LEGALITY OF PROSTITUTION IN INDIA

Authors:

Shriti Aayushi, KLE Society's Law College Bengaluru

Editor and Co-Author: Vaibhavee Jaipuriar, Sharda University, Greater Noida, Uttar Pradesh




Definitions:

According to Section 2(f) of The Immoral Traffic (Prevention) Act,1956, “prostitution” is that the means of sexual exploitation or abuse of persons for commercial purposes, and therefore the expression “prostitute” shall be construed accordingly.

“The act or practice of engaging in promiscuous sexual relations, especially for money is termed as prostitution”- Merriam Webster Dictionary.

Prostitution in India: Question related to legality:

There is an absence of the express provision of law stating prostitution as illegal. To some extent as pronounced by the Court, prostitution is considered to be unethical in nature. It raises a sense of confusion in the minds of the readers about the legality of prostitution in India. As per the laws of India, activities concerned with prostitution like running brothel houses, soliciting, trafficking, and pimping are punishable offenses and are illegal in nature. In India, this profession is carried out with certain limitations and restrictions.

In countries like New Zealand, Australia, Austria, Netherlands, prostitution is legal in nature and regulated by the provisions of law. In countries like Kenya, Morocco, Afghanistan, prostitution is not legal in nature.

Laws related to Prostitution in India:

The Immoral Traffic (Suppression) Act was passed in the year 1956. It was also mentioned as SITA. The law stated that the prostitutes are permitted to carry out their business only in private. Clients are to be arrested if they get involved in any kind of sexual activity in open spaces as per the provisions of law. Any exchange of money for that purpose is to be carried out on an individual capacity and is prohibited within the area of 200 yards of public space.

Immoral Traffic (Prevention) Act -ITPA was passed in 1986 and is an amendment of SITA. As per the provisions of the amended act, prostitutes are to be caught if they engage in any kind of solicitation of their services and seducing others. Clients who get involved in any of the activities within the area of 200 yards can be imprisoned for a period of three months and required to pay fines for the same. If any person is involved in the job of running brothel houses, he faces imprisonment for a period of three years. In case any person is forced to be used as a prostitute and exploited for the same, then the minimum term of punishment is seven years.

Indian Penal Code, 1860, under section 366 A (procuring a minor girl for sexual exploitation) 366 B (importation of a girl from a foreign country for sexual exploitation), The Indian Constitution Under Article 23 also prohibits the problem of human trafficking, and ITPA act under section (3 and 18) states that any person who buys or sells or obtains the possession of a person under the age of eighteen years for the reason of illicit intercourse or prostitution shall be punished for a term of ten years.

Rights available for the protection of sex workers in India:

Part III of the Constitution of India states the fundamental rights provided to the citizens of India. Sex workers are the citizens of India so they are entitled to enjoy the rights provided therein.

Article 21 deals with the right to life and personal liberty. This right is enjoyed by the sex workers. It came into light in the case of:-

Budhadev Karmaskar vs State of West Bengal [1] where he was held liable for the murder of a sex worker in the year 1999. The judgement was given in a context that sex workers are also human beings and no one has the right to assault them or murder them. They have the right to live with dignity. They get involved in this not because of pleasure but, due to the reasons of poverty.

How legalisation of prostitution will help sex worker and society:

It is on us as a citizen that how are we dealing with the factor of prostitution are we going to accept it that we are living around this or we are still going to live in denial county countries have chosen and on the other hand many countries have legalized it the following are the list of benefits we can get after legalizing it.

· Improvement in the condition of a sex worker:

We can clearly see that the effect of legalizing this has shown the positive effects like in the betterment of the livelihood of the sex worker and also the studies have shown the there is a major reduction in the STDs and violence against the sex worker.

· Reduction in trafficking:

The biggest concerned was the legalization of prostitution would lead to the major increase in the trafficking of human, but the results of the studies show the contrary to this, but the government have to work more actively to completely abolish the problem of human trafficking. Newland is the perfect example of this as after legalizing prostitution and taking complete care of this section of the society they have completely abolished the problem of human trafficking

· Reduction in the rape cases:

There are various studies available which found that legalizing prostitution will have a great fall in rape culture.

· Constitutional rights and acceptance:

Sex worker will get the various constitutional benefits as they will be considered as part of a society in many Supreme Court cases it has been stated in judgments that

sex workers are part of a society like any other person is and will also enjoy their natural rights.

Socio-economic effect of the prostitution:

No doubt that prostitution causes personal, family, and social disorganization. Sex workers suffer from social discrimination. Prostitutes and the person approaching them also come it the circle of doubt.

Sex the worker also suffer the moral collapse and also lose their dignity and status in the society even this profession has got legalized but in the country like India they can never be seen with the eyes of respect not only it is devastating but this can also lead to the other social problem at some point of their life ie according to section 7 of the ITPA act provides that prostitution cannot take place at any public place or else they are liable for punishment of imprisonment of 3 months. They are not completely free to work with dignity like also stated in the constitution of India why? Because this is a shameful act to be done and still not acceptable widely other than in some parts of the thinking of modernized India.

Internet prostitution concludes to cybercrime:

Nowadays the form of web prostitution are getting widely spread among the youth because with this mode both the sex worker and the client hiring them are less vulnerable to the police arrest, but if they are caught doing this they can have criminal charges against both of them.

While it is not always possible to show intent behind messages, email, and chat, the act itself usually defines what a person does as a cybercrime. For prostitution, the individual would wish to interact with someone online then take the interest a private interaction through asking for sex. Any interaction with an individual under the age of seventeen in most states that involves sexual relations of any kind can constitute a cybersex crime. However, these activities may require either local police or a parent to research the matter and find out who the culprit is.

Conclusion:

Prostitution is considered as the oldest form of practice in the world and is grounded deeply to patriarchal values including moral religions and health issues. Prostitution is morally intolerable as women are only used as a mode of satisfying men’s physical needs. It has taken the face of violence mostly and is a major issue in the human rights aspect.

Sexual activity is the form to satisfy the sexual urges of an individual which is essential in maintaining good mental health and biological health, these need of the new social aspect has formed into business which is termed as prostitution though unfulfilled sexual urges can lead to major crimes against the girls too.Though this new social aspect has turned into social exploitation. Even after legalization in many prostitution is not getting recognized as a part of society as this only the form of personal disorganization. Even after all these social exploitations, this is still not the end of stories as there are more evil faces of this practice ie there are people known as dalal, pimp, middlemen, sex traffickers who just push girls into this practice with their consent or will which is totally unfair to those girls and also punishable under the law though sometimes these girls are so much exploited by men that these girls even come in contact with STDs which is incurable and completely finishes their life and these are not only the sex worker who comes in contact with STDs their clients to get these diseases.

Therefore NGOs and government are looking into these problems for resolving it in India

[1] [2011] 10 S.C.R 578

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