Legal Aspects of Prostitution in India Authored By- Vaibhavjeet Singh
Legal Aspects of Prostitution in
India
Authored By- Vaibhavjeet Singh
In India, prostitution is the oldest
profession. It is a common fallacy that prostitution is banned in India.
Prostitution is lawful, but pimping, owning, and managing a brothel is not. The
primary cities in India where brothels operate illegally in huge numbers
include Mumbai, Delhi, and Kolkata. Prostitution is not prohibited or penalized
under the statute in and of itself.
Before going further into the discussion,
let us first clarify what acts can be termed as prostitution. Prostitution is
defined as giving sex services in exchange for money. It denotes not just
sexual gratification but also other accompanying acts such as customer
solicitation, brothel administration, pimping or dealing with prostitutes, sex
trafficking, and other behaviors that enable prostitution, hence promoting the
rise of the sex business.
Roots of Prostitution
It pursued the path of devotion in
India. Historically, there was the Devadasi system[1],
in which Hindus contributed their female children for the purpose of dancing in
temples and worshipping God. However, as feudalism declined, these so-called
Devadasis lost their defenders and were mistreated by temple priests. This was
the first type of prostitution. This practice expanded even more during the
British era, as outsiders restricted the local textile industry, firearms, and
so on, forcing these villages to rely on prostitutes for a living.
Impact of Prostitution on the Indian
Society
Our society has a long history of
prostitution. There is no specific year when it started. It's been around since
there was a need for sex workers. There are those who will pay for sexual
activity and those who will engage in sexual activity in exchange for money or
things.
When it comes to prostitution, the
world is divided into two camps. Many countries have legalized prostitution;
some have legalized it with restrictions, while others have criminalized it.
There are far more advantages to regularising
and legalizing prostitution than there are to not legalizing it. Prostitution
has existed for centuries, and I do not see it being abolished or erased from
society. Our history and experience teach us that it will persist regardless of
how strict regulations are enacted.
Instead of battling this trade, we
should come to the aid of sex workers by enacting laws in their favor. It will
undoubtedly offer them all of the rights they require.
They should be able to execute their
jobs without fear or limitation. They should have the right to be well. They
should be given a voice by making laws that recognize them. They should have
the same right as any other profession to form organizations under labor rules.
These rights are only available to sex workers after all aspects of
prostitution are legalized.
A West Bengal sex prostitute was
recently murdered by her clients for refusing to participate in sexual
intercourse. In another case, a sex worker was murdered by her customer because
she demanded 1000 rupees instead of 300 rupees. Because it is the government's
job to create fair legislation governing sex workers and prostitution, the
central government is directly responsible for all of this. It is past time to
recognize prostitution as a job and to offer equal rights to sex workers under
Article 14 of India's constitution.
In Budhadev Karmaskar vs. State of
West Bengal, the Supreme Court stated that sex workers are also human
beings with the right to a dignified life. A series of judgments by this Court
have established that the term "life" in Article 21 of the
Constitution refers to a dignified life, not only an animal existence.
Laws related to Prostitution in India
The Indian Penal Code of 1860
addresses prostitution as well, although only with regard to child
prostitution. It does, however, strive to combat actions like kidnapping in
general, kidnapping for the purpose of seducing and luring a person into sex,
importing a foreign lady for sex, and so on.
Furthermore, Article 23(1) of the
Constitution forbids trafficking in human beings and beggars, as well as other
forms of forced labor. Article 23(2) stipulates that any violation of this rule
is a criminal crime punished by law.
Despite being deemed unethical by the
Court, prostitution is not explicitly illegal in India; however, certain acts
that facilitate prostitution are considered illegal, and acts such as managing
a brothel, living off the money obtained through prostitution, soliciting or
luring a person into prostitution, trafficking of children and women for the
purpose of prostitution, and so on are made explicitly illegal by the Immoral
Traffic (Prevention) Act, 1956. (ITPA). Running a sex racquet, for example, is
unlawful, but private prostitution or receiving paid-for sex without previous
solicitation may not be.
It was stated in Raj Bahadur v. Legal
Remembrancer, that:- “Clause (2) however permits the State to impose compulsory
services for public purposes provided that in making so it shall not make any
discrimination on grounds only of religion, race, caste or class or any of
them. 'Traffic in human beings' means selling and buying men and women like
goods and includes immoral traffic in women and children for immoral" or
other purposes.”[2]
Impact of Immoral Traffic (Prevention)
Act, 1956 on Prostitution
The Immoral Traffic (Prevention) Act
of 1956 governs the subject of prostitution in India. The constitutionality of
this Act was challenged in the case of The State of Uttar Pradesh v Kaushalya.
In this case, a number of prostitutes were required to be removed from their
place of residence for maintaining decorum in the city of Kanpur.[3]
Section 20 of the Act, according to
the High Court of Judicature in Allahabad, violates the respondents'
fundamental rights under Article 14 and sub-clauses (d) and (e) of Article
19(1) of the Constitution. Because there was a discernible distinction between
a prostitute and a person causing a disturbance, the Act was declared
constitutionally legitimate. The Act is also consistent with the Act's purpose
of promoting social order and morality. This Act aims to repress prostitution
in women and girls while also fulfilling a public goal of rescuing fallen women
and girls and stamping out prostitution, as well as providing all opportunities
to these fallen victims so that they can become good members of society.
The ITPA appears to be more concerned
with eliminating prostitution than with combating illicit human trafficking.
Such regulation has only made life more difficult, vulnerable, and dangerous
for sex workers. This is an entirely inappropriate strategy for dealing with
this profession; rather than making their life simpler, the government has done
the opposite. No government has ever been able to outlaw prostitution through legislation.
Consider the following scenario: in the absence of such restrictive
regulations, a sex worker is looking for a customer. She is free to converse
openly with the consumer without fear of being detained by police. If something
goes wrong, whether it's coercive conduct by the client or failure to pay her
professional fees, the lady is safe and free to contact the police.
But now we come to the reality of
rules that limit our freedom. By enacting such regulations, the system has
fostered fear of punishment in the clients. Instead of meeting the sex-worker
in an open or public venue, the clients prefer to meet in a dark and isolated
location to escape the police. In such conditions, it is quite easy for the
client to commit a crime.
Sex work as a profession
The Supreme Court of India recently
stated that "sex work is a profession" like any other, and that sex
workers should not be harassed by authorities. Cour further emphasized that Sex
workers are entitled to equal legal protection. Criminal law must apply equally
in all circumstances, regardless of "age" or "consent."
When it is obvious that the sex worker is an adult participating with consent,
the authorities must refrain from interfering or taking any criminal action.[4]
While sex work or prostitution is not
illegal in India, trafficking for sexual exploitation is a crime under Indian
law. Under the Indian Penal Code (IPC) and the Immoral Trafficking Prevention
Act, pimping, soliciting, exploitation, and renting out property for the sex
trade are all significant offenses (ITPA).
In addition, while sex work is not
prohibited in India, the current legal rules make it impossible for any sex
worker or prostitute to conduct it, and they can even be arrested for
soliciting clients. When engaged in it, there is a grey area and a lack of
clarity, like with other socially taboo occupations.
Sex workers have the same right to a
dignified existence as provided by Article 21 of the Indian Constitution,
according to a three-judge Bench led by Justice L. Nageswara Rao. Expressing
worry about the "brutal and violent" way that police treat sex
workers, the court stated that it seemed as if sex workers "are a class
whose rights are not recognized. The rights of sex workers should be made known
to the police and other law enforcement agencies, who have the same basic human
rights and other rights as all people guaranteed by the Constitution.
Supreme Court's view has clarified that a sex worker who is involved in prostitution with their consent should not be ill-treated as she has the right to be in the profession she wants with dignity. But the main cause of concern is that In terms of sex jobs and the sex trade, what is required is clarity or transparency. Where is the issue of consent for a woman pushed into prostitution and unable to speak out?
There is no significant mechanism to
determine and track those women, who are forced into this profession without
themselves being aware of their legal rights are hampered. There are many women
out there, who have no other option than to fall into this trap due to family
or society suffering.
Many non-governmental organizations
(NGOs) warn that people with vested interests, such as brothel proprietors, are
purposefully distributing false information about the judgment. They are
frightening sex workers into submission, claiming that the court has now ruled
that the police cannot intervene in how sex workers are handled. This is
incorrect in actuality.
The decriminalization of the sex
trade has divided activists. While some say that legalizing the sex trade and
removing the restrictions on it will allow for the exploitation of vulnerable
women and children, others claim that legalizing the sex trade will provide sex
workers with dignity and human rights. Significantly, juveniles who have been
trafficked are only rescued and given access to rehabilitation through police
and anti-trafficking group raids.
To address these difficulties, The
court also ordered state governments to conduct a survey of shelter houses in order
to examine and discharge adult women who do not wish to be there. While the
court orders are well-intended, advocates have pointed out that they might be
harmful to sex workers on the ground, such as leaving minor children with their
mothers in brothels. Though a tough task to crack as the whole system needs to
work with dedication and honesty to solve this big evil and give a dignified
life to women and children.
Is Sex work only a women's profession
Earlier only females were seen as
prostitutes and males were their clients but now in the 21st-century male,
females, and transgender, all are working in this profession. According to the
BBC report, the number of males as prostitutes in India is rising at a great
pace. It also states that when there are no female clients they sell sex to
male clients. Male prostitutes are called gigolos. Male prostitution has
been an active market in western countries for decades now. But in India, it
started growing in metro cities in only a few years. Hence, no one notices this
dark zone.[5]
What makes people fall into this
prostitution?[6]
There are several reasons that push a
woman to engage in commercial sex, with poverty and unemployment being two of
the most prevalent. It has been seen that women from distant locations fall
victim to unscrupulous brokers who promise them respectable job possibilities
and then sell them as sex workers. Poverty is the primary motivator that pulls
desperate and helpless women into prostitution. It is often assumed that, of
all the factors responsible for prostitution, poverty is the most crucial
reason that leads people into prostitution.
Poverty has driven a great number of
individuals, particularly young people, to urban areas, where many see
prostitution as an easy way to meet their own and their families needs. When
one considers the concept of prostitution broadly, one can see that it was not
as prevalent in pre-modern periods as it is today. The growth of urbanization
has resulted in a significant transformation in the structure of our reality.
Urbanization has encouraged the expansion of the free enterprise, which has
increased class polarisation by increasing the frequency of poverty,
unemployment, crime, and estrangement.
After being raped, around 6% of the
women entered prostitution. And many times, sexual assault survivors are
victimized by society's shame and stigma, which blames these women for being
raped. In certain circumstances, not just society but also family members have
refused to accept them. Aside from the deferral or rejection of justice, the
victims are subjected to similar conditions on a regular basis. And after a given
period of time, when they find no roof for refuge in our society and no ray of
hope for them, they find their way into the darkness of prostitution.
Around 8% of young females turned to
prostitution as a result of incestuous relationships. The most well-known
incest is between a father and a young girl, followed by uncle-niece incest.
And when these young victims of incest are sexually exploited at home and do
not expect safety anywhere in public, they eventually end up in prostitution.
Aside from the characteristics described above, there are various other factors
that motivate women to become prostitutes.
Impact on sex workers after the
legalization of this profession
It is up to us as responsible
citizens to deal with prostitution. Will we accept it with open arms and minds,
or will we continue to live in denial? Many countries have opted for the
latter, and many have legalized it. The following is a list of the advantages
of legalizing prostitution.[7]
·
Improvement
in the conditions of sex workers- It is apparent that the countries that have
legalized it have only helped to improve the conditions of sex workers. A study
conducted in nations where prostitution is permitted yielded positive results,
indicating that violence and illness spread has decreased significantly.
·
Human
trafficking will be reduced- The most important issue with legalizing
prostitution is that it will boost human trafficking. If prostitution is
legalized without any restrictions, such as criminalizing third-party
participants, I believe the results will be the opposite. To ensure that there
are no instances of prostitution-related trafficking, the government must work
vigorously with the community. After legalizing prostitution, Newland is a
shining example of a country that has achieved the goal of having no incidences
of prostitute trafficking.
·
Legalizing
prostitution will give sex workers more power. When their rights are violated,
they will summon the guts to approach the police. On the contrary, when sex
workers go to the police station to file a complaint about rape or a client who
does not pay their professional fees, the police do not take them seriously
since they know prostitution is not a legally recognized profession and it is
still taboo in society.
·
Sex
workers will be able to enjoy a healthier life if prostitution is legalized.
Legalization will help sex workers fight for their right to safer sex, such as
sex with condoms or other forms of protection. The legalization of sex workers
will allow them to be examined on a regular basis for their own and the
client's safety. This will help to reduce the number of STDs. Every month, sex
workers in Nevada are tested for sexually transmitted diseases. Condoms are
also mandatory for any sex in brothels in Nevada.
·
As
a result of legalization, the involvement of kids will decrease. Every sex
worker will be required to obtain a license, which will aid in the government's
data collection. No one under the age of 18 will be permitted to work without a
license.
·
Reduction
in rape cases- Several studies have revealed that legalizing prostitution has a
significant impact on the reduction of rape cases. It significantly reduces
rape incidents. After the legalization of prostitution in Rhodes Island, the
number of rape incidents dropped to 39.
·
Sex
workers will have the option of delivering their services to whomever they
wish. Similarly to how advocates can choose whose cases they want to fight, sex
workers will be able to choose their customers. Due to limits, they now have a
violent clientele and a lack of options and remedies.
Conclusion
Finally, the facts show
that there is no necessity for any particular strategy to a problem like
prostitution, such as criminalizing, decriminalizing, or sanctioning it. Based
on prior studies, it is impossible to argue that legalizing prostitution has
both bad and good consequences. As a result, just legalizing prostitution will
not suffice to fix the problem; instead, our country requires a unified
approach to address it.
Regulation of prostitution will help
to safeguard sex workers and their children from exploitation. It will not only
protect the health of sex workers but also society as a whole. A set of rules
and regulations should be developed in the future to regulate this business. Prostitution
is a career that can involve violence and exploitation in some circumstances.
However, for certain people, it may be useful in running a family. Furthermore,
people must be educated about women's issues so that they do not perpetrate
such horrible atrocities against them, which is the main source of concern.
Given these considerations, the researcher believes that prostitution should be
legalized, with a regulatory authority overseeing the practice. He concludes
that legalizing and regulating prostitution protects the protection of sex
workers and children, as well as their rights.
The ultimate solution I feel is to
educate the people involved in this red market up to the level so that they can
be taught that there are other areas also that could look after their financial
demands than fall into this rat trap. Government should run campaigns in such
areas and should also collaborate with some NGOs to at least make children get
proper education and upskilling, in order to make them capable in themselves to
grow stronger and excel in other professions that could yield them more money.
[4] Krishnadas Rajagopal; March 25, 2022; Supreme Court recognises sex work as a ‘profession’; The Hindu
[5] The Supreme Court Order On Sex Work: How It Changes Things, And Laws
On Sex Work; The Outlook; June 2, 2022
[7] Yashi Verma; July, 2022; Legalization of
Prostitution in India; Legal Service India