ABSTRACT
Prostitution is a very old occupation. Prostitution is defined as having sex with another party in exchange for money, payment, or any other assert. The person or individual who involves themselves in such a kind of activity is called a prostitute; it is genuinely practiced by a woman since the Vedic or Mughals are. But those days they were getting respect and had good social status, but now in the 21st century it has been totally converted to violence, exploitation, and human trafficking, and it has increased child trafficking and crime against women. The research is focused on whether prostitution is increasing crime, especially for women, so why it’s legalised in India as well as other countries, and what laws are there to protect the rights of sex workers. The basic regions behind the woman’s entry into prostitution are a lack of skill to earn money or a lack of education and a source of income to support and live for themselves and their child. Prostitution is complex and wide; it is also a commercial or sexual institution. In Hindu mythology, prostitution is neither wrong nor immoral if it is not practiced in public.
KEYWORDS
Prostitution, legalization of prostitution, human trafficking, constitution, Devdasi, Bothel, Immoral Trafficking Act, 1956, Exploitation and Violence Against Women.
INTRODUCTION
Prostitution is categorised into three types. The first is organised, the second is street-based, and the third is escorts. In India, many laws are there to protect a person or individual from forced prostitution. Prostitution is legalised only if it’s not forceful, exploit any person, or create any kind of nuisance.
Prostitution is a type of trade practice that is related to human trafficking or illegal and unwanted sexual activity. According to the Oxford dictionary, prostitution is a practice or an act of exchanging money for sexual activity between at least two parties. prostitution is an English word that is driven from the Latin words prostitute and prostitutes. prostitution is not a new word or new trade practice; it has been going on for a very ancient time. Legalisation of prostitution is a very controversial topic; it has been a controversial and debated topic for centuries. Not only in India nowadays, prostitution is legal in many of the countries. For example, Austria, some parts of Australia, Canada, Bangladesh, Brazil, New Zealand, Belgium, and the Netherlands were the first countries to legalize prostitution in the world, but also there are some countries that have completely criminalised prostitution. In India, prostitution is not illegal, but some activities are still illegal in India, like working and managing Bothell houses, sexting, pimping, seducing a person in custody, and prostitution in public places and involving any child in prostitution. All these activities are prohibited by Indian law. In the early years, prostitution was only limited to women and girls, but now, in the 21st century, it has been practiced by not only women; it has also been practiced by men and transgender people. Many of the time, prostitution is a cause of HIV/AIDS, unwanted pregnancy, or other transmitted disease. In U.S. prostitution.
LITRATURE REVIEW
There are many sources or literature works available related to the topic of prostitution. Prostitution is not a new word; this topic has existed since the creation of the world. The elementary resource of information is the immoral traffic (prevention) act, 1956, or the immoral traffic (prevention) act, 1986. Both are stated about immoral trafficking and privation of forced prostitution and child privation and prostitution in public. In India, prostitution is not illegal, but some activities like managing brothels or pimping or using children for the purpose of prostitution is a crime. Both acts lay down a rule and regulation for the practice of prostitution. If any person breaches any rule, she/he can be punished by law. The researcher moved on to the constitution of India for analysing the right of the prostitute in Article 21, which is there in Part III of the constitution of India. BNS Bhartiya Nyaya Sanhita 2023is a new criminal law to examine the punishment for buying or selling any child for the purpose of immoral trafficking. The Contagious Diseases Act 1868, which was passed by the British government in colonial India for the purpose of regulating common-sex work and reducing the contagious diseases in British navy and army officers.
There are some research works that are written by researchers: Legalization of Prostitution in India and its Impact on the Exploitation and Violence Against Women, which talk about the legalisation of prostitution and the dark side of prostitution, which is related to the woman’s rights and violence or exploitation against a woman.
Another article is stated about legal framework work related to prostitution in India, the history of prostitution, and the cause of prostitution. The article laid down about the condition of prostitutes in India. researcher has used many other articles and literature about prostitution.
RESEARCH METHODOLOGY
For writing this research paper, the researcher has used several tools and sources. In this paper, secondary information and qualitative information, which is descriptive in form, and also quantitative information are used. The researcher used many articles’ books, judgements, journal websites, and various opinions of various researchers and journals or social workers for their better understanding on this topic. And compressive study between India and other countries where prostitution is legalised as another profession. The paper is based on doctrinal research because it is analysing a better understanding of the legalisation of one of the important legal issues, whether prostitution is legal in India or not. The advantage of such a methodology of research is that it involves a better understanding or analysis of the subject in hand and helps in identifying some perforation and opacity in it.
OBJECTIVE OF STUDY
The objective behind writing this paper is common the researcher mainly focused on these following objectives:
- Examine the legalization of prostitution in India or other country
- Examine the legislation in India related to prostitution.
- Analysing the history of prostitution
RESEARCH QUESTION
- What legal aspect is present in India related to the prostitution?
- Is prostitution wrong morally?
HISTORY AND BACKGROUND OF PROSTITUTION
In Vedic, prostitution is also there and practiced by a woman and transgender (kinara). The early year of that type of relationship is found in most ancient literature, Rigveda. Prostitution and such kinds of activity are found in books II-VII OF THE RIGVEDA. In the Veda, prostitutes are defined as the name of Apsara; they are spouses of Gandharva, and both are celestial dancers and singers, and in the court of Dev Indra (God of heaven). According to the Rigveda, eight apsara (celestial nymphs): Rambha, Urvashi, Ghritachi, Pramlocha, Anjana, Menaka, and Tilottama are famous and divine singers and dancers, and they were entertaining the gods and goddesses in heaven. Ramayan and Mahabharat also describe knowledge about prostitution.
The devadasi is a practice which is followed by poor and lower caste women in the 16th century’s Gupta period. The word devadasis means Dev (God) Dasi (Female Servant), servant of God; basically, they were married to Lord Krishna and served their rest of life to the Hindu deity and temple. Devadasis are dancers and singers in a (mandir) temple, and they are the hereditary employer of the temple. At that time, they received a huge amount of respect and financial support from the king and landowner, but with time, the devadasi practice led to the girl and woman trafficking and forced prostitution. During the British rule, devadasi practices were banned by enacting a Bombay devadasi protection act in 1934.
PROSTITUTION IN MUGHAL EMPIRE
Prostitution was the most common occupation in Mughal times. At that time, prostitute women were excellent in dancing (mujra), singing, theatre, and court. At that time, prostitutes were called Tawaifs. They also received respect, gifts, and financial independence from the Nawabs or Mughals. In the 19th to 20th centuries’ time, the British government was also influenced by prostitution, and they allowed and regulated the legalisation of prostitution and formed some Bothell, and those women who worked as prostitutes were paid by the British government. In colonial times, the British government made some policies regarding prostitution, like:
They enacted the cantonment act of 1864.
Through this act, the British Government was formed to red-light areas in India to serve the British army and employees.
CONTAGIOUS DISEASE ACT OF 1868
The act is enacted by the British government to penalise and legalise prostitution and control contagious diseases among the British army, not Indian women. Through this act only those women who practice prostitution who registered or applied themselves to engage in the profession of prostitution to the commissioner of police.
LEGAL ASPECTS AND FRAME WORK TOWARDS LEGALISATION OF PROSTITUTION IN INDIA
- What legal aspect is present in India related to the prostitution?
Immoral Trafficking Act, 1956: The act was enacted by the Indian parliament to prevent illegal and immoral trafficking and forced prostitution in accordance with the international convention signed in New York in 1950. The act is also known as SITA. The act defines prostitution” as the sexual exploitation or abuse of women or other genders for commercial benefit in money or in any other kind, and the person who gains or gets commercial benefit is called a prostitute.
The act is not considered prostitution a crime or illegal, but it is prohibiting some activity like;
According to Section 7 of ITPA 1956, prostitution in public places also amounts to punishment or offence. A woman can’t devolve a commercial sex within 200 yards of a public place.
According to Section 3 of ITPA 1956, keeping or managing brothels or allowing premises to be used for any kind of prostitution and exploitation of women also amounts to an offense punishable with rigorous imprisonment or for a term not less than two (2) years, which may extend to three (3) years. The occupation of prostitution is does not come into labour law.
Letter on the act was amended by Indian parliament in the year of 1986, and it is stated as criminalized or prostitute could be arrested or punishable by law if they practice such kind of activity like if they are found to soliciting, seducing other and mobile number are publishing in public are if they are found to doing such kind of activity so they can be punished with 6 month of imprisonment or with fine. And using a child for the purpose of prostitution and any kind of sexual activity also amounts to punishment which is not less than 10 ten years.
The Immoral Trafficking Act 1986 is very wide in accordance with the protection of children and women from illegal trafficking or forced prostitution.
Uttar Pradesh v. Kaushalya.
The individuals are accused of being sex workers conducting their business in the City of Kanpur. After being informed by the Sub-Inspector of Police, who is not a Special Police Officer, the City Magistrate of Kanpur sent notifications to the respondents under section. Section 20(1) of the Act mandates individuals to explain why they should not be forced to leave their current residences and be banned from returning. The recipients received the notifications and submitted complaints alleging that the actions were not legally valid. The knowledgeable City Magistrate rejected the objections that were raised. Despite the Magistrate’s orders, the respondents filed a revision with the Additional Sessions Judge in Kanpur, but it was rejected. Afterwards, the respondents opted for revisions at the High Court of judicature in Allahabad, and the High Court accepted the revision appeals, overturning the ongoing proceedings against the respondents at the City Magistrate’s Court in Kanpur. The High Court ruled in Favor of section. Section 20 of the Act violated the basic rights of the respondents as stated in Article 14 and sub-clauses (d) and (e) of Article 19(1) of the Constitution. Following the issuance of certificates for leave to appeal by the High Court, the State has filed the current appeals.
THE BHARTIYA NAYANA SANHITA, 2023
In the new criminal law, Bhartiya Nyaya Sanhita also stated about the prohibition of child prostitution according to the following section:
- Section 96 of BNS Bhartiya Nyaya Sanhita 2023: Deal with procuration of minor girls under the age of eighteen (18).
- Section 97 of BNS Bhartiya Nyaya Sanhita 2023: Section deals with kidnapping or abduction of minor children (under the age of 10).
98 or 99 selling or buying a child for the purpose of prostitution amounts to the offence and is punishable by law.
- Section 98 of BNS Bhartiya Nyaya Sanhita 2023: selling any child who is minor means (under the age of 18), or hire any child for the purpose of illicit relationship or prostitution with any other person or for any immoral purpose, from the person who manage or keeping brothel, He/she shall be punished not less than 10 years imprisonment or also liable to a fine or both.
- Section 99 of BNS Bhartiya Nyaya Sanhita 2023: buying or hiring any child for the purpose of the illicit relationship or prostitution with any other person or for any immoral purpose, from the person who manages or keeps brothels. He/she shall be punished not less than 7 years imprisonment or also liable to a fine or both.
CONSTITUTION OF INDIA:
- Article 21. states that no person shall be deprived of his life and personal liberty except according to procedure established by.
- The article also discussed the right to live with dignity and the right to shelter and right to privacy. The article also gives the right to make reproductive choices to the woman.
- In article 21, the word life doesn’t mean just an animal life; the word life means a life of livelihood with dignity and respect.
In the case of Budhadev Karmaskar vs. State of West BengalThe Supreme Court held that a sex worker is also human, and they are also liable to get respect and dignity from society as well as the law, and they shall be treated with dignity and humanity.
- In the Constitution of India, Article 23, any type of human trafficking or sexual exploitation of women and girls and forced labour are prohibited and punishable by law.
PROSTITUTION IN INDIA AND OTHER COUNTRIES:
Prostitution is an occupation like other occupations in India. prostitution is not illegal, but some activities are prohibited and tried to prevent by law. It means in India, prostitution is not considered a crime, but such activity as keeping a brothel or buying, selling, or hiring a woman and child of any gender for the purpose of an illicit relationship or prostitution is considered a crime. In India, prostitution can be practiced, but only in private, not public, which means prostitutes can’t practice their profession openly.
The Netherlands: The Netherlands was a first country to legalise prostitution.
New Zealand: Prostitution is legal, and such kinds of activities as solicitation and keeping and managing brothels are also legal in New Zealand. In this country, prostitution has been legalised since 2003.
Canada: In Canada, prostitution is legalised with strict rules and regulations. In Canada, the communities and exploited persons act to govern and control prostitution.
Thailand: The prostitution in Thailand is not legal. Thai law is very much against of soliciting or promoting any kind of immoral sexual activity through the prevention and suppression of prostitution act of 1996 soliciting and keeping brothel and red light are explicitly ban but law are very much week and unforced that’s why Thailand is well known as central country of prostitution , since the Vietnam war main resign behind this, lack of opportunity and an puberty or lack of skills, the country is major destination for sex tourism in south Asia, country is generate 6.4 billion revenue in annual to the prostitution. Prostitution is one of the easiest ways for women to live financially independent and maintain their families. Prostitution is playing an important role in countries’ economies.
Germany: In Germany, prostitution is legalised like other professions, and prostitutes are liable to pay tax to the government. The country also allows keeping and managing brothels.
Australia: in some parts of the country, prostitution is legalised, but, in some parts, prostitution is not openly and completely legalised, like prostitution is not illegal or a crime in New South Wales, but pimping is illegal. In Victoria, Tasmania, and Queensland, prostitution is completely legal, or in northern Australia, southern Australia, or the western part of the country, it is legalised. prostitution not keeping brothels and soliciting or piping is still illegal.
Mexico: Prostitution is also legalised, but some states of the country enact or establish their own rules and regulations for sex work.
United States: Prostitution is illegal; excluded some parts of Nevada states in the U. S..
- Is prostitution morally wrong?
Prostitution is morally wrong or right. It is a very debatable topic surrounding society. Some people believe that prostitution or sex work is one of the shameful professions; in fact, they are not considered prostitution as an occupation, and they treat prostitutes like she or he is not part of society. Sometimes their children are deemed to be educated just because her or his parents are not from a well-educated family. A woman who practices prostitution faces exploitation or violence by some clients, and they have no one else to expect to tolerate the violence and practice prostitution because they don’t have any source of income. Society considered prostitutes as impure, but our law does not discriminate against any person on behalf of their occupation. Article 14 states that the state shall not deny any person equality before the law or equal protection of the law in India. and article 15 also states that no person can discriminate on behalf of their religion, race, caste, sex, place of birth, or any other grounds, which is there in article 15 of sub articles (2), (a), (b). The law legalised prostitution, but certain activities that are related to morality are banned because, according to the law, prostitution is not morally wrong, but such kinds of activities that create nuisances in society are wrong.
The question is whether using some one body for commercial purposes is right.
In this patriarchal society where men lead the society and they are treated as subjects, women always suffer from exploitation or violence and fight for their fundamental rights.
The main cause of prostitution is a lack of skills and education. When women have no option for a livelihood, they enter into prostitution and start earning money from selling their bodies to men. The profession is based on commercial benefit in exchange for sexual activity or intercourse.
It’s not morally wrong when women enter into this prostitution by their will; it’s illegal or morally wrong when it is forceful. But some parts of society, like some feminists, told me that prostitution is not ethically right because it’s the most vital region of exploitation, harassment, and valence of women and minor girls, but some researchers and social activists said that women of any other gender have the right to choose their occupation, no matter whether it’s prostitution or sex work; they’re also liable to get respect and live with dignity.
CONCLUSION AND SUGGESTION
Prostitution is the oldest profession practiced by women; it is a historical profession, as per ITPA 1956 ACT. Prostitution is the business of having intercourse for commercial and financial benefit. The person who practices a prostitution is called as prostitute in our society doesn’t consider the prostitution as respectful occupation and it considered as shameful by society, and some section of society like religious monks’ holy monks or some feminists are stated that using Somone body for earn money is not right but they are failed to prove that it is not a fun or enjoyed and voluntary profession woman always chose prostitution when they are totally suffered from poverty and when they have no any other option of getting financial support generate income , sex work is seen bad or evil in eyes of society, it is prohibition by society but some researcher are considered prostitution like other profession the prostitution is now legal in India with some strict restriction, there are virous law to govern prostitution and protect to prostitute right not only India now many country are decriminalized the prostitution as occupation .
Prostitutes suffered from a lot of violence and exploitation by their clients as well as discrimination by society; only the region behind it don’t have adequate rights and lack of law if the government completely legalised prostitution so prostitute can live with dignity, and sometimes prostitution industry victims are afraid to find rehabilitation in a protection or woman’s home that is run by the state or central government. It is the duty of government and NGO (run by government) to raise awareness in society about the right of prostitutes and their children to prostitution through campaigns that are important to legislation without any loopholes, and shall be implemented for safeguarding and protection of sex workers and their children.
WRITTEN BY
Name= Pragya rai
University of Engineering and Management Kolkata .
Course= BBA-LLB