CRITICAL ANAYSIS OF PROSTITUTION LAWS IN INDIA

The Author of this blog is Ms. Akansha Anand of Fairfield Institute of Management & Technology, New Delhi

INTRODUCTION

The major hubs for the brothel of the Prostitution are Delhi, Mumbai, and Kolkata. In the Indian context, prostitution is not legal. However, Prostitution is an unethical practice in India but acts like managing a brothel, living off the money procured employing prostitution, soliciting or luring a person into prostitution, traffic of children and women for prostitution, etc. are illegal practices states under the Immoral Traffic (Prevention) Act, 1956. In other words, prostitution done by an individual woman by providing sex in exchange for money is legal but running a sex racket business is illegal.

Under the Indian Penal code, 1860 certain acts which have been described above are illegal and punishable as an offence in the eyes of law. Now the situation is such that the activities mentioned above are very much real and exist alongside. So by outlawing them does the Indian legal system make prostitution illegal? Because in most cases, government officials tend to ignore this fact that illegal trafficking of women and children is the root cause of growing prostitution as a business.

HISTORY

The Prostitution in India changes with the change in time, in ancient time there was a practice known as Devadasis which was popular in the Hindu religion, the people called it as pratha that should be done by Hindus in the name of their god. In this practice of devadasis, the Hindu gives their daughter to the temple for dancing and singing in the name of God, they called it a ritual but by the passage of time the priest of the temple stated misusing the females by taking advantage of them. We can say that it was the starting phase of the practice of prostitution.

With time, the era which had come was British era in India where Britisher came here and start their business by the organization of East India Company, due to the economic pressure and for livelihood, many women of India started working as a prostitute where they provide sex with the exchange of money.

But the main problem that is faced by those women was the problem of exploitation, the inhuman behavior with them, and the non-acceptance of the society.

LAWS RELATED TO PROSTITUTION IN INDIA

Prostitution has been defined under the Immoral Traffic (Prevention) Act which states that ‘sexual exploitation and abuse of a woman for a monetary purpose is known as Prostitution’ and Prostitute defined as a female who does sex with someone for gaining of commercial benefit. The Indian Penal code also deals with the prostitution but it mainly limited to the child prostitution and human trafficking, kidnapping or attempt to kidnap a child or a woman for seduction and luring a person into sex, importing and exporting of females and it has also described their punishment as well as with their definitions.

The Constitution of India has also had some provisions regarding illegal human trafficking and forced labor which indirectly includes the trade of prostitute and illegal trafficking of a woman. In Article 23(1), the Constitution prohibits forced labor and beggars and other similar types of human trafficking. In clause (2) of the constitution of India, it declares that any contravention of this provision shall be an offense punishable under the law.

In the case of State of Uttar Pradesh V. Kaushalya[1], it was held that the number of prostitutes was needed to remove from a particular place to maintain the balance and decorum of residence in the city of Kanpur. Hence the constitutionality of the act Immoral Trafficking (Prevention) Act was challenged as Section 20 of this act abridges the fundamental rights provided in the constitution under Article 14, 19. It was held by the High Court that the act is constitutionally valid as there is no difference between a person and prostitution if someone causing a nuisance it needs to get stop to maintain the order and decorum in the society.

The ITPA aims at proving the society equal opportunity and to safe girls and children from the practice of prostitution and safe them from indulging in this practice. The act seeks that the illegal act should be criminalizedwhich gives rise to the profession of prostitution and police should stop them from working under the laws.

FACTS ABOUT PROSTITUTION IN INDIA

Following are the facts of prostitution in India-

1.    Prostitution is legal in India, however, the executive machinery of the Government of India should take care of the rise in brothel or person forcibly engaging women and girls to this profession. The state should make static data that should indicate the number of prostitutes in a particular area and there other basic information should be on the record.

2.    The Ministry of Home Affairs has made a report in 2016 which was called National crime statistics, in which the crimes were recorded. It was estimated that 110 crimes were recorded against the women for forceful prostitution which consist of every age women including 50 children in which one-fourth was kidnapped and abducted in the metropolitan cities.

3.    In the year 2016, a total number of 2300 cases came under the Immoral Trafficking (Prevention) Act in which 100 cases out of 2300 were men victims.

LOOPHOLES IN THE EXISTING LEGAL MECHANISM IN INDIA[2]

The law enforcement scenario, seen from the traditional viewpoint, presents a dismal picture. The Action Research conducted by the National Human Rights Commission, during 2002 -2004 shows that the major issues in the existing scenario of law enforcement are as follows:

1.      Lack of priority: The law enforcement agencies and justice delivery agencies for various reasons, give the lowest or nil priority to the issues of prostitutes.

2.      Insensitivity: Lack of sensitivity is a major challenge in response to prostitutes. It is more of an attitudinal issue.

3.      Victimization of the victim: More often trafficked women have been arrested and penalized as ‘soliciting persons; The NHRC study shows that around 85 to 90 percent of the arrested persons are women and most of them are victims of trafficking.

4.      Database: One of the major drawbacks in law enforcement is the fact that there is no database of traffickers and other exploiters. There is no sharing of intelligence among the stakeholders and therefore, the offenders indeed act with impunity.

RECOMMENDATIONS[3]

This elaborate discussion with regards to the problems of the prostitutes in India, loopholes in the existing legal mechanism dealing with the prostitution industry, merits of regulation of this industry, etc now leads us to the obvious.

Pointing out problems is easy, but finding solutions is a mammoth task. Here, we have tried to list out a few steps which can be taken to elevate the condition of prostitutes in society.

1.    Stop conflation of sex work and trafficking in law and policy.

2.    Ensure that anti-trafficking laws are not used to abuse the human rights of people in sex work.

3.    Trafficking of Adult Persons and Trafficking of Children should be dealt with under two separate laws to ensure that consenting adults are not infantilized and children are given justice.

4.    Strengthen efforts of community-based organizations and collectives of sex workers to fight trafficking in their communities.

5.    Fully decriminalize sex work and related activities

6.    Repeal laws that prohibit consenting adults in sex work such as laws against "immoral" earnings, "living off the earnings" of prostitution and brothel-keeping.

7.    Complementary legal measures must be taken to ensure safe working conditions for sex workers.

8.    Ensure  that existing  civil  and  administrative  offences   such as “loitering without purpose”, “public nuisance”, and “public morality” are not used to penalize sex workers and administrative laws such as “move on” powers are not used to harass sex workers.

9.    Shut down compulsory detention or rehabilitation centres for people in sex work.

10. Develop mechanisms to recognise and act against violence faced by sex workers, strengthen accountability of law enforcement

11. Guard   against arbitrary arrest and   detention   of   sex   workers,   and   investigate complaints of harassment, extortion and abuse by law enforcement personnel.

12. Maintain   confidentiality   and   respect   privacy   of   sex   workers   approaching   law enforcement agencies and judiciary for redress in cases of sexual assault, exploitation and violence.

13. Sensitivity to issues faced by sex workers should be made a part of training for police personnel, public prosecutors and the judiciary in partnership with community organisations of sex workers.

14. Strengthen sex workers’ access to justice

15. Ensure free legal aid services are available in rural areas for sex workers and offered by lawyers who have been trained in issues faced by sex workers.

16. Prohibit mandatory HIV and STI testing of sex workers following arrest.

17. Ensure  implementation  of  the  Supreme  Court  recommendations  to  issue  identity documents  and ration cards  to sex  workers at the national, state, district and sub-district levels.

18. Ensure participation in policy making.

19. Ensure the empowerment, active participation and leadership of sex work networks, federations  and  collectives  in  designing  policies  and  processes  for  accessing  social entitlements. 

20. Ensure participation of sex work organizations in drafting/ amending relevant laws, policies, and programs and in their implementation.

CONCLUSION

The issue that need of the hour for the government agencies, they should take into consideration about the problem of Prostitution. The need for law, especially for prostitution, should come and prevail in the society which includes men too consider in the laws regarding prostitution. The legislation needs to be more practical and make laws to uplift the women who are indulged in prostitution and save their rights. Society needs to be modern and accept the women who are prostitutes as it was the mis-happening with them which forced them to come into this profession and however, it is no wrong until it becomes illegal.

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[1]1964 AIR 416, 1964 SCR (4)1002

[2]Bedi, Kiran; Nair.P.M 2008.

[3]Julie Bindel,The Pimping of Prostitution: Abolishing the Sex Work Myth.