Prostitution: A Struggle towards Recognition



Prostitution is a business where people are engaged in sexual activity in return for money. A person engaged in such activity is called a prostitute.

The existence of prostitution can be traced back to the Code of Hammurabi. The right of inheritance of the widows and prostitutes was secured in the Code. The horrifying cries come from WWII. During World War II, the Japanese government abducted and enslaved women and girls from Japanese-occupied territories and forced them to serve in militarised brothels that were created to serve the Japanese soldiers[1].

Prostitution has been a recognised practise that can be dated to the dancing girl from Mohenjo-Daro. Rig Vedas refers to the tradition of offering the present of slave girls to Rishis by kings. Historians have found that the Brahmanical period recognised prostitution as a profession. The prostitutes then were called ‘Vishya’. The most prevalent was the devadasi, a system wherein the ‘divine’ prostitutes were employed in the service of the temple as wives of the god and concubines to the upper class.[2] The sacred prostitution in the institution of Devadasi has been referred to by Al Beruni.

In 2000, the Netherlands became one of the first countries to legalise and regulate prostitution.[3]Earlier only females were seen as prostitutes and males were their clients but now males, females, and transgender are all working in this profession. Prostitution has been viewed in every society as a derogatory practice. Women associated with such practices are looked down upon by society even in the 21st century.

The problem is while some of them become prostitutes of their ‘own will’, others are forced into prostitution. This practice can be traced back to India’s history where Brahmins would give poor girls as presents to kings.

Cut to post-colonial India, the situation worsened. Unemployment, lack of education, a poor police system, and growing urbanisation have collectively played a major role in people resorting to prostitution. Young girls and women from poor families are lured in the name of employment, and money, and sold into the sex trafficking business, and once caught in this the deep-rooted market of sex trafficking it is only the luckiest of girls that can find a way out or are rescued. Some women are forced into this due to economic reasons.

The plight of our society is such that around 6% of the women get into this profession after being a victim of rape. The condition is such that in our society the victim is blamed for the rape, and are made to feel guilty and are no longer accepted as a member of society, and in certain cases, not only society but their family members deny to accept them.[4]

The countries have been bifurcated into three types:

1) The country that considers it illegal: Kenya

2) Countries where it is legalised with certain restrictions: India, Canada, etc.

3) Countries where it has been legalised and is regulated with proper laws: New Zealand, Australia, etc.

The Immoral Traffic (Prevention) Act, (1956)

In India prostitution has not been expressly made legal or illegal.

Under Section 2(f) of the Act, the definition of ‘prostitution’ is given as, sexual exploitation or misuse of any persons for any business purpose.

The problem with existing laws in India with regards to prostitution is that they have a very limited scope. The very definition fails to incorporate consensual prostitution.

While under sections 366A, 366B, 370A of the Indian Penal Code punishment for offences of procreation of minor girl, importation of girl from foreign for sex, and exploitation of a trafficked person are provided respectively.

Indian Penal Code, 1860 deals with prostitution but it covers majorly kidnapping and child prostitution.

The problem with the existing laws on prostitution is that they do not explicitly illegalise the practice of prostitution but has penalised their constituent parts like the usage of a house by a brothel, or any person who is living on the earnings of prostitution.

The problem that the judicial system fails to understand is that these laws make it difficult for prostitutes to carry out their work without the fear of being caught and detained.

Most of the women and men are in this business because of the failure of our State to provide the necessary education and employment opportunities to the poor, they see no other way to feed their families except by selling their bodies. Provided required amenities even these people wish to be a reputable and respected member of the society.

While society is divided into two strict halves, one that feels prostitution to be a derogatory business and an ill for the society, and the other treats prostitution like any other business.

In my opinion, the public act of prostitution should be penalised but the profession should not be. It is a matter of one’s personal choice and the state should not have a say as to which business an individual wants to be a part of. The legalisation of prostitution will give these sex workers a legal license to carry out their work without any fear. Even society’s perception of the same needs to change.

When a lawyer defends a politically corrupt politician or a rapist no one questions his decision to defend criminals, it is considered an acceptable part of the legal profession. Similarly, how one wants to use their body or for what business one decides to be a part of providing it does not harm the public, should not raise any problem.

Besides these sex workers do not lose their rights just because of their profession. The Indian Constitution rightfully grants all the citizens under Article 19 (g) “to practise any profession or to carry on any occupation, trade or business”, subject to reasonable restrictions.

The important question to be asked to those who say that the prostitutes corrupt our society is that it is only us that render these poor people so helpless that they have to resort to such business of selling their bodies to earn and feed their family. India fails to employ its educated masses these poor downtrodden people cannot even be rightfully provided for. Who would willingly want to enter a business where they have to sell themselves every day to different people, and accept violence and abuse at the hands of their ‘clients’?

The legal system, to fight the large human trafficking mafia, has included everything within the same provision. There is a need to make laws less ambiguous, and more stringent, and elucidated. The very fact that the state has made this business a taboo that even the individual right of a sex worker is taken away. Police officers take bribes from these brothels and even have been the rapists of child sex workers. There needs to be an active effort taken by the government to make sure that even its department is punished for breach of its duties.

Legalising sex work would mean that sex workers can come forth if any abuse or wrong happens to them without any hesitance. There must be a regulating system to have a regular check at these licensed brothels, and only those licensed to work in this business shall be allowed to work there, and provisions must be made so that sex workers can register themselves and the state will have a record of the number of people involved in the business, and any unregistered person can come into notice, to further make the work of human traffickers difficult.

While our society still views prostitutes with derogatory eyes, it is for the people and the government to understand that it is when the government fails to provide for its citizens, the citizens have to resort touch demeaning ways to provide for their family.

[1] Tom Head, The History of Prostitution, Jan 29, 200 available at https://www.thoughtco.com/history-of-prostitution-721311 [2] DR. Smt. S. R. SARODE, HISTORICAL STUDY OF PROSTITUTION TRADE IN INDIA: PAST AND PRESENT, available at http://vcckarad.com/Minor%20Research%20Project%20on%20HISTORICAL%20STUDY%20OF%20PROSTITUTION%20TRADE%20IN%20INDIA%20%20%20PAST%20AND%20PRESENT.pdf [3] Business Insider, MAR 13, 2019, available at https://www.businessinsider.in/slideshows/miscellaneous/prostitution-is-legal-in-countries-across-europe-but-its-nothing-like-what-you-think/slidelist/68397375.cms#slideid=68397423 [4] Legal aspects related to prostitution in India, Diva Rai, May 22, 2020, iPleaders, available at https://blog.ipleaders.in/legal-aspects-related-to-prostitution-in-india/#:~:text=As%20per%20the%20Indian%20context,under%20THE%20IMMORAL%20TRAFFIC%20(PREVENTION)

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