Prostitution in India: society & law

Prostitution is the business or practice of engaging in sexual relations in exchange for payment or some other benefit. Prostitution is sometimes described as commercial sex or hooking. Depending on the jurisdiction, prostitution can be legal or i...

By: PRIYADARSHINI | Update: 2016-10-13 11:16:47

Prostitution in India: society & law

Prostitution is the business or practice of engaging in sexual relations in exchange for payment or some other benefit. Prostitution is sometimes described as commercial sex or hooking. Depending on the jurisdiction, prostitution can be legal or illegal. A person who works in this field is called a prostitute, and is a kind of sex worker. Prostitution is one of the branches of the sex industry: other branches include pornography, stripping, nude modeling, and erotic dancing. The legal status of prostitution varies from country to country (sometimes from region to region within a given country), ranging from being permissible but unregulated, to an enforced or unenforced crime, or a regulated profession.

Prostitution occurs in a variety of forms. Brothels are establishments specifically dedicated to prostitution. In escort prostitution, the act may take place at the client's residence or hotel room (referred to as out-call), or at the escort's residence or a hotel room rented for the occasion by the escort (in-call). Another form is street prostitution. Although the majority of prostitutes identify as female and have male clients, there are also gay male prostitutes, lesbian prostitutes, and heterosexual male prostitutes.

Some view prostitution as a form of exploitation of or violence against women and children, and helps to create a supply of victims for human trafficking. Some critics of prostitution as an institution are supporters of the Swedish model, which has also been adopted by Canada, Iceland, Northern Ireland, Norway and France.

The word prostitute was then carried down through various languages to the present-day Western society. Most sex worker activists groups reject the word prostitute and since the late 1970s have used the term sex worker instead. However, sex worker can also mean anyone who works within the sex industry or whose work is of a sexual nature and is not limited solely to prostitutes.

Prostitutes' salaries and payments fluctuate according to the economic conditions of their respective countries. Prostitutes who usually have foreign clients, such as business travelers, depend on good foreign economic conditions. Payment may vary according to regulations made by pimps, brothel keepers, madams, and procurers, who usually take a slice out of a prostitute's income. Prices may further depend on demand; popular, high-end prostitutes can earn significant amounts of money and virgins may receive even higher payments.

In some countries, there is controversy regarding the laws applicable to sex work. For instance, the legal stance of punishing pimping while keeping sex work legal but "underground" and risky is often denounced as hypocritical; opponents suggest either going the full abolition route and criminalize clients or making sex work a regulated business. Many countries have sex worker advocacy groups which lobby against criminalization and discrimination of prostitutes. These groups generally oppose Nevada-style regulation and oversight, stating that prostitution should be treated like other professions.

Prostitution is a significant issue in feminist thought and activism. Many feminists are opposed to prostitution, which they see as a form of exploitation of women and male dominance over women, and as a practice which is the result of the existing patriarchal societal order. These feminists argue that prostitution has a very negative effect, both on the prostitutes themselves and on society as a whole, as it reinforces stereotypical views about women, who are seen as sex objects which can be used and abused by men. Other feminists hold that prostitution can be a valid choice for the women who choose to engage in it; in this view, prostitution must be differentiated from forced prostitution, and feminists should support sex worker activism against abuses by both the sex industry and the legal system.

The position of prostitution and the law varies widely worldwide, reflecting differing opinions on victimhood and exploitation, inequality, gender roles, gender equality, ethics and morality, freedom of choice, historical social norms, and social costs and benefits.

Legal themes tend to address four types of issue: victimhood (including potential victimhood), ethics and morality, freedom of choice, and general benefit or harm to society (including harm arising indirectly from matters connected to prostitution). Prostitution may be considered a form of exploitation (e.g., Sweden, Norway, Iceland, where it is illegal to buy sexual services, but not to sell them -the client commits a crime, but not the prostitute), a legitimate occupation (e.g., Netherlands, Germany, where prostitution is regulated as a profession) or a crime (e.g., many Muslim countries, where the prostitutes face severe penalties).

The legal status of prostitution varies from country to country, from being legal and considered a profession to being punishable by death. Some jurisdictions outlaw the act of prostitution (the exchange of sexual services for money); other countries do not prohibit prostitution itself, but ban the activities typically associated with it (soliciting in a public place, operating a brothel, pimping etc.), making it difficult to engage in prostitution without breaking any law; and in a few countries prostitution is legal and regulated.

In India, prostitution (the exchange of sexual services for money) is legal, but a number of related activities, including soliciting in a public place, kerb crawling, owning or managing a brothel, prostitution in a hotel, pimping and pandering, are crimes. Prostitution is legal only if carried out in private residence of a prostitute or others.

The primary law dealing with the status of sex workers is the 1956 law referred to as The Immoral Traffic (Suppression) Act (SITA). According to this law, prostitutes can practice their trade privately but cannot legally solicit customers in public.[citation needed] A BBC article, however, mentions that prostitution is illegal in India; the Indian law does not refer to the practice of selling one's own sexual service as "prostitution”. Clients can be punished for sexual activity in proximity to a public place. Organised prostitution (brothels, prostitution rings, pimping, etc.) is illegal. As long as it is done individually and voluntarily, a woman (male prostitution is not recognised in any law in India but even consensual anal intercourse is illegal under section 377 of the Indian Penal Code) can use her body in exchange for material benefit. In particular, the law forbids a sex worker to carry on her profession within 200 yards of a public place. Unlike as is the case with other professions, sex workers are not protected under normal labour laws, but they possess the right to rescue and rehabilitation if they desire and possess all the rights of other citizens.

In practice SITA is not commonly used. The Indian Penal Code (IPC) which predates the SITA is often used to charge sex workers with vague crimes such as "public indecency" or being a "public nuisance" without explicitly defining what these consist of. Recently the old law has been amended as The Immoral Traffic (Prevention) Act or PITA. Attempts to amend this to criminalise clients have been opposed by the Health Ministry, and have encountered considerable opposition. In a positive development in the improvement of the lives of female sex workers in Calcutta, a state-owned insurance company has provided life insurance to 250 individuals.

Over the years, India has seen a growing mandate to legalize prostitution, to avoid exploitation of sex workers and their children by middlemen and in the wake of a growing HIV/AIDS menace.

The main points of the PITA are as follows:

  • Sex Workers: A prostitute who seduces or solicits shall be prosecuted. Similarly, call girls can not publish phone numbers to the public. (imprisonment up to 6 months with fine)
  • Sex worker also punished for prostitution near any public place or notified area. (Imprisonment of up to 3 months with fine)
  • Clients: A client is guilty of consorting with prostitutes and can be charged if he engages in sex acts with a sex worker within 200 yards of a public place or "notified area". (Imprisonment of up to 3 months) The client may also be punished if the sex worker is below 18 years of age. (From 7 to 10 years of imprisonment, whether with a child or a minor)
  • Pimps and babus: Babus or pimps or live-in lovers who live off a prostitute's earnings are guilty of a crime. Any adult male living with a prostitute is assumed to be guilty unless he can prove otherwise. (Imprisonment of up to 2 years with fine)
  • Brothel: Landlords and brothel-keepers can be prosecuted, maintaining a brothel is illegal. (From 1 to 3 years imprisonment with fine for first offence) Detaining someone at a brothel for the purpose of sexual exploitation can lead to prosecution. (Imprisonment of more than 7 years)
  • Prostitution in a hotel is also a criminal offence.
  • Procuring and trafficking: A person procures or attempts to procure anybody are liable to be punished. Also a person who moves a person from one place to another, (human trafficking), can be prosecuted similarly. (From 3 to 7 years imprisonment with fine)
  • Rescued Women: The government is legally obligated to provide rescue and rehabilitation in a "protective home" for any sex worker requesting assistance.

Public place in context of this law includes places of public religious worship, educational institutions, hostels, hospitals etc. A "notified area" is a place which is declared to be "prostitution-free" by the state government under the PITA. Brothel in context of this law is a place which has two or more sex workers. Prostitution itself is not an offence under this law, but soliciting, brothels, madams and pimps are illegal. Clauses in the ITPA relating to living of the earnings are being challenged in court, together with criminalisation of brothels, prostitution around a notified public place, soliciting and the power given to a magistrate to evict sex-workers from their home and forbidding their re-entry. Other groups are lobbying parliament for amendments. The apex court accepted to examine the plea of the Central Government that sex workers should not be allowed to operate under the cover of working "with dignity". The government counsel contended that any such endorsement by the court would be ultra vires of ITPA which totally bans prostitution.

The breakdowns of the agents by sex were as follows: 76% of the agents were female and 24% were males. Over 80% of the agents bring young women into the profession were known people and not traffickers: neighbors, relatives, etc.

Mumbai and Kolkata have the country's largest brothel based sex industry, with over 100,000 sex workers in Mumbai. It is estimated that HIV among prostitutes have largely fallen, in last decade. Not only HIV, but other infection diseases have been decreased, examined data from 868 prevention projects- serving about 500,000 female sex workers-implemented between 1995 and 2008. Research found that reaching sex workers through prevention programs decreased HIV and syphilis infection rates among young pregnant women tested routinely at government' prenatal health clinics.

Typical responses to the problem are:

  • banning prostitution completely
  • introducing a system of registration for prostitutes that mandates health checks and other public health measures
  • Educating prostitutes and their clients to encourage the use of barrier contraception and greater interaction with health care

Some think that the first two measures are counter-productive. Banning prostitution tends to drive it underground, making safe sex promotion, treatment and monitoring more difficult. Registering prostitutes makes the state complicit in prostitution and does not address the health risks of unregistered prostitutes. Both of the last two measures can be viewed as harm reduction policies.

In countries and areas where safer sex precautions are either unavailable or not practiced for cultural reasons, prostitution is an active disease vector for all STDs, including HIV/AIDS, but the encouragement of safer sex practices, combined with regular testing for sexually transmitted diseases, has been very successful when applied consistently.

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