The terms legalisation and decriminalisation are frequently confused.

Legalisation is principally
aimed at the control of the sex-work industry, and the promotion order. Under this regime,
prostitution is controlled by the government and under certain state-specified conditions, usually
involving licensing and registration. regime recognises the tension between the acceptance that
prostitution is prevalent unlikely to disappear, and the desire to protect public order, health and
to reduce crimes associated with prostitution. Decriminalisation, on the other hand, is focused
primarily on the rights of the sex worker. Meadowcroft (ibid) describes it as the 'repeal of all
laws against prostitution, or the removal of provisions that criminalised all aspects of
prostitution', (presumably implying that the sale of sex, or surrounding activities must once have
been criminalised). The decriminalisation of prostitution, unlike legalisation, is not characterised
by state-imposed, prostitution-specific regulations. The industry is managed through existing
statutes and regulations, such as those relating to fair labour practices and local business and
planning ordinances.

STATE:

The decriminalization of this profession foresee many tangible benefits, including the prospect of
receiving bank loans, having no difficulty renting a flat or getting a credit card. So like, I am not
going to be there (in the industry) for a long time. If I get money, I will go back to school but like
if it is legalised, then I will like be labelled by people as a prostitute, they will know that I am
prostitute. Even if I leave the industry, they will know, they will call me marhohsa [whore]
(Interview) 1

The principle of constitutional unworthiness is that certain kind of rights are so morally
repugnant that they are not entitled to constitutional protection at all. The effect of the principle
of constitutional unworthiness has a devastating effect. It narrows the scope of fundamental
right. It takes out certain claims from the protection of the constitution at the threshold, and since
it is rejected at the threshold, such right is not even tested for reasonableness. He referred to the
case of Krishna Kumar Narula v. The State of Jammu and Kashmir and Ors.
MANU/SC/0034/1967 : [1967]3SCR50 in which this Court refused to accept the broad
argument.

In the notes of Harvard Law Review 2012, the article was published under the caption
"Counteracting the Bias: The Department of Labour's Unique Opportunity to Combat Human
Trafficking". The opening portion of the note and the conclusion reads as under:- In the 1990s,
human trafficking received increased attention both

internationally and in the United States. With the passage of the Trafficking

Victims Protection Act of 2000 (TVPA), Congress committed the United States

to attacking human trafficking on three fronts: prosecuting violators,

1
https://www.jstor.org/stable/4066047 , Race, Class and Sex: The Politics of the Decriminalisation of Sex Work.
protecting victims, and preventing trafficking. The TVPA prohibits "severe

forms of trafficking in persons," of which it designates two types: "sex

trafficking in which a commercial sex act is induced by force, fraud, or

coercion" and labor trafficking, which involves "the recruitment, harboring,

transportation, provision, or obtaining of a person for labor or services,

through the use of force, fraud, or coercion for the purpose of subjection to

involuntary servitude, peonage, debt bondage, or slavery." Under the TVPA,

three federal agencies have domestic antitrafficking responsibilities in all

three primary areas (prosecution, protection, and prevention): the Department of Homeland
Security (DHS), the Department of Justice (DOJ), and the Department of Labor (DOL).

Legalising prostitution will protectminors. Around ten million children worldwide are estimated
to be in the profession. Legalising and regulating this profession will ensure that only willing,
consenting adults are employed, not trafficked children. There are enormous health benefits of
Legalisation. Legalisation will reduce the transmission of sexually transmitted diseases.
The Supreme Court of India in December, 2009 has asked the government that if you are not
able to curb prostitution by laws then legalise it. The Apex Court further added that legalizing
prostitution would help monitoring the trade and rehabilitate the sex workers. Now the sex
workers have access to literacy classes, technical training for jobs, schools and loan facilities and
day care centres. In other words, they finally have a life.
The Sexual Offences Act dates back to 1957 when it was first termed the Immorality Act - its
original name suggesting that it had more to do with the enforcement of morality than with
preventing socially damaging criminal activity.

Whether the State has the right to regulate private morals, is a question that has often
underpinned gambling prohibition laws. J.S. Mill discussed the extent to which State should be
allowed to restrict liberty of individuals and highlighted the conflict between liberty of
individuals to carry trade of their choosing and be involved in desired activities and the effect of
such choice on the society at large. While he was indecisive on the justifiability of prohibiting
activities like gambling, he implicitly recognised the need for regulation of those activities that
may cause harm to others. He remarked: A person should be free to do as he likes in his own
concerns; but he ought not to be free to do as he likes in acting for another, under the pretext that
the affairs of another are his own affairs.

Prostitution – alongside issues such as abortion, drugs, pornography, capital

punishment, and gambling – is classically cited as an example of morality
policy, one in which policy is determined by a sense of what is ultimately ____
to be right or wrong (Wagenaar and Altink, 2012). In this sense, any attempt
to regulate the consumption of sexual services can be read as an attempt to
draw boundaries between ‘good’ and ‘bad’ behaviour based on the
understanding that the commodification of the sexual relationship is sinful or
wrong.

Despite fears that the decriminalisation of prostitution would lead to a increase in the numbers of
sex workers in New Zealand,64 the Prostitution Law Review Committee has found that in the
five years since its inception, there has been no evidence that this has been the case - if anything
reverse is true.65 The removal of the fear of prosecution seems to have a positive psychological
effect on sex workers since the inception of the with nearly two-thirds of street sex workers
claiming to feel more confident about refusing a client.66 Regarding the health of sex workers, it
was reported that many more women felt able to speak openly about sex work.67 Although sex
workers remain a vulnerable group, it is clear that decriminalisation empowered them -
specifically by affording them the protection of the Another interesting consequence of
decnminalisation has been the shift role of the police in relation to prostitution in New Zealand.
Many of regulatory functions of the police are now implemented by local authorities (who have
the authority to control the location and general operation of sex work industry, including
matters of occupational health and safety prostitutes).68 The functions of police are now limited
to discouraging disorderly or antisocial behaviour, and responding to sex workers' complaints of
exploitation or harassment.69 Police also continue to deal issues of child prostitution, violence,
other abuse, and trafficking, and responsible for new offences in the Prostitution Reform Act,
such as failing to adopt safer sex practices. Eventually, it is hoped that police will be important
liaison between the sex workers, relevant NGOs, and government.70 Police now have no
authority to respond to complaints prostitution per se by residents, and no power to help residents
who uncomfortable in areas which are frequented by sex.

argument of the petitioners that consensual acts of adults in private

have been decriminalized in many parts of the world and, therefore, it

deserves to be decriminalized in India as well does not hold good for

several reasons inasmuch as the political, economic and cultural

heritage of those countries are very different from India which is a

multicultural and multi-linguistic country.

NGOS:
They worry that decriminalization will expose their profession to friends and family members
and that young girls will enter the profession. There are also concerns that regulation will will
give license to the authorities to harass them more than they presently do.2

An examination of countries which have 'decriminalised' or legalised sex work indicates a

certainpattern: decriminalization or legalisation often means tolerance for brothels, but it never
entails tolerance for streetwalkers in all areas or for brothels in certain parts of the city (such as
next to schools, churches or in residential areas).Moreover, the hopes of northern suburbs sex
workers for legislative reform have notmaterialised in countries that have enacted liberal
changes, including the Netherlands, Australia, Germany, Costa Rica, Greece and the United
States (US) (Nevada) (Delacoste and Alexander, 1987). In other words, 'decriminalisation' has
not meant that women get access to medical aids, pension funds or credit lines. Feminist scholars
have often noted that black, 'disempowered'7 women's perceptions reflect more clear power
relationships and social inequalities. It is crucial for South Africa's debates concerning sex work
to bear.3

Fear of exposure Sex workers in Hillbrow, Berea and Joubert Park raised a number fears
concerning the possibility of the decriminalisation of sex work. The most pervasive fear includes
the notion that they will be exposed through registration programmes or simply by the very
process of sex work being legalised. These sex workers may not self-identify as sex workers (but
view themselves as being marginal or temporary sex workers). They see this as an issue for other
women who may identify more strongly as sex workers. The following quotes demonstrate some
of the fears of exposure that these women face: No we don't want decriminalisation. We don't
want to be registered. We don't want people to know that we do this. My parents don't know. It
may be okay or useful for people who want to stay in this business for a long time. But we want
to leave this business, as it is not useful to us their city centre counterparts.

A review of the international literature indicates that the decriminalisation or legalisation of sex
work in other countries has not necessarily benefited the most marginalised workers, those
working on the streets and drug addicted and-impoverished sex workers (Alexander, 1994;
Delacoste and Alexander, 1987; Pyett and Warr, 1996; Van der Poel, 1995; Verbeek and Van der
Zijden, 1987). Such processes have not met many of the demands of brothel workers either as
mandatory health checks are practised in the US in Nevada, in Senegal and Greece. In some
places licenses are required to operate brothels in zoned areas (Victoria, Australia). In most
countries where sex work is controlled and regulated, a larger number of unregistered sex
workers remain disempowered in the hands of the police and fearful of accessing healthservices
and condoms because of their unregistered status.

There have been two solutions suggested to ameliorate the lot of prostitutes. One that they
organise themselves; alternately, prostitution be legalised with due safeguards against
2
https://www.jstor.org/stable/4066047 , Race, Class and Sex: The Politics of the Decriminalisation of Sex Work.
3
https://www.jstor.org/stable/4066047 , Race, Class and Sex: The Politics of the Decriminalisation of Sex Work.
exploitation. Backed up with a great deal of in-depth understanding, the writer points to the
dangers inherent in both these approaches. In India the initiative to orga- ni.se the prostitutes
have come from those who control prostitution and benerit from it. Such efforts get political
backing precisely because the racketeers are able to control a sizeable portion of the vote bank.
The ex- ploiters aje thus able to distort the structures of oppression and mediate a better deal for
themselves against police interference. The advantages rarely percolate down to the common
prostitute Similarly legalisation of prostitution benefits the same group who can run brothels
with impunity. By examin- ing the experiences of various countries in legalising prostitution, she
points out that all such attempts have only succeeded in the denial of human rights to women. It
places extraordinary powers in the hands of the law enforcing agents and health inspectors It
gives the state a legitimate excuse to tax prostitues without concurrently providing them social
welfare benefits and protection available to other citizens. These women are publicly identified
as prostitutes. This curtails their social mobility and the law restrains them from entering certain
spaces. They are subjected to various indignities such as arbitrary medical check-ups. It gives
untold powers to the police to haul women up with trumped up charges of illegal soli- citing-an
accusation few women can refute.

https://drive.google.com/drive/folders/1nqq_LMLrq7YZ2sKYXF51fUKJBGKW9q8C - read
this!!!

The submissions opposing prostitution in residential areas suggested

that: small owner operated brothels in residential areas have not always

been discreet and that there has been a degree of offensive behaviour;

residential environments for brothels were considered to be more likely to

unnecessarily expose children and young people to the sex industry; and

allowing residential brothels in residential areas would add to prostitution

becoming “normalised” behaviour within the various communities and

influence career choices of young people towards work in the sex industry.

Further, many submitters expressed concerns relating to noise, traffic, and

late-night visits to residential brothels, and that clients might mistake

neighbouring or nearby houses for brothels.

It further submitted that, having regard to the fact that lotteries and prize

competitions were opposed to public policy, there could be no "business" in

promoting a lottery or a prize competition and the question of the violation of the

petitioners' alleged rights under Art. 19(1)(g) of the Constitution did not arise.

It was also contended that if the provisions of the Act and the Rules operated as

restrictions, then the same were reasonable and in the interest of the general public.

In New York State Liquor Authority v. Dennis BELLANCA, DBA The Main Event, Et
Al.MANU/USSC/0092/1981 : 452 U.S. 714 (1981). In this case, the question raised was about
the power of a State to prohibit topless dancing in an establishment licensed by State to serve
liquor. It was claimed that the prohibition was violative of United States Constitution. U.S.
Supreme Court, upon consideration of the issue, observed as follows: In short, the elected
representatives of the State of New York have chosen to avoid the disturbances associated with
mixing alcohol and nude dancing by means of reasonable restriction upon establishments which
sell liquor for on- premises consumption. SO IF PROSTITUTION get legalized on the basis of
right to trade an profession then the dance bar girls who get nude dancing will get legitamise
because of right to profession.

(The Attorney-General v. Sillem (1864) 10 H.L C. 704; 11 E.R 1200, Smith v. Brown (1871) 6
Q.B 729 and C ousins v. Lombard Bank (1876) I Ex. D. 404, only lay down that the question
whether jurisdiction has been conferred even on a superior Court is a matter of construction of
the law bearing on the point. But it does not follow from these cases that there is a presumption
against conferral of jurisdiction on a superior Court. The learned counsel then referred to the
heading of section 1 in Chapter V of Maxwell's Interpretation of Statutes, which runs:
Presumptions against ousting established, and creating new, jurisdiction, and said that it supports
his argument. In the cases there dealt with, jurisdiction was conferred on inferior tribunals with a
view to oust established jurisdictions. Those cases are, therefore, distinguishable. Article 226
does not oust the jurisdiction of any existing Court but only enlarges the powers of an existing
superior Court. Therefore, there is little scope for a presumption of the kind suggested by the
learned counsel.)JURISCTION MATERIAL LINK -
https://drive.google.com/drive/folders/13LAGB84TYJE3gy1IYQJOtxdQ13fOZoMY PARA
NO.144-156.

Legalising prostitution would benefit the pimps and the facilitators not the victims. In India,
where women are coerced into the trade and kept in it almost like bonded labourers, such a move
will not benefit them.
LAW COMMISION:
While the main argument in favour of regulating the betting and gambling is revenue generation
through taxation on its proceeds, the question remains whether one can choose revenue over
morality. In this regard, it is pertinent to note that in the State of Bihar the revenue collection
from liquor increased from Rs.500 crore in 2005 to Rs.4,000 crores (approx.) in 2014-2015. Yet,
taking note of the immorality associated with the consumption of liquor and its ill-effects on
Society, the State of Bihar put a State-wide ban on the sale, consumption and production of
liquor in 201566. Other States such as Gujarat, Nagaland, Manipur and Lakshadweep too, guided
by the unwritten principles and notions of morality prevalent in their States and taking into
consideration the ill- effects of consumption of liquor in an uncontrolled manner, have prohibited
the sale of liquor to protect the vulnerable sections of the society, in spite of huge revenue losses.
4.18 ‘Immorality’, per se, cannot be a ground to challenge the
Constitutional validity of an enactment as morality is a
subjective concept. If, however, some form of morality is
reflected in any provision of the Constitution, for example, if an
enactment compromises the dignity of an individual, it may be
challenged as being violative of Article 21 of the Constitution.
Additionally, if a custom or usage has been deemed ‘immoral’ by
a particular demographic it may be challenged by them as such.

It should also be noted that morality and criminality are not co-
extensive 67 . Morality is a ground for imposing reasonable

restrictions on individual’s freedom68. It is said that the law

remains in a state of flux while defining morality, for it is
required that the law must continuingly evolve to accommodate
the needs of changing time.

1) Doctrine of res extra commercium

4.24 The doctrine of res extra commercium seeks to exclude

certain activities from the ambit of freedom of trade and
profession guaranteed under Articles 19(1)(g) and 301 of the
Constitution of India. In State of Bombay v. RMD
Chamarbaghwala72, the Apex Court observed that:

“We find it difficult to persuade ourselves that gambling

was ever intended to form any part of this ancient
countries’ trade commerce or intercourse to be declared
as free under Article 301... the real purpose of Articles
19(1)(g) and 301 could not possibly have been to
guarantee or declare the freedom of gambling. Gambling
activities from their very nature and essence are extra
commerciumal though the external forms, formalities and
instruments of trade maybe employed and they are not
protected either by Article 19(1)(g) or Article 301 of the
Constitution.”
4.25 The Court remarked that though these activities employ
external forms, formalities and instruments of trade, they could
not be considered commerce. It is pertinent to note that this
distinction between activities that were protected under Article
19(1)(g) of the Constitution and those that were not, was made
on the basis of whether the said activity involved substantial
element of skill or chance. While the former have been afforded
constitutional protection, the latter have been termed illegal.

4.26 However, the Supreme Court while referring to its earlier

decision of State of Bombay v. R.M.D. Chamarbaugwala73 in
R.M.D. Chamarbaugwala v. Union Of India74 observed that “trade
commerce protected by Article 19(1)(g) and Article 301 are only
those activities which could be regarded as lawful trading
activities, that gambling is not trade but res extra commercium,
and that it does not fall within the purview of these Articles”.
4.20 There are two kinds of wrongful conduct, malum in se,
i.e., conduct that is inherently wrongful and malum in
prohibitum, i.e., conduct that is wrong because it is prohibited.
Those arguing in favour of regulating Betting and Gambling,
believe it to be an inherently immoral activity since it disrupts
the work ethic, leads to crime and is addictive69. Since betting &
gambling may lead to exploitation of the vulnerable class, it is
believed to be against the principles of morality.

The moralistic approach In 2002 the Constitutional Court was

faced in S v Jordan with a challenge to the constitutionality of the continued criminalisation of
sex work in South Africa. In defending the prohibition the state presented typical moralistic
arguments against prostitution, including a discussion of the 'range of social ills which are either
inherent in prostitution or inevitably associated with it'.8 The first such ill mentioned was the
claim that prostitution in itself degrades women. The state elaborated: 'Prostitution is destructive
of the dignity and self-esteem of women who are prostitutes. That is inherently and inevitably so
because prostitution is an activity which commodifies their sexuality and dehumanises them.'9
Like the state in S v Jordan, those who approach the issue of prostitution from the moralist angle
often augment their essentially moral justification with a list of potentially harmful consequences
which they allege are associated with prostitution and which they argue justify its continued
criminalisation. Amongst the justifications offered are: • sex workers are statistically at an
abnormally high risk of violence and assault, particularly by customers or pimps10 • prostitution
carries an intensified risk of the spread of sexually transmitted infections • prostitution poses a
threat to family values • humans are often trafficked across borders into prostitution and sexual
slavery • children are being lured into prostitution • prostitution may accompany drug use and
other.

decriminalising prostitution endangers women who 'are prostituted precisely in order to be

degraded and subjected to cruel and brutal treatment without human limits'.22 To the radical
feminist, prostitutes are seen as victims patriarchy, capitalism, etc) and in need of protection.23
Dworkin goes as to argue that prostitution always amounts to rape.24 Radical feminists thus
argue for complete criminalisation of prostitution and all surrounding activities, and often
advocate for harsh punishment of men who buy attempt to buy sex (as is currently the case in the
client-criminalisation Swedish model25). The fundamental difficulty with the moralistic
justification for the continued criminalisation of prostitution, is that it lures one into the quagmire
of where to drawn the line between law and morality. South Africa already has particularly
dubious history of the state over-regulating the citizen's morality through criminalising ' immoral
' offences - the low point in our history being the 'Immorality Act' (Immorality Amendment Act
21 of 1950) which criminalised sexual relations between different race groups under apartheid
regime. Today the criminal law continues to regulate many sexual encounters on the basis of
their intrinsic immorality. Some, like incest and bestiality, remain offences in South African law;
whereas previously-criminalised activities are now considered matters for private morality (such
as adultery26 and homosexual relations.