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DECRIMINALIZATION OF PROSTITUTION: RESUSCITATION OF SEX WORKERS

By: Hardika Kukreja & Saloni Jha* |




Laying heads over the shoulders of an unknown man, hoping for days to come when they would be freed from the anklets which they wear to please the men, to survive. In the Indian patriarchal society, where the women fight for their basic rights, it is plausible to ascertain as to how they will be treated, especially those who are involved in a business which is a taboo in itself.

Prostitution can be seen as one of those boorish manifestations of the society, where the women are forced to keep their bodies at stake in order to earn a living. Many reasons have been stipulated behind the practice of the same. The most common perception is that sexual urges lead women's involvement in the business of prostitution, but the veracity behind their involvement in this business is the economic vulnerability[i].


The business of prostitution turns women into a mere commodity whose brunt has to be faced not only by them but by their next generation as well. Their squalor is not restricted to being economically broken, but they go through tremendous mental and physical antipathy because the only minuscule portion of what they earn is given to them, and the owner of brothels and pimps appropriates the rest of their income.


India, a party to the “United Nations Convention on the Suppression of Trafficking in Persons and Exploitation”[ii], organized in May 1950 had subsequently, enacted an act which was passed by the Indian parliament in 1956. The act outlawed prostitution in India and in order to fettle the lacunas of 1956 legislation, an amendment was again passed in the year 1986.


The Immoral Traffic (Prevention) Amendment Act[iii], outlawed the civic conduct of prostitution in the country. Under this act, whoever is involved in organizing the brothels will be punished under Section 3[iv] of the act. On first conviction punishment of imprisonment for a term which may extend to two years along with fine, which may extend to two thousand rupees and in the event of a second or subsequent conviction, the punishment can extend to rigorous imprisonment for a term which may extend to five years along with also fine[v]. Under Section 4[vi] of this legislative enactment, Proctors living on the earning of prostitution will be punished as well. 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 punishable with imprisonment for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both, Where such earnings relate to the prostitution of a child or a minor, the person shall be punishable with imprisonment for a term of not less than seven years and not more than ten years[vii]. By a bare reading of this section, it poses ambiguity as to whether the children of the prostitutes who live on their mothers earning will also be liable to punishment? If yes, then it would pose a threat over their children's right to life, and their dignified right of growing in a healthy, as well as the stable environment and these innocent lives, will have to bear the consequences.


Not only are those involved in organizing prostitution punished under this act, but also the women whose livelihood is dependent on this work, meant to be punished under Section 8 of this act. According to this section, whoever is involved in seducing or soliciting in public places shall be punishable for the term, which may extend to six months, for the first convicts or with a fine of Rs. 500 or both. On the second or a subsequent conviction, with imprisonment for a term which may extend to one year, and also with fine which may extend to five hundred rupees. This act denotes that only the public or civic conduct of prostitution has been outlawed in India[viii]. Section 7 has laid down provisions to penalize the clients, though this provision seems to be sufficient to stall the practice of prostitution but due to the client’s sufficient money power, they are set free by the punishing authorities.[ix]


The State governments have the power to establish protective homes and corrective institutions on their discretion under Section 21 of the act[x]. It is to be noted duly that the provision to send the sex-workers to the corrective institution has been laid down in Section 10-A[xi] of the act which shows that the legislatures see sex-workers as people who are on the path of aberration or deviation and that there is a need to redress this problem.

It is important to note that these women have not been characterized as sex workers even for once in this act. The term 'prostitute' has been used; as the legislatures don't want to accept it as work which women undertake for their survival, rather they consider this practice as something women are coerced or forced into. The legislation contradicts itself as it adduces the punishment for the prostitutes who are forced into this illegal activity, according to our legal fraternity. The question which arises is whether there is a need to extend financial support to the prostitutes who are stuck in this work or provisions for strict punishment should be laid for them?


There is a stark grey reality amidst this whole ordeal, which makes the feminine gender amenable to performing the act of prostitution. The purchasing of sex is archaic in nature. It is an element of the society that cannot be eliminated completely even after the several attempts made to criminalize it.


Prostitution should be treated like any other profession in the nation; it is due to the manifestations that it tends to decrease the trafficking of women and children, which is done for the unequivocal purpose of using them as objects of commercialization of sexual activities (prostitution). Furthermore, criminalizing any such consensual sex (even though it is in exchange for something) is against the human rights of the people.[xii] In furtherance of it there lies a belief that if two individuals are to commit any sexual intercourse or activity without any influential force then it should be decriminalized as it is well within their right to choose. Subsequently, it points towards the requirement of legislation which focuses more on protecting human rights.


The criminalization of sex work leads to a high level of violence and harassment among these sex workers because the men availing the services of these sex workers know that these women cannot approach the police or any such authority for protection or to seek any such recourse.[xiii] The criminalization of such sex work only forces the women to carry out this business in highly secretive and unprotected locations. Moreover, the criminalization of sex work impedes the right of sex workers to seek justice.[xiv]


With regard to this, the alacrity of decriminalization has the propensity to provide the monitoring of the situation and take measures ensuing to protect those who are involved in it. The decriminalization of sex works would aid in bringing the money spent into sex work into circulation and would also be helpful in the estimation of taxes.

The aforementioned deliberation unambiguously brings forward why it is imperative to decriminalize prostitution. The Hon’ble Supreme Court even in the petition filed by the Bachpan Bachao Andolan in 2009[xv] had reiterated the same belief, whereby Justice Dalveer Bhandari and Justice AK Pattnaik had advised the Centre to ordain a law that would be centralized to the decriminalization of prostitution and regulating it.


At the present juncture, in India, prostitution in itself is not a punishable offence, but soliciting the same or carrying out such an activity in the public place is illegal. But on a contrasting purview, many nations have decriminalized prostitution; few of them are as follows- Netherlands,[xvi] Indonesia,[xvii] Greece,[xviii] Germany,[xix] Ecuador,[xx] Denmark,[xxi] Colombia,[xxii] Canada,[xxiii] Brazil,[xxiv] Belgium,[xxv] Austria[xxvi] and in New Zealand.[xxvii] Pertinent to the aforementioned discussion, selling of sex is legal in the country of Netherlands provided that it is between two consenting adults. Nonetheless, the state penalizes forced prostitution and underage prostitution.[xxviii] With the several nations being a part of the assemblage in which commercialization of sex work is legal, the most common observation among them is that the legalization of such a sex work trade has brought the money earned by these sex workers into the calculation of the taxes.[xxix] Subsequently, some of the countries even go on to offer health care benefits or insurance to these sex workers.


On a divergent view, there are countries like Sweden, who have come up with an unprecedented system known as the 'Nordic Model.' This model refers to penalizing not the prostitutes and the facilitators, but the people who redeem the services of such prostitutes.[xxx] However, this system also has its drawbacks[xxxi] that come in the form of the attempt by the procurers to reticent the sex workers, and the same has the effect of making the earnings of the sex workers being neglected and narrowed down to nearly a few pennies. Therefore, the Nordic Model cannot be applied in India due to the view that it might cause more harm than benefit as it would increase violence against sex workers.



CONCLUSION


In culmination to the deliberations of the whole article, it can be very well be concluded, that the present stature of laws in India is not coherent in itself with regard to criminalization of prostitution as it doesn't directly designate sex work as an offence but only the people involved in its facilitation. At this epoch, there is a devoir to remove the ambiguity in the laws of our country. There is a need for separate legislation that directly elucidates on the issue of prostitution and which does not designate the sex workers as any pernicious element of the society but rather regularizes the work carried on by them.

The decriminalization of prostitution becomes the best alternative of all in the prevailing issue to harmonize the interests of the sex workers and give them a suitable pedestal in society. Moreover, it would also lead to treating prostitution like any other profession in the country and not a taboo.


"Slavery still exists, but now it applies to women, and its name is prostitution."

- Victor Hugo


***

* The authors are the students at Amity Law School, Noida.


[i] Kavitha Kumar and Gunjan Shah, Prostitution and Human Rights, accessed on 23rd April 2020. [ii] Convention for the Suppression of the Traffic in Persons. Of the Exploitation of the Prostitution of Others, https://www.ohchr.org/EN/ProfessionalInterest/Pages/TrafficInPersons.aspx accessed on 22nd April 2020. [iii] The Immoral Traffic (Prevention) Amendment (Act of Parliament) 104 of 1956. [iv] The Immoral Traffic (Prevention) Amendment Act, 1956, s3. [v] id. [vi] The Immoral Traffic (Prevention) Amendment Act, 1956, s4. [vii] id. [viii] The Immoral Traffic (Prevention) Amendment Act, 1956, s8. [ix] Supra note i. [x] The Immoral Traffic (Prevention) Amendment Act, 1956, s21. [xi] The Immoral Traffic (Prevention) Amendment Act, 1956, s10A. [xii] Prevention and treatment of HIV and other sexually transmitted infections for sex workers in low- and middle-income countries: recommendations for a public health approach. WHO, UNFPA, UNAIDS, NSWP, 2012. [xiii] Rekart M. L (2005) Sex-work harm reduction. The Lancet. 366 (December):2123-2134 [xiv] Addressing Violence against Sex Workers, WHO. https://www.who.int/hiv/pub/sti/sex_worker_implementation/swit_chpt2.pdf. [xv] (2011) 5 SCC 1. [xvi] Prostitution, Government of Netherlands, https://www.government.nl/topics/prostitution. [xvii] Articles 296, 297 and 506 of the Criminal Code of 1917 [xviii] Lena Reinschmidt, “Prostitution in Europe Between Regulation and Prohibition,” beobachtungsstelle-gesellschaftspolitik.de, May 2016 [xix] id. [xx] Jessica Van Meir, "Sex Work and the Politics of Space: Case Studies of Sex Workers in Argentina and Ecuador," mdpic.com, 19th April 2017 [xxi] UK Parliament Home Affairs Committee, “Prostitution: Other Legislative Models,” publications.parliament.uk 2016 [xxii] Manuel José Cepeda Espinosa, and David Landau, Colombian Constitutional Law: Leading Cases, 2017 [xxiii] House Government Bill C-36 of 2014 [xxiv] Sexuality Policy Watch, "Brazilian Bill Legalizes and Regulates Prostitution," sxpolitics.org, 30th September 2013 [xxv] Lena Reinschmidt, “Prostitution in Europe Between Regulation and Prohibition,” beobachtungsstelle-gesellschaftspolitik.de, May 2016 [xxvi] Sex-Worker Forum of Vienna, Austria, “Austria: Discriminations against Sex Workers in the Rights to Work and to Health,” submission to the United Nations Committee on Economic, Social and Cultural Rights, ohchr.org, Nov. 2013 [xxvii] Prostitution Reform Act of 2003. [xxviii] Prostitution, Government of Netherlands, https://www.government.nl/topics/prostitution. [xxix] Luigi Bernardi, “Sex Working And Taxation In European Countries”, http://www.siepweb.it/siep/images/joomd/1529068796Bernardi_WP_SIEP_737.pdf [xxx] Mathieson, Ane; Branam, Easton; and Noble, Anya (2016) "Prostitution Policy: Legalization, Decriminalization and the Nordic Model," Seattle Journal for Social Justice: Vol. 14 : Iss. 2 , Article 10. Available at: https://digitalcommons.law.seattleu.edu/sjsj/vol14/iss2/10 [xxxi] The ‘Nordic model’ of prostitution law is a myth, The Conversation, https://theconversation.com/the-nordic-model-of-prostitution-law-is-a-myth-21351



Image Source: https://www.dsausa.org/democratic-left/decriminalizing-sex-work/





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