LEGAL SCENARIO OF PROSTITUTION IN INDIA

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INTRODUCTION:

Prostitution is probably the earliest profession of the world operated since the emergence of the organized society. Prostitution is practiced in practically every one of the nations and each sort of society. In India, the Rig Vedas[1], one the most primitive of the known Indian writing, have large amounts of references to prostitution as a coordinated and set up establishment. Female prostitution is maybe the most age old profession everywhere on the world.

Prostitution is the training or business where individuals partake in sexual activities in return for cash and an individual who is occupied with this field is alluded as a prostitute. Prostitution as characterized in the Oxford English Dictionary is, “the training or control of taking part in sexual movement with somebody for payment.”[2]. Prostitution is regularly viewed as probably the earliest profession for civilized society. In the 21st century, females are not by any means the only ones entering this profession. Men and transsexual people are likewise associated with prostitution, albeit in lesser number than ladies. Prostitution can be of different structures, including street prostitution[3], escort prostitution[4] and brothels[5]. Brothels are establishments expressly gave to prostitution. The circumstance of prostitution and the law changes by and large all throughout the planet, reflecting a large spectrum of ideas and interpretation. Some view prostitution as a kind of maltreatment of or viciousness against ladies, and children, that helps to another wrongdoing of illegal exploitation and trafficking. The lawful status of prostitution is diverse in various nations.

FACTORS LEADING TO PROSTITUTION:

The escalating pace of poverty has driven various people particularly minors and the younger generation into the metropolitan areas where they believe prostitution to be an energetic strategy for tending to their necessities and those of their families. Looking at the possibility of prostitution fundamentally, one will grasp that prostitution was not as unpreventable in earlier ages as it is today. The system of urbanization has provoked a critical move in the design of our existence. Urbanization has provoked the improvement of free venture into different practices which has offered a climb to the polarization of classes, exasperating the recurrence of poverty, joblessness, wrongdoing and irritation. The present circumstance has incited a more significant omnipresent in prostitution as a way individual especially females endeavor to adjust with the dismal monetary real factors. Additionally, a few females are driven into sex-work because of joblessness. The absence of open positions had constrained ladies to urgently depend on unlawful arrangements as a method of producing monetary relief.

Here are some of the prominent reasons for the rising cases and causes of prostitution:

  • Abduction or human trafficking.
  • Early marriage and desertion
  • Rape
  • Prior incest
  • Social Factors in Prostitution (Devadasi System, Family prostitutes)

A lot of women enter prostitution after being raped as for the stigma attached to a rape victim in our society. A victim is often criticized for being raped and the shame attached of being a rape victim is often the reason why they fail to get married and the only way to make their end meet is through prostitution.

When omnipresent cultural ideas and interpretations along with increasing rate of poverty are very much prevalent in the society prostitution serves as a brisk and fast method to get access to the basic needs. It has been seen that women of rural regions succumb to deceitful delegates who offers them affirmation of good work chances and afterward sells them as sex laborers. The most essential explanation which drives the destitute and defenceless women towards prostitution is poverty. Though through cases like Gaurav Jain vs. Union of India[6] instructions and were given for the betterment of prostitutes and foundation of the juvenile home for the children of the prostitutes.

There are about 2.68 million prostitutes in the country and its been increasing ever since. The prostitutes are spread across red light areas throughout the nation like Sonagachi in Kolkata, GB Road in Delhi, Kamathipura in Mumbai etc and in many sub pockets across county.

There is also a serious issue of human trafficking of girls as young as twelve years old from neighbouring countries like Nepal and Bangladesh with the pretence of better job opportunities, marriage or in general better living standards. The trafficked girls often get trapped in a cruel cycle of debt, poverty and misery. By the time they are in their thirties they are worn out and are left with little or nothing to look forward to.

Moreover, Covid-19 has affected a lot of families and people who lie on the verge of poverty lie are hit hard and many have resorted to prostitution to survive. Ironically the prostitution industry has also been hit hard by the rise of cases Covid-19 in India.

LEGAL SCENE OF PROSTITUTION IN INDIA:

Most people view prostitution as a way to exploit women. This is valid, essentially with regards to India.  In India, prostitution is even more of an exploitative occupation for women where women are for the most part constrained into it, either actively by their will or passively. Along these lines, women and minors are being exploited and constrained into prostitution. This is because of minors being trafficked or sold as prostitutes by their own ones, or choosing prostitution as a method to procure some level of monetary gain out of it. Nations where prostitution is legalized and regulated have presumed that it is ideal to control an occupation, which won’t ever vanish. India ought to gain from these nations, instead of feigning ignorance that prostitution doesn’t exist here. There are over 2.5 million prostitutes in India and a fourth of them are minors. Minors that are involved in prostitution are one of the issues confronting our nation today. The expanding occurrence of the HIV infection is very nearly an edge, which, whenever crossed, could see the pandemic influencing, maybe, everybody on the planet.  

All the citizens of India are guaranteed fundamental rights, as indicated by our Indian Constitution, and prostitutes, as residents, are also qualified for these rights. A prostitute has the privilege to life under Article 21 of the Indian Constitution yet the things expressed are very not the same as the things that happen so the inquiry is that what occurs if a sex labourer isn’t paid for her administrations by a specific customer? Imagine a scenario in which the person in question is hurt.

Are there any laws set up to help this fragment of the populace? The appropriate response is no. How can we anticipate that someone’s basic fundamental rights should be secured in the event that we don’t permit them to rehearse their profession lawfully? Since they fear provocation, a significant number of these laborers don’t go to the police and can’t report any wrongdoings perpetrated against them. Males who are assigned as customers or clients are abused. In India though prostitution is not criminalised, the profession of millions is not regulated and have certain restrictions and limitations. As, prostitution as a profession is not legalised, the prostitutes can be exploited and not gain monetary independence and as a result the already vulnerable section become more subjugated.

LAWS GOVERNING PPROSTITUTION IN INDIA:

In India prostitution is mostly lawful. prostitutes can rehearse their work secretly, yet requesting and coordinated prostitution, for example, brothels are unlawful. Prostitution can be carried out away from public spaces. Also, just female prostitution is perceived in India. Only for instance, assuming an individual is occupied with an action of pimping, he/she will be punishable under law however on the off chance that getting cash in return of sex with assent and with no earlier imploration probably won’t be illicit in India.

Constitution of India, under article 23(1)[7], precludes trafficking in any way including setting up of bossiness by sexually exploiting and misusing women and minors. Article 23(2)[8] announces that any repudiation of this arrangement will be an offense culpable as per the law.

It was expressed in Raj Bahadur v. Legal Remembrancer[9], that

“Clause (2) in any case allows the State to force compulsory services for public purposes given that in making so it will not make any separation on grounds just of religion, race, position or class or any of them. ‘Traffic in human beings’ means selling and purchasing people like products and remembers shameless traffic for women and minors for improper or different purposes.”

We have specific enactments like Immoral Traffic Prevention Act (ITPA) and so forth along with the provisions mentioned in the IPC (Indian Penal Code). According to the Indian setting, prostitution isn’t unequivocally illicit as it’s anything but explicitly communicated prostitution to be illegal under the law. However, some exercises identified with prostitution like running brothels, requesting, dealing and pimping are generally culpable offense in India under THE IMMORAL TRAFFIC (PREVENTION) ACT, (1956). The Immoral Traffic Prevention Act, 1956 is the primary enactment drafted taking into account prostitution in India. In Section 3 of the Statute[10] forces detainment for a few years with fine for keeping a massage parlour or permitting premises to be utilized as brothels. In Section 5[11] forces three to seven years of detainment with fine for getting an individual with the end goal of prostitution without their assent. In Section 7[12] of the rule precludes prostitution in or close to a public area. However, unfortunately the act remains silent on the plight on trafficked children and the violent assaults faced by women in the profession by clients. In the given case of Smt. Afjal versus State of U.P.[13], the petitioner ran a brothel and kept minor young ladies for prostitution. The petitioner was seen as guilty under the arrangements of the demonstration, and the young women were retrieved.

The statute administering the subject of prostitution in India is the Immoral Traffic (Prevention) Act, 1956.  However, the credibility of this Act under the constitution was tested on account of The State of Uttar Pradesh v Kaushalya[14]. For this case, various prostitutes were needed to be taken out from their residence for keeping up with dignity in the city of Kanpur. The High Court of Judicature at Allahabad fought that Section 20 of the Act shortened the key privileges of the respondents under Article 14 and sub-proviso (d) and (e) of Article 19(1) of the Constitution. The Act was held to be intrinsically substantial as there was an understandable contrast between a whore and an individual causing a disturbance. The Act is additionally in consonance with the object looked to be accomplished i.e., keeping control and respectability in the public places.

This Act falls short at stifling prostitution in women and minors and accomplishing a public purpose viz. to protect the affected individuals and to get rid of prostitution and furthermore to give all chance to these victims with the goal that they could turn out to be respectable individuals in the society[15]. This Act looks to condemn the demonstrations adding up to prostitution as referenced above and approves the police to eliminate them, to close massage parlours and move them to organizations that may change them. It enables the Central Government to set up a Special Court to prosecute offenses under this Act.

In sections 372 and 373 of the Indian Penal Code 1860 additionally manages prostitution yet it is limited to child prostitution as it were. Children in forced prostitution are minors or teenagers who are forced into prostitution because of various reasons. Indian Penal Code, 1860 punishes child prostitution, specifically selling and purchasing of minors with the end goal of prostitution. Under section 372 of the Code a person who sells children and teenagers with the end goal of prostitution is punished with imprisonment up to ten years. Section 373 of the Code also grants detainment of ten years for purchasing a minor individual with the end goal of prostitution.  However, the interpretation to these sections only demonstrate just the exchange of a girl child and not young men.

However, under Sections 366A, 366B, 370A of the IPC manages rebuffing for offenses of recruitment of minor women, trafficking of young women from outside the country for sex and abuse of a trafficked individual respectively. In this way under IPC laws identified with prostitution is very limited.

Section 366 Clause (A) of the IPC[16] discusses the procuration of a minor women for illegal sex and implements charges for something similar. Clause (B) of similar discussions about the trafficking of a minor women from an outsider country with the end goal of prostitution. On account of Fateh Chand v. Province of Haryana[17], a man was reserved under section 366 for securing a minor young lady for prostitution. Under section 372[18] and 373[19] of the IPC forbids the selling or discarding a minor woman with the knowledge that such an individual will be snagged into prostitution, and purchasing or recruiting of a minor woman to drive her into prostitution individually.

Rights Available to sex workers:

The right to life mentioned under Article 21 of the Indian Constitution is available to a prostitute as it is to any citizen of India, which was featured on account of Budhadev Karmaskar v State of West Bengal[20]. For this situation the petitioner, Budhadev Karmaskar was held guilty for killing a sex worker in Kolkata in the year 1999. The court additionally expressed that a woman is involved prostitution not for joy but rather of destitution. If such a woman gets an opportunity to learn technical or vocational training, she can earn her basic livelihood from her skill instead of selling her body[21]. Likewise, the Supreme court asked the Central Government and the State Governments to make plans for giving professional preparing to the sex laborers across the entire country. Following the heading, the Immoral Traffic (Prevention) Act has joined Article 21 of the constitution as a rule for the State Governments to set up and keep up with protection homes and this ought to be managed by licenses gave by them. A suitable authority ought to be named for making an examination for the use of the permit for the protection homes. These licenses are not adaptable and they are legitimate just for the predefined period. The Government has the power to make any auxiliary principles in regard of permit, the board, and maintenance of protection homes, or subordinate issue by virtue of Section 23 of the Act.

WHY SHOULD PROSTITUION OR SEX WORK BE REGULATED IN INDIA?

The enactment which put limitations on prostitution is The Immoral Traffic (Prevention) Act, 1956 (Act/ITPA). This law punishes certain practices identified with prostitution. As mentioned before, prostitution is legal in India when done separately and secretly. What is required is the guideline of prostitution, with government control of brothels and related exercises. Despite the fact that there are laws against the foundation of brothels and pimping, they actually exist and keep on exploiting individuals. If prostitution is decriminalized, administration of prostitution will be simpler. This will help in decreasing the rate of forced prostitution of minors and women. The current framework makes it hard to decide whether the women were forced or it was with their consent that they chose prostitution. Bringing prostitution under the legal spectrum will make it simpler to control crime and furthermore give help to the people in question. By managing prostitution, young girls can be removed from the prostitution network and pedophilia can likewise be checked. Child prostitution exists in every one of the nations, independent of their degree of monetary turn of events; the issue is seen specifically in Asia and South America. By regulating and legally monitoring prostitution and taking severe measures to control it, we can guarantee expulsion of minors from the network, consequently ensuring their privileges and affirming their security.

Rape and brutality towards prostitutes by the customers occur with the consent of the pimps or brothel owners who are given extra charges to permit the customers to violently assault or harm the prostitutes for their own pleasures. Unfortunately prostitutes often basically receive no help or freedom from this sort of assaults. Switching these pimps or brothel owners with government control will do ponders in checking such abominations carried out against women for the sake of prostitution. Sanctioning of prostitution and the sex business will stop trafficking done with the intent to force individuals into prostitution and will also provide better security to sex workers in the country.

Authorization of prostitution will control the sex business.

Authorization of prostitution will diminish secret, street, covered up, unlawful prostitution.

Legitimization of prostitution will ensure that the women in prostitution are safeguarded as they will have rights. Women involved in the frameworks of Prostitution need the sex business authorized as they are the person who experiences the most as they don’t have any rights. Prostitution in India is roughly a $8.4 billion industry. Taxing and regulating the earnings through prostitution like some other business will give an impetus to the public authority, and work with it in giving customary clinical registration, and securing the privileges of individuals occupied with the profession.

Authorization of prostitution will accelerate women’s wellbeing as they will be able to have simple admittance to clinical offices which they won’t have if prostitution is not regulated and legalised. Perceiving prostitution as a financial action, along these lines empowering ladies in India to acquire working permits as “sex workers”.

These actions will obviously not eliminate the misuse of women totally. Regulating prostitution also additionally includes dynamic inclusion of the police to raid illegal rackets which may in any case exist. In case prostitution is managed along these lines, it can altogether check social indecencies like exploitation and brutality in the sex business.

CONCLUSION:

It is essential to regard the sex business as some other industry and to furnish it with legal protection. Prostitution is a profession that has been considered disgraceful by the general public, while the prostitutes are viewed as sullied and indecent people. In India, laws identified with prostitution are deficient and have no systematic methodology. The viable ramifications of decriminalising and regulating the profession would be favourable to both sex laborers and society overall. Criminalization of prostitution, including different things that encompass sex work isn’t the genuine arrangement.  The Sex industry is not disappearing anytime soon and is only expanding rapidly, and by acknowledging it as a genuine type of work, all those are involved can get ensured benefits. Individuals should be made aware regarding issues involving the individuals involved so they don’t perpetrate such harsh transgressions against them. Hence simply giving legal recognition to prostitution won’t be adequate to decide this issue. Preferably, a uniform law should be made for its management in our country. As proper management of prostitution will assist with defending the sex laborers and their children from getting abused. Not just this it also will guarantee assurance of the wellbeing of the sex laborers and the general public in general. Thus, a set of carefully administered rules and guidelines ought to be set up to govern this industry.


[1] Sukumari Bhattacharji, Prostitution in Ancient India, 15 Social Scientist 32, 32-34 (1987).

[2] Prostitution, Oxford English Dictionary (2d ed. 2013).

[3]  Street Prostitution is a form of sex work wherein a sex worker solicits customers from a street.

[4] An escort is someone who offers companionship that may or may not be in the form of sex.

[5] A brothel is a place where people may engage in sexual activities with prostitutes, usually owned by third parties.

[6] SCC 114; AIR 1997 SC 3021

[7] The Constitution of India, 1950, Art 23(1).

[8] The Constitution of India, 1950, Art 23(2).

[9]  AIR 1953 Cal. 522

[10] §. 3, Immoral Traffic Prevention Act, 1956.

[11] §. 5, Immoral Traffic Prevention Act, 1956.

[12] §. 7, Immoral Traffic Prevention Act, 1956.

[13] Smt. Afjal vs State of U.P., 2012 (77) ACC 7 (HC).

[14]  1964 AIR 416.

[15] MANU/SC/0277/1990.

[16] The Indian Penal Code, 1860, §. 366, No. 45, Acts of Parliament, 1860 (India).

[17] (1977) 2 SCC 670.

[18] The Constitution of India, 1950, Art 372.

[19] The Constitution of India, 1950, Art 373.

[20] Available at https://indiankanoon.org/doc/1302025/

[21] Prachi Darji, “Is Prostitution in India Legal or Illegal?”, MYADVO, 2019

Author: SREYASI SARMA, KIIT SCHOOL OF LAW, BHUBANESHWAR

Editor: Kanishka VaishSenior Editor, LexLife India.

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