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LEGALISING PROSTITUTION IN INDIA : A KANTIAN ANALYSIS

Introduction

Prostitution is the act or practice of providing one’s body for sexual purpose to another person in return of payment. The person who carry out such activities are called prostitutes. Prostitution is often described as the oldest profession. Not surprisingly, the ethics of prostitution have often been debated. In general, most people claim that it is morally unacceptable. Yet, like all such practices, it continues to thrive.

However, as a researcher, what interests me is not the last media frenzy about prostitution, but the ethics of the practice itself. Rather than take the usual approach of simply asserting it is immoral, I will consider the various plausible reasons as to why it should be considered immoral and also argue that, under certain conditions, it can be just as morally acceptable as other forms of work with the help of Kantian philosophy of liberalism.

In India, the Immoral Traffic Prevention Act (ITPA) is the only piece of legislation dealing with the crime of trafficking but it only considers trafficking as prostitution and is not in accordance with International Policies and Guidelines, including the Palermo Protocol of 2001, which India has signed. This is an unsatisfactory state of affairs because Article 23 of the Indian Constitution prohibits "traffic in human beings and all similar forms of forced labour". Prostitution, the oldest profession on earth is not something which the Indian society today looks up to. 

HISTORY

Prostitution was a part of daily life in Greece and represented the top level economic activities. It had been a practice in Armenia where the noblest families even gave their daughter to the service of God Acilisena. In Ancient India these girls were referred to as devadasi and were dedicated to gods. This practice later ritualized into prostitution where the girls were used as prostitutes to please the upper class people and were known as jogini. This ritual started after the fall of Buddhism in 6^th century.

TRADITIONAL VIEW

In Kamasutra by Vatsayana prostitution was not considered disgraceful but was a noble profession where the prostitutes were prized by their lovers and could deny anyone at their will. She enjoyed a position of power. They were considered as women of high intelligence and manners by the Nawabs of Lucknow. They were appointed to impart training to their sons and daughters.

MODERN VIEW

In today’s world of commercialization the profession has become very callous, cruel and brutal. The profession which was earlier regarded as noble is now degraded just because of uncleanness of lust and ravage it has become a vulgar form of soul trade. There is a need to refer to the myths were the profession was regarded as noble and wake up the nation from the clutches of ignorance.

Present Legal Status Of Prostitution In India

The Law governing prostitution in India is Immoral Traffic (Prevention) Act which is a 1986 amendment to the primary law passed in 1950 {known as the Immoral Traffic (Suppression) Act}. The law does not criminalize prostitution per se but only organized form of prostitution is against the law. If a woman uses attributes of her body voluntarily and individually she goes unpunished. But the law prohibits/criminalize-

• Seduction/solicitation of customer
• Prostitution anywhere near a public place
• Publication of phone number of call girls
• Organized form of prostitution i.e. a brothel, pimps, Prostitution rings etc.
• A sex worker being below 18 years of age
• Procurement and trafficking of women

Position In Other Countries

Prostitution is legal with some restrictions in Canada, almost all of Europe including England, France, Wales and Denmark, most of South America including most of Mexico (often in special zones), Brazil, Israel (Tel Aviv is known as the brothel capital of the world), Australia, and many other countries. It is either legal or tolerated in most of Asia. Even Iran has "temporary wives", which can be foronly a few hours. In 2003, New Zealand passed one of the most comprehensive decriminalisation acts, which even made street hookers legal.

IMMANUAL KANT -     In this paper, I will examine the reasons for Kant’s view, and attempt to show that it is nonetheless possible to give an argument along Kantian lines in favour of prostitution.

Kant outlines four possible cases in which a decision is carried out in respect of duty:

• Case One involves actions that are contrary to duty (such as stealing);
• Case Two involves actions that are dutiful but done only because of fear of penalty or sanction (such as paying taxes);
• Case Three involves actions that accord with duty but which the agent is already inclined towards because it is pleasurable in some way (such as a labour of love); and
• Case Four involves actions that accord with duty but are contrary to inclination (such as not committing suicide, despite being in unbearable distress)

The matter of prostitution lies under case fourth where prostitutes perform their activities that are contrary to their penchant but still they do it just for the sake of sustainence i.e. they cannot commit suicide, despite being in unbearable distress.

For the past few months an argument has been raging on the possible legalization of prostitution in the country. The argument has taken different forms and has sadly been entertained by reasonable people amongst them medical practitioners, members of parliament and some academicians.  At the heart of the argument are three issues.

1. About the value and sanctity of the human body ? -  Is the human body naturally anything special that needs protecting or can be violated, sold in sex or slavey or lacerated in any way?

2.  About our understanding of sex - Is sex an animal instinct which could be gratified on the basis of one’s Pula power?

3. What is our moral reference point or moral standard? On what basis do we determine wrong or right?

Is our moral standard ‘the ape-man’ theory of evolution; that we are merely on earth by chance, having come through evolution and having survived through that old-fashioned tired maxim ‘survival of the fittest’. Or our moral reference in philosophers like the humanist Rene Discartes with his declarative “I think, therefore I am”; David Hume; the agnostic, Immanuel Kant, Soren Kierkegaard, Friedrich Nietzshe, Bertrand Russell (whose life can be summarised by the word ‘contradition’), or Jean-Paul Sartre, the existentialist with his famous credo ‘Travel, polygamy and transparency’. Or do we turn to faith, Christianity, as a standard against which to live our lives?

Immmanuel Kant On Prostitution

-“Always recognize that human individuals are ends, and do not use them as means to your end”. 

 … to allow one’s person for profit to be used by another for the satisfaction of sexual desire, to make of oneself an Object of demand, is to dispose over oneself as over a thing and to make of oneself a thing on which another satisfies his appetite, just as he satisfies his hunger upon a steak. But since the inclination is directed towards one’s sex and not towards one’s humanity, it is clear that one thus partially sacrifices one’s humanity and thereby runs a moral risk. Human beings are, therefore, not entitled to offer themselves, for profit, as things for the use of others in the satisfaction of their sexual propensities.’ Immanuel Kant¹

It would be hard to find a more complete condemnation of prostitution than the above quotation from the philosopher Immanuel Kant (1724-1804). For him, prostitution was the ultimate example of treating a human being as merely a means to an end, and was despicable (shameful) because it thereby placed a human being on the same footing as an animal.

In his writings on sex and marriage, Kant provided a seemingly traditional defence of monogamy – the only sexual relation that is morally acceptable is that which occurs between a married man and woman. However, the argument he gave for this differs tremendously from the natural law tradition that had predominated in Western thought.

For Kant, the foundation of ethics was his famous Categorical Imperative: it is always wrong to treat another person as merely a means to an end, rather than as an end-in-itself (which is to say, one must show proper respect for other persons). This is a secularized version of the socalled Golden Rule, to treat others as one wishes to be treated. But what is it that constitutes a ‘person’? For Kant, it is the possession of rationality. The ability to reason raises us above our passions, and allows us to act autonomously. We are not mere creatures of instinct. In respecting others, we are acknowledging the fact that they are fellow reasoning creatures, fully responsible for their actions. Anything that goes against reason should be suspect, since it lowers our status to that of non-reasoning animals, who are without moral worth.

What Kant feared most of all, because it was the prime disturber of reason, was sexuality.  In his estimation, a sexual urge is the desire to possess possess another person. Those who engage in sexual acts for the sake of pleasure “make of humanity an instrument for the satisfaction of their lusts and inclinations, and dishonour it by placing it on a level with animal nature. Sexuality, therefore, exposes mankind to the danger of equality with the beasts.”[1] Since morality can only pertain to rational creatures, such a lowering of status is the worst sort of degradation possible. One loses one’s moral sense when lust becomes dominant.

Kant was not noted for his turn of phrase – his style was usually a plodding one. But in writing about the dangers of giving in to sexual urges, he is positively eloquent: “Sexual love makes of the loved person an Object of appetite: as soon as that appetite has been stilled, the person is cast aside as one casts aside a lemon which has been sucked dry.”

For Kant, sexual desire, in-and-of-itself, is potentially the cause of the deepest degradation. It can make a person no better than a beast. To treat another person as an object of desire is wrong. “This is the only case in which a human being is designed by nature as the Object of another’s enjoyment. Sexual desire is at the root of it: and that is why we are ashamed of it, and why all strict moralists, and those who had the pretensions to be regarded as saints, sought to suppress and extirpate it.”

One dishonours another person by focusing only upon his or her sexual attributes. It is the supreme case of treating another as merely a means to an end, the end being sexual gratification.

Yet such desires are extremely powerful, and for most people – especially non-philosophers – quite hard to control. What to do? Using the services of a paid professional reliever of sexual tension is one possibility, but it is one that Kant strictly forbids. Prostitution is impermissible for Kant, not because of the harm it might cause to society (he was not a consequentialist in his ethics), but because it treats a person as a commodity. Persons are not at their own disposal. They do not own themselves, because if they did, they would be a thing. “To let one’s person out on hire and to surrender it to another for the satisfaction of his sexual desire in return for money is the depth of infamy.”⁵ One would thereby be acquiescing in the act of co modification.

In Kant’s view, even mutual sexual satisfaction, rather than the selling of sexual services, would be morally impermissible, since it still treats a person as a thing. It involves showing concern for only a part of them, rather than for their personhood in its entirety. It shows a lack of regard for the other individual’s reasoning capabilities, as opposed to their sensual qualities. The only morally acceptable route for sexual expression would be through legal matrimony. Only marriage allows for a morally acceptable exchange of sexual pleasure. “The sole condition on which we are free to make use of our sexual desires depends upon the right to dispose over the person as a whole – over the welfare and happiness and generally over all the circumstances of that person.”

CONCLUSION

Author hereby agrees with Kant that objectification is morally unacceptable, but raises interesting questions about what this means. The notion of ‘respect’, she argues, is not the same for all people in our society – women are still often treated as less able to live autonomous existences, less able to function on their own. It is easier to objectify women as a whole, because the roles they are allowed to play in society are still far more restricted than those of men. Stock stereotypes ring more true when counterexamples are hard to find. Since their status is so different, the loss of respect has greater repercussions for women in general. Pornography is often pernicious because it perpetuates images of the so-called ‘fallen woman’. Garry writes: “This fall is possible, I believe, because the traditional ‘respect’ that men have had for women is not genuine, wholehearted respect for full-fledged human beings, but half-hearted respect for lesser beings, some of whom they feel the need to glorify and purify.” 

If one accepts human sexuality as a natural and good aspect of life, rather than a degrading and bad aspect, it takes away much of the force of Kant’s argument against prostitution. Rather than looking upon sexual desires as flaws which place us on the level with beasts, they can be seen as drives that unite us all. Whatever our station in life, the libido is common property. Kant is opposed to treating humans as merely means to an end. But he does not hold that it is wrong in-and-of-itself to satisfy human needs. For example, one can fulfill the role of being a food server, and thereby help to alleviate hunger. It would be morally unacceptable to treat a waiter as merely a serving-thing. One should recognize his/her common humanity. But giving money to the waiter in recompense for services rendered involves two free agents mutually living up to the provisions of an agreed-upon transaction. In a similar fashion, sex workers provide a valuable service in alleviating the sexual hungers of their clients. One might object to this if one holds that only sex acts which lead to procreation are morally acceptable, but as was seen earlier, Kant did not ascribe to such a natural law line. Thus, if one decouples Kant’s repulsion about sexual acts from his overall contractual emphasis, a strong case can be made in favour of reciprocity in sexual relations, outside of a marriage contract.

While Kant’s lemon analogy seems to say a good deal about his own negative attitudes toward sexuality, when it comes to discussing the morality of prostitution, his emphasis on reciprocity and respect is still fruitful.