INTRODUCTION:
India has an overall literacy rate of 77%. Even though a large number of people are literate, they have a problem in accepting a lot of things in the society. This is the case about prostitution or sex work. Prostitution is considered one of the oldest professions in the world. It is a billion-dollar industry. Prostitution is considered taboo in India and is not discussed openly and a topic frequently frowned upon. The abolition of prostitution Is not plausible as it is an ancient practice and has existed too long. There are tons of women on the streets of India who do sex work as means of their livelihood to earn their livelihood. They mostly turn to this profession as they have no other skills and are not literate to get a job. In India, prostitution is legal but there is no express provision stating its legality but trafficking is illegal.
EVOLUTION OF PROSTITUTION IN INDIA:
Prostitution has been existent in India since time immemorial. It started during the time of the Mughals when the Kings and the Ministers used women. This even continued during the time of the British rule in India when they were treated as mere sex objects. There were a group of women for this purpose and later their heirs were also subjected to sex work. This then led to the use of women and women continued to do prostitution as they were poor and this was the easiest way to make some money. There were women under the head called devdasis, who were dedicated to gods and left at temples, even they were manhandled and used for sex. Later, men even started to sell their wives and children for sex or money and this led to trafficking. There was even a time when there was a large amount of brothels in which either a man or woman was the owner and head and they had a group of girls who would be ready to lure men to have sex. During this time, there was a lack of awareness regarding sexual health and contraceptives. Women were subjected to sex work without condoms and other kinds of contraceptives which led to unwanted pregnancies. This even led to forced sexual activities and even trafficking of women and even children as low as 6 years into the sex industry.This also led to many red light areas in India mostly in the northern part.
THE IMMORAL TRAFFIC (PREVENTION) ACT OR ITPA.
In 1956, the Indian Government has passed The Immoral Traffic (Suppression) Act (SITA), under this Act prostitution can be legally done but soliciting of people and luring them into sexual activities is illegal. Prostitution as mentioned in the Immoral Traffic (Prevention) Act,1956[1] means the sexual exploitation or abuse of persons for commercial purposes. It is also not an offense under the IPC[2].Even though it is said that sex work is legal, running a brothel is not legal. It is contradicting to the whole concept of prostitution. As they cannot set up a brothel , they end up meeting their clients in a hotel. The police often conduct raids in such hotels and take them into custody along with their clients. They mostly end up being arrested stating that what they did was illegal. But in fact, is legal. One thing the act expects the prostitutes to do is to stay away from the public eye. The Indian Penal Code (IPC) which predates the SITA is often used to charge sex workers with vague crimes such as “public indecency” or being a “public nuisance” without explicitly defining what these consist of. In 1986 the old law was amended as the Immoral Traffic (Prevention) Act or ITPA. It was a result of the signing by India of the United Nations‘ declaration in 1950 in New York on the suppression of trafficking.
Apart from the ITPA , the Indian Penal Code of 1860, the Indian Constitution of 1950, the Juvenile Justice (Care and Protection of Children) (JJA) Act 2015 and various state legislations have been enacted to combat prostitution and prostitution AND trafficking. The law does not make prostitution per se illegal, but does provide for the operation and use of brothels, living off the earnings of prostitution, pimping, soliciting, luring others into prostitution in prison or elsewhere, and prostitution in public places, etc. A crime punishable by law. This, therefore, means that prostitution is not a crime if practiced independently or voluntarily.
RIGHT TO PROFESSION:
Article 19(1)(g) provides for the fundamental right of every citizen to exercise the trade, profession or occupation of his choice, but at the same time imposes restrictions on the choice of such trade, profession or of this company. Nothing in this section confers the right to engage in any profession, trade or business which is unlawful under the law. Section 19(6) gives Parliament broad powers to pass laws restricting certain types of businesses, trades or professions for the benefit of society. India is a socialist country so every law should be passed by parliament keeping the welfare of science in mind. The question now is to what extent Article 19(6) can introduce restrictions. The restrictions under these Terms are limited only by reasonableness.
This means that restrictions imposed on individuals must not be arbitrary and must be consistent with the public interest, decency and public order. The plausibility of the object must be determined objectively. It is necessary to link the restriction to its objective, which must be in the public interest. The prohibition of a fundamental right to engage in professional, commercial or commercial activities is considered unreasonable if it is exercised not in the public interest but taking into account the sensitivities and feelings of a part of the community
There are mainly two kinds of arguments that arise on the topic of prostitution. The first one is whether prostitution is a profession or a business. Prostitution is a kind of vocation. It cannot be done by everyone and can only be done by people or women essentially with a specific skillset. It can hence be considered a profession. Prostitution can also be considered a business when it is done by people in a brothel. A sufficient amount of money is received when prostitution is done by a ring or group of women together. In India, owning and managing is brothel is illegal while prostitution is legal.
The next argument is whether prostitution is against public morality, decency and is obscene. Sex work is done by people as a profession and is not attracted by the reasonable restriction of Art. 19(1)(g). In India, obscenity is determined by the Hicklin test which was laid down in the case of Rv. Hicklin. It is based on whether the tendency of the matter charged as obscene is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.[3] Sex work is usually done within four walls and it does not deprave or corrupt the minds of people.
LANDMARK JUDGEMENTS
· Gaurav Jain v. Union of India[4]
The court observed in this particular case that the defense filed the PIL after reading “Red Light Trap” in India Today magazine. He prayed that separate dormitories and vocational training schools would be provided for the descendants of prostitutes, who lived in conditions unhealthy for children, and that by living separately they could become part of the general public. The Court also emphasized the elimination of prostitution. He also ordered the creation of vocational training homes for young people and separate dormitories for these children. The Supreme Court Bar Association, with the assistance of original petitioner Gaurav Jain, filed a petition for review with the court requesting a reflection on the nature and scope of sections 32, 142 and 145(1) of the Constitution, and for the eradication of prostitution.
The court overturned the directive to eradicate poverty, but upheld the directive to establish a youth home for the children of these sex workers.
- Budhadev Karmaskar vs State Of West Bengal[5]
This is a historic judgment that paved the way for the protection of the rights of sex workers. This case reveals the vulnerability of sex workers and the social stigma attached to them. The judgment upheld the right of sex workers to live with dignity under Article 21 of the Indian Constitution. Her case highlights the plight of sex workers, who do this work not because they like it, but because poverty drives them to it. Due to the social stigma attached to their profession, this does not mean that they do not have the right to live with dignity.
- State of U.P. v. Kaushailiya,[6]
In the 1963 case,the High Court had struck down Section 20 of SITA on the grounds that it infringed fundamental rights guaranteed by the Constitution. Although the High Court did not look into the fundamental issues of prostitution or the various interests) involved in it, Justice W. Broome declared that if a profession or trade that is an “inherently immoral activity like prostitution,” then “it is open to the state to impose a total ban; and no one can claim any fundamental right to carry on such an activity.” The Supreme Court did not agree with the High Court and set aside its judgment, holding that restrictions imposed by Section 20 are “. . . reasonable restrictions imposed in the public interest.” Writing a unanimous decision of the Supreme Court, Justice Subba Rao dismissed many of the crucial and important grounds given by the High Court in support of their decision.
- Kajal Mukesh Singh And Ors vs The State Of Maharashtra [7]
The Bombay High Court clarified, the law does not criminalize sex workers but seeks to protect them. What the law prohibits is sexual exploitation for commercial purposes, such as pimping, recruitment or seduction in public places. It is also illegal to operate a brothel or allow its premises to operate for the purpose of prostitution. The law recognizes that people who trade their bodies for money are victims, not perpetrators. The Immoral Trafficking (Prevention) Act 1956 does not criminalize the act of prostitution itself, but the support systems that enable and facilitate prostitution.
Prostitution is said to be the oldest “profession” and there have been repeated calls to make it legal. One thing, however, is perhaps indisputable, and that is that the primary reason people engage in prostitution is either poverty or some other compelling circumstance. The question to ask when asking for the legalization of this “profession” is whether, as a society, we really want to give prostitution the status of a profession such as that of doctor, engineer or lawyer, and if we want our children to do it like making “career choices”.
CONCLUSION:
Sex work must be normalized as a mode of profession. Sex workers must not be stigmatized. They are also people who should be treated with dignity and respect especially for the work they do. Sex work must not involve the trafficking of women and children. In India, if sex work is not voluntary then it is illegal. Brothels and soliciting of men is also illegal. The laws regarding to sex work still has a long way to go. It does not expressly state about the legality of prostitution. The court via its various judgements have put forth that contention. Sex workers must be given proper awareness regarding the various kinds of contraceptives and the way it should be used. Moreover, they must also be given awareness with regard to the different Sexually Transmitted Diseases (STDs) that happen due to lack of contraceptives. Sex workers in India find it difficult to access health care and face discrimination, especially in government hospitals, because of their profession, such as being forced to undergo an STI test when ‘they’re sick and being refused admission if they don’t have HIV medication. A survey found that sex workers prefer private healthcare providers to a government trained in some kind of advocacy. Difficulties in accessing health care are due to factors such as hospitals that send women to see their husbands to obtain authorization to have an abortion, the high cost of abortions, financial obstacles , and the precarious life of many working women. They are often subjected to violence from their clients. Their uncertain status in law results in judgments that often mark sex-workers as criminals and repeat offenders. The Act must protect the rights of the sex workers who carry it as their profession. The recent judgements have proved the legality of prostitution while there needs to be an amendment in the Act .
[1]https://www.indiacode.nic.in/bitstream/123456789/15378/1/the_immoral_traffic_%28prevention%29_act%2C_1956.pdf
[2] Kajal Mukesh Singh And Ors vs The State Of Maharashtra (2020)
[3] R v. Hicklin, [1868] 3 QB 360, 371;
Ranjit D. Udeshi v.. State of Maharashtra, AIR 1965 SC 881, 887: (1965) 1 SCR 65.
[4] Gaurav Jain v. Union of India [1997] 8 SCC 114
[5] Budhadev Karmaskar vs State Of West Bengal , 2011 (8) SC 289
[6] State of U.P. v. Kaushailiya, (1964) 4 SCR 1002; AIR 1964 SC 416
[7] Kajal Mukesh Singh And Ors vs The State Of Maharashtra
This article is written by Roshni S, 4th year BA.LLB, Kerala Law Academy Law College
