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ANALYSIS OF PROSTITUTION IN INDIA: LEGAL AND SOCIAL PERSPECTIVES
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ANALYSIS OF PROSTITUTION IN INDIA:
LEGAL AND SOCIAL PERSPECTIVES
AUTHORED BY- DR. SHWETA JOSHI
ASSISTANT PROFESSOR, MANIPAL
UNIVERSITY JAIPUR
ABSTRACT
Prostitution constitutes a
flourishing industry, regardless of its stated illegality, implicit tolerance,
government regulation, or a combination thereof. Individuals employed in this
sector have traditionally been marginalized as immoral and repugnant by society.
The legislation governing prostitution in India is inadequate and lacks a
definite plan. The vast majority of individuals in the sex industry endure
prejudice within legal and societal systems, along with frequent verbal and
physical abuse. Recent studies have associated prostitution with exploitation,
prejudice, and violence. Due to its stigma, Indian policymakers have been
sluggish in addressing prostitution. This article employs doctrinal analysis to
evaluate the prospective.Sex work has been there from the beginning of
civilization and has been embedded in Indian society since the establishment of
marriage. Violence, discrimination, and exploitation have recently been
associated with commercial sex work. Sex work is widely seen as taboo in Indian
society, and little attention has been given to its regulation.
This study report examines
the legality of prostitution in India. Governments, both pre- and
post-independence, have enacted numerous regulations regarding commercial sex
work, and there exists an extensive body of research examining the potential
legalization of this profession. This research project also examines the
current status of the profession and the advantages conferred upon them by the
Indian Constitution. Also, to keep the job from being taken advantage of, the
researcher gives a short explanation of the rules set out in the Immoral
Traffic (Prevention) Act of 1956 legalization, regulation, and recognition of
prostitution as a vocation like to others.
Keywords: Prostitution, Social Stigma, Law, Rights, Profession.
INTRODUCTION-:
The English term "prostitute" derives from the Latin word
"prostituta." The word consists of "pro," signifying
"up front" or "forward," and "situere," denoting
"to offer for sale," as per several sources. Britannicaencyclopedia
describes prostitution as "sexual intercourse in exchange for monetary
compensation," characterized as "the act of one individual engaging
in sexual contact with another to acquire money or other valuables."
Prostitution may encompass heterosexual, homosexual, or transgender activities;
nonetheless, the majority of prostitutes are women, whereas most clients are
men. Prostitution is the most ancient profession globally. Unfortunately, it is
the most reviled and least favored profession. Prostitution in India is
approximately 8% of the $186 billion generated annually by the worldwide sex
trade, according to certain estimates. Numerous nations are presently
contemplating modifications to their legal frameworks regarding sex work to
capitalize on the business while safeguarding the health and safety of both sex
workers and their clients. In India, the constitutional guarantee of equality
for all individuals does not consistently translate into practice. Prostitution
has been one of the most ancient professions since the inception of Indian
civilization.[1]
A bronze statue of a dancing girl can be found inside the walls of
the mother goddess temple at Mohanjodaro. The oldest literary work in India,
the Rigveda, has the earliest recorded mentions of prostitutes. It has been
covered in detail in both the Vatsayana Kamasutra and Kautilya's Arthashastra.[2]
The male and female partners of a married spouse are represented by Jara and
Jatini. The Sanskrit and Pali terms for impermanent unions, mututta and
muthurtika, respectively, symbolized only temporary unions with no lasting
connection. These 'Hetaerae' can be found in the Pitakas, Avadanas, and
Jatakas, among other Buddhist texts. In some regions of the country, temple
prostitution—known as devadasi—has gained societal acceptance. Pre-colonial
Hindus were required to sacrifice their daughters in order to demonstrate their
devotion to God and to maintain the devdasi system. Prostitution is a common
occupation in the country nowadays. According to reports, there were 657,829
sex workers in this nation in 2016.
According to unofficial estimates, the number of prostitutes in
India ranges between 3 and 10 million. India has become a major destination for
sex tourists, and the sex industry is a multibillion-dollar sector that is
growing rapidly.[3]
HISTORY OF PROSTITUTION IN INDIA-:
According to Indian history, because of its peculiar
characteristics, prostitution is among the oldest occupations still in use
today. Early Vedic times forced young women without brothers to engage in
prostitution, relying on the money they earned for self-support. Temple
prostitutes, called "ganika," played a crucial role in religious
rituals throughout the early Vedic era. Courtesans, or Nartas, were skilled artists
who worked in royal palaces in antiquity. The Rig Veda contains examples of
girls being sold into slavery and offered to rishis and rulers. Sanskrit refers
to prostitutes as Vaishya.[4]
'Vaishya' comes from the early use of 'Vish' or 'Vaish' to refer to
merchants. They leave their spouses behind and move between places in search of
work. To satisfy their sexual urges, the rulers made arrangements for them to
have access to women. In the early days, the occupation was also known as
"Devadasis" and "Nagaravadhu," which means "woman of
the town."
In India, the term "Devadasis" refers to individuals
regarded as divine servants, not limited to temple duties. They were in charge
of maintaining temples and carrying out rituals. They also practice Bharatanatyam
and other classical arts, and the women who are classified as devadasis are
married to gods and deities before being sexually exploited by upper-caste men
or local zamindars.[5]
Due to British colonization, prostitution gained popularity in the
18th and 19th centuries, with Indian devadasis engaging in dance and
entertainment to satisfy their wants. According to an analysis, over 60% of
those who are prostitution-related do so because they are poor, while about 40%
are impacted by their genes.
PROSTITUTION: LEGALITY IN INDIA-:
It is important to note that prostitution is not inherently deemed
an unlawful activity under the Indian Penal Code. The Immoral Traffic Act of
1956 explicitly designates some prostitution-related actions, such as pimping,
brothel operation, and trafficking, as criminal offenses in India. The Immoral
Traffic (Prevention) Act, sometimes referred to as the Prevention of Immoral
Trafficking Act, is an addendum to the statute established in 1956, enacted in
1986. The objective is to diminish and ultimately eradicate prostitution in
India through a systematic process of prosecution.[6]
India legalizes sexual interactions while prohibiting brothels and
public solicitation as part of its abolitionist policy to regulate prostitution.
Here, we depict the criminalized role of the commercial sex consumer in
sustaining the sex industry. The objective of the ITPA is to prevent human
trafficking and support victims through legal action. Rather than addressing
various aspects of the sex economy, it penalizes brothel proprietors. The
statute has several essential elements, including individuals who operate,
oversee, or provide premises for a brothel are liable to the penalties
specified in Section 3 of the statute. The statute characterizes a
"brothel" as any location, dwelling, or chamber explicitly designated
for prostitution. The maximum penalty for a first offense, as stipulated by
law, is a fine of up to 2,000 rupees and a severe prison sentence ranging from
one to three years. Subsequent convictions incur more severe penalties,
comprising a fine of up to 2,000 rupees and a prison term ranging from two to
five years.
Section 4 of the Act outlines the penalties for earning money
through prostitution. The section also makes it clear that anyone who is 18
years of age or older and makes a living via prostitution is accountable and
could face up to two years in prison, a fine of one thousand rupees, or both.
Furthermore, it will be assumed that anyone found guilty is purposefully making
money off of prostitution. [7]
Section 5 covers the acts of acquiring, inducing, or taking someone
for prostitution. It makes actions related to forcing people into the
prostitution industry illegal. A conviction carries a harsh sentence of three
to seven years in prison and a fine of five to two thousand rupees. Section 6
imposes penalties for the arrest of a sex worker at a brothel or other
establishments connected to prostitution. Conviction carries a seven-year
sentence, with the possibility of a life sentence.
According to Section 7 of the Act, anyone found to be involved in prostitution in public settings, including hotels, places of public religious worship, or hospitals, will be subject to legal action. The act's Section 8 deals with client soliciting in public places. By attempting to control public solicitations for prostitutes, it contributes to the regulation of the industry and the preservation of public order. [8]
LEGALIZATION OF PROSTITUTION IN INDIA: UNDER INDIAN
CONSTITUTION AND OTHER LEGISLATION-:
The laws governing sex labor in India are established in the
constitutional framework, specifically the Constitution of India, 1950; the
Indian Penal Code of 1860; and the Immoral Traffic (Prevention) Act of 1950.
Furthermore, it is crucial to acknowledge that the Constitution contains
provisions pertaining to personal liberty, equality, freedom of association,
and the right to life. It is also crucial to stress that the Constitution
protects against the abhorrent practices of forced labor and human trafficking.
Specifically, it ensures the prohibition of human trafficking and exploitative
work. India is proclaimed a sovereign, socialist, secular, democratic republic
in the preamble of the Indian Constitution, which also highlights the need to
guarantee equality of status, dignity, and opportunity for all citizens.
We need to recognize that the
Indian Constitution clearly sets up legal protections that uphold everyone's
basic rights to freedom, equality, and other things that are important, no
matter their gender, caste, religion, or social class. The Constitution
guarantees several rights, some listed below: By reaffirming that every person
has the right to equal treatment under the law and to live without facing
discrimination on any grounds, Article 14 guarantees legal equality. It offers
equal opportunities to all citizens.
Article 15 states that no citizen shall face discrimination on the
basis of gender, caste, race, religion, or place of birth. It expressly
prohibits discrimination on these grounds by the states. No one shall be denied
the fundamental rights of life and personal liberty, which are safeguarded by
Article 21. Every citizen has the right to petition the Supreme Court if their
rights have been violated, according to Article 32.[9,10,11]
The Immoral Trafficking Prevention Act is a significant statute
aimed at combating human trafficking for sexual exploitation. This
misperception renders prostitution illegal, subjecting sex workers to its
consequences. Prostitution is not criminal when conducted consensually.
Therefore, we should prohibit human trafficking. This law does not
differentiate between forced and voluntary prostitution. It penalizes the
nation's disfavored minority groups through the imposition of prohibition.
India's abolitionist stance on prostitution control needs modification. It is
essential to recognize the existence of prostitution. Legalizing prostitution
will aid in the fight against the AIDS epidemic and other sexually transmitted
infections. Legislation will no longer view prostitutes as second-class
citizens, but rather as individuals earning a livelihood legally. We should
allow them to live with dignity.
CONCLUSION -:
Violence results from the
stigmatization of prostitution. Exploitation is more widespread in nations that
exhibit a deficiency in gender sensitivity. Partial legalization without
comprehensive standards and safeguards is inadequate. Educating individuals about
women's issues is essential to deter them from perpetrating terrible atrocities
against women. Considering these concerns, it is imperative to explicitly
legalize prostitution and establish a regulatory authority to regulate the
industry. The study asserts that sex workers and children would unequivocally
receive rights and protection through the decriminalization of brothels, the
establishment of regulated legislative frameworks, and the augmentation of
societal awareness regarding prostitution.
The legalization of sex work not only
confers rights upon participants but also yields numerous benefits for the
country. Commercial sex work has been in our country for millennia. In a nation
such as India, societal viewpoints frequently exhibit moralistic prejudices,
potentially stemming from religious convictions or an idealistic interpretation
of feminism that remains reticent on these issues.
In a society where women are
anticipated to emphasize household management and familial responsibilities,
personal interactions are a crucial aspect of both her life and her husband's.
The prevalence of female prostitution is significant. Nevertheless, situations
are changing. The legality of prostitution is inadequately addressed,
notwithstanding the presence of laws aimed at combating the criminal
trafficking of women, as illustrated by the Immoral Traffic (Protection) Act of
1956.
Ø
Sex education is very much
essential nowadays; specifically, education must be provided to children. So
that they have proper knowledge related to sex and could adopt purposeful
future decisions in their respected lives.
Ø
In order to facilitate the marriage of females
from low and middle-class backgrounds, it is imperative that laws and dowries
be enforced with greater rigor. The individuals who demand dowry must, however,
be subjected to punishment. Additionally, the penalty must be as severe as
possible in order to serve as a model for society.
Ø
The police must designate an
increasing number of informers to ensure that they receive information about
the occurrence of such acts in the community at a faster pace.
Ø
The mediators are the primary
source of pro. We must penalize the mediators, as they are the primary source
of prostitution growth of more prostitutes, it is imperative that Nari Niketans
be established on a larger scale.
REFERNCES
Ø Gautam, S. S. (2014b). The Courtesan
and the Birth of Ars Erotica in the K?mas?tra: A History of Erotics in the Wake
of Foucault. Journal of the History of Sexuality, 23(1), 1–20. https://doi.org/10.7560/jhs23101
Ø M. S. BEDI, PROTECTION OF WOMAN IN
MORAL DANGER 15 (1st ed. 1992).
Ø PRAN BATARIA, SEX AND CRIME IN INDIA 86 (1st
ed. 1992)
Ø Gautam, S. S. (2014b). The Courtesan
and the Birth of Ars Erotica in the K?mas?tra: A History of Erotics in the Wake
of Foucault. Journal of the History of Sexuality, 23(1), 1–20. https://doi.org/10.7560/jhs23101
Ø Wright, E. (n.d.). How Poverty
Encourages Generational Prostitution in India. THE BORGEN PROJECT: THE BLOG. https://borgenproject.org/prostitution-in-india/.
Ø Dixon, L. (n.d.). Prostitution and
drug misuse: breaking the vicious circle. OPENDEMOCRACY. Retrieved August 27,
2022, from https://www.opendemocracy.net/5050/lucy-dixon/prostitution-and-drug-misuse-breakingvicious-circle.
Ø The Constitution of India, 1950; The
Indian Penal Code, 1860; The Immoral Traffic (Prevention) Act, 1956.
Ø Article 19(1), Constitution of India,
1950.
Ø Article 21, Constitution of India, 1950.
Ø Article 23, Constitution of India, 1950.
Ø Article 39 (a), Constitution of India, 1950.
Ø Article 39 (e), Constitution of India, 1950.
Ø Article 46, Constitution of India, 1950.
Ø Article 51, Constitution of India,
1950.
Ø Article 47, Constitution of India,
1950.
Ø Article 51 A (e), Constitution of
India, 1950.
Ø P.N.Swamy, Labour Liberation Front,
Mahaboobnagar v. Station House Officer, Hyderabad 1998 (1) ALD 755.
Ø §293, 294, 317, 339, 340, 341, 342, 354, 359,
361, 362, 363, 365, and 366, 370, 371, 372, 373, 375, 376, 496, 498, 506, 509,
511, Indian Penal Code, 1860
Ø Harshad Barde, (Mis) Reading through
the lines, Prostitution and beyond: an Analysis of Sex Work in India (New
Delhi: SAGE Publishers, 2008) 227.
Ø Barde, H. (2008). (Mis)Reading
through the lines, Prostitution and beyond: an Analysis of Sex Work in India.
SAGE PUBLISHERS, 227.
Ø Saxena, P. (2002). Immoral Traffic in
Women and Girls: Need for Tougher Laws and Sincere Implementation. JILI, 504,
523.
Article Information
ANALYSIS OF PROSTITUTION IN INDIA: LEGAL AND SOCIAL PERSPECTIVES
Authors: DR. SHWETA JOSHI
- Journal IJLRA
- ISSN 2582-6433
- Published 2025/03/06
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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