview, Jaggi and Chaudhary said, “Some conclude it (prostitution) as a horrendous act and some nod approval of its existence.”

They further said, “A need of one has become a taboo for others. Today, as forwarding to become a developed country, India has now risen as a whole economically, infrastructurally as well as educationally. But as a part distress, people of India are still orthodox-minded ones and are not ready to adapt modern changes easily. Hence, they even consider the consented prostitution as a taboo and do not accept a sex worker merely in the society. Therefore, sex workers have to face several challenges as they are treated discriminately and are not allowed to work in reputed organizations.
Jaggi and Chaudhary gave the following pros & cons of the legalisation:-

Pros of legalization : No governments, no matter how hard they tried, have been successful in abolishing prostitution. Prostitution is a reality and the chances of eliminating it are practically nil. By legalising prostitution, we also legalise the fight against Sexually Transmitted Diseases (STDs) and the AIDS epidemic. Just like laws have managed to do with untouchability, legalising prostitution will give dignity to sex-workers and save them from living as second-grade citizens. A separate hub can be created for it and health of sex workers can be monitored. Legalisation will deter police from extorting money from the helpless sex workers who are forced to give a part of their income to the policemen to let them live in peace. The legalisation of the profession will at least give a human face to the profession, where prostitutes are, otherwise, treated as outcasts.

Norms should be laid out for registration in terms of space, hygiene and medical facilities available. There should be periodical medical checks-up, and it must be made mandatory for every individual in the profession to possess a proper health certificate. Brothels should also be taxed like any other business house, and a certain amount should be earmarked by the government for providing medical facilities to sex workers. Their families and especially their children should be taken care of. A rehabilitation programme for sex workers wanting to opt out should also be worked out. Sex workers should be made to work only in the allotted areas or zones. Brothels must be situated away from residential areas and educational institutions.

Cons of legalization : As it is said, every coin has two sides. Legalisation too has some shortcomings: Legalising prostitution would benefit the facilitators and the pimps, not their victims. In India, where women are coerced into the trade and kept in it almost like bonded labour, such a move will not benefit them. Commercial sexual exploitation is a form of slavery and slavery cannot be legalized. India should not compare itself with other Western countries, where prostitution enjoys legal status because our societal customs are most unlike those in the West. Since abortion is illegal in India, there is no question of legalising prostitution. So giving this business a legal status only means society is giving approval to the flesh trade. Some critics say, prostitution affects family life, communicates diseases and thus brings social disorganization.

Conclusion : Closeting the flourishing profession of prostitution as a morality issue not only amounts to ignoring the exploitation of the commercial sex workers, who feed on the income they generate but the larger issue of AIDS. What is required is a practical approach. By according legitimacy to the sex-worker, millions of women who enter into this trade to feed their families will be freed from the clutches of pimps, brothel-owners and cops on the take. Legalising prostitution will see these women, who live life on the edge everywhere, gaining access to medical facilities, which can control the spread of AIDS. Timely sex education to sex workers can make them aware of venereal diseases attached to this profession. Employment opportunities for women, who have no alternative than to enter this profession, can play wonders.”

Budhadev Karmaskar Vs. State of West Bengal (AIR 2011 SC 2636) is the case which had arisen out of a criminal appeal in the Supreme Court; wherein, the accused Budhadev Karmaskar was convicted for murdering a sex worker on September 17, 1999, in Calcutta. The appellant Budhadev kicked the deceased Chaya Rani Pal alias Buri with fists and legs and she fell down on the floor. The appellant then caught her hair and banged her head against the wall several times, which left the victim bleeding from her hair, nose and head.

The Bench comprising Justice Markandey Katju and Justice Gyan Sudha Misra dismissed the appeal, upholding the judgement of High Court of Calcutta, dated July 25, 2007. The Court further suo motto converted the case into PIL by the same order to address the problems of the sex workers in the country. The Court observed that “the prostitutes have a right to live with dignity under Article 21 of the Constitution of India since they are also human beings and their problems also need to be addressed. For this purpose, Shakti Vahini was appointed by the Honourable Supreme Court in 2011 as part of the Expert Panel to suggest rehabilitation mechanisms for women in prostitution, the head of which is Supreme Court lawyer Ravi Kant.

Talking to Lawyers Update Ravi Kant informed, “The Sex trade in India is controlled by the mafia, criminal elements & organized crime syndicates. A close scrutiny of various red light areas across the country proves that it is the crime syndicate which is completely focused on generating high profit for the operators of the sex trade. It uses various forms of exploitation to prey upon the victims. The demand for young girls in this trade vigorously fuels the trafficking of minor victims from across the country. There are several cases of sex trafficking of minor girls as well as women which have ended in conviction and closure of brothels. These cases have revealed tales of extreme  violence,  allurement and entrapment.

The power dynamics in the red light area or in any place where sexual exploitation takes place is controlled by the organized crime syndicates, money lenders & criminal elements. This is because it is a high profit making business. The profit from exploitation fuels the sex trade. Operators need profit and in order to generate high profit, it has to cater to the demand of the people who come and pay for these services. It is a well-established fact that the demand for young minor girls is writ large. As the age of the victim increases the demand for the victim goes down. During the tender years the demand is high and also the revenue generated from the exploitation is also high.

It is a well-established fact that high profits and revenues come from the exploitation of minors and new entrants. The business interest of traffickers is more in the exploitation of minor victims.

People who are opposing the Anti Trafficking Bill, 2018 or those who are speaking up for legalizing prostitution need to realize that in the business of prostitution there is a huge demand for young minor girls. The procurement of young minor girls is met by trafficking. The women who say that they are here out of choice are mostly the people who are running the sex rackets and for their business to be profitable they require minor girls. No doubt every year as per official records 35,000-45,000 minor girls are trafficked and sucked into the organized crime of Prostitution/Commercial Sexual Exploitation every year. As such, there is a dire need to severely punish the traffickers through the new law.

It is simple these people are getting jittery because they know they will be dealt very seriously. They are also realizing that this law has addressed all the loopholes which were helpful for them to get away. Video conferencing for testifying, hearing of victim before disposing of bail of traffickers, confiscation of property of traffickers, time-bound repatriation, the nodal agency for investigation, timebound trial, time-bound compensation, freezing of bank accounts etc.; are the provisions which are making them jittery.

Fatima Ali, Advocate Supreme Court welcoming the proposed anti-trafficking Bill said, “In the absence of a mechanism to monitor the safety of those rescued, new Bill provides for monitoring by distrct anti-human traffic unit. The new law, Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018, which seeks to address with its rehabilitation framework, was cleared by the Lok Sabha on July 26, 2018, and now awaits the Rajya Sabha nod. However, if the government is serious in eliminating prostitution, three actions are a must : 1) capital punishment for traffickers and pimps; 2) removal of brothels; 3) periodical performance appraisal of NGOs.”

Leave a Comment