SAVITRIBAI PHULE PUNE UNIVERSITY

DEPARTMENT OF LAW

Criminal Law

2017-18

Submission of Long Term Paper on,

LEGALIZATION OF PROSTITUTION IN INDIA

Submitted By,

Miss. Tejlaxmi Dhopaokar.

Roll No 21

DIV A

Under the guidance of,

Prof. Dr Naresh Waghmare

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 TABLE OF CONTENTS
Chapter 1 - INTRODUCTION TO RESEARCH STUDY ......... 3
1.1 INTRODUCTION ................................................................................................................... 3
1.2 RATIONAL AND SIGNIFICANCE OF STUDY..................................................................... 3
1.3 AIM AND OBJECTIVES ........................................................................................................ 5
1.4 RESEARCH QUESTION:- ...................................................................................................... 5
1.5 RESEARCH METHODOLOGY.............................................................................................. 6
1.6 SOURCES OF DATA COLLECTION ..................................................................................... 6
1.7 TOOLS OF DATA COLLECTION .......................................................................................... 6
1.8 RESEARCH MODELS ............................................................................................................ 6
1.9 REVIEW OF LITERATURE ...........................................................................................6

Chapter 2- BASIC CONCEPT OF PROSTITUTION ................ 8

2.1. MEANING OF PROSTITUTION: ................................................................................8
2.2. HISTORY OF PROSTITUTION ..................................................................................8
2.3. HISTORICAL ANTECEDENTS OF PROSTITUTION IN INDIA .................................... 10

Chapter 3 INTERNATIONAL LEGAL FRAMEWORK ........ 13

Chapter 4 INDIAN LEGAL FRAMEWORK........................... 17

Chapter 5 ASPECTS OF LEGALIZATION ............................ 20

Chapter 6. CONCLUSION ...................................................... 22

BIBLIOGRAPHY .................................................................... 24

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 Chapter 1 - INTRODUCTION TO RESEARCH STUDY

1.1 Introduction
Prostitution which is nothing but sex trade is a common phenomenon in India though
we the members of civilized society don’t hesitate to deny the legal existence of this trade; in
fact most of us are not ready to give it a legal status though in various cases the Hon’ble
Supreme Court of India has expressed the view that this profession should be legalized in
India. Today our country’s biggest concern is enormous increase in the number of incidents
of rape and legalizing prostitution would be one step forward towards combating rape. Apart
from this legalizing prostitution would also be helpful in reducing the number of cases of
child trafficking. The Universal Declaration of Human Rights, 1948 states that “All men are
born free and are equally entitled to have their basic human rights.” Denying legal
recognition to this profession means denying the basic human rights of the prostitutes. Giving
legal recognition to prostitution would enable the prostitutes to make some contribution
towards the development of the nation as they would have legal protection; their children can
get education and would be entitled to participate in the main stream of the society.
Recognizing prostitution as a profession will at least reduce the real illegalities that come
with it like child prostitution, drug trafficking and other crimes.

In some countries Prostitution is legalized. Whereas in India it is neither criminalized nor

legalized. This research is about the study why prostitution needs to be legalized.
1.2 Rational and significance of study

If Prostitution legalized:-

 It Would Make Sex Workers Healthier.

Once legalized, we can require every sex worker to use condoms and be medically examined
regularly for HIV and other related diseases to protect them and avoid causing of widespread
health problems. This will not be hard to execute because what sex workers want is money and
not disease.

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  Legal Prostitution Would Reduce Violence And Sex Crimes.
Once legalized, sex workers would be empowered to approach a police if they are in danger or
having a problem with their clients and pimps. Furthermore, sex workers would also be given an
opportunity to conduct their business on their own without the control of an abusive pimp, which
reduces the possibility of violence and abuse.

 It Would Protect Minors.

If people can legally buy sex from women 18 years or older, it will significantly reduce child
exploitation. Since no one would want to be prosecuted and pay fines, those who are in the
commercial sex market will only legally employ willing adults, rather than struggle to operate in
secrecy. By legalizing prostitution and implementing more strict laws regarding it, we can
abolish child sex slavery.

 It Could Help Us Fight against Human-Trafficking

They key benefit of legalizing the buying and selling of sex is it can create an effective
relationship between the law enforcement officials and sex workers. If there’s a good relation
between them, law officials can use sex workers as key information sources to uncover human
trafficking.

 Legalization Could Benefit A Government Through Taxes.

Legalization of prostitution could lead to a chain effect that would significantly benefit a country
primarily through tax revenue. Once the sex workers and brothel owners obtained a license, they
may participate in the business and enjoy their legal income that is taxable.

 Sex Workers Have the Right to Their Body

Every human being has the right to use their body according to their will. If a sex worker would
want to rent out her body in exchange of money, then fine. That’s her right. And no one has the
right to tell anyone what to do with her own body and life, especially just because it doesn’t
adhere to other people’s moral principles or beliefs.

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  It Would Give The Sex Workers Employment Rights.

Everyone, who is legally employed, has minimum rights and entitlements given by law, such as
safety rights, minimum wage, health benefits, vacation pay, and protection against unlawful
discrimination.

1.3 AIM AND OBJECTIVES

1) To study the meaning, definition of prostitution.
2) To study the recent scenario and the cases relating to legalization of prostitution.
3) To study the factors regarding legalization of prostitution.
4) To study the various aspects of legalization of prostitution.
5) To study the duty and the rights towards prostitute.

1.4 RESEARCH QUESTION:-

Shall India legalize prostitution?

Some people opine that prostitution shall be made legal in India and accept them as a part
of society because the problem of prostitution is inevitable. The benefit of legalizing prostitution
in India will be that at least we will have a track record of Sex workers as for example when
dance bar in Bombay were closed most of the bar dancers migrated to Gujarat and Karnataka and
other neighboring state and started their business undercover. Legalizing prostitution will see
these women, who live life on the edge everywhere, gaining access to medical facilities, which
can control the spread of AIDS. There is a very strong need to treat the sex industry as any other
industry and empower it with legal safeguards. The practical implications of the profession being
legal would bring nothing but benefits for sex workers and society as a whole. Keeping
prostitution illegal also contributes to crime because many criminals view prostitutes and their
customers as attractive targets for robbery, fraud, rape, or other criminal acts. The criminals
realize that such people are unlikely to report the crimes to police, because the victims would
have to admit they were involved in the illegal activity of prostitution when the attacks took
place, now if it is legal then they will easily go and report this to police.

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 1.5 RESEARCH METHODOLOGY
Research methodology used in conducting this research is ‘Doctrinal Research
Methodology’. It means that research done on the basis of secondary source of information. Data
is collected from various books and articles. Reason of selecting this method is studying about
the legalization of Prostitution and closely examining the legal doctrines, framework and case
study in logical, scientific and systematic way. At the same time opinion of various eminent
thinkers are referred in making this research.

1.6 SOURCES OF DATA COLLECTION

1. Primary Source
2. Secondary Source.

In present research, the researcher will use Primary as well as secondary source of data
collection. That means researcher will collect data through textbooks, articles and reports,
reference books, internet access etc.

1.7 TOOLS OF DATA COLLECTION

The main tools used for doctrinal Data Include Articles, news, websites, books etc.

1.8 RESEARCH MODELS

1) Historical model is to discuss past and present events in the context of the present condition,
and allows one to reflect and provide possible answers to current issues and problems
regarding prostitution
2) Analytical model is to study the present scenario regarding or relating to legalization of
prostitution by using facts and information already available and analyse these in order to
make a critical evaluation

1.9 REVIEW OF LITERATURE

Jo Bindman & J Doezema, Redefining Prostitution asSex Work on the International
Agenda - The Abolitionist approach declares that the institution of prostitution itself constitutes a
violation of human rights, akin to the institution of slavery. The Abolitionist approach requires
governments to abolish prostitution through thepenalisation of this 'third party', which profits

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from the transaction between prostitute and client. The prostitute cannot bepunished, as she is the
victim of a process she does not control.

Jakobsson and Kotsadam (in press),find a positive effect of legalized prostitution on

human trafficking in a cross-sectional monadic dataset of 31 European countries.

Edlund and Korn (2002) point out, not all prostitution is the same. Street prostitution
differs from prostitution in brothels, bars and clubs, which also differs from prostitution offered
by call girls (and boys) and escort agencies. Differences include, but are not limited to, the types
of services rendered, numbers of clients served, types of clients served, sizes of payments, and
also the share of illegally trafficked prostitutes working in each market segment. For simplicity,
we will avoid such complications by assuming that there is one single market for prostitution

However, the researcher did not choose to restrict himself to only the writings of various
authors. The researcher has also looked into case law, in order to understand the opinions of the
esteemed judiciary. Also, the researcher has made note of the legislature as it exists in the current
scenario and aims at providing a list of the states, and prevalent legislature which is used to
support the same.

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 Chapter 2-BASIC CONCEPT OF PROSTITUTION

2.1.MEANING OF PROSTITUTION:
Prostitution is a highly debated term. Its common definition is the exchange of sexual
services for compensation, usually in the form of money or other valuables (Ditmore, 2006;
Edlund & Korn, 2002; Esselstyn, 1968). Yet, there are many activities that can fall into this
category, and it can be argued that getting married for the purpose of having a home and
livelihood qualifies as prostitution (Edlund & Korn, 2002). Some add that to differentiate
prostitution from other forms of nonmarital sexual activities; it must be devoid of emotional
attachment between partners (McGinn, 1998). Others, such as Edlund and Korn, argue that an
element of promiscuity must also be involved. However, the notions “devoid of emotional
attachment” and “promiscuity” are also vague. A young woman maintaining a long-term sexual
relationship with a “sugar daddy” may not fall in this category, while others may argue that this
is indeed a form of prostitution. There is also difficulty in determining the number of partners
one should have to be considered promiscuous. For example, the following was noted:

“A woman who had sex with more than 23,000 men should be classified as a prostitute,
although 40 to 60 would also do. However, promiscuity itself does not turn a woman into a
prostitute. Although a vast majority of prostitutes are promiscuous, most people would agree that
sleeping around does not amount to prostitution.” 1

2.2.History of Prostitution
The history of prostitution is intimately linked with the patterns of tolerance and
prohibition leveled against prostitution as a society adapts appropriate policies to address the
activity. The notion that prostitution is the oldest profession has some credence, as ancient
societies viewed prostitution as an accepted component of religious, social, and cultural life. For
example, as early as 2400 BC, documents of prostitution are found in temple services in
Mesopotamia (Lerner, 1986). There are also early documents that showed that prostitution was
viewed as a legitimate economic activity. In 600 BC, Chinese emperors recognized commercial
brothels as a means of increasing state income (Bullough et al., 1987), and a couple of centuries

1
Edlund & Korn, 2002, p. 183

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later, Greek and Roman heads of state also established specific mechanisms that detail the
economic and social roles of prostitutes (Bullough et al., 1987; Vivante, 1999).

Not until the Middle Ages were there considerable records of prohibition against the
practice of prostitution. In 534 AD, Justinian the Great banished brothel keepers from his capital
and granted freedom to slaves sold into prostitution (Ringdal, 2004). The Visigoths of Spain also
strictly prohibited prostitution in the early middle Ages, viewing the practice as morally
reprehensible and punishable by flogging and banishment (Roberts & Mizuta, 1994). Throughout
the centuries, prohibition of prostitution continued at varying intensities, although also
interspersed with periods of tolerance and minimal regulation. Prohibition appeared particularly
pronounced during times of widespread diseases, such as in the spread of syphilis in the late
1400s (Bullough et al., 1987), especially when it was recognized that the disease was sexually
related. In the period from the 15th to the 20th century, the moralistic approach to prostitution
resulted in conflicting social policies. In Europe, while religious institutions were vigorously
opposed to prostitution, the elite male-dominated social classes discreetly supported its
existence. As a consequence, women involved in prostitution were stigmatized and criminalized,
yet their customers were not.

The moralistic view held sway throughout most of the 20th century as well. However,
with the birth of the feminist movement in the 1960s and 1970s, this view was challenged and
the alternative view that prostitution is a legitimate form of work was proposed. As mentioned
earlier, groups like COYOTE, Friends and Lovers of Prostitutes (FLOPS), Hooking Is Real
Employment (HIRE), and Prostitutes Union of Massachusetts (PUMA) campaigned to dissociate
prostitution from sin, crime, and illicit sex (Jenness, 1990). These groups also fought for the
protection of the rights of the sex workers, and the World Whore Congress that was held in 1985
in Amsterdam articulated many of the groups’ positions (Ringdal, 2004). Largely through these
campaigns, some governments decriminalized prostitution, offered services to sex workers, and
ensured a safer working atmosphere for those involved.

However, with the advent of globalization, prostitution is caught in the nexus of sex
tourism and human trafficking. There is a growing recognition that as an industry, prostitution
had been economically and systematically exploited (Leheny, 1995). Young girls and boys from
poor rural areas of developing countries are also systematically deceived with offers of jobs and

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other opportunities, only to end up as prostitutes for local and international customers in the big
cities (Flowers, 2001; Lazaridis, 2001). As mentioned earlier, more radical feminists have thus
articulated that prostitution is a modern form of sex slavery and it should be viewed as violence
against women and a violation of human rights (Farley et al., 1998; Farley & Kelly, 2000;
Raymond, 1998).

2.3.HISTORICAL ANTECEDENTS OF PROSTITUTION IN INDIA

To locate the debate in contemporary context before considering historical antecedents
yields a foundationless narrative. The strength of studying the historic roots of an activity lies in
its power to deconstruct the prevailing notions of moral perceptions regarding the activity
embedded in society. It dissolves the crystallized mode of thinking about an event, person, or
activity and supports alternative viewpoints through a process of emotionless contextualization.

Even though a detailed formal account is difficult to lay hands on, 2 there is considerable
evidence that sex workers in ancient India enjoyed a high degree of agency – as evinced by
significant efforts in the direction of rediscovering the past from the narratives of colonial and
nationalist authors.3 In fact, S.M. Edward’s writings on crime in India show how surprisingly
tolerant Indian society was toward prostitution. 4 In one of the passages, he says, “[I]t is hardly an
exaggeration to say that the great majority of India’s inhabitants, representing orthodox and
conservative opinion, still regard the profession, and those who follow it, with tolerance, and
sometimes even with respect and approval. . . . [It] result[s] in social anachronisms, which
strangers view with amazement and are unable to understand.” 5Indeed, ancient Indian epics like
Ramayana and Mahabharata (and even Buddhist scriptures like Jatakas6) contain several

2
. see s.n. sinha & n.k. basu, thehistory of marriage and prostitution 22 (rita d. sil ed., 1992).
3
see sumanta banerjee, marginalization of women’s popular culture in nineteenth century bengal,
in recasting women: essa ys in colonial history 127 (kumkum sangari & sudesh vaid eds., 1989);
janaki nair, from devadasi reform to sita: reforming sex work in mysore state, 1892 –1937, 5
n.l.s.j. 82 (1993).
4
s.m. edwardes, crime in india: a brief revi ew of the more important offences included in the
annual criminal returns with chapters on prostitution &
5
id.
6
sinha & basu, supra note 30, at 171-72.

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references to existing prostitutes who formed guilds and had recourse to civil and domestic
rights.7

Gradually, prostitution came to be regulated, and prostitutes were categorized into

Kumbhadasi (a lower class of prostitute women who would be housemaids and would sexually
please the houselord), Rupajiva (higher in the hierarchy, ranging from head housemaid to
professional dancers), and Ganikas (a high seat of honor attained through beauty and intellectual
attainment. Ganikas were versed in several arts, educated, and held in high esteem by the King
and other ‘appreciate people’). References to Ganika help us understand the legal and social
position of prostitute women in ancient India: she was treated like a government servant, was
free to form associations, received a fixed salary from the King, which was considerable (she,
therefore, transferred her proceeds from customers to the treasury), was under charge of a
Minister, and was provided for by the state in old age, since she would not marry, even though
her property would be inherited by daughters or sisters. There were rules for clients as well, who
were not allowed to ill-treat prostitute women and could not renege on their payment. Even
though there were some rules that acted against prostitute women (for instance, Ganikas could
not purchase their freedom from the profession because the price of doing so was too high) and it
is difficult to draw wide-ranging conclusions about their social position, there is little doubt that
their conditions were better than those for sex workers now.

Social perception of prostitution, morality, and the conditions of the trade shifted during
the colonial period, as colonial discourse on subalterns amply demonstrates this. The British
amazement regarding the toleration of prostitution in India (which was considered an occupation
just like blacksmithing and carpentry) emerged from their own conception of how appallingly
prostitute women lived and how degrading their profession was considered to be in Britain.
Instead of attempting to understand the structure of prostitution in India, the British exploited
prostitute women to satisfy the “natural sexual desires” of the British troops. In order to gain
access to women’s bodies, however, they had to push forth the colonial project of superiority of
their race, made possible by denigration of Indian prostitutes. This required institutionalization of
prostitution through the machinery of the state, and it was achieved by sponsoring and opening

7
Kotiswaran supra note 27, at 161. This section is based on Kotiswaran’s work.

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several state-run brothels, particularly in the Cantonment areas where they were called chaklas.
In the chaklas, prostitute women were treated as though incarcerated; they were physically and
sexually abused by soldiers, fined, imprisoned, and starved. Public perception is usually
determined by what one experiences or observes. Once the risks (physical and mental) associated
with prostitution as a profession increased, society developed an aversion to it.

Denigrating prostitutes through the Contagious Disease Act in 1868 gave the British
sweeping control of Indian minds to invoke morality with respect to women’s sexuality. The
legislation gave powers to the state to identify and register prostitutes in the region and examine
them for venereal diseases. It led to arrests, compulsory and humiliating checks, and forced
confinement of “native” prostitutes until “cured” in locked hospitals for months in a row. Even
though the Act was repealed in 1888 in India due to increasing resistance to it in many English
colonies, it left two indelible impressions that scar the face of women’s rights in India even
today. Firstly, it created and reinforced the consciousness of prostitution as an abhorrent
profession in the Indian social and political fabric through sustained identification and portraying
practices as degraded against Indian prostitute women. Secondly, it left executive remnants on
the Indian Penal Code and local police legislation. Both lay the foundation for criminality of
prostitution that was seeded in both social psychology and legal instruments. By treating certain
acts of prostitute women as criminal, the Contagious Disease Act was a precursor to the
collective conscious that marked everything to do with prostitution – except the act of sex – as
criminal. It was then that the urban legal space began to distinguish between cantonment areas
and non-cantonment areas, and red light districts, which never existed before colonization,
developed in Indian cities. Interestingly, the nationalists – in their eagerness to resist the British –
wrongly developed the same British sense of moral superiority, and many of them – educated in
Victorian England – colluded with the British in degrading their own women. Colonial
experience, therefore, gradually subverted the old social designs of prostitution in India and
replaced them with different informal and formal regimes that were reinforced even after the
independence of India from Britain.

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 Chapter 3 INTERNATIONAL LEGAL FRAMEWORK

There are numerous international treaties and conventions that protect the interests and
human rights of sex workers. Among them, the primary international treaty dealing with sex
workers is the 1949.

UN Convention for the Suppression of the Traffic in Persons and of the Exploitation of
the Prostitution of Others. This Convention reflects the Abolitionist view to the point that it has
failed adequately to recognize the human rights of sex workers and that it is based on the
promise that sex work should end and that all sex workers should be regarded as victims who
must be saved from themselves and be rehabilitated. Under this Convention, it is an offence to
procure or entice another person even with their consent into prostitution, to exploit the
prostitution of that person even with their consent, state parties shall agree to punish any
person who keeps or manages of finances a brothel or knowingly rents or lets a building or
other place for purpose of prostitution.

The most recent international instrument on the issue is the Protocol to Prevent,
Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing
the United Nations Convention against Transnational Organized Crime but this has not yet
been ratified by India and not in force so far. This Protocol criminalizes acts of receipt,
transportation, harbor, recruitment, and transfer of persons; by means of use of force,
abduction, threat of use of force, frauds, deception, and abuse of position of vulnerability; for
purposes of prostitution, forced labor or other forms of sexual exploitation. This protocol is
still couched in language similar to the 1949 Convention and does as little to respect the rights
and agency of women in the industry. It fails to draw a line between trafficking and forced
prostitution on one hand and unforced prostitution on the other -- providing justification for
criminalization and denial of basic rights of these workers. Similarly, the Slavery Convention
of 1926 and its Supplementary Convention of 1956 have some provisions relating to sex
workers. Article 1 of the Supplementary Convention as including debt bondage and other
forms of tied labor, under which the working conditions of sex workers may fall.

Apart from these, there are general international human rights instruments that are of
importance for those working in the sex industry. A general overview of the respective
contributions of the protections available under these instruments needs to be outlined. The

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fundamental international framework on human rights protection is the Universal Declaration
of Human Rights (UDHR) and the other instruments that have become synonymous with
protection of basic human rights of individuals are the International Covenant on Civil and
Political Rights (ICCPR) and the Convention on the Elimination of all forms of
Discrimination against Women (CEDAW) which is perhaps the best basis for the protection of
sex workers. The preamble of the UDHR affirms equal rights and dignities of men and
women, right to life and liberty, equal protection before law and right against all forms of
slavery and servitude, p r o t e c t i o n against arbitrary interference with privacy, family, home,
or correspondence and of particular importance to sex workers is right to work, to free choice
of employment and to just and favorable working conditions. Also significant is the right of
each person to a standard of living adequate to food, clothing, housing, medical care and
necessary social services. Thus the UDHR outlines a series of very important rights and
principles relevant to the protection of sex workers. ICCPR also reflects the similar rights with
emphasis on right to freedom of association that needs to be in the interests of national
security, public safety, the protection of public health and morals, or the protection of rights
of others and effective protection against discrimination to be granted. Under CEDAW, there
are provisions that deal specifically with trafficking and prostitution and the right of free
choice of profession and employment. The Committee on Elimination of Discrimination
against Women, CEDAW acknowledged that poverty and unemployment can force many
women into prostitution and that they are “especially vulnerable to violence because of
their status, which may be unlawful, tends to marginalize them.”

The International Labor Organization has addressed the issues of discrimination in

employment and occupation, forced labor, occupational safety and health and protection of
workers’ health. United Nations has come out with a handbook of guidelines to provide
examples of best practices doe legislation in relation to prostitution and it contains many
progressive provisions of relevance to the issue of sex work and also HIV. It says that
regulation short of criminalization can also stigmatize the sex workers leading to human rights
violations, by imposing restrictions on forced detention in rehabilitation inter alia. The
handbook also criticizes prostitution laws as being founded on nineteenth century notions of
morality, which were as ineffective as they are now in suppressing the industry. It
recommends that an alternative approach of treating sex work as a personal service industry,
which is neither condemned nor condoned and also removal of a range of offences in fear of
prosecution and harassment by the police.

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 The above instruments if incorporated into domestic law could be a very strong weapon
for the legislature, the courts as well as the concerned groups and individuals to ensure that all
rights are upheld.

Regionally, India has ratified the SAARC Convention on Preventing and Combating
Trafficking in Women and Children for Prostitution which acts as a combatant in prevention of
trafficking and sexual exploitation but this has also been criticized.

 Legal Framework of Other Countries:

1. Netherlands:

The current law regarding prostitution in Netherlands legalizes brothels as long as they
do not disrupt the public life and they will operate like any other commercial establishment.
The law aims to legalize the organization of voluntary prostitution and penalize involuntary
prostitution characterized by coercion, exploitation and fraud for which imprisonment is
guaranteed. Powers are vested with local authorities to control and regulate the conditions
under which prostitution is permitted. Sex work is organized in a variety of ways in
Netherlands, for e.g. window prostitution, street sex work both of which work independently.
The tolerant nature of Netherlands portrays that sex workers have good working conditions
which are similar to other industries – but reality is far from it. Even though public policy
has taken a pragmatic approach towards sex work, they are victims of stigma, marginalization
and bereft of human rights protection.

2. Sweden:

The new legislation in Sweden criminalizes buying of sexual services. Its main aim is to
reduce the numbers of sex workers and encourages them to retrain. It targets men as clients,
that the sex workers and penalizes them with imprisonment. This approach has lead to
collaboration of social services and law enforcement officials in sensitive treatment of the sex
workers. The aim is to contain socially unacceptable behavior and to encourage the sex
workers back into the mainstream of the society.

3. Victoria, Australia:

15
 The Victorian government has continued to criminalize all forms of prostitution
except for prostitution through escort services or licensed brothels (zoning and licensing
requirements for brothels to be determined by the proper municipal authorities). The Victoria
experiment has failed for two reasons: firstly, because municipal authorities have control over
issuance and revocation of licenses and due to community pressure legal brothels have existed
in very small numbers. This results in an increase in illegal prostitution as there is a limited
opportunity to work at the legal brothels. Secondly, because legal brothels are so limited,
the brothel owners have substantial power in their hands to exploit sex workers who want to
work legally (there is a huge employment demand by such sex workers) and this has led
to nefarious and horrible working conditions for these sex workers.

These three countries may be far advanced than India in terms of social structures and
public moral definitions, but the cases for legalization have been considered purely for the
basis of an analogical comparison and whether such systems could work in India.

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 Chapter 4 INDIAN LEGAL FRAMEWORK

The laws governing sex work in India are entailed in the Constitution of India, 1950;
the Indian Penal Code, 1860 and the Immoral Traffic (Prevention) Act, 1956. The Constitution
apart from the equality provisions and provisions of freedom of association, right to life and
personal liberty, guarantees prohibition of trafficking of human beings and forced labor.
Under Part IV of Directive Principles of State Policy: the State is required to direct its policies
towards securing, inter alia, that both men and women have an equal right to an adequate means
of livelihood, that health and strength of workers not be abused, and that citizens are not
forced by necessity to enter avocations unsuited for their age and strength, promotion of the
educational and economic interests of weaker sections of the society, ensuring their protection
from social injustice and exploitation(emphasis supplied), requirement of fostering respect for
international law and treaty obligations, obligation on the state to raise the levels of standard of
living and the renunciation of practices by citizens that are derogatory to the dignity of women.
The Andhra Pradesh High Court has also affirmed that these combined duties are placed on the
state and a corresponding right is placed on citizens including sex workers.

The Indian Penal Code has at least 20 provisions that make trafficking punishable.
Most of them deal with abduction for illicit intercourse, wrongful confinement after abduction
inter alia. The primary piece of legislation dealing with sex work is the Immoral Traffic
(Prevention) Act, 1956 (hereinafter ITPA). The Act mainly makes pimping and other activities
punishable, which gives a commercial aspect to prostitution that is likely to exploit the person
of the prostitute. The Act does not prohibit prostitution per se but it does prohibit commercial
activities of the flesh trade. It has been held that all that is necessary to in order to prove
prostitution is that a woman or girl has offered her body for promiscuous sexual intercourse for
hire, and that sexual intercourse is not an essential ingredient. Section 3 of the ITPA provides
for the punishment of any person in charge of the premises who uses or knowingly allows
someone else to use it as a brothel. From case law, it seems that even a single incident of
prostitution, with surrounding circumstances, is sufficient to prove the offence of keeping a
brothel. Offences under the ITPA are under Sections 3 to 9. It has been held in a couple of
judgments that the ITPA did not aim to abolish prostitutes and prostitution as such, and did
not make it per se a criminal offence for a woman to prostitute herself, but was rather

17
intended to inhibit or abolish the commercialized vice of trafficking in women. The Gujarat High
Court in another case refused to recognize prostitution as a legitimate means of livelihood, as
that would give an open invitation for women to be trafficked and also that the right to
prostitution in not a fundamental right of women or girls. The restrictions imposed under Section
7 of the ITPA were held to be legitimate and not discriminatory. Under the ITPA, a Magistrate,
if he deems it to be necessary, can order the removal of a prostitute from any place in the
interest of the general public. The ITPA also allows for reformation of female offenders by
detaining them in established corrective institutions and for the enforcement of which Special
Police Officers can be appointed.It is interesting to note that the client faces no punishment
whatsoever.

The 2006 Bill omits §8 of the original Act, thus removing the offence of soliciting or
seducing for the purpose of prostitution, it also omits §20 of the Act regarding the removal of the
prostitute from any place. However, the responsibility, on the flipside, and severity of
punishment of traffickers and clients is increased. The newly proposed §5(c) provides for
punishment of any person visiting a brothel for the purpose of sexual exploitation of any person.
These proposals have been criticized as the livelihoods of the workers would be stifled by the
increased punishments of the clients.

PROBLEMS WITH LAW ENFORCEMENT AND INADEQUACY OF THE ITPA:

The core of the problem lies not in the loopholes of the ITPA, but in its corruption-
riddled implementation. The legislation meant to protect the exploitation of sex workers
operates against them because the customer, without whom the act of prostitution cannot be
committed, also goes scot-free. This is the reason for the limited impact and the outreach of the
legislation is very evident where the attitude of the police and even the judiciary has not been
any different. And as a result through raids the police frequently rounds up the female sex
workers rather than the pimps, procurers, brother owners (“madam”).

The uneven enforcement of the ITPA against prostitute women is attributed to various
causes: first that there is a strong collusion between elected representatives, law enforcement
agencies and the brothel-keepers that impedes the strict implementation of the provisions of
the Act and this collusion has to be busted and decimated. Corrupt officials in the law

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enforcement agencies are widespread. An overhaul of the prevalent police procedures
involved in ITPA cases and the scrutiny of their corrupt practices might bring about a more
desirable effect. For this purpose the sensitization of the police is a must.

The second persistent problem with the enforcement of the ITPA has been uncovered
during field studies and one such study confirms the complexity of collection of sufficient proof
to make a conviction absolute. Some police officers have said that there is an immense gap
between the number of crimes committed in reality and the registration of crimes in the police
records as many crimes that are reported are not registered (around 60 percent).

The third problem is with the reformative (corrective and rehabilitative) homes that are
set up under the Act and their inadequacy. Such homes are overburdened and cannot
accommodate the large number of sex workers who are convicted under the ITPA. The rules
for protective homes must compulsorily provide for literacy and a range of vocational and
occupational training based on the woman's aptitude and market value of the job; counseling
which helps in redefining inmates as surviving human beings must be provided; and subsidized
hostels and care homes must also be set up to house inmates discharged from homes.

As opined by Justice Ramaswamy in the case of Gaurav Jain v. Union of India and
others that “women found in flesh trade should be viewed more as victims of socio-economic
circumstances and not offender of the society, some police authorities have already set out the
process of sensitization towards the sex workers and their treatment.”

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 Chapter 5 ASPECTS OF LEGALIZATION

Three systems of prostitution-related laws have been formulated and applied in legal
strategies and these vary considerably both in effectiveness and appropriateness. These systems
are classified as: Criminalization, Decriminalization and Legalization also known as
Prohibitionist system, Tolerations system and Legalized Prostitution.

The Criminalization or Prohibitionist system aims at changing criminal sanctions in order

to control the social evil of prostitution and to countenance it by amending the criminal law. It
perceives prostitution as immoral and aims at its eradication for which it bans prostitution per se,
by criminalizing the activities of all categories of people involved in prostitution: brothel-
keepers, pimps, procurers, clients and prostitutes. Under Decriminalization or Tolerations
system, prostitution is not regarded as either a crime or a licensable activity; it is based on
voluntariness and considered an act between two consenting adults where the role of the State
is limited to eradicate coercive prostitution. The state can only bring in certain measures to curb
excessive exploitation and preserve public health. This system does not seek to abolish
prostitution per se but is only targeted at trafficking in women and girls for prostitution, brothel-
keeping, pimping, procuring and renting premises for prostitution; here prostitutes are not
criminalized for their work and they have more or less the same rights as other citizens in the
society

Decriminalization will enable sex workers to practice their work without police
harassment; this is seen as a major issue with many sex workers in India. It is at least a partial
solution to some of the problems suffered by men and women within prostitution.
Decriminalization is a way to protect workers’ rights and to make the brothel owners responsible
criminally. This approach of penalizing everyone involved in prostitution except for the sex
worker works against her interest. Along with changes in maintenance of rehabilitative homes,
the corrupt police and judicial authorities who demand sexual favors from sex workers have to
be dealt with severely punished heavily.

Finally coming to Legalization or regulation as it is sometimes called, attempts are

made to license or register prostitutes and brothels and to require that prostitutes be monitored
and checked for venereal diseases. The underlying assumption being that prostitution serves

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the different sexual needs of men and women and must be regulated so as to regulate its worst
side-effects. “It permits for prostitution especially in 'closed houses', this system requires
prostitutes to mandatorily register themselves with local authorities and submit them-selves to
periodic health check-ups and receive a police clearance to work professionally, generally in
officially designated areas. Legalization is thus perceived as a means of ensuring 'public
health' through regulation and control of prostitutes and their health, while permitting
unfettered male access to women.” Prostitution as good economic development policy means
prostitution on demand. The ILO suggests that by including prostitution as an economic sector,
poor countries of South East Asia can benefit economically through the revenues generated by
the industry. Legalization makes more prostituted women available to more men.

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 Chapter 6. CONCLUSION

According to the International Committee for Prostitutes’ Rights (“ICPR”), some

prostitutes report job satisfaction, others, job repulsion; some consciously choose prostitution as
the best option available; others are compelled to enter prostitution by male force or deceit.
Many prostitutes abhor the conditions and the social stigma surrounding their work but not the
work itself. The ICPR, therefore, affirms the right of women to a full range of education and
employment opportunities and due respect and compensation in every occupation, including
prostitution. Indeed, a woman’s choice of livelihood should be respected, and the goal need not
be to eradicate her choice. A better goal is protecting sex workers’ rights to “bodily integrity,
pleasure, livelihood, self-determination and a safe working environment.” A recent pan-India
survey of sex workers conducted by the Centre for Advocacy on Stigma and Marginalization
(“CASAM”) found that poverty and limited education push women to enter into sex work. Thus,
an even worthier goal is to provide education and alternative employment opportunities for
women. Criminalizing an activity impossible to eradicate only worsens the lives of the actors.
Social power should be transferred from the clients/pimps/police to sex workers. With
decriminalization, sex workers can aid the state in checking criminal activities associated with
prostitution, like trafficking. The Durbar Manila Samanwaya Committee (“DMSC”), based in
Kolkata, established a regional board for self -regulation 1998 to stop trafficking women because
sex workers were better suited to identify outsiders who had been forced into sex work. The real
power needs to flow from bottom to top. Decriminalizing prostitution is the first step toward
state solidarity with sex workers (and their collectives), who are citizens first and sex workers
second. If environmental factors are preventing a choice from being “free,” then the solution lies
not in erasing the choice but in changing the environmental factors so that the choice becomes
free.

Decriminalization leads to the decentralization of trade. It helps to free prostitutes and sex
workers from the ghettos and red light districts where violations of rights, including physical
abuse and psychological torture, are rampant. Technology has helped somewhat. Cellular
phones, for example, put sex workers directly in touch with their clients, obviating the need for a
pimp, if sex workers trust clients. The red light districts of G.B. Road in Delhi and Kamathipura
in Mumbai have shrunk unimaginably since the cell phone boom in India: ninety percent of sex

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workers who have moved out of Kamathipura since the 1990s. Freedom has its own methods of
management. It is freedom that emancipates people from the shackles of power and hunger. It is
the desire for freedom that captures most of us, but policies are designed without any thought
regarding how they will affect the people’s basic freedoms.

Sixty-six years after India’s independence, freedom still eludes sex workers. The first
Prime Minister of India, J.L. Nehru, gave the Constituent Assembly of India, which debated
prostitution (referred in the introduction), its first task as a representative body “to free India
through a new constitution, to feed the starving people, and to cloth the naked masses, and to
give every Indian the fullest opportunity to develop himself according to his capacity.” For sex
workers (and many others), this task remains unfulfilled. Reclaiming the task requires reclaiming
the rights, which can be achieved by reclaiming freedom from the state.

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 BIBLIOGRAPHY

Legislations:

India:

1. Constitution of India, 1950.

2. Immoral Traffic (Prevention) Act, 1956.
3. Indian Penal Code, 1860.

International:

1. Convention on Elimination of all forms of Discrimination against Women, 1979.

2. International Convention to Suppress the Slave Trade and Slavery, 1926.
3. International Covenant on Civil and Political Rights, 1967.
4. Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and
Children, supplementing the United Nations Convention against Transnational Organized
Crime, 2000.
5. SAARC Convention on Preventing and Combating Trafficking in Women and Children
for
6. Prostitution, 2002.
7. Supplementary Convention on the Abolition of Slavery, Slave Trade, and Institutions and
8. Practices Similar to Slavery, 1956.
9. Universal Declaration of Human Rights, 1948.
10. UN Convention for the Suppression of the Traffic in Persons and of the Exploitation of
the
11. Prostitution of Others, 1949.

Case law:

1. Bai Shanta v. State of Gujarat AIR 1967 Gujarat 211.

2. Gaurav Jain v. Union of India AIR 1997 SC 3021.
3. In Re: Ratnamala and Another v. Respondent AIR 1962 Madras 31
4. P.N.Swamy, Labour Liberation Front, Mahaboobnagar v. Station House Officer,
Hyderabad 1998 (1) ALD 755.

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5. Sahyog Mahila Mandal v. State of Gujarat (2004) 2 GLR 1764.

Articles:

1. Anil Awachat, Prostitution in Pune and Bombay: A Report, 21 (12) ECONOMIC AND

POLITICAL WEEKLY 478 (1986)

2. B. J. George, Jr., Legal, Medical and Psychiatric Considerations in the Control of
Prostitution, 60(6) MICHIGAN LAW REVIEW 717
3. Frances M. Shaver, Prostitution: A Critical Analysis of Three Policy Approaches, 11(3)
CANADIAN PUBLIC POLICY 493 (1985).
4. Geetanjali Gangoli, Prostitution, Legalisation and Decriminalisation: Recent
Debates,33(10) ECONOMIC AND POLITICAL WEEKLY 504 (1998).
5. Ilse Pauw and Loren Brener, Naming the Dangers of Working on the Street, 36 AGENDA
80 (1997).
6. Janice C. Raymond, Prostitution on Demand: Legalizing Buyers as Sexual
Consumers,10(10) VIOLENCE AGAINST WOMEN 1156 (2004).
7. Jean D’ Cunha, Prostitution Laws: Ideological Dimensions and Enforcement Practices,
8. 27(17) ECONOMIC AND POLITICAL WEEKLY WS-34 (1992).
9. Jean D’Cunha, Prostitution in a Patriarchal Society: A Critical Review of the SIT Act, 22
(45) ECONOMIC AND POLITICAL WEEKLY 1919 (1987).
10. Judith Kilvington et al, Prostitution Policy in Europe: A Time for Change?, 67 FEMINIST
REVIEW 78 (2001).10. Laura Reanda,
11. Prostitution as a Human Rights Question: Problems and Prospects of UnitedNations
Action, 13(2) HUMAN RIGHTS QUARTERLY 202 (1991).
12. M. Neave, The Failure of Prostitution Law Reform, 21 AUSTRALIAN AND NEW ZEALAND
JOURNAL OF CRIMINOLOGY 202 (1988).
13. Mary Sullivan, What Happens When Prostitution Becomes Work? An Update on
Legalization of Prostitution in Australia, Coalition Against Trafficking in Women.
14. Mellissa Farley, “Bad for the Body, Bad for the Heart”: Prostitution Harms Women Even
ifLegalized or Decriminalized, 10(10) VIOLENCE AGAINST WOMEN 1087 (2004).
15. Poonam Pradhan Saxena, Immoral Traffic in Women and Girls: Need for Tougher Laws
and Sincere Implementation, 44 JILI 504 (2002).

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16. Prabha Kotishwaran, Preparing for Civil Disobedience: Indian Sex Workers and the
Law,21(2) BOSTON COLLEGE THIRD WORLD JOURNAL 161 (2001).
17. Sumanta Banerjee, The 'Beshya' and the 'Babu': Prostitute and Her Clientele in 19th
Century Bengal, 28 (45) ECONOMIC AND POLITICAL WEEKLY 2461 (1993).
18. Sukumari Bhattacharji, Prostitution in Ancient India, 15 (2) SOCIAL SCIENTIST 32 (1987).

Books:

1. Prostitution and Beyond: An Analysis of Sex Work in India (New Delhi: SAGE
Publishers, 2008).
2. K Kempadoo and J Doezema, Global Sex Workers: Rights, Resistance and Redefinition
(London: Routledge, 1998).
3. Laya Medhini et al, HIV/AIDS AND THE LAW (New Delhi: Human Rights Law
Network, 2007).
4. Rajeswari Sunder Rajan, The Scandal of the State: Women, Law and Citizenship on
Postcolonial India (Ranikhet: Permanent Black, 2003).

Websites:

1. http://www.catwinternational.org.
2. http://www.walnet.org.
3. http://ncw.nic.in.
4. http://nhrc.nic.in.
5. http://altlawforum.org/resources/sexwork.

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