INTRODUCTION
Prostitution is the act of engaging in generally indiscriminate sexual contact with someone who is not a spouse or friend in exchange for cash or other commodities. In Indian society, prostitution is considered immoral and a taboo subject, which makes accepting it as a vocation difficult, still exists. According to government statistics, there are more than two million prostitutes in India[1]. Among them, there are a very small number of prostitutes who are engaged in this practice by their will. Often they are forced to join or they have to join because of their circumstances (financial, rape, kidnapping) Most of the prostitutes are between the ages of 15-35 years because of the excessive emphasis on physical appearance and the endurance capacity to entertain several clients. If we give an eye to the history of this phenomenon, then it is not new. It evolved in ancient times. It is considered one of the oldest professions in the world and we find its description in holy books. In the form of Whors, Devdasis
In the scriptures, three categories of women are mentioned:
- One, those who were devoted to a single man, no matter if the man had many wives.
- The second category of women were those who avoided contact with men throughout their life they lived like nuns.
- The third category consists of those women who had many lovers they were not confined to a single person. The women of this group were called Devadasis and were considered prostitutes in ancient times[2]
Its web in India is very wide. Asia’s largest brothel, which is Sonagachi, Kolkata, is located in India. Along with Kolkata, Mumbai is the other city which is considered a hub for prostitutes. In Mumbai alone, more than 1.00000 Brothels are situated[3].
STATUS IN OTHER COUNTRIES
The European countries including Germany, Switzerland, the Netherlands, Austria, Greece, Hungary, Latvia, and Turkey decriminalized prostitution, on the other hand, some countries criminalised it like Moldova, Monaco, Montenegro, Norway, Romania, Russia, San Marino, Serbia, Slovenia and so on. Here is a more detailed description of the status of prostitution in certain countries.
Netherlands – It is one of the countries in Europe that has legalised prostitution. The idea behind it was to reduce the associated crimes. Promote access to medical care for sex workers, it will help in reducing human trafficking. “De Wallen in Amsterdam is one of the Netherlands’s most famous red-light districts and a popular destination for international sex tourism. ”[4]
Germany – In Germany, state-run brothels are established. In the Reeperbahn in Hamburg one of the most well-known red-light districts in Germany[5], sex workers are treated like ordinary employees, with health insurance, taxation, and social benefits such as pensions. The objective behind treating prostitution as a career was to wean women away from the sex trade’s pimps.
New Zealand – Prostitution Reform Act was passed in June 2003[6]. After passing this act, prostitution was decriminalised and Currently, the country has licenced brothels that are governed by public health and labour legislation. All social advantages are available to sex workers.
LEGAL STATUS
On May 9th, 1950, India ratified the “International Convention on the Suppression of Traffic in Persons” and enacted the Immoral Trafficking (Suppression) Act, 1956. The immoral trafficking act defines Prostitution as “It is sexual exploitation or abuse of a female for monetary gain and a prostitute is someone who benefits from its[7]”
- In India, prostitution is not illegal but certain restrictions are imposed on associated activities. The Immoral Traffic Prevention Act imposes certain restrictions on prostitution-associated activities, such as: they cannot perform their activities in public places, and they cannot advertise themselves by making contact numbers public. For non -compliance with these rules, the act has the provision of imprisonment of up to 6 months and a fine. although they could practice the same in their private space.
- It banned running brothels. Any contradictory action would lead to the imprisonment which can be extended from 1-3 years and a fine. Further it provides that causing someone to forcefully enter such profession is a crime and punishment of more than 7 years can be awarded by the court[8].
- Although the act allows to running of such activities in private space still Section 7(b) also punishes the landlord or the owner of the premises who let run the brothels on his premises with the imprisonment of 2 years or a fine of 200 rupees or both”[9]
The Immoral Traffic (Prevention) Act 1956, amended in 1986, by the Immoral Traffic (Prevention)Act 1986, has increased the scope of the act and recognised that men and children can also be subject to prostitution. Article 23 (1) of the Indian Constitution 1950, prohibits the trafficking of humans. Furthermore, human trafficking, begging, and other forms of forced labour are prohibited by Article 23(1) of the Constitution. The provision of punishment for the violation of Article 23(1), is given under Article 23(2)[10]. Prostitution is also covered by the Indian Penal Code of 1860, but its provision only includes children. It criminalised the selling or buying of any person under the age of 18 years for illicit purposes. It tries to combat actions such as kidnapping for seduction and leading a person into sex, importing a foreign lady for sex, and so on[11].
Whether it should be considered a profession or not, “Profession means an occupation carried on by a person by his personal and specialised qualifications, training or skill”[12] There is a difference of opinion in society regarding whether it should be considered a profession or not. On the one hand, it is demanded that prostitution should also be given dignified status like other professions. The contradictory view is that it is immoral and if it were given the status of a dignified profession, the illegal traffickers would take undue advantage of the situation and ruin society. Although the Hon’ble Supreme Court and the various high courts in their judgements directed to give dignified status to consensual sex. “Sex workers have the right to a dignified life as guaranteed by Article 21 of the Constitution”[13]. In Kajal Mukesh Singh v. the State of Maharashtra, the Bombay High Court stated that “Prostitution is not illegal and a woman by her choice can engage in this as a profession. “[14] Recently, the Hon’ble Supreme Court’s three-judge bench comprising justices L Nageswara Rao, BR Gavai and A.S. Bopanna, passed an order in which it was stated that any person who decides to live the life as a sex worker deserves equal respect and dignity as an ordinary person deserves under article 21 of the Indian Constitution.
The Hon’ble Court issued certain guidelines which are as follows:
- Police should not harass or prosecute sex workers, and their concerns should be treated seriously.
- Indulging willfully in the activities of prostitution for money is not an offence
- The Court also stated that no child or sex worker should be separated from his/her mother simply because they work in the sex industry.
- If a sex worker is sexually assaulted, she must be given access to all of the resources available to victims of sexual assault in India.
- Further government must consult with the sex workers or their representatives while formulating any policies in this regard.
- The court directed the media that they should refrain from taking pictures or doing any act in which the identity of the victim is likely to be revealed, while reporting the rescue operations, and warned that if the order of the court is not followed the offender for the offence of voyeurism under Section 354C IPC will be prosecuted.
CONCLUSION
Consensual sex by prostitutes in their private space is not an offence in India. The other associated activities, such as pimping, running brothels, and soliciting customers for the same, are criminalised. Although in India, prostitution is decriminalised and Indian courts, through various judgments, have provided that sex workers are subject to equal respect, protection, and dignity as ordinary people are. But the reality is that those who are engaged in this profession are not respected in Indian society. They are neglected and humiliated by the people. Prostitutes often become subject to mental and physical torture. There is no specific provision in Indian law that is specifically enacted for the benefit of prostitutes like in European countries where it is decriminalized; prostitutes are given the benefits of labour laws. The positive aspects of declaring it as a profession are that: it will give recognition to their rights. They will get a dignified status; better medical facilities, and they will not be harassed by police authorities. The negative aspect could be that it would encourage its spread in society, which will lead to the spread of diseases such as HIV, mental trauma, STD and so on, and the illegal human traffickers will take undue advantage of the situation.
Author(s) Name: Aafreen Khan (University Five year Law College, Rajasthan University Jaipur)
References:
[1]Spardha Pandey, Real life stories of high-end prostitutes,(Entertainment Times,18th, April)
<https://m.timesofindia.com/life-style/relationships/love-sex/real-life-stories-of-high-end-prostitutes/amp_articleshow/60017313.cms> accessed 5th June 2022
[2]DevduttPatnaik, ‘Remembering the contribution of Courtesans’ (THE ECONOMIC TIMES, 6TH April 2019 <https://m.economictimes.com/magazines/panache/is-indian-culture-unfair-to-independent-women/amp_articleshow/68745820.cms> , accessed 5th June 2022.
[3] ‘Asia ‘biggest’ red light district gets makeover’ (BBC NEWS, 29th March,2018) https://www.bbc.com/news/world-asia-india-43581120 > accessed 6th June 2022.
[4] ‘Supreme court recognises prostitution as a profession: what does this mean for sex workers’, (Firstpost, May 27, 2022), https://www.firstpost.com/india/supreme-court-recognises-prostitution-as-profession-what-does-this-mean-for-sex-workers-10726011.html, accessed 7th June 2022.
[5]Ibid
[6] Affiliate, The prostitution Reform Act, (2003) and social work in New Zealand, (ResearchGate, May 2016,<https://www.researchgate.net/publication/302995044_The_Prostitution_Reform_Act_2003_and_Social_Work_in_AotearoaNew_Zealand)>, accessed 7th June 2022.
[7] Prostitution Reform Act, 2003 Immoral Traffic (Prevention) Act, 1956, s 2(f)
[8] Immoral Traffic (Prevention) Act, 1956,s 3
[9]Immoral Traffic (Prevention) Act, 1956,s 7(b)
[10] The Constitution of India, 1950, art. .23.
[11]The Indian Penal Code, 1860, s.372, 373.
[12]Sodan Singh & Ors, v. New Delhi Municipal Committee & Ors., (1989), AIR 1988, 1989 SCR (3)1038.
[13]Budhadev Karmaskar v. State of West Bengal (2011), JT 2011 (8) SC 289, 2011 (8) SCALE 155, 2011 (4) UJ 2675 (SC)
[14]Kajal Mukesh Singh v. the State of Maharashtra, (2021), Criminal Writ Petition no. 6065 of 2019.
