Legality of Prostitution in India

By Diksha Mehta

A ‘prostitute’ is a person who engages in sexual activity with another person in exchange for money. According to the Merriam-Webster dictionary, ‘Prostitution’ means “the act or practice of engaging in promiscuous sexual relations especially for money.” Prostitution has been prevalent in all parts of the world since time immemorial. It is legal and regulated in some countries like Germany, Switzerland, Austria, Greece, Turkey, the Netherlands, Hungary and Latvia. The Netherlands was the first country to legalize and regulate prostitution in 1942.

LEGAL POSITION IN INDIA

Prostitution in India is approximately an $8.4 billion industry. According to a 2016-17 survey by the UN, there are 657,800 prostitutes in India presently; which means that 5 out of every 10,000 people are engaged in prostitution. Mumbai, Kolkata, and Delhi are the cities in India where brothels are engaged in prostitution illegally. Some of them are GB Road in Delhi, Sonagachi in Kolkata, Kamathipura in Mumbai, Budhwar Peth in Pune and Reshampura in Gwalior.

The position of India is rather complex when it comes to prostitution. It was legalized in 1956 by the legislation Immoral Traffic (Supression) Act, 1956 (SITA) which was amended in 1986 to Immoral Traffic (Prevention) Act (ITPA). According to the Act, prostitution is not illegal per se, but any organized form of it is punishable like managing brothels, pimping, and prostitution services in public. This means that if a woman voluntarily and individually engages in sexual activities with a customer, she cannot be punished by law.

On 25 September 2020, the Bombay High Court, releasing 3 women from a corrective home held that according to the Immoral Traffic Prevention Act, 1956, prostitution is not an offence and an adult woman cannot be detained without her consent. It was observed that the women were major and therefore, have every right to move freely, live at a place of their choice and choose vocational training of their interest as enshrined under Part III of the Constitution.

The 1956 Act prohibits:

• Seduction/solicitation of a customer
• Prostitution anywhere near a public place
• Publication of phone number of call girls
• Organized form of prostitution i.e. a brothel, pimps, etc.
• A sex worker being below 18 years of age
• Procurement and trafficking of women for sexual purposes

The scope of the 1956 Act was limited which extended to prevent trafficking of young girls and women. However, the 1986 Amendment went a step ahead to include children and men

to prevent them from being exploited for commercial purposes. Following are some of the main provisions of the Act:

1. Punishment for maintaining brothels (S.3)
2. Punishment for living off of earnings of a prostitute (S.4)
3. Punishment for procuring or taking a person for sake of prostitution (S.5)
4. Detention of a person found in a brothel (S.6)
5. Punishment for carrying out prostitution in public places (S.7)
6. Prohibits seducing or soliciting a person for prostitution (S.8)
7. Punishment for aiding or abetting prostitution of a person in his/her custody (S.9)
8. All offences committed under this Act are cognizable offences (S.14)
9. A person being made to carry out prostitution may make an application to the Magistrate to be kept in a protective home or be provided care and protection (S.19)

It is not a hidden fact that majority of persons involved in this profession are women. The 1956 Act criminalises prostitution in public places. This forces the sex workers to go to an isolated place which might be one of the causes of increasing violation of women. Legally, two or more persons practising prostitution is prohibited in India, but existence of brothels ease their financial problems. Although the Act does not render this profession illegal, it has made the women vulnerable by forcing them to work in isolated areas to prevent being prosecuted for it. Not only are they violated by the customers or the brothel keepers, they cannot seek any resort for it.

There are various causes for women to engage in prostitution:

1. Poverty
2. Abduction
3. Psychological issues
4. Early marriage and divorce or desertion by husband
5. Family customs or profession
6. Children of women engaged in prostitution
7. Rape or history of sexual abuse
8. Lack of sex education
9. Sale by parents or spouses

Apart from the 1956 Act, the Indian Penal Code, 1860 also provides for issues relating to prostitution in children. Sections 366-A and 366-B make procuration or importation

• of minor girls for the purpose of illicit sexual activities illegal. Also, Sections 372 and 373 make buying and selling of any person below the age of 18 years for purpose of prostitution a heinous crime and punishable by 10 years imprisonment. The Criminal Law Amendment Act, 2013 added Sections 370 and 370A that define and prohibit human trafficking for all purposes including sexual exploitation.
• The framers of the Constitution keeping in mind the current problem enacted Article 23 that prohibits trafficking in human beings, beggars and forced labor.

Inspite of the condition of sex workers in India, they are still human beings and entitled to the basic fundamental rights under the Constitution. They are protected under Article 21 which gives them right to life and personal liberty. In the case of Budhadev Karmaskar v. State of West Bengal (2011) 10 SCC 283), it was highlighted by the Supreme Court that a woman is in the business of prostitution not for pleasure, but because of poverty. If such a woman gets an opportunity to learn and get technical/ vocational training, she is entitled to earn a dignified livelihood instead of selling her body. The SC also gave directions to the Central Government and State Governments to make schemes for giving vocational training to the sex workers across the nation.

CRITICISM AGAINST THE 1956 ACT

1. The first and foremost issue of the 1986 Act is that the main object of the Act should be to protect the victims but there are several provisions that implicate and punish the victims of prostitution instead of shielding them. For eg. Although maintaining brothels are illegal and punishable u/s 3, still majority of persons in this profession earn through them. Therefore, instead of providing relief to them, the Act punishes the persons who work in these brothels. This is the reason many female workers who are violated in these brothels cannot approach the Court for relief against abuse or get medical attention.
2. The definition of S. 2(f) of the Act includes only females as prostitutes; there is no mention of men or transgender community.
3. Section 4 entails that any person who lives off the earnings of a prostitute is liable to be punished. It may be interpreted that if a prostitute has minor children or aged and infirm parents who cannot earn for themselves, they shall also be held liable under this provision.

Another issue is that the Act defines sex work as immoral and indecent. It is a taboo in our society even in the 21^st Century and the prostitutes are looked down upon.

1. What needs to be understood is that engaging in sex work with precautions and safeguards does not constitute any harm upon any individual and it is high time that it should be accepted as part of our society.
2. Lastly, what shocks us the most is that a prostitute who works for a living can be punished by law if she is engaging in such an activity within 200 yards of a public place but there is no punishment for a customer who takes these services.

PROPOSED AMENDMENTS TO THE ACT IN 2006

Various amendments were proposed to the 1986 Act in 2006but they have not been enacted yet:

1. Deletion of the term ‘soliciting’ of clients from Section 8 and increase in terms of punishment and fines.
2. Criminalization of the act of visiting brothels for the purpose of physical exploitation of the prostitutes with imprisonment upto 3 months and Rs.20,000 fine.
3. Constitution of authorities at the Centre and State level to combat the increasing trafficking in children and women.

LATEST JUDGMENTS ON PROSTITUTION

• In a case in 2011, a SC panel was set up which looked upon the conditions of sex workers in the country. They said that sex work is not illegal per se, only running brothels is. Therefore, voluntary and consensual sex workers should not be punished or victimized. They further recommended deletion of Section 8 of the ITPA, 1986- ‘soliciting’ of the offence and providing rehabilitation and employment opportunities to woman who wish to leave this profession. Concluding the case in 2016, the Supreme Court iterated that the police or authorities must not interfere or punish sex workers who are ‘participating with consent’ in the Act.
• In a 2018 case, the petitioner who approached the Karnataka High Court was a customer in a brothel in Bengaluru. He was caught in a hotel and arrested by the police while engaging in sexual activities with a prostitute. The Single Judge Bench quashed the proceedings against him on the ground that there is no penal provision against a ‘customer’ who engages in sexual activities with a prostitute.
• In 2016, a Gujarat High Court iterated that a customer at a brothel cannot be made liable under the ITPA, 1986 but he can be held liable for physical exploitation if he violates or abuses a sex worker in any way.

PROS AND CONS OF LEGALIZING PROSTITUTION

• On one hand, it seems practical to legalize prostitution so as to keep a database to track and register prostitutes and make sure they get all the facilities they are entitled to. It will not only help in promoting sex education among them and promote the use of precautions like condoms to prevent STDs but health checkups for HIV- AIDS and other sexually transmitted diseases can also be conducted for them.
• Similarly, it may also lead to elimination of pimps and middlemen who engage in trafficking children and women by enacting legislation for it. License may be issued to limited no. of persons who can engage in prostitution legally. The persons engaged in this profession shall have the option of approaching the Court for abuse or ill-treatment against them and they shall have the luxury of medical services that was not available to them before.
• Considering the fact that prostitution in India is approximately an $8.4 billion industry, if it is legalized, it would come under the tax regime and thereby improve the economy of the country.
• But on the other hand, it might lead to aggravation of the already worse situation of human trafficking whereby such pimps and brothel keepers can easily blend into the regulated sector of prostitutes. For eg. A study shows that after legalisation of prostitution, child trafficking in the Netherlands increased significantly. Also, after its legalization, prostitution might seem to be an easy way out for women who want to earn good money and therefore, encourage this profession.

CONCLUSION

Prostitution in India is a necessary evil. One cannot abolish or get rid of it completely even through a proper legislation, and legalizing it seems to be a better idea. Even by the enactment of the 1956 Act, no control could be exercised to eradicate it from the nation. On the contrary, it worsened the problems because of increase in illegal trafficking of women and children from other countries. Brothels are run illegally and even if they are caught by the police, they get off easily by paying bribes to the officials. Enactment of a legislation legalizing prostitution might help keeping a track of all the persons engaged in this profession. They can get legal and medical facilities and lead better lives. However, it might also be helpful for the Courts to lay down guidelines in this regard.

People who advocate in favor of its legalization also need to understand that the common people would not take it easy to have legalized brothels and prostitutes in their locality. Legalization of prostitution has its own pros and cons and it cannot be adjudged what weighs more. What is required is a uniform law throughout the country to tackle this problem and regulations that help to curb its vices.