LEGAL STATUS OF PROSTITUTION IN INDIA

LEGAL STATUS OF PROSTITUTION IN INDIA

Author:- Manpreet kaur , a Student Guru Nanak Dev University regional campus Gurdaspur

INTRODUCTION

Prostitution in India is an old age profession. It has its references in Hindu mythological inferences referred as ‘APSARAS’. Prostitution basically means providing sexual favours or services in return of money and a person who is engaged in this field is referred as a prostitute. The sexual services are provided at brothel. ,according to the latest census ,there are around 2 to 3 million sex workers across India . while the significant count of them have been forcefully abducted and are thrown into this swamp while most of them have  voluntarily  taken up the occupation due to multifarious reasons, example poverty ,unemployment ,lack of education etc . This is considered as a ‘TABOO’ in India and is not discussed openly.

History 

Prostitution in India started during the time of Mughals when the king and the ministers used women and this events continued in British India when women were treated merely asked ‘sex objects’. There were women called ‘DEVDASIS’ who were dedicated to God and left and temples even they were man handled and use for sex. Then many men started to sell their wives and children as this was an easy access to money and this like to human trafficking into sex industry . This led to emergence of red light area in India.

ARTICLE(1)(g): RIGHT TO PROFFESSION

It provides for the fundamental right of every citizen to exercise the trade, profession or occupation of his choice but at  the same time it imposes restrictions on the choice of such trade and profession. That means nothing in this section conference the right to engage in any profession, trade or business which is unlawful. Under article 19(2), restrictions are imposed only by reasonableness  that means restrictions  imposed must not be arbitrary and must be in consistent with Public Interest, order and morality . 

PROSTITUTION – A PROFESSION OR BUSINESS? 

It is a kind of vocation .It cannot be done by everyone and can only be done by people or women essentially with the specific skills set hence, it can be considered as a profession .

If we look from other aspect it can also be considered as a business when done by people in brothel as there a sufficient amount of money is received. Supreme court also recognised sex work as a profession and observed its practitioners  as equally entitled to dignity and equal protection under article 21 of the Indian Constitution. 

IS PROSTITUTION LEGALISED IN INDIA?

In India, prostitution is not explicitly illegal and not made punishable by law .Bombay High Court in its judgement in 2020 observed that “there is no provision under the law which makes prostitution per say a criminal offence or punishes a person because he indulges prostitution ”.  however few practices related to prostitution such as running brothels, soliciting , trafficking and pimping are punishable offences under the Indian penal code and Immoral traffic (prevention)act 1956 .In 2020 the National Human Rights Commission (NHRCa) also recognised sex workers as ‘informal workers’when it is clear that the sex worker is an adult and is practicing with consent then police must refrain from taking any action .A sex worker should not be arrested or penalized ,harassed or  victimized  whenever there is raid on any brothel. “since voluntary sex work is not illegal and only running the brothel is unlawful”.

The JUSTICE VERMA COMMITTEE, had also acknowledge that there is a distinction between women who are trafficked for commercial sexual exploitation and adult consenting women who are insects work of their own. 

LANDMARK CASES

 BUDHADEV KAMASKAR VS . STATE OF WEST BENGAL

This is a historical judgement in which the court upheld the right of sex workers to live with dignity under article 21 of the Indian Constitution . This case highlights the plight of sex workers who do this work not because they like it but because poverty derives them to do it .

KAJAL MUKESH SINGHa AND ORS. VS. THE STATE OF MAHARASHTRA

The Bombay High Court clarified the law does not criminalise the sex workers but seeks to protect them . what the law prohibits is sexual exploitation for commercial purposes. The Immoral traffic and  prevention act does criminalise the  act of prostitution  itself but the support system that enable and facilitate them .

LEGAL FRAMEWORK ON PROSTITUTION IM INDIA

1. IMNORAL TRAFFIC (PREVENTION) ACT(1956)

Section 3: This section of the statute imposes  imprisonment for 2 to 3 years with fine for keeping a brothel or allowing premises to be used as brothels .

Section 5: It imposes 3 to 7 years of imprisonment with fine for procuring a person for the purpose of prostitution  without their consent.

Section 7: This section prohibits prostitution in a near a public place.

In case of Smt. Afjal Vs. State of Uttar Pradesh ,the accused DNA brothel and detained Minor girls for prostitution. The accused was found guilty under the provision of the act and the minor girls were rescued .

2. INDIAN PENAL CODE

Section 366(a): It talks about the procuration of a minor girl for illicit sexual intercourse and prescribes punishment for the same.

Section 366(b):It talks about the importation of a girl from an alien country for the purpose of the prostitution.

Section 372 and 373: it prohibits the selling or disposing of a minor girl knowing that such a girl will be dropped into prostitution and buying or hiring of a Minor girl to force her into prostitution respectively.

CONCLUSION

In India, prostitution is legal but still there is no express provision of its legality but trafficking is illegal. If the sex work is not consensual, then its illegal . Sex workers must be provided proper awareness with regard to the 

Sexually transmitted diseases that lack due to use of contraceptives. They find it difficult to access health care . The government must make more stringent laws in order to protect those in this profession and work for their protection and spread knowledge of its perils and risks involved .