Institute of Legal Education

Author – AYUSH KAPOOR, Student from AMITY LAW SCHOOL, NOIDA.

INTRODUCTION

Prostitution is the practice or business of engaging in sexual behaviour for monetary gain, and a prostitute is someone who works in this sector. Prostitution has several forms, and its legal position varies from country to country, as well as from region to region within a country, ranging from an upheld or unenforced transgression to an uncontrolled and directed vocation. The sale of sexual services for money, such as oral sex or sexual intercourse, is known as prostitution. The word “prostitution” itself denotes a woman’s plight.

It is not just a problem in India; it’s a problem all across the world.

HISTORY OF PROSTITUTION

Prostitution is not something which emerged only in modern world, but it has traces from the ancient times which can be seen through the pages of history.

In ancient Greece, prostitution was a common occurrence. It employed a considerable proportion of the population and constituted one of the highest levels of economic activity in the more important cities, particularly the many ports. There was a law in the ancient city of Heliopolis, Syria, that every girl should prostitute herself to strangers at the shrine of Astarte.

The practice of “dedicating” girls to Hindu gods grew popular about the 6th century, and eventually evolved into ritualized prostitution. Devadasi literally means God’s (Dev) female servant (Dasi), when young pre-pubertal girls are ‘married off’, ‘given away’ in matrimony to God or the temple’s local religious god, according to ancient Indian custom. The girl is frequently married before she reaches puberty, and she is forced to work as a prostitute for upper-caste community members. The girls were referred to as jogini. Before the British control, the Devadasi were regarded with deference and respect by the Royal families, according to historians. No one, not even the Kings and Mughals, intended to touch them.

However, as the British arrived in the country, this came to a stop. The Devadasis began performing their talent in front of British officers, which led to the very first one-night stands. The British began calling these artists for sexual pleasures, which paved the way for prostitution in India. The decline of dances in the temple during the British rule was due to Devadasi’s conversion to prostitution. During the British reign, the Indian economy deteriorated, and the majority of people were unable to meet their basic needs. Women began offering their bodies to British citizens in exchange for money.

Everything has a process through which it evolves and so was the prostitution and the growth of prostitution and sex workers has not come to an end yet.

Let us now scrutinize the reasons due to which profession of prostitution is prevalent now.

REASONS FOR PROSTITUTION

POVERTY: The helpless woman is forced into prostitution due to a lack of finances. Money is a crucial regulating component in our lives, and for survival, people engage in a variety of activities to get money, whether legitimate or illicit.
HUMAN TRAFFICKING: According to data from the National Crime Records Bureau (NCRB), 6,616 cases of human trafficking were reported in India in 2019, up from 5,788 cases in 2018 and 5,900 cases in 2017. According to Human Rights Watch, India has more than 20 million prostitutes, with 35 percent of them starting their careers while they were under the age of 18 years old. Human trafficking thus is one of the main reasons behind the growth of this profession.
THE SITUATION OF WOMEN: Everyone talks about women’s empowerment and gender equality, but the reality is that women are still treated like machines or devices for personal uses. One of the main reasons for India’s prostitution crisis is the mindset of viewing women as nothing more than a tool for fulfilling sexual desires.
URBANISATION: Urbanization has promoted the growth of free enterprise, which has exacerbated class stratification by increasing the prevalence of poverty, unemployment, crime, and alienation. As a result of this circumstance, prostitution has become more prevalent as a means for people, particularly women, to cope with the harsh economic realities.

The reasons cited are not exhaustive but there can be many other reasons such as caste practices, antiquity of prostitution, etc. which are a helping hand in the growth of this problem in India.

LAWS RELATED TO PROSTITUTION IN INDIA

Suppression of Immoral Traffic in Women and Girls Act, 1956 (SITA) keeps track of the plight of sex workers in India. This clause stipulates that soliciting prostitution settings is only permissible when done in private; nonetheless, they are not permitted to transmit the activity in public. Only in a personal room is it permissible to exchange sex for money. Despite this, there are still limitations, such as the fact that a woman cannot use these settings within two hundred yards of a communal place.

Immoral Traffic (Prevention) Act, 1986, was legislated as a supplement to SITA. This Act made certain prostitution-related activities illegal. This Act does not make it illegal for prostitutes to provide services, but it does make it illegal for third parties to support, aid, or facilitate these events in public.

Procurements have been issued for the imprisonment of a prostitute who has been accused of enticing others to gain her cooperation. Furthermore, call girls are not allowed to reveal their phone numbers. These actions are punishable by a six-month jail sentence.
Criminals and other characters who live off the interest earned by prostitutes are also subject to a penalty of 2 to 4 years under the Act.
Keeping any woman in a brothel under extreme duress to provide sexual assistance is also prohibited by the Act for a minimum of seven years and obtaining prostitution services in hotels is also prohibited.
Despite these restrictions, many brothels operate in cities such as Delhi and Mumbai.

The Immoral Traffic (Prevention) Act of 1986 focuses on the restoration of sex workers and establishes requirements for victims’ well-being. Restoration entails providing legal, mental, well-being, and educational aid to victims to enable them to reintegrate into society as normal human beings. For these initiatives, which are overseen by the State Government, it establishes guarding restoration houses.

The Indian Penal Code, 1860, covers prostitution as well, however it focuses on kidnapping and child prostitution. Sections 372 and 373 make it illegal to buy, sell, or import minors for the purpose of prostitution.
Under Article 23(1) of the Indian Constitution, trafficking of human beings, beggars, and other similar forms of forced labour are prohibited, and any violation of this provision is a crime punishable according to the article 23 (2).

Supreme Court in the recent judgment of case Budhadev Karmaskar v State of West Bengal & ors [1]held that prostitution is a profession & all sex workers are entitled to dignity & equal protection under the law.

The three-judge bench consisting of Justice L Nageswara Rao, BR Gavai & AS Bopanna gave directions for safeguarding rights of sex workers & and said that if the sex worker is adult and participating with consent then police must refrain from interfering or taking any criminal action.
Supreme court said that the sex workers should not be arrested, penalised or harassed through raids on brothels because voluntary sex is legal and only running brothel in illegal. In addition to it, the court also ordered for non-discriminatory behaviour towards sex workers.
The Court also ordered that no child or sex worker shall be separated from their mother merely because they are involved in sex trade.
Also, if any sex worker is a victim of sexual assault, she must be provided with all the facilities available for victims of sexual assault in India.
The supreme court also ordered that the sex workers should be issue Aadhaar cards as per the regulations of UIDAI.

CONCLUSION:

Constitution of India provides for right to equality under Article 14 and no one can be deprived of equality before law and equal protection of laws as per the constitution. Everyone in the territory of India is given the equal status by then constitution of India Sex workers are not different but indispensable part of the society. Legalizing the profession of sex workers would reflect the progressive nature of human society and all involving attitude of Indian society. Prostitution’s history can’t be ascertained as to when it started but it has been in existence in our society since so long. By legalizing the profession of sex workers in India, the sex workers will get the labour rights and the regulations would ultimately ensure them a dignified life for which they are struggling from a long time. The legalizing of sex worker as a profession does not mean legalizing the practice in every possible form like having intercourse in public, running brothels, and trafficking minor girls for prostitution. The fact is prostitution cannot be eradicated from the society but there can be some regulating laws in the favour of sex workers because after all right to profession is also fundamental right. Some rights such as right to work without fear or restrictions, right to speech and expression, right to form organisations as per labour laws are only possible when the sex workers and their professions are legalised.

So, for ensuring a dignified life and rights of equality for the sex workers, it is important to legalise the profession of sex workers and Judiciary has taken a commendable step in this direction.

REFERENCES

[1] Budhadev Karmaskar v State of West Bengal & ors ( Criminal Appeal No(s).135/2010 )

Prostitution