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Should Prostitution be Legalized?

Should Prostitution be Legalized?

By Medha Dwivedi

“Slavery still exists, but now it applies only to women and its name is Prostitution”.[1]

Prostitution is the sex work just like any other work. It is very hard to understand that why there is any kind of criminal sanction over it. It is purely a private matter between the sex workers and their clients. Any kind of sexual activity with consent cannot be classified as an offence. And if any law makes it a criminal activity then it must be held unconstitutional because it is clearly a violation of Fundamental Rights granted by the Constitution of India.

Legally speaking, any such law violates the person’s Right to Privacy and Right to practise any profession, or to carry on any occupation, trade or business.[2] These are not only the Fundamental Rights but also the basic Human rights which every person is entitled to.  

Some folks recommend that prostitution should remain criminalised because it is against the morality or it is better to say that they consider ‘sale of sex’ as immoral. But who are we to decide whether it is immoral or moral? It is merely the will of the most numerous, and does not express the will of all.[3] Just because the sentiments and opinions of the majority of people in a democracy are represented more fully than those of the minority, this does not mean that we can make any type of law which favour our sentimental values and violate the rights of the minority. In fact, it is more important for the law that it also keep its minority view and care must be taken to protect individuals from mob morality and suppression of individuality and ideas.[4] In democracy, it very easy for the majority to make laws according to their perspective and intuition in the name of morality and custom. This is nothing but the tyranny of the majority over the minority and the same will eventually hamper the progress of the nation. As only the perspective of the majority will prevail and there will be no minority or counter view to compete with it in order to make the appropriate law for the country.

Now it is high time, we have to take care of minority view also, and of course the society is moving in that direction only. The decriminalisation of section 377 of IPC, Adultery and the declaration of Triple Talaq as unconstitutional are some of the examples which shows that now the society is considering the views of minority also.     

The same logic applies in the case of Prostitution also. There is a segment of population which considers it immoral but what about the view of that segment which thinks that it is the private matter of people and it is their work which they are doing with their consent. It was there since the old times and still flourishing and so it will, nothing can change it because it is needed and demanded by the society itself. We need to understand that by criminalising the prostitution we are only harming the involved people’s right and nothing else. Prostitution is their personal choice and it is their private matter. We must respect their choice, we are no one to punish people for their choices which do not harm interest of others.

Harshly speaking, we have to understand that by criminalising the prostitution, we won’t help people get out of it and legalising it does not trap them in it. In fact, it is like any other prohibited business like drugs, gambling etc, which are though illegal but are flourishing anyways, they won’t have any effect whether we legalize it or criminalize it and of course it is all because of the draconian law policies. John Turley-Ewart wrote in his article "Lessons from a German Brothel"- “Make it illegal, and you give criminals a monopoly. Legalize it, and you give law-abiding enterprises a chance to compete...” [5]

Another reason why Prostitution is condemned by the people is that it spread diseases like AIDS, HIV, etc. Being a growing and open-minded society, we need to understand that by criminalising the prostitution, we cannot solve this problem. It can only be solved by its legalisation. By legalising it, the government will have full control over this. By appointing health and tax officers for the same, the government will have the basic idea about how many people are involved in it. Are they compatible or we can say are they fit for this job? And if the government only after having such checks allow the people to be in this business, then this will not only help in combating the health issues but also it will be proved beneficial for country’s financial growth. Presently, the money which is involved in this business is only flourishing the black market and if we legalise the Prostitution then that whole money can be used to contribute to the country’s GDP. For this, nothing can be a better example than Germany, where not only the prostitution is legal but also it is contributing their country’s economic health.[6] So, instead of criminalising it, enforcement authorities should learn something from the example of Germany and many other such countries, and should legalize it and control it in a positive manner so that it could be the helpful not only for the people who are involved in it but also for the country’s economical growth.  

In India, the situation of prostitutes is that instead of getting basic human rights they are not even getting protection. The belief and cons of the prostitution that, it is full of harassment and violence is absolutely true. The people who are involved in it are not even provided with their basic civil and human rights. People harass them and even sometimes the enforcement authorities themselves harass them by the fear of draconian law policies and punishments. Those people are living in total isolation and with the great apathy from the society, no one cares about their safety, their rights. If those people are given their rights and protection by law then of course the harassment rate will automatically drop.

In our country, liberty is guaranteed to each and every citizen and if a person who chooses to engage in sexual activity, whether for recreation, procreation or in exchange for something of value like money, makes it a private, individual choice that should not be subject to criminal sanctions.[7] So, if we make any law for their welfare, for legalising the prostitution, then that law will not be the any kind of sympathy or favour to them but instead it will be something which they deserve by birth i.e., their basic civil and human right which no one can snatch from them.   

 

 

 


[1] Les Miserables, Victor Hugo, pg no. 323, para 2.

[2] Article 21 and 19, The Constitution of India.

[3] John Stuart Mill, On Liberty, (Indianapolis: Bobbs-Merrill Educational Publishing, 1956) I: 5; numbers refer to chapter numbers followed by paragraph numbers.

[4] Zawisza, Kathryn Alice, "The Ins and Outs of Prostitution: A Moral Analysis" (2011), Theses and Dissertations. 173. http://scholarworks.uark.edu/etd/173.

[5] John Turley-Ewart, "Lessons from a German Brothel", July 7, 2006, National Post article.

[6] Law for Combating Venereal Diseases 1927 with rights further extended by the Prostitution Act in 2002.

[7] Jeanne LoCicero and Udi Ofer, "ACLU: It's Time to Decriminalize Prostitution", July 6, 2016, available at https://www.nj.com/opinion/2016/07/its_time_to_legalize_prostitution_opinion.html.

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