Prostitution in India is the oldest profession. It is a general misconception that prostitution in India is illegal, rather prostitution is legal but pimping, owning and managing a brothel is illegal. Mumbai, Delhi, and Kolkata are the major cities in India where brothels are operating illegally in large numbers. Prostitution in itself is neither illegal nor punishable under the act. This article explores the arena of prostitution and does justice to those weaker sections by legalizing this Act.
Prostitution and legality involved
According to the Indian Penal Code, certain activities related to sex are not considered illegal per se and contradict laws that are in place. However, activities as enumerated below if found to be true, one is entitled to be punished in accordance with laws of the legal arena in place:
Soliciting services of prostitution at public places
Carrying out prostitution activities in hotels
Being the owner of a brothel
Indulge in prostitution by arranging a sex worker
Arrangement of a sex act with a customer
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.
Acts that Constitute Prostitution:
Prostitution denotes providing sex work in exchange for money. It not just indicates gratification of sex but also other accompanying acts such as solicitation of customers, management of brothels, pimping or dealing with prostitutes, sex traffics and other activities that facilitate prostitution, thus promoting the growth of sex industry.
Table of Content:
1. History of Prostitution
2. Is Prostitution legal in India?
3. Laws related to Prostitution
4. Main Provisions of Immoral Traffic (Prevention) Act, 1956
5. A Proposed Amendment in 2006 - Highlights
6. Laws for the protection of sex workers and their rights
7. What are illegal activities related to prostitution?
8. What is the punishment and penalties for indulging in illegal activities?
9. What are the laws to prevent forced prostitution?
10. Legalization of Prostitution
11. Pros and Cons of legalizing prostitution
12. Facts about Prostitution in India
History of Prostitution:
In India, it took the route of devotion. 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. However, with diminishing feudalism, these so-called Devadasis lost their protectors and were mishandled by the temple priests. This was the earliest form of prostitution. This practice further flourished in the British era when these outsiders curbed the traditional textile industry, weaponry, etc. and these communities had to turn to prostitution for livelihood.
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 and acts like managing a brothel, living off the money procured by means of prostitution, 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 but private prostitution or receiving remuneration in exchange for sex with consent without prior solicitation might not 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 ie. maintaining order and decorum in society.
This Act dims at suppressing prostitution in women and girls and achieving a public purpose viz. to rescue the fallen women and girls and to stamp out of prostitution and also to provide all opportunity to these fallen victims so that they could become decent members of the society. This Act seeks to criminalize 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 empowers 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 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: