History of Prostitution:
In India, it took the route of devotion and giving everything to a certain higher authority. Anciently, there existed the Devadasi system where it was a prevalent practice among Hindus to contribute their female child for the purpose of dancing in temples and worship of God or for God in high heaven according to Hindu mythology. However, with diminishing feudalism, these so-called Devadasis lost their protectors and care takers and thus were mishandled by the temple priests. This led to the emergence of prostitution. This practice further flourished in the British era when Britishers curbed the traditional textile industry, weaponry, etc. and these communities had to turn to prostitution for livelihood and thus exploited and practiced openly.
Is Prostitution legal in India?
In the Indian context, prostitution is not explicitly illegal though pronounced to be unethical by the Court, certain acts that facilitate prostitution are regarded as illegal. Acts like managing a brothel, living off the money procured by means of prostitution, abduction leading to selling of children or adults to brothels, soliciting or luring a person into prostitution, traffic of children and women for the purpose of prostitution, etc. are made explicitly illegal by the Immoral Traffic (Prevention) Act, 1956 (ITPA).
For example, running a sex racquet is illegal or conducting a business, but private prostitution or receiving remuneration in exchange for sex with consent without prior solicitation isn’t said to be illegal.
Laws related to Prostitution:
ITPA defines “prostitution” as sexual exploitation or abuse of a female for monetary purposes and a “prostitute” is the person who gains that commercial benefit. The Indian Penal Code of 1860 also deals with prostitution but it is limited to child prostitution. However, it attempts to combat activities such as kidnapping in general, kidnapping for the purpose of seduction and luring a person into sex, importing a girl of a foreign country for sex, etc.
In addition, Article 23(1) of the Constitution prohibits traffic in human beings and beggars and other similar forms of forced labor. Article 23(2) declares that any contravention of this provision shall be an offense punishable in accordance with the law.
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.”
Main Provisions of Immoral Traffic (Prevention) Act, 1956:
The statute governing the subject of prostitution in India is the Immoral Traffic (Prevention) Act, 1956. 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. The High Court of Judicature at Allahabad contended that Section 20 of the Act abridged the fundamental rights of the respondents under Article 14 and sub-clause (d) and (e) of Article 19(1) of the Constitution. The Act was held to be constitutionally valid as there was an intelligible difference between a prostitute and a person causing a nuisance. The Act is also in consonance with the object sought to be achieved i.e. maintaining order and decorum in society.
A Proposed Amendment in 2006 – Highlights:
A proposal was made in 2006 to amend the Immoral Traffic (Prevention) Act and has not been enforced yet. The amendment bill deletes the provisions that penalize prostitution by soliciting clients. This proposal recommends enhanced punishment and an increased fine amount. It intends to criminalize the act of visiting a brothel for the purpose of sexual exploitation of trafficked victims with imprisonment of at least three months or a fine of Rs. 20,000 which has not been criminalized in the Act. The bill constitutes authorities at the center and state level to combat trafficking. The term “trafficking in persons” has been defined with a provision for punishing any person who is guilty of the offence of trafficking in persons for the purpose of prostitution.
Laws for the protection of sex workers and their rights:
The right to life enshrined under Article 21 is also applicable to a prostitute. This was explained in the case of Budhadev Karmaskar v State of West Bengal. It stated that sex workers are human beings and no one has a right to assault or murder them as they also have the right to live. The judgment also highlighted the plight of sex workers and empathizes that these women are compelled to indulge in prostitution not for pleasure but because of abject poverty and directed the Central Government and State Governments to open rehabilitation centers and impart technical and vocational skills like sewing so that they attain other means of livelihood. Following the direction, the Immoral Traffic (Prevention) Act has incorporated Section 21 as a rule for the State Governments to establish and maintain protection homes and these should be regulated by licenses issued by them. An appropriate authority should be appointed for making an investigation for the application of the license for the protection homes. These licenses are not transferable and they are valid only for the specified period. The Government is empowered to make ancillary rules in respect of license, management, and maintenance of protection homes, or ancillary matters by virtue of Section 23 of the Act.
What is the punishment and penalties for indulging in illegal activities?
The above-mentioned activities attract heavy penalties such as rigorous imprisonment even at the first instance of conviction. The minimum punishment for brothel-keeping is imprisonment for a term of not less than one year and not more than three years and also with fine which may extend to two thousand rupees. Offence of procuring a girl child for prostitution attracts rigorous imprisonment for a term of not less than seven years but may extend to life. Seducing or Soliciting for prostitution under the unamended Act for first conviction attracts a punishment of imprisonment for six months or fine of rupees five hundred and for the second conviction, imprisonment upto one year or with fine of rupees five hundred. In addition, the Indian Penal Code under Section 370A punishes the offender for the exploitation of a trafficked minor with imprisonment of five to seven years.
What are the laws to prevent forced prostitution?
Forced prostitution is where young children or teenagers are compelled into prostitution due to numerous factors. Indian Penal Code, 1860 penalizes child prostitution, namely selling and buying of minors for the purpose of prostitution. Section 372 of the Code awards imprisonment of at least ten years for a person selling a minor for the purpose of prostitution. Section 373 of the Code awards imprisonment of ten years for buying a minor person for the purpose of prostitution. The explanations to these sections indicate only the trade of minor girls and not boys.
Generally speaking, eradicating Prostitution is impossible but controlling the supply is to be organised.
I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.
If you are interested in participating in the same, do let me know.
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