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Tuesday, June 12, 2018

NEED TO REFORM LAWS ON PROSTITUTION IN INDIA

AYUSHI KUSHWAHA
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW
(First Published on Volume 01 Issue 03, November 2016)

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[Picture Courtesy: Pexels.com]


ABSTRACT
With an ever-increasing demand for identification of the socially grounded or ostracized classes of persons, the movement demanding recognition of Prostitution as a sex industry has become an important subject of discussion. This paper attempts to understand the realm of prostitution in India, which has an inherently complicated culture and legal regime and how India deals with a sensitive issue like Prostitution.
The enactment of the Immoral Trafficking(Suppression) Act, 1956, which was later amended to the Immoral Trafficking (Prevention) Act in 1986 is a major step towards a structural, legal handling of the issue, however, the enactment presents several bothering provisions, which have not been addressed ever since. Therefore, the paper shall address those provisions contained in the enactment that needs urgent attention and understanding. The paper shall highlight the debate between Abolitionists and Retentionist seems to entangle the law-makers.
The whole issue concerning prostitution is not solely political; it has stakeholders from social-cultural and economic domains. It is not a matter of concern to the ruling party but has an impact upon the society in many direct and indirect ways. The need to reform laws is the call of modern-day society that voices for recognition of basic human rights, which every human regardless of his or her profession, is bestowed with naturally. It is the struggle to ensure prostitutes a place in the society and uplift them from the abominable status of “characterless” that can be victorious provided the political, societal and economic forces come together.
KEYWORDS: Prostitution, Immoral Trafficking (Prevention) Act, Decriminalization, Legalization, Sex Industry.

INTRODUCTION

Prostitution is not a modern or western phenomenon, as alleged by some traditionalists, who, in the pretext of protecting indigenous culture, tend to blow irrational and baseless claims. Prostitution has a long, probably untraceable history and interestingly, it did not begin as a shabby, an immoral business carried out in isolated, filthy streets for the forbidden pleasure of men. It once commanded royal respect.
Mesopotamian religious practices purportedly gave birth to the prostitution trade, as women in Ishtar’s service would help men who offered money to her temples with the ‘sacred’ powers of their bodies. Prostitution, or at least the religious prostitution involved in these sacred sex rituals, existed without taboo or prohibition, as evidenced in some of our species’ earliest literary works.[1] In Hammurabi scripts, it is revealed that prostitutes were considered not merely provider of sex but alsoa force of civilization. Hindu civilization, too, did not originally stigmatized the devadasisand tawaifs as it does in the name of depraved morality today.
The aforementioned paragraphs must not be construed to be propagating prostitution. The point is that once prostitutes enjoyed rights, which seem to be a far-fetched reality in a conservative country like India, which is grappling with escalating conflict between liberal and traditional ideologies. The purpose of the discussion is to point out major issues with prostitution, circling majorly around the under-developed appreciation of several aspects engaged in this activity. 
People tend to confine their understanding on prostitution as an unlawful trade involving trafficked, forced, or coerced women or minors, who sell their bodies. Even in this Age where there is hardly any profession, or trade or profession left entirely to one sex, prostitution is still considered a women-related problem. Male prostitution often goes unheard of because it is nearly impossible for a male-dominated society to conceive the idea of forced participation of men in prostitution since they are the ‘stronger’ sex. In addition, there is a common preconception among the people that prostitutes cannot be abused sexually. This misconception adds on the misery of the poor individuals involved in prostitution and tries to stymie progressive steps towards the realization of prostitute rights.
All of this paints a dismaying condition of prostitutes in the country, who suffer from societal rejection and removal from economic benefits due to lack of rights. The precarious situation of these individuals has not been properly realized in our society that is gradually becoming porous to new societal norms and values. Despite monumental efforts of the civil society, the hard-line thought line still downright rejects the idea of any intrinsic self-respect and dignity in these individuals. The causes to such thought line are philosophical, political, societal, and economical and whittling down each is a herculean task, especially in a society like ours.

THE RETENTIONIST VS. THE ABOLITIONIST

Sex work or prostitution is an interesting intersect of sex, marriage, sexuality, patriarchy inter-playing and impacting notions of morality, women's autonomy and feminism.[2] The dimensions this ‘work’ covers give us an impression that it is full of impact to any society. Therefore, how every society deals with it is something that must be understood.
Recently, a statistics showed that 39 % of the countries have made prostitution illegal, whereas 49 % have made it legal such as the Netherlands and Germany. The remaining 12 % provide for limited legality. However, the countries criminalizing prostitution exceed in the overall population.[3] India stands among those countries that currently provide for limited legality. Whether or not this limited legality furthers the purpose will be seen in the following chapters but what one must consider for this chapter is that because of the increasing number of countries that have to legitimize prostitution, the whole debate on prostitutes and their status have witnessed the Retentionists and the Abolitionists take up the stage by storm.
Both the sides are predominately feminists and have some profound recommendations and arguments to state.  
RETENTIONIST’S POINT OF VIEW:Gone are the days when the society would altogether ostracize prostitutes and remind them of their ‘right-less-ness’. As the society is maturing and becoming more driven by democratic freedoms and social reforms, prostitutes have secured support from a substantially large mass of scholars, especially feminists, who actively advocate for decriminalization of “sex work” (retentionist often use this term as a replacement to ‘prostitution’ as it is less offensive and more professional) and demand for rights.
By means of decriminalization, the group demands complete removal of any sanction against prostitutes. It recommends recognition of third party managers as legitimate women or men and regulation of their business under the labor and business law, not the criminal law.  Advocates for decriminalization argue that the system should allow the prostitutes to exercise their choice to sell their bodies with their voluntary consents to the customers. Advocates for decriminalization apply "the same criteria to private consenting adult sex," to the principle of regulating sex industry.[4]
Prostitution is believed to a forced sexual activity in exchange for money. It is presumed that individuals involved in this so-called trade are either trafficked or coerced. This presumption is however not exempted from fallacies. Many prostitutes have willingly entered into this business of commercial sex and thus, bringing into picture ‘consent’. Decriminalization is no panacea for fixing the worst aspects of sex work, but it is a step in the right direction. In contrast to legalization, a system we call "the state as pimp," decriminalization prevents the state from prosecuting adults for consensual, nonviolent sexual activity, whether or not money is exchanged.[5]
The Retentionist’s point is that many women would want to willingly participate in prostitution and they may not necessarily be economically deprived or coerced. In fact, decriminalization would afford women freedom, financial autonomy, and sexual self-determination.[6] After all, if a woman can sell her mental and manual skills, which are exploited, there is nothing wrong in commercializing her sexual skills in prostitution, which is only another form of woman’s work.[7]
Decriminalization is a setback to conservative beliefs. Prostitutes would be legally recognized as professionals and would not have to go through persecutions of law enforcement agencies and society. It is also emphasized that decriminalization should be accompanied by reforms, which will greatly help in the effective enforcement of fundamental rights and upliftment of social status of prostitutes.
ABOLITIONIST’S POINT OF VIEW: As far as abolitionists are concerned, the group often overwhelms the retentionist’s group as most of its arguments tend to satisfy our inherent rationality that is somewhere rooted in our pre-conceived notions.
Jean D’Cunha, a powerful voice, argues that while retentionists admit the exploitation of women in employment and makes pious claims for genuine occupational choice not dictated by class, gender or race prejudices, and oppression, they affirm the right to choose prostitution as an occupation. This only amounts to legitimizing prostitution as a traditionally female occupation and the exploitation and sexual co-modification that goes with it.[8]
As far as occupational choice is concerned, the percentage of forced or coerced women still exceeds the percentage of consenting women.  According to one report, “the women in some of Mumbai's brothels are forced to turn over half their earnings to the brothel owners, a situation akin to that of slavery; estimates based on a study in Sangli are somewhat lower, at about 25 percent, although still significant.[9] Given the structural roots of prostitution, the so-called ‘free’ occupational choice dictated by a complex of prior exploitative and discriminatory circumstances, is no choice at all. In fact, several Asian prostitutes demand the choice of not having to work as prostitutes at all”.[10]
Most of the retentionists claim prostitution rights on the ground that this will ensure greater freedom to prostitutes and provide them with better atmosphere and conditions. Many abolitionists debunk this claim vehemently. The constitutionality of the Suppression of Immoral Traffic( Prevention)Act, 1956 (SITA) as it was then called was challenged by one Shama Bai of Allahabad as encroachment on the right to practise any profession or carry on any occupation, trade or business of choice guaranteed under Article 19(1)(g) of the Constitution. The High Court while recognizing that the work of a sex worker falls within the meaning of Article 19(1)(g) held that the legislation does not totally prohibit the profession and upheld the provisions as reasonable restrictions in the interests of the general public which could be validly imposed under the law.[11] The experience of women in prostitution reveals it to be one of the most alienated forms of labour. From the instant she is procured for prostitution, she is seasoned. Practices like changing the victim’s name, factors like distance and separation from home, language barriers, denial of money to a woman for travel, or otherwise, as well as use of brutal methods such as verbal abuse, isolation in a room, starvation, drugging, beatings, rape and sodomy are used to break the woman’s will and ego, separate her from her previous life and create a new environment with new values, morals, attitudes and relationships to replace the old.[12] Then, this consequential dhandhawali image is very difficult to eliminate from that women.
Retentionists claim that sex work goes beyond sexual intercourse; that it may even involve only caressing, seeing and touching in which case, sexual and other caregiving services cannot be distinguished, however, this argument is out rightly rejected by abolitionists, accusing the retentionists of cloaking the hardships of women in prostitution. In order to protect rights of such women, they must be removed from the shackles of prostitution, which is the most exploitative form of manual labour. 
Last but not the least, many abolitionists believe that what may have been successful in the USA and other countries, may not be successful in India. The reason being that there are marked cultural differences between India and other countries and even if we venture towards liberalization, we cannot certainly take the risk of a leap of faith.

As already mentioned in the preceding chapters that India has limitedly legalized prostitution, then what does that imply? In India, the legal regime on sex work in India is laid down under the Immoral Traffic (Prevention) Act, 1956 (“ITPA”).
ITPA does not proscribe sex work per se but penalizes specific activities related to commercial sex.[13] Interestingly, the legislators did not take either of extreme sides: legalization or decriminalization. However, the drafting and implementation of this Act has raised serious issues that need to be urgently addressed or else the purpose of the legislation would be defeated.
This Act could have served its purpose effectively had it been drafted properly. There are certain major problems that need to be addressed:
‘TRAFFICKING’ NARROWED: This act concerns ‘immoral’ trafficking and should have covered all forms of trafficking but it does not. Throughout the length and breadth of the Act, “trafficking” concerns trafficking related to sex. The legislation (ITPA) deals with acts like keeping a brothel, soliciting in a public place, living off the earnings of prostitution. It does not even have a definition of trafficking! Yet so deep is the association of prostitution with trafficking, that the law with regard to sex work is called prevention of "immoral traffic".[14] It does not cover other forms of trafficking and invariably attaches significance of trafficking with prostitution as if the former exists only for the latter cause.
DEFINITION OF BROTHELS: The Act goes through a drafting glitch in the definition clause only wherein the term ‘brothel’ is defined.
Section 2(a) defines brothels as “any house, room, conveyance or place or any portion of any house, room, conveyance or place which is used for purposes of sexual exploitation or abuse for the gain of another person or for the mutual gain of two or more prostitutes”.[15] Under Section 3, keeping, running or maintain brothels is punishable.
The problem with this definition is that it patently gives leeway for exploitation. Let us consider the first part of the definition, which says “any house, room, conveyance or place or any portion of any house, room, conveyance or place which is used for purposes of sexual exploitation or abuse for the gain of another person” would be a brothel. A logical deduction would mean that two consenting persons, having sexual intercourse within the premises of a hotel, or even a house would be a brothel or that those families, wherein women are often sexually abused by their husbands would constitute running a brothel.
The last part of the definition is arbitrary and greatly jeopardizes right to shelter guaranteed under Art. 21 of the Constitution. The last part says “for the mutual gain of two or more prostitutes” , which means if two more prostitutes are living together in a house, from where they often indulge in commercial sexual activities—which per se is not illegal—is illegal. There have been several instances where sex workers have lost their homes & earnings under the guise of closing down brothels”[16]
LIVING ON THE EARNINGS OF PROSTITUTES: The Act puts women engaged in prostitution in a dilemmatic situation where they cannot utilize their earnings lawfully, as Section 4 of the Act prescribes that “any person over the age of eighteen years who knowingly lives, wholly or in part, on the earnings of the prostitution of any other person, shall be  punished”
The purpose of this provision would have ordinarily meant to thwart pimps and pounces from exploiting women sexually for commercial benefits but unfortunately, the loose or rather, reckless drafting of the provision can even penalize children above 18 years, family members or any other persons for living on the earnings of a prostitute. As it is a well-known fact that many women—especially from low socio-economic backgrounds—are forced to enter into this industry due to lack of alternative recourse, the Act further aggravates their situation by criminalizing living on their expenses.
ABUSE AND REHABILITATION: Section 14 and 15 are the most empowering yet most abused sections from the Act and their abuse indicates a trend that is nothing but a blot on our law enforcing agencies.
Section 14 makes offences under PITA, 1956 cognizable, that is, the police do not require an arrest warrant before conducting raids and searches. Section 15 is an extension of Section 14, which states that the special officer or trafficking police officer, on ‘reasonable’ grounds of belief, may conduct raids without search warrants. These provisions have become a weapon of subjugation against poor prostitutes, who in order to avoid being exposed or socially stigmatized, succumb to lewd demands of police officers, who shamelessly violate these women. 
Under Section 15, there is a provision that is grossly violative of the procured person’s right to privacy as it mandates a medical examination of persons removed from brothels for, inter alia detection of sexually transmitted diseases. Sex workers are reportedly forcibly tested for HIV & their results disclosed in Open Court. This is contrary to national policy, which requires consent, confidentiality, & counseling for HIV Testing.[17]
Section 16 deals with rescue and rehabilitation of prostitutes. Since the Act treats prostitute—who willingly or unwillingly participated in the commercial sex activity—as victims, they are indiscriminately ‘rescued’ and ‘rehabilitated’. The Act presumes that a prostitute is nevertheless a victim and would need rehabilitation, even if forcibly done. However, viable economic alternatives are either nonexistent or unavailable to sex workers on account of stigma.[18]  Stressing on the urgent need for rehabilitation, the Supreme Court had said: "It is only if a sex worker is able to earn a livelihood through technical skills rather than by selling her body that she can live with dignity, and that is why we have requested all the states and the Union of India to submit schemes for giving technical training to these sex workers."[19]
Thus, the provisions of the Act come down heavily on prostitutes and force them to abject social and economic stress.
PROSTITUTION LIMITED TO WOMEN:Throughout the Act, the prostitutes have been referred to as women. A presumption runs throughout the length and breadth of the Act that only women can indulge in prostitution or for that matter,  be forced into prostitution. The reality is different and, on an emphatic note, abhorrent. 
According to a United Nations report, certain Indian traditions and customs also have a role to play in the perpetuation of the male sex trade. The report “Traditionalizing male prostitution in India” says that boys in the age group of 15 to 25 with feminine demeanor migrate to Bihar and Uttar Pradesh from various states to perform, what is called the ‘Laundanaach.’[20]  Poor families hire the Laundas (a native term for young boys), as they cannot afford “more expensive” women dancers. The dancers mainly belong to lower-middle-class and poor families of West Bengal, Bihar, Uttar Pradesh and Maharashtra while some hail from Nepal and Bangladesh. These dancers are vulnerable to physical and sexual assault.[21] “A group of 10 to 15 men could physically carry a dancer to a field and gang-rape him. And, this is a very common trend. Resistance only leads to greater torture and sometimes even death,” the report reveals.[22]
Amidst the feminist debates on prostitutions, we become ignorant on the rising cases of male prostitution, which is equally exploitative. That age-long presumption is shattered as we see the rising percentage of males, who have been forced into prostitution for commercial purposes. Commoditization of any gender is not acceptable as both groups possess human instincts and basic fundamental rights.

CONCLUSION

Prostitution has now drawn the attention of everyone since the last decade. The globe drive to eradicate discrimination and torture directed toward prostitutes is pervading across nations and has been successful in many. The International organizations, such as the United Nations, have repeatedly urged their member-nations to take pro-active steps towards betterment and rehabilitation of prostitutes, regardless of the stance towards prostitution. All of this has even compelled the Apex Court of India to take up the issue as a whole.
Recently, the Supreme Court of India had suggested that Prostitution is India should be regularized and sought suggestions on formulating conditions which would enable those who wish to "continue working as sex workers" to do so "with dignity." Holding that the right to live with dignity was a constitutional right, the bench constituted a panel comprising senior advocates and NGOs to look into the problems faced by sex workers and give suggestions aim at the protection of their fundamental rights.
However, regularization of Prostitution cannot be effective unless abuse of the prostitutes is not effectively addressed. Mere Regulating commercial sex industry would not ensure protection and preservation of rights of the prostitutes. The prostitutes, whether male or female, undergo a systematic chain of rape and torture in brothels and these issues often remain unheard because many people do not accept the notion that a prostitute can be raped.
The legislature also has to look into the possibility of abuse of regularization wherein a minor prostituted has consented for prostitution. If the State allows prostitution, whether a minor prostitute, who willingly consents to sex be covered under legal prostitution and if not, how it will determine minor prostitutes as most of the prostitutes are trafficked and lack basic official formalities, like a birth certificate or registration.
Apart from discussing the possibility of regularization, the issue of alternative employment needs utmost attention. The PITA Act is a poor legislature reflective of the most orthodox societal mindset that has unhealthy repercussions on the primary stakeholders, the prostituted. The Apex Court has poignantly highlighted the need for alternative employment in the case of State of Maharashtra & Anr. Vs Indian Hotel &Restaurants Assn.& Ors[23], where the court had said that:
Of course, the right to practise a trade or profession and the right to life guaranteed under Article 21 are, by their very nature, intermingled with each other, but in a situation like the present one, such right cannot be equated with unrestricted freedom like a run-away horse. As has been indicated by my learned Brother, at the very end of his judgment, it would be better to treat the cause than to blame the effect and to completely discontinue the livelihood of a large section of women, eking out an existence by dancing in bars, who will be left to the mercy of other forms of exploitation. The compulsion of physical needs has to be taken care of while making any laws on the subject.
The PITA Act is an obsolete legislation that needs balanced, pro-rehabilitative modern-day legislation as a replacement. This, however, can be achieved only when the society becomes receptive to the constitutional and natural needs of prostitutes, who have for ages suffered unparalleled stigmatization. We need to have our representatives in Parliament appreciate the distressing condition of prostitutes that can be only remedied through positive, rehabilitative process, not by means of guns and batons.  
As a concluding note, the quote from J. Jeffery Means will be most fitting. She describes the dilemmatic conditions of women in prostitution in following words:
When basic human needs are ignored, rejected, or invalidated by those in roles and positions to appropriately meet them; when the means by which these needs have been previously met are no longer available: and when prior abuse has already left one vulnerable for being exploited further, the stage is set for the possibility these needs will be prostituted. This situation places a survivor who has unmet needs in an incredible dilemma. She can either do without or seek the satisfaction of mobilized needs through some illegitimate source that leaves her increasingly divided from herself and ostracized from others.”  



[2]R. Shukla, 'Women with Multiple Sex Partners in Commercial Context' [2007] EPW 18, 18
[4]J.D. Cunha, 'Demand for Legitimising Sex work in the West' in Prabha Kotiswaran (eds), Sex Work (1st, Women Unlimited, New Delhi 2007).
[6] Ibid 25.
[7] Ibid 25.
[8] Ibid 25.
[9] Ibid 25, pg 93.
[10] Ibid 25.
[11]Shama Bai v. State of UP, AIR 1959 All 57
[12] Ibid 25.
[13] http://www.lawyerscollective.org/files/ITPA%20Fact%20Sheet.pdf <Last Accessed on 21 March 2015>
[14] Ibid 26, pg. 18
[15] ITPA, 1956
[16] http://www.lawyerscollective.org/files/ITPA%20Fact%20Sheet.pdf <Last Accessed on 21 March 2015>
[17] http://www.lawyerscollective.org/files/ITPA%20Fact%20Sheet.pdf <Last Accessed on 21 March 2015>


[18] http://www.lawyerscollective.org/files/ITPA%20Fact%20Sheet.pdf <Last Accessed on 21 March 2015>
[19] http://timesofindia.indiatimes.com/india/Identify-sex-workers-in-metros-willing-to-quit-SC/articleshow/9290395.cms <Last Accessed on 21 March 2015>
[20] http://indiatogether.org/realities-of-male-sex-workers-society <Last Accessed on 21 March 2015>
[21] Ibid.
[22] Ibid.
[23]AIR 2013 SC 25821

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