It Is Time To Legalise Prostitution In India

The proposal made to Ministry of HRD by National Integration Assembly (NIA) in October 2005 to legalize prostitution and carry amendments in the Illegal Traffic Prevention Act was indeed a welcome step, which, if accepted and implemented, would lay the foundation of gender justice in the modern India. But no step has been taken till now.
The Immoral Trafficking Prevention Act (ITPA) criminalizes the offenses of selling, procuring, and exploiting any person for commercial sex as well as profiting from the prostitution of another individual. Prostitution is only legal when no third party is involved, it is not done in or near a public place, it is not forced, there is no solicitation, or when the prostitute resides alone.
Section 8 of the ITPA criminalizes the act of solicitation for prostitution, which has been used in the past to arrest and punish women and girls who were victims of trafficking. According to UNICEF, in 2004 India comprised of half of the one million children worldwide who entered the sex trade. Many tribal women, who are particularly vulnerable, were forced into sexual exploitation.
The ITPA has laid down stringent punishments for crimes committed under it. Conviction for an offense committed against a child (under age 16) is punishable by imprisonment for 7 years to life. In the case of minors (16 to 18 years), the punishment is from 7 to 14 years imprisonment. Other penalties under the act range from minimum terms of imprisonment of one year for brothel keeping, to minimum terms of 7 years to life imprisonment for detaining a person, with or without consent, for prostitution. During the year there were more than 195 prosecutions against traffickers.
Many countries have decriminalized prostitution and legalized it. One of the reasons behind it is that, it is not considered immoral per se, so long as one is not forced into it. Given the fact, that once a woman is forced into it, she might as well choose to carry this profession. It is very important for laws to change with the changing time. No notion of morality is static. Even if it is, with respect to certain issues, it is important that law does not rule in line with public sentiments and their views on morality. Instead, law should divorce morality, to certain extent, and lay down what is just for certain class of people.
If law terms an anti social conduct or something that is not perceived to be moral as a crime, its impact is all the more worse than what it would have been otherwise. It is very important for us not to look down upon the 'flesh trade' profession as most of the women are not there by an active exercise of choice. There are some forced by circumstances and some are forced into it. Since prostituting is an offence, therefore, most of the flesh trade activities are carried out in clandestine manner leaving little space and time for caution and carefulness to be exercised for use of contraceptives, condoms etc. So, the chances of their becoming a prey to the dreaded disorders/diseases like HIV/AIDS are quite high.
To combat this situation and to address and fulfill our solemn promise with respect to Millennium Development Goals, legalising and regulating by way of license etc. would ensure a better present for most of the prostitutes. They would be able to exercise their right to livelihood without any fear. Similar benefits should be extended to 'eunuchs' who are also part and parcel of this profession in some states as PUCL Reports have time and again indicated.
Any amendment or even a new legislation should ensure conferring of 'legitimate' status to children of prostitutes. There should also be a provision for a panel of counselors for prostitutes who were forced into the profession and may desire to leave it. The panel may consist of social workers, psychologist/psychiatrist and legal personnel etc. Women may be in a better position to counsel women.
Similarly, once a decision to regulate or license this profession is taken, then, the Act/Amendment should provide for some regular educational/awareness programs by National Legal Service Authority in which law students can give a helping hand. These must be held on regular basis to ensure that 'safe sex' is being practiced by them. Further, licensing can be done on the basis of blood tests so that no one who is a HIV+ is practicing the profession.