Table of Contents
Introduction
Prostitution, by definition, refers to the occupation of providing sexual services in exchange for monetary compensation. It is widely recognized as one of the oldest professions, with its origins dating back to ancient Babylonia around 2400 BC. Presently, numerous women can be found engaged in this occupation, either voluntarily or involuntarily, often becoming ensnared in a cycle of adversity.
In the context of India, prostitution is pervasive, but it is far from an ideal situation for both its clientele and those employed in the industry. While it is important to note that prostitution itself is not illegal in India, certain aspects of it, such as trafficking, pimping, and child prostitution, are deemed unlawful under The Bharatiya Nyaya Sanhita, 2023. Additionally, engaging in public sexual activities and owning brothels remain prohibited.
From a social perspective, attitudes towards prostitution vary greatly among individuals and are largely influenced by societal norms. In many instances, sex workers are subjected to harsh treatment and seldom receive respect from their immediate environment. Conversely, some individuals may feel sympathy towards them or adopt a non-judgmental stance regarding their choice of profession.
When prostitution comes to the forefront of public discourse, it is often portrayed as a complex issue that has entangled countless women, leaving them trapped in dire circumstances. However, it is crucial to acknowledge that there exists an obscured facet to this matter. Some women willingly engage in sex work, which is particularly challenging in a society like India, where a woman’s worth is often associated with familial respect.
In nearly every city across India, red-light areas, such as the renowned GB Road in Delhi or Sonapur in Mumbai, can be found, indicating the widespread nature of this industry.
Deciphering the Legal Landscape of Prostitution in India
The legal status of prostitution in India is characterized by ambiguity. There is no explicit legislation that either criminalizes or explicitly permits prostitution. While there is no specific statute declaring prostitution as illegal, certain aspects related to it, such as public solicitation or practicing it in public, are prohibited. Additionally, operating brothels as a collective endeavor is deemed unlawful. However, individuals engaged in a personal capacity in the profession cannot be held liable under the law.
To address concerns related to sex work and its eradication, the All-India Suppression of Immoral Traffic Act (SITA) was introduced in 1956. This act aimed to gradually criminalize activities associated with sex work and ultimately abolish it. Given the entrenched nature of prostitution in Indian society, separating it from societal norms proved to be a challenging endeavor.
In 1986, amendments were made to the Immoral Traffic Act, further refining its provisions. Prostitution is defined under this legislation as the sexual exploitation of individuals, highlighting the negative aspects associated with it.
The Act identifies several criminalized aspects of prostitution, including the operation of brothels, living off the earnings of prostitutes, trafficking individuals into prostitution, engaging in prostitution in public places, and soliciting individuals for prostitution. Sections 3, 4, 5, 7, and 8 of the Act explicitly declare these activities to be illegal. However, it is important to note that Section 16 of the Act encompasses provisions for the rescue and rehabilitation of individuals believed to be coerced or forced into such practices.
Therefore, while certain aspects of prostitution remain illegal under the aforementioned sections of the Act, the legislation also includes measures, such as Section 16, aimed at assisting individuals who are victims of coercion or exploitation in the industry.
Prostitution under Constitution
As per the provisions outlined in Article 21 of the Indian Constitution, which pertains to the protection of life and personal liberty, no individual shall be deprived of their life or personal liberty except through the procedure established by law. This constitutional article guarantees a life of dignity to all individuals, including sex workers.
The tragic incident that gained widespread attention occurred when a 45-year-old sex worker was brutally murdered in Kolkata’s Red-Light area. This incident served as a wake-up call for the public, highlighting the fact that sex workers are human beings who deserve to live a life of dignity, as guaranteed by Article 21 of the Indian Constitution. It also sheds light on the challenging living conditions and the social stigma that accompanies sex work.
Furthermore, in the landmark case of Budhadev Karmaskar vs. State of West Bengal, the Honorable Court established that eyewitness testimony alone is sufficient evidence to find the accused guilty of the crime. This case brought to the forefront the issues surrounding how sex workers are often treated as mere commodities and exposed the profound hardships they endure at the hands of society.
The Court went on to assert that Article 21 of the Indian Constitution not only promises but also safeguards the right to a life of dignity for every individual, including sex workers.
Prostitution under the Indian Penal Code, 1860
As per the provisions outlined in Section 371 of the Indian Penal Code (IPC), the act of buying or selling individuals for human trafficking is deemed a punishable offense under the law. Furthermore, Sections 372 and 373 of the IPC explicitly make the selling and buying of minors for prostitution illegal. These provisions aim to combat and address the issue of sex trafficking within the Indian legal framework.
The Indian penal code specifwically focuses on sex trafficking, highlighting that no individual should be coerced or compelled to engage in any form of sexual activity for the commercial benefit of others. Individuals involved in such activities will be held accountable and subject to legal repercussions as prescribed by the law.
Relevance of Evidence of Character or Previous Sexual Experience in Certain Cases
In the notable case of Delhi vs. Pankaj Chaudhry and Ors, four individuals were accused of committing the heinous crime of gang rape against a woman. During the proceedings, the defense presented seven witnesses who alleged that the woman had a questionable character and was habituated to engaging in sexual intercourse. However, it is important to note that the Supreme Court, exercising its discretionary powers under Article 142 of the Indian Constitution, acted in pursuit of delivering complete justice.
Furthermore, Section 53A of the Indian Evidence Act establishes that evidence about an individual’s character or previous sexual experiences is irrelevant and inadmissible in certain cases. This provision recognizes the importance of preventing character assassination and ensuring fairness during legal proceedings.
Important Judgments on Prostitution, Brothels, and Trafficking
In the Supreme Court’s judgment rendered by Justice Raghubar Dayal, it was determined that the mere indication of a residence being used for prostitution does not establish it as a brothel. This ruling was made in the case of Krishnamurthy alias Tailor Krishnan vs. Public Prosecutor, Madras, wherein the focus was placed on the definition of a brothel as outlined in clause (a) of section 2 of the Suppression of Immoral Traffic in Women and Girls Act, 1956. This elucidates the concept of a brothel and emphasizes that engaging in prostitution itself is not a criminal offense, whereas operating a brothel is.
In the case of Gaurav Jain vs. Union of India, an appeal was lodged seeking the establishment of separate schools for the children of sex workers, to shield them from the distressing environment of the Red Light Area. However, the Honorable Supreme Court of India declined the plea, deeming that providing separate educational institutions and hostels would further exacerbate the discrimination and marginalization faced by these children. The principle of intelligible differentia is also applicable in this context.
Furthermore, the case encompassed a Public Interest Litigation (PIL) aimed at eradicating and rescuing individuals involved in prostitution. It underscores the fact that prostitution is not illegal in India and that women possess the freedom to make decisions for themselves, as referenced in the judgment, drawing from the famous phrase coined by Shakespeare, “Frailty, Thy Name is Woman.” The notion of not considering women sufficient unto themselves is not a novel one, and seeking justice for them without comprehending their conception of justice within their specific circumstances is inherently unjust.
The court ruled that effective implementation of the provisions outlined in the Immoral Traffic Prevention Act and Juvenile Justice Act requires the employment of counseling, persuasion, and coercion.
In the subsequent case of Vinod Vijay Bhagubhai Patel vs. the State of Gujarat, the Honorable Gujarat High Court concluded that it is inexplicable why a customer at a brothel is excluded from the purview of Section 370 of the Indian Penal Code, 1860. Similarly, in a related case heard by the Andhra Pradesh High Court, Justice K. Sreenivasa Reddy asserted that a “customer” should fall within the scope of Section 370A IPC. The court took note of inconsistent judgments rendered by co-ordinate courts on connected legal matters.
Justice Reddy expressed that when the objective of the Justice J.S. Verma Committee is to curb such illicit operations, there is no valid reason to perceive a customer in the flesh trade as an innocent victim. The clause unambiguously states that any person involved in the recruitment, transportation, harboring, transfer, or receipt of any girl or woman for exploitation is culpable under Section 370 IPC. Furthermore, the rule explicitly states that the victim’s consent is irrelevant in determining the occurrence of a trafficking offense. The term ‘exploitation’ encompasses any act of physical or sexual exploitation, servitude, forced organ removal, slavery, or similar practices, as declared by the court.
Global Variances, Legislation, and Implications
Prostitution is deemed legal in approximately 53% of the countries worldwide, while it is partially legal in approximately 12% of the countries. It is often observed that countries with Islamic populations tend to strongly oppose the concept of prostitution, associating it with adultery. Countries such as Afghanistan, Albania, and Angola enforce stringent measures against individuals engaged in such activities.
Many of these countries have enacted specific legislation, such as the Sexual Offences Act, to eradicate such practices. India falls within the category of countries where prostitution is legal but subject to certain restrictions. Conversely, in countries like Australia, sex work has been fully legalized, aiming to safeguard the rights of sex workers. In sub-Saharan countries, the government recognizes and even provides pensions for sex workers. However, there are countries where brothels must be registered with the government, and taxes must be paid, treating it as any other occupation.
The legalization of prostitution carries both advantages and disadvantages. Complete legalization can potentially force vulnerable individuals into the industry, but it also offers the opportunity to protect the rights of sex workers and establish a framework governed by the law. While there may be drawbacks to legalizing prostitution, it plays a crucial role in safeguarding the rights of sex workers, providing them with enhanced opportunities, and integrating them into a regulated sector.
Perceptions, Challenges, and Efforts Surrounding Prostitution
In antiquity, the profession of sex work held a different societal perception compared to the prevailing attitudes of today. The terms “Devadasis” and “apsaras” were used to denote individuals engaged in such work. However, in contemporary times, prostitution is regarded with significant disdain, to the extent that even individuals living nearby prefer not to associate with sex workers. Nevertheless, it remains within the purview of society to determine whether these individuals are treated with dignity or not.
Disturbingly, some women are sold into these areas for a meager amount. Despite efforts by the law to combat sex trafficking, it is evident that these activities persist in obscure domains, with the distressing realization that those tasked with safeguarding us may themselves be complicit in exploiting women in these areas. Regrettably, it has been observed that women who are rescued from such circumstances often do not receive respect and validation from their families, leading them to return to the miserable lives they had become accustomed to.
Accepting the reality that certain women engage in the sale of their bodies willingly, without coercion or pressure, due to unemployment and poverty proves exceedingly challenging for our society.
The working conditions endured by sex workers are profoundly dire. In the past, limited awareness and understanding of contraceptives contributed to a high prevalence of sexually transmitted diseases, including HIV, resulting in fatalities and numerous unwanted pregnancies. While the government has taken steps to make condoms accessible through medical stores at affordable prices for those who are aware, it is evident that the execution of such measures falls short, as the desired impact and noticeable change remain elusive.
Government bodies and lawmakers have implemented various initiatives and regulations, yet the effectiveness of these efforts in addressing the challenges faced by sex workers is lacking. The discrepancy lies in the execution of these measures, as the intended outcomes and tangible improvements are not sufficiently observed.
Conclusion
Every profession, including sex work, deserves to be respected, but the pervasive stigma surrounding it creates significant barriers to open discussion. Terms like sex, prostitution, and condoms continue to be hushed whispers within society. How can we expect to witness and bring about change in a society when we are unwilling to openly address these matters? Women are often objectified and treated as commodities, and there exists a distressing parallel between the way society views victims of rape and prostitutes. In our society, the concept of a woman’s consent is tragically disregarded. It is a harsh truth that we are still far from placing women on an equal pedestal within society. It is crucial to recognize that the fight is not between women and men, but rather between victims and criminals.
This article is authored by Arooshi Sambyal, 5th year student at National Law University, Jabalpur.
Views expressed are personal.
All efforts are made to ensure the accuracy and correctness of the information published at Legally Flawless. However, Legally Flawless shall not be responsible for any errors caused due to oversight or otherwise. The users are advised to check the information themselves.
