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Author: Rohit Anand Das - 5th Sem, 3rd year - Symbiosis Law College, Pune, Maharashtra - 411 016

Category: Home \ Family law \ Women Issues

The commercial sex worker has been a universal being throughout civilization as prostitution is the so-called "oldest profession". The earliest known record of prostitution appears in ancient Mesopotamia. [2] It is interesting to note that licensed brothels were established in Solon, Greece in around 550 B.C. The Indian Vedas, Vishnu Samhita and the Puranas abound in references to prostitution as an organized, established and necessary institution. Vatsyayana's Kamasutra describes in detail various types of prostitutes, rules of conduct and the roles played by the procurer, pimp and brothel-keeper. Similarly, Kautilya in his Arthashastra declares the income of pimps, taxable. In the post-vedic era the custom of Devadasi (servants of God) system came into practice. Today, the word 'devadasi' is a euphemism for referring to a woman prostituting in the name of religious tradition.

After all this history today we get to see the sight of girls with their faces covered with dupattas and which is not uncommon to television viewers. These young women have a very ordinary dream of a peaceful life with two meals a day, sell their bodies and routinely have to face the law in its annoying, unsparing form. Existing laws allow clients caught with sex workers to be let off easily while the women are held guilty of promoting, furthering and committing moral blasphemy.

The law to tackle prostitution i.e., the Immoral Traffic Prevention Act ( ITPA), 1956 is often misused. Today sex worker's unions have been formed. However, little has been and is being done to regulate or prohibit flesh trade, estimated to be a Rs. 2000 crore industry annually. Presently there is this confusion building up as one side reiterates that prostitution should be criminalized on three strands of thought- Morality, Legal Paternalism and Harm to Other. Devlin in his book takes the view that not all-immoral acts calls for criminal sanctions but only those that evoke from people, feelings of intolerance, indignation and disgust. [3] The other side believes in what these unions have been demanding for that to relax laws on loitering and propositioning on streets as well as general soliciting. The Immoral Trafficking (Prevention) Amendment Bill 2005 moved by the Women and Child Department actually included this. The police often use the existing provisions of Section 8 of the ITPA [4], which prohibit seducing or soliciting for purpose of prostitution in public place, to harass streetwalkers. The Bill when passed may amount to legalising prostitution but at least sex workers will not be harassed while soliciting with prospective customers. The question that arises over here is that will the Bill decriminalise the act itself.

Hardly, it is so as the Bill on one hand proposes to ease things out for the sex workers; it also aims towards handing out more stringent and harsher punishment to the clients or customers. For the perpetuation of the oldest profession, it is probably right in putting the onus on clients. The earlier repealed law, Suppression of Immoral Traffic (in women and girls) Act ( SITA) of 1956 allowed prosecution of persons other than women only if they "knowingly" or "willingly" forced women into prostitution. Clients and brothel owners escaped punishment by showing ignorance. We should not go much into the SITA, as it stands repealed with the coming into force of the ITPA. What is more important in the present scenario is the wind of change in which the Bill proposes. Some of the main recommendations that are present in the The Immoral Trafficking (Prevention) Amendment Bill 2005 are:-
# ƒnPermits soliciting by sex workers.
# Punishment to human traffickers enhanced to 10 years' imprisonment and Rs.1 lakh fine.
# ƒnProvides for confiscation of property worth over Rs. 3 lakh, owned by traffickers and agents.
# ƒnDefinition of "trafficking in persons" widened to include clients; they can now be jailed for up to three years.
# ƒnSuggests increased involvement of NGOs in assisting the police.

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It is something accepted by all that under the present law, only the women are targeted while the clients go scot free. Many attempts to make some remedies were made but only by the ITPA of 1986 when a maximum punishment of three months for soliciting was introduced for clients. Again, there was another restriction in it that the client could not be punished in the act itself if the girl was an adult. Even though the lawmakers have broadened the circle of persons liable for prosecution the law is still focused on punishing women severely. Under the Immoral Trafficking (Prevention) Act, 2005, the definition of "trafficking in persons" has been proposed to include "recruitment, transportation, transfer, harbouring or receipt by persons" as punishable. The earlier prevalent Section in both SITA and ITPA provided punishment for brothel keeping, pimping, detaining anyone in a brothel, use of premises and procurement, but with the inclusion of the above words, the Act can be used to criminalize receipt and transfer by a client. Clients, after such passing of the Bill, can be fined and jailed for up to three years.

A logic doing its rounds is that, criminalizing the customer and decriminalising the sex worker will be a terrible blow to the sex workers. Police raids will increase and customers will be garrulously harassed. This means fewer clients and a tougher life for sex workers. There even is the possibility that the sex trade will then move underground, which may prove detrimental to the AIDS-control programme in India. We should keep in mind the warning of UN that is clear from the statement:-
One out of every four people infected with HIV (human immunodeficiency virus) in the world last year was Asian. One out of every seven people living with HIV is an Indian.  UNAIDS report on the Global AIDS Epidemic, 2004. [5]

According to epidemiologist Tim Brown of the MAP (Monitoring the AIDS Pandemic) Network, over 60 per cent of all contacts of sex workers in a country must use condoms in order to actually roll back the epidemic. [6]

"HIV infections in the so-called general population will not balloon into huge epidemics. This means our prevention efforts must stay focused on populations where infections are actually occurring," he said. [7]

If the clients are afraid of visiting sex workers, business will suffer. A sex worker will then be under pressure to keep customers and may comply without a condom. This would mean rapid spread of AIDS.

The National Network of Sex Workers, which claims to have over 2, 00,000 members, says it is deeply dejected with the minor changes and that the ITPA should be abolished and the sex trade legitimized. The National Network of Sex Workers have also asked for self-regulatory bodies and boards set up by sex workers' unions to look after the health, hygiene and education in their areas for themselves and more importantly for their children's interest. The Network also requests the Government to look into the violence that is involved in trafficking and prostitution. [8]

It is interesting to note that the changes have come at a time when there is this public debate initiated by the Planning Commission that prostitution be legitimized to control the spread of AIDS. It should always be kept in mind that there are more than 11.2 million HIV-positive cases in India. The spread of AIDS can be checked only through the better education of both sex workers and clients. It is just not responsibility of the State but also the responsibility of us to see to it that we have a brighter future.
________________________________________
[2] See Mehta Rohinton, Crime and Criminology A Socio – Legal Analysis of the Phenomenon of Crime ,1st Edition (1999),320, Sec. IV – Chp. 50.
[3] See P Devlin, "The Enforcement of Morals", 8-9, (1965) in CMV Clarkson & HM Keating, "Criminal Law: Text and Materials" (1998)
[4] Section 8 of the Immoral Traffic (Prevention) Act, 1956: "Seducing or soliciting for purpose of prostitution. -Whoever, in public place or within sight of, and in such manner as to be seen or heard from, any public place, whether from within any building or house or not…"
[5] Deepak Shreedhar, "Rallying for Action", Frontline, Vol: 21 Iss: 16 at http://www.flonnet.com/fl2116/stories/20040813002810000.htm , last visited 14th February 2006.
[6] ibid
[7] ibid
[8] See Mishra Neeraj, "Tightening the screws", India Today, Volume XXXI Number 5, 30 th January 2006.


Authors contact info - articles The  author can be reached at: rohitadas@legalserviceindia.com

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Date of Publication: 4 Oct 2007

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