Published On: 24th February, 2025
Authored By: Aliza Akram Khan
R.P.S LAW COLLEGE, PATNA
INTRODUCTION
Prostitution in its unrefined form is slavery. It has been a prevalent practice in India, existing both in ancient and modern times, with varying social and legal implications. Historically, the Mughal era saw the emergence of tawaifs-courtesans who used to sing and dance before the kings. After the arrival of Britishers, these courtesans were forced to become prostitute and lead a life of disgrace. “In India, there are around 3 million prostitutes unfortunately; many of them are children below 18”[1]. There can be several reasons why women choose to be prostitute. Poverty is of course one of the major reason to do so. To survive they chose this derogated profession. Many women choose this out of necessity; some of them are doing this because they are born into a prostitute family. But there are a number of cases where a woman is forced to become a prostitute. Illiterate women from rural areas are often vulnerable to exploitation and manipulation. In an effort to provide them with employment opportunities, they are sometimes sold into sex work.
Different countries have different views and laws regarding prostitution. There are many countries where prostitution is legal and it is recognized as a profession. On the other hand, there are other countries as well where prostitution is illegal and punishable.
INDIAN VIEW REGARDING PROSTITUTION
In India Prostitution is regarded as unethical, negative, and against moral values and principles. It is seen as detrimental to a family life and can cause differences between the parties to a marriage which will lead to dissolution of marriage. However, some people are of the opinion that it is a profession where women decide to use their body as a means of livelihood.
In India, prostitution is not entirely legal or illegal. As per Article 19 (1) (g) of the constitution of India, which says that each and every individual has a right to choose and exercise any kind of work, trade, or business but it should not be against the public at large or against the laws of India2. Prostitution can be considered legal, as individuals have the right to choose their profession.
But prostitution is illegal in some instances, such as ‘public solicitation, trafficking, pimping, running brothels etc.’[2] If a woman voluntarily involve herself in this practice, then she is free to do so but if she has been forced to involve herself in these practices or she has been a victim of human trafficking and send to brothel then it is illegal and those who are running those brothels will be punished accordingly.
LEGAL REQUIREMENTS REGARDING PROSTITUTION
Prostitutes are often stigmatized and treated with disdain, regardless of whether they choose the profession voluntarily or are coerced into it. Society tends to overlook their humanity, failing to show them the respect and dignity that every individual deserves. This widespread disregard for their agency, whether by choice or circumstance, perpetuates harmful stereotypes and reinforces the marginalization of a vulnerable group. At several instances they were also forced by brothel owners to continue the life as a prostitute or they were also assaulted by clients. There are a number of cases where a prostitute has been killed brutally just because they refused to intercourse. Whatever their profession is, however they doing it, we should not forget that they are the citizen of India and being an Indian they have the fundamental rights granted by the Constitution of India and we should not violate or intervene their rights by judging their profession.
According to the Immoral Traffic (Prevention) Act, 1956 enacted by parliament Prostitution is defined as sexual exploitation or misuse of any person for any business purpose4. Sexual exploitation, seducing someone, running brothels, pimping, soliciting etc. is punishable under the Immoral Trafficking (Prevention) Act of 1956. Further a prostitution business cannot take place within 200 yards of a public place. Otherwise they will be imprisoned for a period of [3][4] months with some fine[5]. A woman who is a prostitute can be arrested if she found soliciting or seducing others. Call girls cannot make their phone number public if they found doing so they will be punished for six months along with some penalties.
A person living on the earning of prostitute is also guilty and can be punished for a period of 2-4 years unless the contrary is proved. ITPA does not directly prohibits the prostitution nor does it completely criminalize it however it does prohibit prostitution in broader way but allows it, if it is made voluntarily and without force. However Indian government has taken some steps to legalize prostitution in order to safeguard women’s rights and spread awareness about the same.
INDIAN PENAL CODE
The Indian Penal Code (IPC) includes several provisions that address prostitution, particularly related to the exploitation of minors. Key sections include:
- Section 366 A: Procuration of minor girl
- Section 366 B: Importation of girl from foreign country Section 372: Selling minor for purpose of prostitution etc.
- Section 373: Buying minor for purposes of prostitution etc.
These all are cognizable and non – bailable offences and shall be punishable with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.
CASES RELATED TO RIGHTS OF SEX WORKERS
Gaurav Jain v U.O.I and Ors
Advocate Gaurav Jain filed a P.I.L in Supreme Court in which he prayed about setting up educational institution for the children of prostitution[6]. The Supreme Court judges held that the “Women found in the flesh trade, should be viewed as more as victim of adverse socio- economic circumstances rather than as offenders in our society” and ordered of setting up juvenile home and rehabilitation for children of prostitute under the Juvenile Justice Act, 1986.
Kamla v The State and Ors
A girl was brought to the kotha and was forced to prostitution; it was an offence as per Section 7(1) of the Immoral Traffic (Prevention) Act, 1956.[7] Running prostitution in the premises within 200 meter of public place is illegal and punishable act. The magistrate can pass order for the eviction of occupier of that place[8].
Budhadev Karmaskar v State of West Bengal
This is a landmark case related to prostitution. In this case a sex worker has been brutally raped because she refused to have sexual intercourse with the appellant. Even if she was a prostitute, she has the right to live a life of dignity. Sex workers are also human being; the appellant not only raped her but also murdered her.
This case throws light on the life of sex workers and the need to address these problems in order to avoid another case of similar nature. ‘The court also recognized the right of sex workers and held that they are entitled to all the constitutional rights available to any citizen’[9].
CONCLUSION
Prostitution is a complex issue and it affects the society in many ways. Unlike other countries prostitution have different views in India. There is a debate over prostitution whether to criminalize or to decriminalize it. In my opinion, prostitute is an individual, a citizen of our country India that’s why all the fundamental rights should be granted to them. They should not be looked down or exploited because of their work.
As the judiciary also took steps and passed judgement in order to ensure the safety of sex workers and also took initiatives for the education of sex worker’s children. This is 21st century, the mindset need to be change and lets just accept the fact that sex workers are also the part of our society and treat them as a living individual and not just a means of sexual pleasure.
References:
[1] Shashwant Kaushik, ‘Is Prostitution Legal In India’ (iPleaders, 5 February 2024) < http://blog.ipleaders.in/is-prostitution-legal-in-india/ > accessed 11 October 2024 2 Constitution of India 1950, art 19(1)(g)
[2] Akanksha Dave, ‘Prostitution Is Legal In India According To A Ruling By The Supreme Court’ (2023)
[3] (1) IJIR < https://ijirl.com/wp-content/uploads/2023/01/PROSTITUTION-IS-LEGAL-IN-INDIAACCORDING-TO-A-RULING-BY-THE-SUPREME-COURT.pdf > accessed 12 October 2024
[4] Immoral Traffic (Prevention) Act, 1956 s (2)(f)
[5] Immoral Traffic (Prevention) Act, 1956 s (7)(b)
[6] GauravJainvU.O.IandOrs(1997) 8 SCC 114
[7] Immoral Traffic (Prevention) Act 1956, s (7)(1)
[8] KamlavTheStateandOrs(1971) SC 1667
[9] BudhadevKarmaskarvStateofWestBengalCrl A. No 135/2010
