Author: Nalla Sindhu, III year of B.A.,LL.B from IFIM LAW SCHOOL, BANGLORE.
Introduction
Prostitution is also known to be a commercial sex work. Prostitution is an act of engaging in indiscriminate sexual contact for monetary gain. People who belong to poor and underprivileged classes generally involve in the said business. In this scenario it is necessary for law to safeguard and empower them in the other fields.
Payment for the sexual service is called prostitution. There is a growth of female prostitutes, male prostitutes, child prostitutes, trafficking of women etc. Though our constitution propounds equality but the same does not exist in this profession. Sex workers are “women at work”. The growth of urbanization and industrialization has aggravated prostitution which has become more serious and complex.
History of prostitution
As per the Indian history, the prostitution is the one of the oldest professions which still exists. In Vedic times, girls without brothers are frequently driven to prostitution. In rig Veda the tradition of offering presents in the form of slave girls to rishis by kings was practice. In Brahmana period the prostitutes were called ‘vesyas’. Prostitutes were known as ‘devadasis’ who devoted their entire life to lord Krishna. They considered God as their husband and did not consider any other man in the same status. In due course it changed to ‘nagaravadu’ meaning ‘wife of the town’ who were called by royals to ‘dance and sing’. At first devadasis was considered to be the wife of God and therefore they were respected by the society. But the scenario change after the British had entered India. Devadasis were called to perform art and slowly got involved in the ‘prostitution’.
Is it legal in India?
Prostitution is legalized but with certain limitations and restrictions. However, it is not decriminalized. ‘Decriminalization’ basically means sex works would not constitute to be a crime. Whereas legalization means the government controls the profession and permits it only under specific condition. There is no provision under the law which makes prostitution per se a crime, offence or punishes a person because he indulges in prostitution. The Hon’ble Bombay High Court in HC 2020 held the same. Few activities related to prostitution such as running brothel, soliciting, kidnaping and human trafficking are punishable offences in India under the Immoral Traffic Act, (1956). Prostitution is not banned or made punishable, but the surrounding activity is made punishable. The Immoral Traffic Act mainly focuses on elimination of prostitution and the same may is causing hardships to the sex workers. The law oversees the sexworkers in India. The Indian Penal Code, 1860 and the Immoral Traffic Act, 1956 govern the field.
RELEVANT LEGAL PROVISIONS
THE IMMORAL TRAFFIC (PREVENTION) ACT OF 1956
Section 3 act says a punishment for running brothel or giving premises to use it as brothel. for running of brothel. Brothel has been defined in section 2(a)of the act which can be any house place or room which is used for prostitution.the punishment is not less than one year which can extend to than three years rigorous to punishment and fine which may extend to two thousand rupees and if they did the same activity twice then the punishment will be rigorous imprisonment for not less than two years and not more than five years fine which may extend to two thousand rupees
Section 4 of the acts penalizes any person over the age of eighteen years who is living on the earning of prostitution. Punishment - imprisonment up to two years or with fine up to one thousand rupees or with both
Section 5 of the acts the procuring inducing or taking person for the sake of prostitution this section targets trafficking and brothel owner. Punishment rigorous imprisonment of three years to seven years and with fine of up to two thousand rupees
Section 6 the act penalizes the people who detains a sex worker in brothel or any premises where prostitution is carried on. punishment imprisonment shall not be less than seven years, but which may be for life
Section 7 of the acts where prostitution when it is carried the activity out in public places like populated area hostel, religious, worship, educational institution and hospitals. Punishment imprisonment up to three months
Section 8 act penalizes the sex worker for seducing or soliciting a person for purpose of prostitution in public places or within the sight of public. according to this act sex worker cannot do any gestures to invite someone for the purpose of prostitution. punishment on first conviction with imprisonment up to six months
according to Indian penal code sec 372 selling minor for purpose of prostitution. punishment with imprisonment up to ten years and shall also be liable to fine .sec 373 buying minor for purpose of prostitution. Punishment imprisonment up to ten years and be liable to fine Under sec 366A,366Band 370A deals punishment for offences of procreation of minor girl importing of foreign girls for sex and trafficking people
under article 23(1) of the Indian Constitution trafficking of human beings, beggars and other similar form of forced labor are prohibited. Article 23(2) declares that any contravention of the provision shall be an offense punishable
What did the supreme court say?
The Hon’ble Supreme Court in various cases held that ‘prostitution is a profession’, ‘sex workers are entitled to dignity’, and equal protection under Article 14, Article15 and Article 21of Indian constitution.
Legalization of prostitution
The following aspects are important to legalise the prostitution i.e., the sex workers are entitled for equal protection of law. The Criminal law must apply equally in all cases based on age and consent. When sex worker is an adult and is participating with consent the police must refrain from interfering or taking any criminal action. Sex workers should not be arrested, penalized or victimized through raids on brothel. The children of sex workers should not be deprived of their mother care on the grounds that she is involved in the sex trade. Care should be taken not to disclose the identity.
Implication
Sex workers are entitled for equal legal protection. If they are subjected to any threat, injury etc., the police will have to take serious action to protect them.
The following case is important in this aspect
*State of UttarPradesh v. kaushalyaon this case the supreme court held that the right of movement of prostitutes may be restricted on ground of public health and in the interest of public morals under article 15 of constitution of India
*Budhadev karmaskar v. state of west Bengal the SC court said that sex workers are also humans, and they are entitled to live their life of dignity according to sec21 of Indian constitution
Problems of prostitution
The main loophole of the act does not lie in the act but in the attitude of police and people for example where there is a raid the police will arrest the prostitute but not the brothel owner. The aim of decriminalization is that instead of the prostitute the brothel owner should liable.
PRO OF PROSTITUTION
Legalization of prostitution has an enormous impact on reduction of criminal activity like trafficking, rape and forced sex cases after legalization of prostitution. If the prostitution is not legalized sex workers don’t have courage to complain or file FIR regarding rape or any other incident prejudicial to the interest of the sex worker. As per the statistics most of the women who enter into the profession are forced to enter without their consent. They should voluntarily express concern. Poverty is the main cause for the said profession of prostitution. Illiteracy, un-employment is also one of the major causes.
Cons for legalization of prostitution
If the prostitution is legalized the consequences would be that every person who does not get any other mode of earning money would easily enter into this profession and the menace of prostitution would increase and there would be severe adverse effects to the marital life and also health viz. HIV and Cancer.
Conclusion
Prostitution could pave way for easy money and encourage more women to participate in prostitution. There is a great possibility that this could be a revenue generating industry for the government. Prostitution wrecks personality and affects marriage relation in the society. Now a days some women think that prostitution in search of the freedom and easy to earn money but in the reality before the legalization once they get involved it is very difficult to get out of that institution. Society would reject them and does not accept them back. Trafficking of women and children is emerging as main global crisis. Girls and children are being subjected to rape, torture, beating and sexual abuse pursuant to the trade. The middlemen called ‘pimps’ are exploiting the situation.
In this context legalization of prostitution is the only solution.