Author : Simarpreet Saluja (Bharti Vidyapeeth)
“Prostitution” means the sexual exploitation or abuse of persons for commercial purposes or for consideration in money or in any other kind, and the expression “prostitute” shall be construed accordingly. This practice has been running around since ages. The day a society has been created with number of people performing their activities to earn their livelihood, the practice of prostitution has also started. However, this may differ with the societies or we can say differ with the countries and varies with the practice followed in different countries. But the thing is there is one question which always comes up in the mind of every other person that is prostitution is legal or not. This paper is an attempt to pen down the laws related to the legality and the morality of prostitution in India.
There is a straightforward answer to this question. Here, in India, there is no statute no particular which proves the practice of prostitution as illegal, but the impression towards this practice is actually like that towards an illegal activity because of the mindset, and the thinking of the Indian society. Therefore, to know more about the actual status of it towards its legality in India, there is a need to analyse about its background, history and the changes which have taken place with the time.
Prostitution is sometimes also called as ‘the world’s oldest profession’ because there are so many evidences which proves it that this practice is in continuation all the way from the ancient societies
There is a strange practice of prostitution one can find in the ancient near East which was considered as a home to many Shrines, or referred as ‘house of heaven’, which were staunched to different celestial beings. Another evidence of this practice can be traced in the region of Cannan, the substantial area of the temple constitutes of male prostitutes. This is exercised in Sardarniye and in Phoenician cultures. The practice of prostitution in the region of Sardarnia and Phoenician culture was done in the prestige of Ashtrat goddess. Later on, as the years passed by the belief of sacred prostitution for females spread in the countries of India, China, Greece and Japan. This practise of sacred prostitution come to an end in 320 AD. In 320 AD, the Emperor Constantine demolished all the deities and replace all the old dutiful practises into Christianity.
And when we talk about Indian mythology, it also contains many sources of Apsara. These were the prostitution who were described with beauty and pleasing effect. They used to be very talented in dancing and singing. These are the ones who used to entertain the guests in the divans of Lord Indra, who was considered as king of heaven. In earlier days, the gods often used one technique to test the devotion of the sages by sending apsaras around them. Whereas in the history of devadasis, Puranas have mentioned that a lady who will share a couch with two males will be called as kultas, those will share with three males will be called as Darshini, with four males will be called as Pungaschalea and the one who share with five males will be called as Veshya – which we use as a Hindi word for prostitution in today’s world.
Types of prostitutes:
Usually, prostitutes are classified on the basis of their method they adopt: –
1)street prostitution – These are those prostitutes who solicits the people from the street and took them to a particular place of meeting.
2) Brothel prostitutes– These are those prostitutes who practice their function in the brothel. All the prostitutes present in a brothel work for the commission basis for their services to the customers.
3) Call girl prostitutes – these types of prostitutes generally work from their own place itself.
4)Some other types – some prostitutes are also found in dance bars, massage parlours, amusement areas etc.
Does poverty give directions to prostitution?
When we consider the whole world there are approx. 1 billion children in the world out of which 1 billion live their life under poverty. Every now and then, these children are losing their life out of poverty. This poverty among the children give direction to generational prostitution which took place due to the urgency in their life to run their livelihood. When we talk about India, 1% of the women in India are sex workers. And out of this one percent almost 90% of the women are practising as a prostitution just because of the generational prostitution. India is full of diversity. There are a number of religions, castes, languages et cetera can be seen in India. And even after having so many laws against any kind of discrimination on the basis of class, caste, sex, religion, place of birth etc. The process of discrimination can be seen in many places. Due to this caste or class discrimination, most of the children do not get the opportunity to perform some other tasks or gain education or come out of the sexually-based tasks. Most of the individual who practice as a prostitution are born into it. They do not practice such things with their own perception but out of the need to run their livelihood. Therefore, this subject of worldwide poverty should be inevitably super scribed concerning the matter of human rights as well as discrimination which resulted into generational prostitution.
Legislations which frequently imposed on prostitution: –
Under the Indian Constitution, Article 23 guarantees the right of protection from exploitation. It prohibits the trafficking in human beings. Other than this, there are so many provisions in the IPC which address sexual crimes against the women. This provision also laid down the punishment to be awarded to an individual.
The offences let down under Indian penal code are: –
1)Section 376-section 376 of the IPC provides punishment for the rape.
2) section 366 –kidnapping or abducting a woman to pursue her for sexual intercourse without her consent.
3)Section 354 – Exercising criminal force to offend the modesty of a woman.
4) section 372-dealing with the business for buying or selling of a girl, for unlawful classified it as an immoral act. For example: – The Immoral trafficking (prevention) Act, 1956.This particular act considered the practice of prostitution as immoral or victimization of an individual for unlawful activities or immoral purpose. According to the Immoral Trafficking (Prevention) Act, 1956, it is unlawful and illegal to run a brothel or to confine the girls in places for providing their services. If practice of such an act or being taken place within the 200 meters from public places such as hospitals, temples, schools, Colleges then it will be considered as illegal under this act. The procurement or snatching away the earnings of the prostitution, soliciting an individual under the custody, or abducting a girl for such immoral practices are also illegal under this act.
Therefore, if a woman agrees to enter into a sexual intercourse with an individual in turn of money, it will not be considered as an unlawful or illegal task. Whereas, certain practices such as seducing and pimping have been prohibited because such practises resulted in the victimization of women. Hence, to protect the morality and legality of the society such laws have been enacted. However, there was an amendment which was recommended in 2006. In this particular amendment of 2006, the issues of criminalizing the act of customers who visit the brothel to hire prostitutes and the decriminalizing the solicitation of clients was discussed. However, this has not come into force yet.
Some significant decisions: –
The authority and the legal aspect of the immoral traffic prevention act was challenged in a case. In this case, a number of prostitutes were remoted from a particular area of Kanpur to maintain the dignity of that particular residential area because according to section 20, if a judge gets an information regarding any individual that he is living in a particular residential area and following the practice of prostitution then the judge can issue a show-cause to him. However, this section purported to be against the article 14 of the Indian Constitution. But the court considered section 20 of this act to be a valid one concerning the legality and morality of the public places as the restrictions applied are reasonable.
In this particular section that is section 20, it has also been mentioned that if any kind of undue influence would be practised upon a prostitute, in such cases she can approach the court for the remedies.
In one such case related to the prostitution, the bench of judges issued the principle that in any of the public area and residential area if a woman or a girl child is traced seducing or soliciting in public, then the judge first discover her age. And after discovering her age, if she is found to be below the age of 18 years, the case will be handed over to the juvenile Justice board. Thereafter, the probation officer will conduct the enquiry and the juvenile will be rescued.
There is one more case which is related to the article 21 of the Indian Constitution. In this case, an individual hiring a prostitute murdered her. Thereafter, the Supreme Court held that the right to life that is article 21 of the Indian Constitution is available for the prostitutes as well.
There is one more case related to the prostitution where the court denied to rescue a woman trafficker, who used to run a brothel in which she also confined a girl child. She was behind the bars for 14 months.
Questions which often comes into the mind of people: –
1) Is the existence of red light areas legal in India?
2) Can a prostitute be denied for not providing her services to an individual?
3) Are only women performing as prostitutes?
4) Is it lawful to put a column in newspaper about the prostitution services?
5) Can an individual be punished for hiring a prostitute?
Though there are some suggestions that were being made in 2006 as to the Immortal trafficking (prevention) Act, 1956, such amendments have not yet been taken place. Therefore, according to the current laws, a customer cannot be penalised for availing the services of a prostitute. Whereas when we talk about the advertisement in the newspapers, it is illegal to put such an advertisement there. While, of course women are not the only one to practise such profession but our jurisdiction fails to address other than them. And when we talk about the rights of prostitutes, they also have the rights like that of every other citizen in the country. For example:- article 21 of the Constitution which guarantees them right to life, liberty and dignity. Therefore, if an individual tries to forcefully avail services from her it will be considered as an unlawful act. And when we talk about the legality of red-light area, according to section 7 of the Act, the red-light area should not be within the 200 meters of the public places such as schools, colleges, temples, hospitals etc. Otherwise, these places are not considered as illegal according to the Immoral Trafficking (Prevention) Act, 1956.
Grounds of victimisation:-
1) Surrounding to red light area- The ones who grew up in the region of red light area are most affected from it because they think that these are the normal practises which are being performed by the sex workers due to which they end up adopting the same behavioural manner of abusing due to which they often lack education and end up following the similar practises. As a result of this, they are isolated from the rest of the society.
2) Unlawful trafficking – Unlawful trafficking is one of the most common immoral grounds of victimization. Numbers of girls and women are being kidnapped or abducted by the criminal gangs and being sold off as a sex worker after their training as prostitution.
3) Lack of resources– poverty is one of the biggest reasons among the women to practise as a prostitution. The women who does not have any money or a system to earn money, starts practising as a prostitution in exchange of some money so that they can run their livelihood.
4) Illegitimate motherhood – The women who are boycotted by the society due to the unwanted pregnancy may start such practises out of the need.
Even after having numbers of guidelines and principles issued by the court regarding the prostitution, the challenge to it restricts them from being implemented. The society in which believe do not accept such a more practise and therefore, isolate the sex workers from the public area. Despite all such laws, people often get confused with the legal aspect of such practises due to the ignorance of police officers on such practises as because they do not want to indulge in such sensitive issues. Therefore, to address the bad impression towards prostitutes, such practises should be allowed with the permission and supervision of the government. Because when such things started practising with the regulation of the government, the hygiene standards can be checked and the identity of the customers should be taken into consideration for the proof. This may change the mindset of the people which will result in the reduction of exploitation against prostitutes.