Legalization of Prostitution By- Siya Sharma
Legalization of Prostitution
Authored By- Siya Sharma
Prostitution is defined as the practice of engaging in relatively indiscriminate sexual activity,
in general with someone who is not a spouse or a friend, in exchange for
immediate payment in money or other valuables.[1] Often considered as one of
the oldest professions in the world, prostitution has been a part of our
society ever since civilisation has come into existence. Perceptions and
stereotypes surrounding prostitution vary from culture to culture however, when
we specifically talk about India, prostitution has always been looked as a
taboo. Prostitution has been a central part of the ancient Indian culture,
either under the ambit of Devadasi or Vatsyayna’s Kama Sutra.
While the profession of prostition has sustained
for centuries in India, the laws governing it still demand a lot of regulation.
The business of prostitution is worth Rs 40,000 crores annually with around 10
million prostitutes in India and about 1,00,000 alone in Mumbai making it
Asia’s largest sex focus industry. These figures are a realisation of how big
this industry is and how important it is for us to bring regulations in this
industry. Despite, the fact that there are a number of rules and regulations
governing and protecting our human rights yet, for most it’s difficult to find
them in action.
Immortal Trafficking
Act, 1956
Immortal Trafficking Act, 1956 is one of the
primary legislations on prostitution that was enacted with the aim of reducing
prostitution in India. However, this particular act didn’t ban prostitution as
a profession. However, it did bring certain restrictions in the working of
prostitution.
Section 2(f) of the Immortal Trafficking Act of
1956 defines prostitution as sexual exploitation or abuse of a female for monetary
purpose and a prostitute is a person who gains the commercial benefits.
Under this particular act, a fine and an imprisonment
of about 2 or 3 years is given for practicing prostitution in a certain place
or operating a brothel. Although, nowhere in this particular act, prostitution
has been explicitly called illegal but a few activities like operating
brothels, trafficking, soliciting and pimping are all punishable offences. Even
if a single instance of prostitution is caught being conducted in a particular
place, it is enough to show that prostitution is being conducted and therefore,
people who were involved in can be penalised for the same.
Section 3 of the Immortal Trafficking Act to Section 9 of the Immortal Trafficking Act
lists offences which are punishable under this legislation-
·
Section 3- Punishment for keeping a brothel or allowing
premises to be used as a brothel.
·
Section 4- Punishment for living on the earnings of
prostitution.
·
Section 5- Procuring, inducing or taking a person for the
sake of prostitution.
·
Section 6- Detaining a person in premises where prostitution
is carried on.
·
Section 7- Prostitution or in the vicinity of the public
places.
·
Section 8- Seducing
or soliciting for purpose of prostitution.—Whoever, in any public place or
within sight of, and in such manner as to be seen or heard from, any public
place, whether from within any building or house or not.
·
Section 9- Seduction or of a person in custody- Any person
who having the custody, charge or care of, or a position of
authority over, any person, causes or aids or abets the seduction for
prostitution of that person shall be punishable on conviction
with imprisonment of either description for a term which shall not be less than
seven years but which may be for life or for a term which may extend to ten
years and shall also be liable to fine: Provided that the court may, for
adequate and special reasons to be mentioned in the judgment, impose a sentence
of imprisonment for a term of less than seven years.
In 1986, this particular act was amended wherein
instead of young girls, all people be it male or females who are sexually
exploited for commercial purposes were included. Therefore, an act which was
initially a gender biased act, amended to cover males as well as females.
In Ratnamal and Another Vs Respondent AIR 1962[2],
it was held that the Immortal Trafficking Act of 1956 mainly aims at abolishing
trafficking of women in a commercialised manner.
In Sahyog Mahila Mandal V State of Gujrat
(2002)[3], the high court refused to
recognise prostitution as a legitimate way of living. As calling prostitution
as a legitimate profession will open a pandoras box for women to be trafficked
and this could also be misunderstood as a fundamental right.
Child Trafficking
This Immortal Trafficking Act also doesn’t talks
about child trafficking as well as violence faced by other women. As a result,
in the case of Smt. Afjal Vs. State of U.P., the accused was running a
brothel with minor girls and was forcing them down towards the path of
prostitution. However, only the accused was penalised and the minor girls were
let free because of the statutes that were outlined in this act.
Although, legislation against child trafficking can
be found in the Indian Penal Code (IPC) under clause 366 which
categorically criminalises employing underage girls in sexual activities. This
section also prohibits bringing minor girls from foreign countries and solely
engaging them in sexual activities. An example of this could be seen through
the case of Fateh Chand v. State of Haryana wherein the defendant was young man
who was accused of forcing a minor girl down the path of prostitution,
therefore, violating section 366.
Furthermore, Section 372 of the Indian Penal
Code penalises the act of selling a minor girl with the prior knowledge of
pushing her into the profession of prostitution.
Section 373 of the Indian Penal Code punishes the act of purchasing a girl with the
motive of driving her into the profession of prostitution.
Deficiencies in the
working
However, this particular act has some deficiencies,
the acts primary focus lies on identifying brothels as a place where
prostitution is being carried out and arresting people who assist it rather
than focusing on trafficking which was the primary reason as to which this act
was written in the first place.
More so, although, this act was a big step in the
governance of prostitution but the ground level reality remains untouched. The
fact that the police officers still arrest prostitutes instead of the brothel
owners and the so called clients shows the hypocrisy and the judgemental nature
of these stakeholders of our democracy. Thirdly, the living condition of the
rehabilitation centre and safe houses for girls who went to move away from this
darkness is also safe. The n umber of safe houses and women’s home are less
than the needed number neither do they guarantee safety and security to these
young girls.
Lastly we can clearly notice a problem which can be
recognised in all these acts is how no legislation has been made for prohibiting
brothel owners from inflicting physical damage or abuse on these young girls.
Adding on, it doesn’t specifies the need for using contraceptive and condoms or
others ways of prohibiting unwanted pregnancies as well as protecting these
young girls from getting any sexually transmitted diseases like HIV/ AIDS which
can be life threatening and also lead to an increase in the population of the
country.
Prostitution a Legal
Work
Supreme court in its latest landmark judgment
constituted prostitution as a legal profession where the sex workers are
entitled to the same level of dignity and safety as any other citizen in the
country. The three judge bench led by Justice L. Nageswara Rao stated that “It need not be gainsaid that notwithstanding the
profession, every individual in this country has a right to a dignified life
under Article 21 of the Constitution,” and further said that “Sex workers are
entitled to equal protection of the law. Criminal law must apply equally in all
cases, on the basis of ‘age’ and ‘consent’. When it is clear that the sex
worker is an adult and is participating with consent, the police must refrain
from interfering or taking any criminal action,”
The bench passed the orders by using their
special powers under article 142 of the Indian Constitution. Further directed
that sex workers should not be harassed or penalised if a raid is made in
brothels as practicing prostitution is not illegal but running brothels is.
They also further directed that a child of a sex workers can also not be
separated from the mother just merely because of their profession and it cannot
be always concluded that all minors present in a brothel are trafficked, before
concluding its necessary to ask people around and conduct a DNA test to
substantiate their plea.
The court called out the attitude of police
officers and instructed them to treat sex workers with the same dignity and
respect as any other citizen and if a sex workers comes in a to lodge a
complaint it is important to investigate the matter and a lot of care should be
given to not revealing the sex workers identity.
Lastly, it is also noteworthy that
prostitution was never banned or illegal in Indian but certain practices
related to prostitution were banned in India.
Hidden troubles due
to legalisation of prostitution
While it was important to be recognised as a legal
profession however, a lot of criticism also surrounded that decision.
1.
A number of feminist
suggested that legalising prostitution can also lead to an increase in the
number of trafficking cases in India and forcing more females to join the
profession of prostitution. With time it’s difficult for these girls to go back
to their original roots as a result, they voluntarily stay back.
2.
Another outlook is
that how more regularisation will make uncover their identity and can lead to
more mental anguish and embarrassment and societal pressure. A number of these
girls prefer to live respectful lives during day.
3.
This could also lead
to rise in the number of people involved in the practice of prostitution therefore,
promoting people to force more women into this profession and therefore leading
to commodification of women.
4.
Lastly, although, a
lot of countries have legalised prostitution but these countries come under the
ambit of developed countries which can provide better facilities to these
victims unlike a country like India which is still developing and has shortage
in providing these facilities.
Conclusion
Prostitution has always been seen as taboo in India
and has always been perceived as something which needs to be hidden away from.
But it’s imperative for us to understand that an industry as big of that of sex
workers in India calls for regulations and laws. Sex workers are as old as
civilisation so shying awa y from them and will not lead us anywhere. It’s
important we regularise their rights and give them the dignity they deserve
socially as well as legally. While there are a plethora of rights it’s
important those laws are being used in the right places and by the right
people. This needs to be a joint effort and therefore, the entire community
needs to come together and stand by these injustices faced by these sex
workers.
References
1. International Journal of legal Developments and
Allied issues volume 4 issue 3 - Legalization Of Prostitution in India by
Anushka Ambli
2. Legalisation of Prostitution in India- A
Jurisprudential and Psychological Analysis
By- Ms Shweta Joshi and Dr Namita Jain
3. The Hindu- Supreme Court recognises sex work as a
‘profession’
4. Policing organized sex
work in India: a critical analysis of the Immoral Traffic (Prevention) Act,
1956
5. The Immortal Prevention Act, 1956
6. The Immortal Prevention Act, 1986
7. A Critical Analysis of
Immoral Traffic (Prevention) Act, 1956 with Special Reference to Criminal
Amendment Act, 2013-
8. THE PROSTITUTE DILEMMA – Legalization Of
Prostitution And Its Effect On Human Trafficking
9. Protecting the Rights
of Sex Workers: The Indian Experience