This article has been written by Akash Khan and Rajeshwari Singh pursuing B.A.LLB(Hons.) from Amity Law School, Kolkata. The authors discuss the legal implications of Prositution in India.
Definition of prostitution
Prostitution is the practice or business where people takes part in sexual activity in exchange for money and a person who is engaged in this field is referred as a prostitute. Prostitution happens in an assortment of structures, and its lawful status changes from nation to nation and also from locale to area within a nation, extending from being an upheld or unenforced wrongdoing, to unregulated, to a directed profession. It is one part of the sex business, alongside pornography, or any other sexual entertainment. Brothels are foundations explicitly devoted to prostitution. The situation of prostitution and the law changes generally around the world, reflecting contrasting conclusions. Some view prostitution as a type of abuse of or savagery against women, and kids, that assists to a new crime of human trafficking.
History of prostitution in India
As per the Indian history, the previous adaptations of prostitutes were known as “Devadasi” who used to contribute their entire life to the devotion of Lord Krishna. Some religious convictions resolve that the Devadasis consider the Gods as their husbands and in this manner can’t wed other human men. They were later called as “Nagarvadhu” or the “Brides of the town” and were called upon by the royals and the rich to dance and sing.
As indicated by the history specialists the Devadasi were treated with deference and respect by the Royal families before the British rule. No man, including the Kings and Mughals, set out to even touch them. But this came to an end after the British steps in the country. The Devadasis began performing their art in front of the British officers and this became the beginning of one night stands. The Britishers began calling these artists for sexual joys and this made ready for Prostitution in a nation like India. During the British guideline, the development of Devadasi into prostitution prompted the decrease of dances in the temple. As with the passing of time during the British rule the Indian economy depleted and most people were not able to achieve their basic livelihood. Women then started selling their bodies to the British people for exchange of money.
During the late sixteenth and seventeenth century, when certain places of India were a province under the Portuguese, Japanese women were caught and brought to India as sex slaves. Another case of the expanded utilization of women as sex labourers can be during the Company Rule in India. The military built up whorehouses for its soldiers across numerous pieces of India. Village women and girls were utilized by the brothels and were paid by the military legitimately.
Causes of prostitution
There exist numerous reasons which compels a woman to take up prostitution out of which poverty and unemployment are two major influential factors that causes women to engage in commercial sex. It has been seen that women of the remote areas fall prey to unscrupulous intermediaries who gives them assurance of decent job opportunities and then sells them as sex workers. The most fundamental reason which drives the needy and helpless women towards prostitution is poverty. It is accepted that among all the components answerable for prostitution, poverty is supposed to be the significant explanation that brings individuals into prostitution.
The increasing rate of poverty has driven numerous individuals especially the young people into the urban territories where they consider prostitution to be a brisk method of addressing their necessities and those of their families. Taking a gander at the idea of prostitution basically, one will comprehend that prostitution was not as inescapable in pre-modern times as it is today. The procedure of urbanization has prompted a significant move in the structure of our reality. Urbanization has prompted the development of free enterprise which has offered an ascend to the polarization of classes, aggravating the frequency of destitution, joblessness, crime and estrangement. This situation has prompted a more noteworthy pervasiveness in prostitution as a way people particularly females attempt to adapt with the grim economic realities. Also some women are led into sex-work due to unemployment. The lack of job opportunities had compelled women to desperately resort to illicit deals as a way of generating income.
Around 6 percent of the women entered prostitution after the occurrence of rape. And many a times the sexual assault survivors are victimized by the shame and stigma imposed on them by the society who blames these women for being raped. And in certain cases not only the society but their very own family members have denied to accept them. Aside from the deferral or the denial of justice, the casualties have to confront similar situations from time to time. And after the passage of a certain tenure when they find no roof for shelter in our society and when there exists no ray of hope for them, they discover their routes into the darkness of prostitution. Around 8 percent of the young ladies came to prostitution following the episodes of incest. The most well-known incest is among father and little girl, trailed by uncle-niece. And when these youthful casualty of incest being sexually exploited at their very home, do not anticipate safety in anyplace in the general public, gradually winds up in prostitution. Other than the above mentioned factors there are several other reasons that drive women to become a prostitute.
Is prostitution legalized in India?
One of the biggest question is whether prostitution is legal in India and if so is there any rights available to the prostitutes?
The answer to this question is in the dilemma of both “Yes” and “No”. As per the Indian context, prostitution is not explicitly illegal as it is not specifically expressed prostitution to be punishable by law but few activities related to prostitution such as running brothels, soliciting, trafficking and pimping are all punishable offence in India under THE IMMORAL TRAFFIC (PREVENTION) ACT, (1956). Just for example, if a person is engaged in an activity of pimping then he/she will be punished under law but if receiving money in exchange of sex with consent and without any prior imploration might not be illegal in India.
As per Section 2(f) of The Immoral Trafficking Act (1956) gives the definition of “prostitution” as sexual exploitation or misuse of any persons for any business purpose.
Section 372 and 373 of the Indian Penal Code 1860 also deals with prostitution but it is restricted to child prostitution only.
Though under sections 366A, 366B, 370A of the IPC deals with punishing for offences of procreation of minor girl, importation of girl from foreign for sex and exploitation of a trafficked person respectively. Thus under IPC laws related to prostitution is quite limited.
Is there any right available for the protection of sex labourers?
As per our Indian Constitution, the fundamental rights are available to every citizens of India and therefore sex workers being also the citizens are entitled to enjoy the rights.
The right to life incorporated under Article 21 of the Indian Constitution is available to a prostitute which was highlighted in the case of Budhadev Karmaskar vs State of West Bengal. In this case the accused, Budhadev Karmaskar was held liable for murdering a sex worker in Kolkata in the year 1999. The court further stated that a woman is indulged in prostitution not for pleasure but of poverty. If such a woman gets an opportunity to learn technical or vocational training, she can earn her basic livelihood from her skill instead of selling her body. Accordingly, the Supreme court directed the Central Government and the State Governments to make schemes for giving vocational training to the sex workers across the whole country.
The Immoral Traffic(Prevention) Act, 1956 has stated the following acts to be illegal and imposes heavy penalties accordingly:
- Anyone who keeps or manages, or assists in keeping or managing a brothel will be punished with imprisonment for a term not less than one year which can extend to three years and also a fine of up to two thousand rupees.
- Any person who is living on the earnings of a prostitute shall be punished with an imprisonment which may extend to two years, or with a fine up to two thousand rupees, or both.
- Any person who induces, procures or kidnaps a girl for prostitution shall be punished with imprisonment for a term not less than seven years which may extend to fourteen years and also with fine up to two thousand rupees.
- Any person who is detaining girls in brothels shall be punished with rigorous imprisonment for a term not less than seven years which may extend to ten years.
- If any person carries on prostitution within two hundred metres of any public place such as educational institution, hostel, hospital, temples, etc. shall be punishable with imprisonment for a term up to three months. If such offence committed is in respect of a minor, shall be punishable with imprisonment for a term of seven years which may extend to ten years.
- Anyone soliciting for prostitution attracts a punishment of imprisonment for a term not more than six months, or fine of rupees five hundred on first conviction and in second conviction imprisonment can extend up to one year and a fine of rupees five hundred.
- If any person causes or assist in seduction of a girl for prostitution under custody shall be punishable with imprisonment for a term not less than seven years which may increase to life imprisonment.
For and against legalizing prostitution in India
There exists some people in our society who believes that prostitution is an evil in itself while on the contrary there are people who express endorsement for its presence in the society. Therefore, it can be seen in either way. However something which cannot be debated is that in this field of prostitution there are sex workers who are being sexually tortured or become survivors of viciousness from their procurers and even customers. Thenceforth there’s no doubt that legalizing prostitution will safeguard women from exploitation and brutality. Dissimilar to illegal prostitution in which the sex workers may be compelled to do sexual intercourse without the use of condom or any other precaution and thereby decriminalizing it can permit the state to put an obligation on the part of the sex workers and its clients to make use of condom or any other form of protection as sex work is prone to several occupational health risks.
Also legalization of the prostitution will help the state in generating a set of rules and regulations in regard to the age limit of the prostitutes, requisite earning and necessary clinical facilities to the sex workers. And with the help of this the sex workers will be able to exercise some of their rights, for example, they will get an equal opportunity to educate their children, right to medical treatment, they will be entitled to protest against exploitation, violence, rape and so forth. It has also been seen that in a country like India which has immense population and limited job opportunities, there are some women who enters into the dark world of prostitution for the sake of their livelihood. Also lack of education and awareness is responsible for the rapid growth of this industry. Thereby licensing prostitution will help the state in giving the sex workers basic education and also necessary training which will help them in developing income-generation skills like weaving, sewing, knitting, painting etc. Another major help that will be served by legalizing it is that the government will be able to keep a track record of the number of sex workers in our country. So that the government can device new ways for the protection of the sex workers and welfare the society.
However earning made by selling the dignity and esteem of a woman is something that is not at all admirable. And if prostitution is made legal in Indian society then people will start viewing it as a profession and therefore more women will be motivated to engage in this industry as easy way to earn money. As a result it will cause the massive growth of this industry. A subsequent concern centres around the hazard that sanctioning prostitution will lead to the increase of human trafficking. In India more than 84 million people are poor and for their survival many times people sell their female child to the sexual predators in exchange of money. And with the decriminalization of prostitution more children will be forced to become sex workers. Also there will be a rapid increase in the number of scams.
In the end from the analysis it can be inferred that for an issue like prostitution, there exists no requirement for any specific cure, such as criminalizing, decriminalizing or sanctioning it. From the past research it is difficult to refute the fact that legalization of prostitution bears both negative as well as positive effects. Therefore just providing legal validity to prostitution will not be sufficient to resolve this problem rather than this a uniform law must be made for its administration in our country. As regulation of prostitution will help to safeguard the sex workers and their children from getting exploited. Not only this it will ensure protection of the health of the sex workers and the society at large. Thenceforth a set of rules and regulations should be established in order to regulate this industry.
- Narayan, Sathya, R Feb 12, 2018, Prostitution: A Brief History [https://www.speakingtree.in/allslides/prostitution-a-brief-history/child-prostitution-in-india].
- Lawyers Collective, R Apr 30, 2012, Budhadev Karmaskar v. State of West Bengal, Criminal Appeal No. 135 of 2010 in the Supreme Court of India[https://lawyerscollective.org/2012/04/30/170-budhadev-karmaskar-v-state-of-west-bengal-criminal-appeal-no-135-of-2010-in-the-supreme-court-of-india/].
- The Immoral Traffic (Prevention) Act, 1956 indiankanoon.org. Retrieved 28 November 2015 [https://indiankanoon.org/doc/69064674/] Accessed May 15, 2020.
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