Abstract
From the very existence of the idea of marriage, prostitution has been a fundamental part of the society. Lately, prostitution is highly associated with violence, prejudice, struggle, corruption and has been forbidden by the Indian society and hence, necessary attention has not been given for its regulation. This study aims to comprehend the experience, frameworks, procedures, and laws that enable former sex workers to heal and reintegrate into the society. The article primarily focuses on the legislation that the Indian government passed to legalise the activity of prostitution – that is, the benefits which the prostitutes receive from legalising their profession, the way in which this legislation implemented in India, the connected regulations, as well as the advantages and disadvantages of legalising this profession. The question that emerges in the instance of prostitution, however, is whether the activity is one that regularly and continuously offers a substantial immediate harm to a woman’s physical and mental health. If that’s the case, then approving such a job and making a system that encourages it results in a contradiction between the advantages of legalising prostitution and its real drawbacks, which is problematic both morally and practically.
Keywords
Rights, Human Trafficking, Child Protection, Prostitute, Women rights, Equality
Introduction
Let’s go to the bookstore and follow up some books on prostitution. “Wait,What? She is not a prostitute then why should she even read such a book!” – that is the reply we get from anyone around us when we ask them to do the same. Is this because of the so called power structure or is it because of the assertion on her socioeconomic background, for which she “cannot” be a prostitute? Speaking of Fundamental Rights and Duties, is it not the fundamental rights of every women to be free and treated equally in all the aspects of life and is it not the fundamental duty of every citizen to abnegate the practices that are derogatory to the dignity of women? Womens are said to be the manifestation of power and nature and are given the place of godesses and at the same time they are treated as a saleable product to men for a price. There are many contradictions on prostitution in the feminist society, so prostitution rights which must be laid emphasis on and remodel the rights of women in prostitution . Normally the word “prostitution” means an act of promiscuous sexual intercourse for hire or offer or agreement to perform an act of sexual intercourse or any unlawful sexual act for hire as was the connotation of the Act. Women found in flesh trade should be viewed more of victims of adverse socio-economic circumstances rather than as offenders in our society. The commercial exploitation of sex may be regarded as a crime but those trapped in custom-oriented prostitution should be viewed as victims of gender-oriented vulnerability.[1]
Research Methodology
This paper has been written referring to various journals, articles. Also the jugements of various cases, the judgements of Supreme Court has been taken note of, for example the famous case of Budhadev Karmaskar v State of West Bengal, and articles include Pratik Goyal (2011) “Prostitution In India: Understanding The Conditions Of Prostitutes”youth ki awaaz.
The Act
The process of exploitation of women and taking unfair advantage of imprisoned women for one’s own personal benefits, commercial purposes has been brought under the framework of Immoral Traffic (Prevention) Act, 1956.
“Brothel” is defined under S. 2 (a) of the Traffic (Prevention) Act, 1956 as including
- “any house, room or place or any portion of any house, room or place, which is used for purposes of prostitution for the gain of another person or for the mutual gain of two or more prostitutes.”
Even if primarily the sex work in india is governed by the act of Immoral Traffic (Prevention) Act, 1956, The Indian Penal Code(IPC) and the Juvenile Justice Act, 1986 also has provisions dealing with prostitution and trafficking in India. The word ‘abuse” it was held in Gaurav Jain v. Union of India[2], has a very wide meaning – everything which is contrary to good order established by usage amounts to abuse. Physical or mental maltreatment also an abuse. An injury to genital organs in an attempt of sexual intercourse also amounts to sexual abuse. Any injury to private parts of a girl constitutes abuse under the Juvenile Justice Act.
In John and Others In Re[3], the definition of ‘brothel’ implies that the premises must have been used for the purpose of prostitution for the gain of another person or for the mutual gain of two or more persons. In this case the fact that the accused was living on the earnings of his wife, establishes the connection. Thus, for the offences of prostitution it is essential that-
- A female must offer her body to indiscriminate intercourse with men, usually for hire. It must be promiscuous intercourse for hire
- There must be sexual intercourse
- It must be for hire for which the consideration must be in cash or in kind.[4]
Child Protection
Childrens are also not left out of this outrageous evil. They are being deprived of their basic human rights, and dignity. To deal with child sexual abuse like child prostitution, child trafficking and child pornography the government has brought in the Protection of Children from Sexual Offences(POCSO) Act, 2012. Children from the poor background are the primary targets and also sometimes bad company, ill treatmen t by family, social customs can be the causes for child prostitution. One of the recent criminal appeal in the Supreme Court of India before Justice M.R. Shah and Justice B.V. Nagarathna is the case of Nawabbudin vs. State Of Uttarakhand[5] on 8 February, 2022. The involved Act, Sections and subsections were the Protection of Children from Sexual Offences(POCSO) Act, 2012- Ss. 3(b), 5(m) and 5/6 or 7/8- “Penetrative Sexual Assault” as well as “Aggravated Penetrative Sexual Assault”. The facts in the case demonstrated that the accused had penetrated his finger in the vagina and because of that the merely 4year old girl(victim) felt pain and irritation in urination as well as pain on her body. The doctor after examination found redness and swelling around her vagina and thus held the case fell under section 3(b) as penetrative sexual assault. As per prosecution the accused had taken the victim girl into the bushes where he was spotted naked by some persons while he was raping the girl and was immediately handed over to the police. The Trial court sentenced life imprisonment to the accused and also a monetary fine of Rs.50,000 and also a fine of Rs.30,000 to the victim girl as compensation.[6]
Childhood is the most precious stage of a person’s life. Therefore it is the duty of the parents as well as the government to fulfill their right to life. The menace of child trafficking is not a new concept in india. Children are snatched from their parents and family and forced to engage into sexual activities and other illegal activities, They are being kidnapped and nothing we could do on it because even if we find them they demand for a high amount which might not be affordable by poor parents. The highest growing criminal activity today is Online Human Trafficking as it is very easy to open an account and switch it to private after which nobody will know what is going on.
This act makes finding these girls more difficult. What if today one of those girls would be your little sister? The amount of emotional pain and heartbreak these activities brings to the family members even is unimaginable. Thus, it is high time that children are stopped being abused, people should dstop being cruel and evolve themselves into a better picture of humanity.
Case Laws
In the most receent times, the Supreme court was hearing a plea regarding the impoverishment of sex workers due to the Covid 19 pandemic and desired for relief measures. In a remarkable order, the apex court recognised prostitution as a profession. Adding to it, the Supreme court granted equal dignity and protection to the sex workers and ordered the police to not take actions against the consenting sex workers. In the past, the Supreme Court had passed a few favourable judgements regarding prostitution- the famous one being Budhadev Karmaskar v State of West Bengal[7] which had held that sex workers had a right to dignity under Article 21 of the Constitution, which ensures the right to life and livelihood. According to the Calcutta High Court in 2019, there must be strong proof that a sex worker who was exploited for commercial sex was a “co-conspirator” in the offence before she may be prosecuted as an accused under the ITPA. Three women who had been imprisoned for working in prostitution were given their freedom immediately by the Bombay High Court in September 2020, in Kajal Mukesh Singh vs State of Maharashtra [8]. The court ruled that prostitution was not a crime and that an adult woman had the right to choose her career. Now in 2022, a three-judge bench headed by Justice L Nageswara Rao stated voluntary sex to be legal and issued directions to protect their rights like all other citizens of India under Article 21. The court said that if a complaint is filed by a sex worker regarding harassment, sexual or any kind of offense then the police must take it seriously, whenever there is a raid on any brothel the sex workers must not be arrested and harassed by the police because only brothel is illegal but voluntary sex isn’t, also the sex workers must be provided with all the remedies in case of sexual assault as provided to other victims and the safety measures taken by the sex workers like the use of condoms should not be used or seen as an evidence of an offence.[9] The court invoked its special powers under Article 142 of the Indian Constitution which states- “The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.”
Conclusion
Prostitution is legal in India but several activities related yto it like pimping, managing or owning a brothel, child prostitution are illegal. Hence, it can be said the prostitution has been decriminalised. Decriminalising prostitution helped the sex workers in various ways- they will be treated equally like other citizens, customers would now use condoms mandatorily which will maintain the healthy and safety measures and prevent the transmission of diseases like AIDS or HIV, they will get police security in any unforseen circumstances, the human trafficking will also become limited. But the disadvantages are-due to the ban on brothels sex workers will not be able to work together anymore which will put them at a risk and can also increase street prostitution. It is due to prostitution that to some extent the cases of rape has subsided. Although the women here has been a part of this profession due to some contraints, but they are here with her own full consent. Prostitution has existed since ages and will continue, hence being a part of our society. The childrens of prostitutes lives the most miserable childhood. They face discrimination just because they are the childrens of prostitutes. They don’t get their basic necessities, proper education, respect and economical support. The girl childs are forced into the profession of prostitution just because they are the daughters of a prostitute. Generally people thinks prostitution has been legalized but from my point of view it has been dicriminalised and which is absolutely better than a complete ban on it as sex work will continue and regulating prostitution will also safeguard the rights of sex workers and they will not face threats and get a room for respect and acceptance in the society.
[1] (Gaurav Jain v. Union of India, (1997) 8 SCC 114, 1997)
[2] (Gaurav Jain v. Union of India, (1997) 8 SCC 114, 1997)
[3] (AIR 1966 Mad 167)
[4] Mamta Rao, Law Relating to Women and Children, 189( Fourth Edition, 2018)
[5] (2022) 5 SCC 419
[6] (2022) 5 Supreme Court Cases 419 : 2022 SCC OnLine SC 161
[7] Budhadev Karmaskar v State of W.B., (2011) 11 SCC 538
[8] 2020 SCC OnLine Bom 954
[9] Kanu Sarda, Prostitution recognised as ‘profession’, India Today (May 26, 2022 20:07 PM), https://www.indiatoday.in