“PROSTITUTION : A LEGAL ANALYSIS “

“PROSTITUTION : A LEGAL ANALYSIS “

ILE Legal Blog

19 Mar, 2023

“PROSTITUTION : A LEGAL ANALYSIS “

Author – Ananya Tiwari, Student of Karnataka State Law University

ABSTRACT

Prostitution is a very old continuous profession from the time of civilization and became part of Indian society. It basically means to provide sexual favour in return of money. In India, however it is not criminalized but some activities like soliciting, brothels, etc. is illegal. Now a days, victim of prostitution or basically prostitutes are not only women but also may be sometimes male or transgender too. Now a days, it became equivalent to exploitation, discrimination and obviously violence. Here, this paper evaluates the legal aspects from both Indian and international perspective and reasons for legalization in India. It also highlights the judiciary role in providing justice to prostitutes and declares regarding their fundamental rights while giving preference to live with dignity. This paper also focuses on recent judgment which has changed the scenario of degrading the sex workers like hell.

KEYWORDS – PROSTITUTION, CRIMINALIZED, SOLICITING, BROTHELS, EXPLOITATION, DISCRIMINATION

II.INTRODUCTION

“We say that Slavery has vanished from European civilization but this is not true. Slavery still exists but now it applies only to women and its name is Prostitution”

  • VICTOR HUGO

The above quote by Victor Hugo explains how women are deprived off from their rights. Though right to equality is enshrined in our constitution but in reality it does not exist. The word ‘Prostitute’ itself speaks about the women’s situation which is not the problem for India only but it’s for across the world. In India, more than 20 million commercial sex workers are there and worldwide estimation is around 40 to 42 million in which 80% of that are female mainly from age between 13 to 25. In India, as per Union Health Minister Report, Andhra Pradesh has highest number of native sex workers followed by Karnataka and Telangana. But when it comes to overall number of sex workers including migrant workers, then Maharashtra tops the list followed by Gujarat and Delhi.1  

DEFINITIONS

According to Black’s Law Dictionary2, ‘Prostitution’ means the act or practice of a woman who permits any man who will pay her price to have sexual intercourse with her. ‘Prostitute’ means a woman who indiscriminately consorts with men for hire. Generally we can say that giving body in return of money. According to international encyclopedia of social science3, Prostitution is a granting of sexual access on a relatively indiscriminate basis for payment either in money or in goods, depending on complexity of local economic system. As per The Immoral Traffic (Prevention) Act, 1986 4, ‘Prostitution’ means commercial sexual exploitation or abuse of persons for commercial purposes.

HISTORICAL BACKGROUND

Prostitution in India is an age-old profession. There are in fact, mentions of coitus workers in colorful Hindu mythological consequences appertained to as Apsaras. During the pre-colonial period, there was the devadasi system where it was a current practice among Hindus to give away their womanish child as a sign of their devotion towards god. Devdasi in a nonfictional sense means devoted to the god, which is they were married to god and weren’t needed to marry any mortal being. They were sexually delivered women who bettered in colorful art forms including classical cotillion and music. Still, colonialism brought a system of exploitation and repression. The British started reflecting their own societal restrictions on these women where they morphed the fundamentals of sexual emancipation, feminity, art, and culture into devotion, bhakti,etc., and further, with the dwindling feudalism and the end of colonialism, these women started getting mishandled by the tabernacle preachers. Thus, leaving them vulnerable to sexual exploitation and poverty is one of the oldest forms of prostitution in India.5

PRE-INDEPENDENCE

During the British rule, justice was administered by the zamindars. In Bengal and Madras, Mohammedan lawless law was in force, whereas in Bombay, Hindu lawless law was applied to the Hindus and the Mohammedan lawless law to the Muslims. The offences dealt under the present composition were grouped under a single chapter of ‘Social Offences’ and one finds just a citation of them without expounding the background. These offences have been hardly considered and set up their place in incremental legislations drafted post independence, as in case of The Immoral Traffic (Prevention) Act. The Indian Penal Code, 1860, drafted by Lord Macaulay, lays down certain vittles, which according to the conditions prevailing, acted as a ban on whoredom or any other kind of immoral behavior6. The activities which were made as offences were punishable by way of either fine or imprisonment. But there were some sections which does not ban prostitution but limits or restrict it as follows –

  • Sec. 268: under this section, it has been said that if a prostitute solicits customers in a public place or if a brothel is established and causes annoyance to the persons living in the vicinity, then it shall amount to a public nuisance.
  • Sec. 269: This section was enacted to prevent people from doing such acts, which are likely to spread infectious diseases, as the government is bound to ensure the welfare of the society. Presently, this section can be used against persons infected with AIDS, which is a disease dangerous to life, and continuing negligently to infect others.
  • Sec. 372 & 373: Both sections dealt with under the chapter of kidnapping, abduction, slavery and forced labor of the Indian Penal Code, makes it an offence to sell and buy a minor for the purposes of prostitution. A person who sells or lets on hire or otherwise disposes any person below the age of 18 years for the purpose of prostitution or for illicit intercourse with any person or for any unlawful or immoral purpose shall be punishable with imprisonment for a period which may extend to 10 years and shall also be liable to fine. Such an offence is non-bailable and the burden of proof shall lie on such person who has been accused of the offence to prove the contrary.7

POST-INDEPENDENCE

In the Constituent Assembly debate, the subject of prostitution was discussed at length and proposed to include a new entry in the Concurrent List or List III (Concurrent List includes subjects on which both the Centre and the State can legislate) of the seventh schedule of the Constitution. The entry was as regards regulation, control and maintenance of public houses, or in the alternative, regulation and control of prostitution and regulation, control and maintenance of public houses. Question rose regarding power to supervise the provision of prostitution on whom vested either on state or centre. After a huge discussion came at conclusion that problems regarding prostitution can be dealt by state in better way as it is a local problem.

  Upon a detailed reading of the Constituent Assembly Debates relating to the entry of control and regulation of public houses, our attention may be drawn to the Suppression of Immoral Traffic (in Women and Girls) Act which is a Central Act and was enacted pursuant to the signing of the International Treaty (Trafficking Convention) on 9 May, 1950 at New York by India. However, the Suppression of Immoral Traffic (in Women and Girls) Act was substituted by the Immoral Traffic (Prevention) Act, 1956 in the year 1986 (i.e. 26/01/1987). Prostitution and all related activities like pimping are presently governed by the Immoral Traffic (Prevention) Act, 1956.8

3. CAUSES OF PROSTITUTION

There were and in present time also there are many reasons to choose profession as prostitution though it’s difficult in choosing this one for some person but in present days mostly chooses this on their will. Some of the reasons can trace out are illiteracy (basically in Nigeria), poverty, unemployment (for both boys and girls), trafficking (include selling of either girl or boy and forcing them to indulge in sex work), personal lifestyle (sex workers call this profession as adventure and basically indulge in these kind of activity for their fun and enjoyment) and last and most dangerous one is laziness (they prefer it as it is the easiest way to earn).9

III.INDIAN LEGAL ASPECTS

The laws relating to sex work in India are provided under the Constitution of India, 1950; the Indian Penal Code, 1860 and the Immoral Traffic (Prevention) Act, 1956. The Constitution apart from the equality provisions and provisions of freedom of association, Right to life and Personal Liberty, guarantees prohibition of trafficking of human beings and forced labor, ensures denial of trafficking of individuals and constrained work. As preamble of constitution says that India is a sovereign, socialist, secular, democratic and republic country and equality of status, dignity, and opportunity must be secured for all the citizens of our country. Irrespective of gender, caste, religion, status etc. the constitution of India provides certain laws also which ensure right to equality, freedom etc. some of rights ensured under the constitution are:

  1. Article 14: Article 14 ensures right to equality under law which means that every citizen has a right to equality before law and has a right to live a life free from discrimination on ant grounds. It provides every citizen with equal opportunities.
  2. Article 15: Article 15 of Indian constitution ensures that there shall be no discrimination done on the basis of sex, caste, race, religion or place of birth. It states that state shall not discriminate any citizen on the basis of above mentioned cases.
  3. Article 21: Article 21 ensures right to personal liberty and life. It ensures that there shall be no person who would be deprives of personal liberty and life.
  4. Article 32: this article ensures that every citizen has a right to approach the Supreme Court for the enforcement of the right if he/she has been deprived of the same.10

The Immoral Traffic Prevention Act, 195611 is the main legislation drafted in view of prostitution in India. Section 3 of the Statute imposes imprisonment for two to three years with fine for keeping a brothel or allowing premises to be used as brothels. Section 5 imposes three to seven years of imprisonment with fine for procuring a person for the purpose of prostitution without their consent. Section 7 of the statute prohibits prostitution in or near a public place. The act however is silent on the trafficking of children and on the violence and cruelty imposed by the clients on women. In the case of Smt. Afjal vs State Of U.P.12, the accused ran a brothel and detained minor girls for prostitution. The accused was found guilty under the provisions of the act, and the minor girls were rescued. There are laws regarding prostitution in The Indian Penal Code as well. Section 366 Clause (A) of the IPC13 talks about the procuration of a minor girl for illicit sexual intercourse and prescribed punishment for the same. Clause (B) of the same talks about the importation of a girl from an alien country for the purpose of prostitution. In the case of Fateh Chand v. State of Haryana14, a man was booked under section 366 for procuring a minor girl for prostitution.

Section 372 and 373 of the IPC15 prohibit the selling or disposing of a minor girl knowing that such a girl will be roped into prostitution, and buying or hiring of a minor girl to force her into prostitution respectively.  Here, the law is silent again regarding punishment of clients or brothel keepers for subjecting a prostitute to violent harm. It neither compels the use of condoms, nor contains provisions for the healthcare of sex workers, and as a result of this, there is a spread of HIV/AIDS and also pregnancy causing a population boom.16

IV.INTERNATIONAL LEGAL ASPECTS

The contributions for the protections can be acquired by the use of these instruments and must be outlined in a wider perspective. The two instruments which have come to be associated with the defense of fundamental human rights of individuals are the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which is may be the best legal foundation for the protection of sex workers. The primary international legal framework for the defense of human rights is the Universal Declaration of Human Rights (UDHR). The International Covenant on Civil and Political Rights is another instrument which came to be associated with safeguarding individuals’ fundamental human rights. Declaration of Human Rights (UDHR) preamble states that men and women have equal rights and dignities, the right to life and liberty, equal protection under the law, the right to be free from all forms of slavery and servitude, the right to be protected from arbitrary invasions of one’s privacy, one’s family, one’s home, or one’s correspondence, the right to work, the right to free employment, and the right to fair and beneficial working conditions. The importance of this right is specially felt by those who work in the sex industry. A person has the right to an appropriate standard of living, which includes having access to housing, food, clothing, healthcare, and other crucial social services. This is a very significant right. Therefore, the protection of those who work in the sex industry is in line with a number of fundamental rights and principles that are outlined in the Universal Declaration of Human Rights. Similar rights are reflected in the International Covenant on Civil and Political Rights (ICCPR), which emphasis on the right to freedom of association. For granting this right, it must be in the interests of public safety, national security, the preservation of morals and public health, or the defense of other people’s rights and effective anti-discrimination measures. CEDAW contains provisions which deals with issues related to prostitution and human trafficking as well as the right to choose one’s profession and workplace. The CEDAW, or Committee on the Elimination of Discrimination against Women, recognized that unemployment and poverty can drive many women into prostitution and these women are “particularly vulnerable to violence because of their status, which may be unlawful.17

V.REASONS FOR LEGALIZATION OF PROSTITUTION IN INDIA

On November 8, 2014, a proposal was put before a Supreme Court constituted panel to legalize prostitution in India. The panel was set up on a public interest litigation filed by the Bachpan Bachao Andolan in 2010 seeking a curb on large scale child trafficking. A Supreme Court bench of Justice Dalveer Bhandari and Justice AK Patnaik questioned the Solicitor General: “When you say it is the world’s oldest profession and but you are not able to curb it by laws, why don’t you legalize it?”The court, presided over by a bench of two judges, said no legislation anywhere in the world had successfully managed to stop the sex trade. Hence there are some following reasons for which this profession should be legalized as follows:

HIV/AIDS: India has the third largest HIV epidemic in the world. In 2015, HIV prevalence in India was an estimated 0.26%. This figure is small compared to most other middle-income countries but because of India’s huge population (1.2 billion) this equates to 2.1 million people living with HIV. 18

 SEX WORKERS AND HIV/AIDS: An estimated 2.2% of female sex workers in India are living with HIV and varies between states. For example, one 2013 study cited HIV prevalence among sex workers in Maharashtra at 17.9%, Manipur at 13.1%, Andhra Pradesh at 9.7% and Karnataka at 5.3%.

 Discrimination against sex workers restrict their access to healthcare. A 2011 study in Andhra Pradesh indicated a significant association between police abuse and increased risk of HIV transmission and inconsistent condom use.19

TRUCK DRIVERS PAYING FOR SEX AND SPREAD OF HIV/AIDS: A number of studies from India have reported high vulnerability of truckers to HIV transmission. NACO estimates that 2.59% of the two million truckers in India are living with HIV. NACO also categorizes truck drivers as a bridge population because truck drivers often have unprotected sex with high-risk groups such as female sex workers as well as their regular sexual partners, which increases the risk of transmitting HIV into the general population. A 2012 study found 47% of truckers reported paying for sex, of whom only 40% had used a condom. 20

Hence, there are numerous health benefits by legalizing this as it will reduce HIV/AIDS problems.

It will also reduce violence and abuse of women. It may also able to eliminate pimps and middlemen and basic wages can be given to sex workers and also it will help police to concentrate on their work and try to protect the rights of sex worker rather than enjoying those. Many countries like Canada, France, Germany, Denmark, etc. legalized the prostitution as its abolishment is highly impossible.21

VI.JUDICIARY ROLE

Judiciary plays a vital role to protect and grant the rights and limits which even sex workers deserve similar to every common people. In the case of Budhadev v. state of West Bengal,22 where appellant was found guilty and here court stated that Prostitutes are also a human being who entitled to live life with dignity under Article 21 and ordered government to develop sex worker rehabilitation plans. Also suggested that one should not degrade dignity of sex workers and should not look down on prostitutes as inferior humans.

In the case of Kaushalya v. state of Uttar Pradesh,23 number of prostitutes had to be evacuated from their homes in order to maintain decorum of Kanpur city. This was held as constitutional valid though it violates the basic rights of the prostitutes under Article 14 and 19(1) of the constitution as they were producing nuisance which may disturb the order and decorum of the society.

In the recent case Kajal and others v. state of Maharashtra,24 where Bombay High Court held that prostitution is not a crime under Immoral Traffic (Prevention) Act 1956 and every adult woman has right to choose her profession and cannot be detained without her consent or will and court set free 3 sex workers.

VII.CONCLUSION

Though prostitution is existed in our country since ages but in early days never degraded. After ancient period, the exploitation and violence compels kings or ruler of the state to make laws and regulation to stop these. Currently, prostitution is legalized in some countries and suggested to legalize in India. Though it is not legalized yet but still protects the rights and dignity of every sex workers through judicial pronouncement  but soliciting sex and forcing child to involve in that is still illegal under IPC only this profession done by will is allowed as sex work is recognized as human right. Hence from my point of view it should be legalized in India also.

REFERENCES

  1. https://timesofindia.indiatimes.com/city/vijayawada/andhra-pradesh-has-highest-number-of-native-sex-workers-says-union-health-minister-report/articleshow/96359559.cms
  2. Henry Black, black’s law dictionary (west publishing co., 4th edn. 1968)
  3. International Encyclopedias of Social Sciences, Vol. 12, 1968
  4. The Immoral Traffic (Prevention) Act 1986, No.44 , Act of Parliament (India)
  5. https://lawrato.com/indian-kanoon/criminal-law/is-prostitution-legal-in-india-2838
  6. Rohini Sahni, Prostitution and beyond, ISBN (2008) available at https://www.researchgate.net/publication
  7. Ratanlal and Dheerajlal, Indian Penal Code , (lexix nexis , Haryana , 36th edn. 2021)
  8. ibid
  9. https://www.legalserviceindia.com/legal/article-3392-legalization-of-prostitution-in-india.html
  10. INDIA CONST. art.  14, 15, 21 and 31
  11. The Immoral Traffic (Prevention) Act 1956 Act no. 104 of 1956
  12. 2012(77) ACC 7(HC)
  13. The Indian Penal Code , 1860 S 366, No. 45, Acts of parliament, 1860 (India)
  14. (1977)2 SCC 670
  15. S 372 & 373 , The Indian Penal Code
  16. Yuktha Suresh, legalization of prostitution in India, Vol 4 (2) IJLMH (2021) at https://www.ijlmh.com
  17. Shweta Joshi & Namita Jain , legalization of prostitution in india : jurisprudential analysis ,  Vol.6(9) JPSP (2022) at https://journalppw.com
  18. Govt. of India, Report of NACO, (ministry of Health and Family Affairs, 2015-16)
  19. Apoorva, J et al (2013) ‘risky behaviours among HIV positive female sex workers in northern Karnataka, India’ AIDS Research and Treatment 2013
  20. NACO July 27 , 2016 ‘annual report 2015-16’ from https://naco.gov.in/documents/annual-reports
  21. Pragati Pawar, need and possible consequences of legalization of prostitution, 3 supremo amicus 417 (2018) at https://heinonline.org
  22. 2011(8) SC 289
  23. 1964 AIR 416
  24. 2020 SCC 954