Making a Case for Regulation of Prostitution by the Indian State
A summary highlighting the crux of the piece:
Prostitution in India is a stigmatised occupation in which a lot of marginalised women are engaged. This article forwards a proposition for the Indian state to regulate prostitution for various reasons and also offers a policy proposal aimed at providing opportunities and an increased dignity to the sex workers.
Prostitution is considered to be one of the world’s oldest professions. It can be understood as an alternate institution that regulates the society members’ sexual behaviour if they cannot be contained within the institution of marriage (The institution of marriage has divine relations in many theologies highlighting the great importance that it is attributed). Thus, the sheer existence of prostitution performs two functions for society - valorizing the institution of marriage and disallowing it from developing an anarchic alternative for sexual interactions since prostitution always remains an alternate space to fall back to. However, since monogamy is dictated by cultural necessity and does not emerge organically from the biological roots of human beings which are dictated by some degree of promiscuity, the institution of marriage is posed to exist without being bereft of some problems. While there are many dynamics to the existence of prostitution like power imbalances between sexes, toxic masculinity, pure economic transactions, being the only space where marginalized and powerless women fall back etc.- it is a widely held belief that most women in India are associated with prostitution because of some disempowerment or helplessness. This article makes a case for regulation of prostitution by the state on various grounds that would address the oppressive and inhumane conditions that most prostitutes in India are subject to. It also suggests a policy proposal for the state once it regulates the act of prostitution. It should take measures to augment the scope of employability for sex workers.
Prostitution in India
In India, the Vedas, the most widely held epistemological account by Hindus, have references to prostitution as a coordinated and set up organization.1 In Indian folklore too there are numerous references to urban prostitution, for example in Mṛcchakatika and Kannagi.
According to The Economic Times, there are believed to be over 13 lakh sex workers in various parts of the country. The well-known red light area, GB Road, in the National Capital Delhi, has almost 38,000 sex workers. It is recognised by various organisations that most of the women who constitute this amount belong to the most marginalised and deprived communities, are socially outcasted, uneducated, and helpless, whose last resort to subsistence living is prostitution.
In 1986, the All India Suppression of Immoral Traffic Act (SITA), 1956 was retitled as Immoral Traffic Prevention Act, 1956 (hereinafter referred to as ITPA or as Act). The Act recognises prostitution and gives it a quasi-legal status, however, prohibiting the establishment of organised prostitution such as brothels or pimps. It also mandates the prostitution space to be situated 200 yards away from the general public spot. Broadly, the law is directed at curbing the illegal trafficking of women and children and preventing the formal organisation of prostitution and the supporting activities as discussed earlier. However, women are still engaged in unsafe and oppressive prostitution activities. At the same time, the grander societal attitudes towards it also remain that of maintaining distance and a deliberate reproach. These facts highlight the failure of the prevailing laws in ensuring safety and social dignity for the prostitutes.
The recent ruling by the Hon’ble Supreme Court, on 27th May 2022, on prostitution recognised its status as a legal ‘profession’ and asked the police not to interfere or take criminal actions against consenting sex workers.2 The apex court also directed the police to stop arresting and harassing sex workers during their raids, where any penalisation can only be done for brothels or pimping activities. What this ruling underscores is a deeper problem where women engaged in prostitution have to face unassisted and baleful behaviour by the police. The need for regulation of prostitution by the state, thus, becomes more alarmingly important.
Why Prostitution should be regulated by the Indian state?
Here are some of the reasons why the Indian state should regulate the act of prostitution. These are largely aimed at providing state benefits, security, dignity and more freedom to the prostitutes, assuming that they plunge into the profession largely due to desperate material needs, lack of education and social marginalization.
Firstly, if prostitution is administered by the state, then it would directly benefit the sex workers. It can channelize funds, provide health amenities and education/vocational opportunities and make policies aimed at alleviating the status and material conditions of the otherwise indigent sex workers. According to ILO, sex workers remain the most vulnerable segment to HIV/AIDS, thus, direct state intervention would help in curbing such unsafe work scenarios. It could even become a potential electoral issue since channelising of funds would require deliberation by both the houses of the Parliament only to further accept, recognise and spread awareness regarding the issues concerning sex workers. It would also contribute to the removal of the stigma attached to prostitution in general.
Secondly, it would also bring the financial status of prostitution under government purview. Once prostitution is regulated by the state, then it would have a very direct role in influencing its economic aspect. Prostitution in India is believed to be around a $8.4 billion industry. This can become a potential revenue source for the government but there should be provisions so that the consumer demand for prostitution is brought down. It is because the state cannot become profit-seeking machinery, but should operate institutions for welfare. It is well understood that most sex workers are women who have to face various layers of discrimination and dispossession. Thus, every effort to reduce the number of women operating in the industry should be made, apart from the ones who voluntarily join the same. A policy proposal thus is discussed in the next segment of this article.
Thirdly, enhanced security can be provided to the sex workers. It is inferable from the recent apex court’s ruling that the work environment for sex workers is not the safest and they are vulnerable to various kinds of harassment and oppression, including the police. Thus, direct supervision of the state would mean that there is greater transparency in its role in providing safety and security to the sex workers. They will have greater say in the government and would also be able to unionize, augmenting their voice and raising awareness for their issues. It would also incentivise sex workers operating in the background to get associated with the government to avail of the benefits and added security. This would help in the collection of data and audits of the accurate number of sex workers in the country. It would ween off hidden prostitution markets also. More targeted policies could then be made and the data can also reveal the ‘unknown unknowns’ of prostitution.
Policy Proposal: Reduce the number of sex workers engaged in prostitution
If the state takes prostitution under its direct control, it would have greater control in managing the ‘business' aspect of it. Based on the premise that a majority of sex workers engage in prostitution due to some or the other form of helplessness, here is a policy proposal to decrease the number of sex workers engaged in prostitution. Approaching the issue from a managerial perspective, one can infer that the state would have almost complete control over influencing the number of sex workers who are engaged in prostitution. Thus, it should devise a policy that would:
Disincentivise the actors who are responsible for the influx of disadvantaged women into prostitution by penalising them.
Affirmative action policies in vocational/educational institutes, especially for young sex workers (18-23).
Build institutions (both formal and informal) to change public perception of sex workers to help them be better assimilated into mainstream society.
This would not only give them more freedom but also a chance to live a meaningful life of their own making. It is hence, necessary for the state to use its machinery to intervene and uplift the living status of the many sex workers in the country.
Understanding the precarious conditions of the sex workers and their background is necessary for the government to be propelled to take over the ‘industry’. It should regulate prostitution so that it can forward benefits to the sex workers like - health, educational and vocational amenities, gaining insights into the financial aspects of it for legislating better policies, providing better security to them and overall, diminishing the societal stigma around the occupation. The government needs to consider influencing the number of sex workers engaged in prostitution. It should, therefore, lay out provisions and make policies aimed at making life more meaningful and rife with choices for the sex workers.