PROSTITUTION – A Legal Overview

Author – Vidhi Sharma, Student at Chandigarh University

ABSTRACT

Prostitution has always been a debatable issue in the society. In cases related to prostitutes and sex workers, judiciary keeps on giving judgements and keeps on revising provisions. Conflicts occur whenever rights, opportunities and welfare of sex workers are considered. This article aims to analyse various views, provisions and interpretations related to prostitution. This article talks about landmark judgements, The Indian Penal Code,1860 and The Immoral Traffic Prevention Act, 1956 and their respective provisions on prostitution. Moreover, this article states out the difference between the legality and the illegality regarding prostitution in India.

Keywords- Prostitution, Sex workers, provisions, rights, occupation

INTRODUCTION

When a person engages himself or herself in the business or practice of providing sexual activities especially in the return of monetary benefit, is known to be indulged in prostitution. Many refer prostitution as commercial sex, hooking up, or sexual services. A person who is engaged in providing sexual services or is engaged in prostitution is known as a sex worker or a prostitute. Prostitution has various forms and its status is different in different countries and regions. Some view prostitution as a good means of earning bread while some think this to be an evil or a wicked thing that makes a person’s character a bad one. The interpretation, acceptance and theories on prostitution is different in every person’s mind. Few find it difficult to accept while some completely respect that. Few notions view prostitution as an exploitation or slavery of women and tends it to be an illegal business while few notions find it completely legal or legitimate.

Legally considering, prostitution is not an offence as per the Indian Penal Code,1860, but it has some limitations and restrictions. Talking about Immoral Traffic Prevention Act, 1956, exploiting someone sexually, running or managing brothels[1],solicitation , seducing someone etc- are illegal and criminalised.

PROSTITUTION: AN OCCUPATION

Various surveys and researches have drawn a conclusion that majority of the people choose prostitution as their career because of their financial crisis. Few have sexual curiosity. Poverty, lack of literacy and education, destitution etc- are the main causes that compel people to choose prostitution as an occupation. Even many people find the working conditions and flexible working hours in this profession better than many other professions. There are number of people who have an influence from their families to join prostitution to earn a basic livelihood.

PROSTITUTION: HAZARDOUS TOWARDS HEALTH

People who engage in prostitution suffers from both physical and mental health problems at a very large level. Many prostitutes or sex workers have depression, traumatic stress, suicidal thoughts, low self-esteem, guilt and fear of acceptance. Talking about the physical health of the sex workers, they are more prone to the sexually-transmitted diseases like HIV,AIDS , very frequent abortions, drug usage etc-. “The mortality rate[2] of the sex workers is 40% higher than the normal average people”[3]. The commercial prostitution mainly offers very poor hygiene and pathetic working environment to the sex workers. Many of them are forced to work throughout the day which worsens their mental and physical health conditions.

The main reason of all the sexually transmitted diseases to the prostitutes is the urge of the customers to have an unprotected sex with the sex workers. The prostitutes are given no authority to reject this which leads to an increased risk of getting an infection.

PROSTITUTION: LEGAL VIEW IN INDIA

In countries like India, where people are driven by their morals and values, prostitution is considered as unholy, immoral and unacceptable for the majority of the people. The sex workers are often treated disrespectfully and are subjected to no decency. People regard sex workers as a separate section of the society. In order to provide sex workers a safe, decent and acceptable environment, the Supreme Court of India, declared that the sex workers in India must receive good and decent treatment plus the police officers should stop taking any legal actions towards the people who are engaged in prostitution with their valid consent. The main aim towards legalising prostitution is to limit the trafficking of people and to provide equal health, earning and social facilities to the sex workers also. Regulation of it was in pursuance of the Article 19, Article 21 and Article 23 of the Constitution of India.

The Supreme Court Bench of Justice Nageswara Rao, Justice A.S Bopanna and BR Gauai, held that as per Article 21 of the Constitution of India, every person is entitled to have a dignified life so do the sex workers. The Supreme Court of India also held that consensual commercial sex is legal while running a brothel is illegal in India.Whenever there is raids by the police on any brothel, only the authorities running it should be prosecuted and no sex worker should get harassed or arrested . It is quite obvious that a sex worker, who is voluntarily engaged in prostitution should be prevented from criminal proceedings against the profession.

Prostitution as an occupation in India is governed by the Immoral Traffic Prevention Act,1975, Indian Penal Code, 1860 and the Juvenile Justice Act,2015.

The Immoral Trafficking Prevention Act ,1956 states that prostitution is the “sexual exploitation or misuse of any person for any business purpose.”[4] Even in Sections 366A, 366B and 370 of IPC[5], procreation of minor girls, importation of girls for sex and exploitation after trafficking people is illegal. Talking about Juvenile Justice Act,2015, prostitution of minors is criminalised and is subjected to serious punishments and penalties.

PROSTITUTION: LEGAL VIEW IN DIFFERENT COUNTRIES

When legal policies and framework of various countries regarding prostitution is considered, there are three broad classifications. These classifications are based upon the laws, precedents, researches, decrees etc- Few countries have banned the practice of prostitution while few have accepted it and have worked towards empowering the sex workers with social status, respect and equal protection and treatment.

Countries like Argentina, Austria, Bangladesh, Brazil, Germany, New Zealand, India etc- where prostitution is legal. There are no restrictions imposed on consensual prostitution and it is not subjected to punishments and penalties.
Countries like France, Australia, Canada, Iceland, Japan, Norway, United Kingdom etc- where prostitution is limitedly legal.
Countries like China, United Arab Amirates, South Africa, Saudi Arabia, Iran, Iraq, etc- where prostitution is completely illegal.

PROSTITUTION: A VIEW OF THE SOCIETY

Prostitution has always been a taboo in the places where religions, customs, morals, traditions etc – prevail. People have different ideologies when this occupation is considered. Prostitution is forever a topic of debate and conflict among various masses and their respective points of view. A functional mindset will regard prostitution as a source of income. This mindset will find it important for a particular section of the society that earns because of this. A conflict mindset thinks that because of prostitution, there are various inequalities in the society. A feminist mindset thinks that prostitution considers women as objects and this occurs mainly because of the dominant nature of men and the patriarchal compulsion on women to earn money via providing sexual services.

Simply stating, people with conservative and orthodox beliefs regard prostitution as unholy and immoral. They think it is a crime to offer sex for money and it is the moral decay of the society and its people. These people support illegality of prostitution and support strict laws towards it. Secondly, people with wide mindset completely accepts it and believes that legality of prostitution reduces the risks and harms associated with it. Although this section of society is very small in number. Still people have to widen their views on the topic.

PROS OF FOLLOWING THE DIRECTIONS OR ORDERS OF THE COURT REGARDING PROSTITUTION

If the Centre and the State follows the orders issued by the Courts regarding prostitution, then the position and condition of the sex workers in the society will definitely improve. After walking on the path prescribed the Courts, the society will become a beautiful world for the sex workers as well. Equal legal opportunities, aid and protection will be ensured to the prostitutes. The police will seriously look into the complaints filed by the prostitutes regarding harassment, trafficking etc-. The police will look them as victims and will give them assistance as the normal citizens. The sex workers will not be criticized, harassed , arrested or fined by the police if there is a raid on a brothel. The media will also not be entitled to click, share and publish any report disclosing or targeting the identity of the sex workers. The sex workers will be given equal opportunities in medical and financial sections. Campaigns will be there empowering the rights of the sex workers. Even the children of the sex workers will no be discriminated and will be given equal rights to get education, protection and care.

Therefore, the Centre and the States are always advised to follow the instructions given by the Courts in order to make the society a better and secured place for the prostitutes.

PROSTITUTION: LANDMARK JUDGEMENTS

“Budhadev Karmaskar v. State of West Bengal”[6]

In the above cited case, the endangered condition of the sex workers in the society was questioned. The judgement in this case ensured the secured rights to the sex workers as per the Article 21 i.e., “Protection of Life and Personal Liberty” of the Indian Constitution. This landmark judgement also urged the Supreme Court of India to frame proper regulations and guidelines while considering the situation of the sex workers. This judgment by the Court stated that the sex workers are also human beings rather than the mere commodities or the sex objects. They are also entitled to equal rights and protection as the other citizens of India.

“Gaurav Jain v. Union of India”[7]

In the above cited case, the Court emphasised on the rights of the children of the prostitutes as those children face a lot of criticism and are often judged by the profession of their parents. Therefore, in this case the Supreme Court of India held that the children of the prostitutes must have proper and equal rights of care, protection and educational opportunities. The court mentioned Article 14, 15, 16, 21, 23, 24, 45, 46 and came to the conclusion that social and economic welfare should be ensured for every child and every child should be accepted with both hands open.

“Kajal Mukesh Singh and Others v. State of Maharashtra”[8]

In this landmark judgement, it was held that there is no provision in the Immoral Traffic Prevention Act,1956 that penalises or criminalises prostitution or the person indulging in that. The Court put froth that allowing prostitution from a place is completely illegal but consensual prostitution is not an offence and a woman has the full and proper right to choose her occupation in order to earn a livelihood.

CONCLUSION

From the above stated facts, statements, case laws, researches and arguments it can clearly be said that if a major person indulges herself or himself in prostitution, it is not illegal. People should accept the laws, provisions and judgements made by the law makers regarding the prostitution. Prostitutes or the sex workers are entitled to equal dignity, respect and opportunities. They must receive counselling and support whenever it is needed. Medical support should be given to them at their will. It is also held that the sex workers should be treated as a victim rather than the accused whenever they register a complain. In country like India where people value their religions, customs and ancestral beliefs, prostitution is still a big issue and is difficult to accept. Therefore, everybody should accept and respect every occupation equally without any bias.

REFERENCES

[1] A place where people pay to have sex with the prostitutes.

[2] Ratio of number of deaths in the year to the average total population of the year.

[3] Canadian report on prostitution

[4] Section 2(f) of Immoral Trafficking Prevention Act,1956

[5] Indian Penal Code,1856

[6] SC 289, 2011.Online SC 704

[7] 1990 AIR 292,1989

[8] Criminal writ petition no. 6065 of 2019