Prostitution – Immoral Practise or Illegal Practice

History of Prostitution:

In India, it took the route of devotion. Anciently, there was a prevalent practice in the form ‘The Devadasi’ among Hindus to contribute their daughter for the aim of dancing in temples and worship of God. However, with fading feudalism, these so-called Devadasis lost their preservers and the temple priests took a disgraced charge it. This was the foremost form of prostitution. This practice further flourished within the British era when these foreigners smashed the traditional industry like weaponry, etc. and these communities had to rely on prostitution for livelihood.

Is Prostitution legal in India?

In context to India, Prostitution is not expressing directly illegal but is pronounced to be unethical by the Court, certain acts that facilitate prostitution are regarded to be illegal and acts like operating a brothel, living off the Monterey procured by means of prostitution, soliciting or forcing a person into prostitution, traffic of children and women for the purpose of prostitution, etc. are made expressing illegal by the Immoral Traffic (Prevention) Act, 1956 (ITPA). For example, running a sexual activity concerning racquet is illegal but private prostitution or receiving remuneration in exchange for sexual intimacy with consent without prior solicitation might not be illegal.

Laws related to Prostitution:

INDIAN LAWS REGARDING PROSTITUTION

There is a misapprehension that prostitution is illegal in India. In India, the practise of prostitution is legal, however other coherent activities just as pimping soliciting, and brothels are punishable offences. On the basis of several reports, the estimated number of a sex worker is more than 15 million and around 2 million brothels in India. The law is ambiguous on prostitution. The act of prostitution is governed by the Immoral Traffic (Suppression) Act, 1956. According to the law the prostitutes are allowed to practice their profession privately but prohibit from soliciting customers in public, especially prohibits profession within the 200 yards of the public place. There is no protection provided to them under labour law, but they have the right to rehabilitation and rescue if they so desire. In practise, the Act is not commonly used. Earlier the sex workers were being punished for the public decency or public nuisance. In 1986 there was an amendment in the Act. Formerly the act was known as All India Suppression of Immoral Traffic Act (SITA). Then after amendment, the Immoral Traffic (Prevention) Act was enacted with major changes so as to limit and abolish prostitution in India.  Indian law doesn’t consider sex in exchange of money. There are many attempts to alter this law in a manner to put blame on clients. But, the union of Health Ministry ha supposed such developments. Recently many insurance companies are providing insurance to sex workers. It is a great initiative.

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, 1860 also deals with prostitution drawback is that it is limited to juvenile prostitution. However, it tries to fight back these 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 the act of human trafficking and beggars and other similar kinds of forced labour. Article 23(2) declares that any contravention of this provision shall be an offence punishable in view of the law.

      It was stated in Raj Bahadur v. Legal Remembrancer[1], 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.”

Also Read: Witchcrafting: An Inhuman Treatment

Main Provisions of Immoral Traffic (Prevention) Act, 1956:

The statutes governing the content matter of prostitution in India is the Immoral Traffic (Prevention) Act, 1956. The constitutionality of this Act was questioned in the case of The State of Uttar Pradesh v Kaushalya[2]. 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 curtail 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 concord with the object sought to be achieved i.e. maintaining order and decorum in society.

This Act aims to put down prostitution in women and girls and achieving a public purpose viz. to rescue the victimize women and girls and to annihilate them out of prostitution and also to provide all opportunity to these fallen victims so that they could become decent members of the society[3]. This Act seeks to be backed with sanctions where the acts amounting to prostitution as mentioned above and authorizes the police to remove them, to close brothels and move them to institutions that may reform them. It authorizes the Central Government to establish a Special Court to try offences under this Act.

A Proposed Amendment in 2006 – Highlights:

A proposal was made in 2006 to amend the Immoral Traffic (Prevention) Act and has not been enforced till now. The amendment bill repealed the provisions that penalize prostitution by soliciting clients. This proposal recommends enhanced punishment and an increase in the fine amount. It intends to penalize the act of visiting a brothel for the aim of sexual exploitation of trafficked victims with imprisonment of a minimum of three months or a fine of Rs. 20,000 which has not been criminalized within the Act. The bill constitutes authorities at the middle and state level to combat trafficking. The term “trafficking in persons” has been defined with a provision for punishing a person who is guilty of the offence of trafficking in persons for the aim of prostitution.

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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[4]. 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 creating an investigation for the appliance of the license for the protection homes. These licenses aren’t transferable and that they are valid just for the required period. the govt is empowered to form ancillary rules in respect of license, management, and maintenance of protection homes, or ancillary matters by virtue of Section 23 of the Act.

Also Read: Dawing Laws – Is Satisfactory Armor For Women

What are illegal activities related to prostitution?

Immoral Traffic (Prevention) Act, 1956 declares certain acts to be illegal. These acts is inclusive of a solicitation for prostitution, operating a brothel or enabling the usage of certain places as brothels, living on the earnings of a prostitute’s money, inducing or kidnapping a woman for prostitution, detaining girls in brothels, seducing an individual under custody for prostitution and completing prostitution within 200 meters of any public place like schools, colleges, temples, hospitals, etc.

What is the punishment and penalties for indulging in illegal activities?

The above-mentioned activities attract heavy penalties like rigorous imprisonment even at the primary instance of conviction. The minimum punishment for brothel-keeping is imprisonment for a term of not but one year and less than three years and also with fine which can reach two thousand rupees. The offence of procuring a woman child for prostitution attracts rigorous imprisonment for a term of not but seven years but may reach life. Seducing or asking for prostitution under the unamended Act for first conviction attracts a punishment of imprisonment for 6 months or fine of rupees five hundred and for the second conviction, imprisonment up to one year or with fine of rupees five hundred. Additionally, the Indian legal code under Section 370A punishes the offender for the exploitation of a trafficked minor with imprisonment of 5 to seven years.

What are the laws to prevent forced prostitution?

Forced prostitution is where young children or teenagers are compelled into prostitution thanks to numerous factors. Indian legal code, 1860 penalizes child prostitution, namely selling and buying of minors for the aim of prostitution. Section 372 of the Code awards imprisonment of a minimum of ten years for an individual selling a minor for the aim of prostitution. Section 373 of the Code awards imprisonment of ten years for purchasing a minor person for the aim of prostitution. the reasons for those sections indicate only the trade of minor girls and not boys.

Also Read: Homosexuality in India

Legalization of Prostitution:

Prostitution is taken into account a taboo in India and isn’t discussed openly and a subject frequently frowned upon. However, it poses an enormous threat to the material of Indian society for its role in weakening the institution of marriage, sexually transmitted diseases, abduction of girl children, isolation of prostitutes from society, physical and mental trauma, etc. it’s reported that there are about 38000 sex workers in Delhi. things in Mumbai is more depressing. Thus, there arises an emergent got to control prostitution.

The abolition of prostitution may be a mammoth task because it is an ancient practice and has existed too long. Though it’s been described to be illegal, it’s still continued. this might flow from to a scarcity of enforcement of laws or thanks to the lack to limit this practice. To combat this issue, the legalization of prostitution might be adopted since abolition appears to be a daydream.

Pros and Cons of legalizing prostitution:

If prostitution will be legalized, the State will have to acquire responsibility to operate brothels and it can fulfil this obligation by issuing a license to empowered persons. It shall also formulate a specific guideline in regards to the age of prostitutes, database on clientele, adequate remuneration and medical facilities to the prostitutes. By this manner, the prostitutes can acquire some of the rights like the proper to medical aid, the proper to the education of their children, right against exploitation and rape, etc. This can formulate to facilitate the eradication of sex racquet operations, hidden and street prostitution, abuse of prostitute, etc. There shall be protection houses established for those prostitutes who have lost their livelihood, or those that were forced into prostitution but don’t want that lifestyle anymore. Also, the govt can impart training and basic education to those prostitutes in order that they find other means to earn money and sustain their livelihood.

On the flipside, legalization of prostitution might be misinterpreted because of the promulgation of prostitution. this might pave the way for straightforward money for prostitutes and will encourage more women to practice prostitution. there’s an excellent possibility that this might be a revenue-generating industry for the govt. Thus rules need to be stringent to manage this industry in order that it’s not legitimized which is that the least the govt can do to deal with this issue.

Also Read: Female Genital Mutilation: A Frightful Practice Against Women


[1]  AIR 1953 Cal. 522

[2] 1964 AIR 416.

[3] MANU/SC/0277/1990.

[4]  https://indiankanoon.org/doc/1302025/  visited on 1/10/20

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