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A Legal framework about Child Prostitution

Child prostitution is a significant global problem but in India it has not received adequate attention primarily because of a general lack of sensitivity to this issue. It is an old phenomenon, which deprives children of their childhood, human rights and dignity. There are several types of child prostitution including child trafficking. Trafficking research has focused on the forced migration of children for sexual purposes. There should be strict laws for the child abuse not only the child prostitution but also to the similar issues like child trafficking and child pornography. Law should focus on the trafficker instead of punishing the victim. The main objective of this article is to determine the magnitude of child prostitution and to identify the causes and dangers faced by the child prostitutes. Strategies need to be developed to rescue child prostitutes from on-job violence, and to establish a rehabilitation program for those interested to discontinue prostitution along with the efforts to minimize entry into prostitution. Various measures and acts have passed by the government to eradicate child abuse. But still now it has been emerging as a global issue in our country eventhough there are many steps taken by the government to end child prostitution.

Introduction:
In our country, prostitution has existed from times immemorial. From the Rigveda, it is found that there were women who were common to several men, i.e., who were courtesans or prostitutes. In the Mahabharata, courtesans were an established institution. Prostitution means the sexual exploitation or abuse of persons for commercial purposes. Child prostitution is one of its kind. It is defined as the use of a child in sexual activities for financial purposes. It is not a problem which exists in India but exists through out the world. . It is an outrageous evil. There are violations in various ways of the basic rights of the children, but nothing is more horrible than exploiting them sexually and engaging them in prostitution. 30 percent of all child prostitutes are in the six major cities of India, namely, Calcutta, Delhi, Bombay, Madras, Bangalore and Hyderabad, as revealed in a report (1994) on child prostitution prepared by the Ministry of Human Resources Development, Government of India, were under 20 years of age. The survey revealed that Nepal is the largest identifiable source of child prostitutes to Indian brothels.

Definition:
The United Nations Convention on the Rights of the Child, 1990:
It defines ‘child prostitution’ as sexual exploitation of a child below the age of 18 for remuneration in cash or kind.

Medical dictionary:
It defines that the performance of sexual work by a person considered to be a child in a particular jurisdiction.

International Labour Organization:
It describes ‘child prostitution’ as the use, procuring or offering of a child for prostitution.

Historical Accounts:
The concerns about child prostitution are not new. They were first voiced in the nineteenth century when fears were raised over young girls being sold by their parents into brothels in England’s cities. In 1885, journalist William Stead published an account of how he had bought a 12 year old girl from her parents; this story appeared in the Pall Mall Gazette under the title “The Maiden Tribute of Modern Babylon”. These anxieties were exhibited over fears of “white slavery”, with young British girls being abducted into Belgian and French brothels. Similar fears about young girls being kidnapped and forced to work in brothels were also voiced in the United States during that period. Although historians have since challenged much of the sensationalism of many such claims, the idea of girls and young women being sold into sexual slavery has continued to exert a powerful hold.

Using Children For Prostitution:

Child prostitution refers to the sexual exploitation of a child for remuneration in cash or in kind, usually but not always organized by an intermediary (parent, family members, procurer, etc.) .The child prostitutes are most often between 11 and 18 years of age. These children usually come from broken homes and lured by kind older men who promise them food and shelter. The child prostitution is closely connected with child pornography. It refers to the visual or audio depiction of a child for the sexual gratification of the use, and involves the production, distribution and or use of such material. The factors that push children into sexual exploitation are numerous for example: economic disparities, inequitable socio-economic structure, family disintegration, harmful traditional and religious practices which undermines fulfillment of the basic rights of children.

Types of Child Prostitution:

Although cases of prostituted children is not new to South Asian region, child prostitution as commercial enterprise is relatively new. The child prostitution may be found in 3 categories. It is therefore important to understand the phenomena and types of child prostitution which are prevailing in the society
# Children prostituted by Pimps.
# Children prostituted by Brothels.
# Children prostituted by family members and friends.

Causes Of Child Prostitution:

# Ill treatment by parents.
# Bad company.
# Social customs.
# Family prostitutes.
# Lack of sex education, media.
# Prior incest and rape.
# Poverty and economic distress.
# Early marriage and desertion.
# Lack of recreational facilities and ignorance.

Dangers Faced By Child Prostitutes:

Child prostitutes face the same dangers as other prostitutes:
# Sexual abuse.
# Physical abuse that may result in serious injury or even death.
# Sexually Transmitted Diseases as serious as HIV/AIDS.
# Pregnancy.
# Drug addiction.
# Human trafficking.

Indian Laws Relating To Child Prostitution:

The Constitution of India
Under the constitution, Article 23 deals with prohibition of trafficking in human beings, forced labour and all forms of exploitation. This was aimed at putting an end to all forms of trafficking in the human beings including prostitution and beggary. The judiciary in Raj Bahadur Vs Legal Remembrancer, the court held that the traffic in women for immoral purposes is prohibited under Article 23 The Directive Principles of State Policy serve as the guiding star for various social welfare legislation passed in favour of women. Article 39(e) deals with the health and strength of workers, men, women and the tender age of children should not be abused. Article 39(f) insists that children be given opportunities to develop in a healthy manner so that childhood and youth are protected. Refering to Article 39 in State of Rajasthan Vs Om Prakash, the Supreme Court said that the courts would have a sensitive approach when dealing with cases of child rape and it is the responsibility of the court to provide proper legal protection to these children. Article 15(3) enables the state to make special provisions for woman and children even if they are discriminatory.

The Indian Penal Code
The Indian Penal Code lends a helping hand to the special laws enacted to curb prostitution by attacking the source of this evil. Section 366A makes procreation of a minor girl from one part of place to another is punishable and section 366B, which makes importation of a girl below the age of 21 years are punishable. These sections try to prevent prostitutions by strict penal action. Section 372 and 373 makes selling and buying of minor girls for the purpose of prostitution, a crime for which even 10 years of imprisonment and fine can be awarded.

Selling minor for purposes of prostitution (sec. 372)
Whoever sells, lets to hire, or otherwise disposes of any person under the age of 18 years with intent that such person shall, at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any lawful and immoral purpose, or knowing it to be likely that, such person will, at any age, be employed or used for any such purposes, shall be punished with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to fine.

When a female under the age of 18 years is sold, let for hire or otherwise disposed of to a prostitute or to any person who keeps or manages a brothel the person so disposing of such female shall, until the contrary is proved, be presumed to have disposed of her with the intent that she shall be used for the purpose of prostitution. In this context, ‘illicit intercourse’, means sexual intercourse between persons not united by marriage, or by any union of which, though not amounting to a marriage, is recognized by the personal law or custom of the community to which they belong or, where they belong to different communities, or both such communities as constituting between them a quasi-marital relation.

Buying minor for purposes of prostitution (sec. 373)
Whoever buys, hires or otherwise obtains possession of any person under the age of 18 years with intent that such person, shall, at any age, be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful purpose, or knowing it to be likely that such person shall be punished with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to fine.
Any prostitute or any person keeping or managing a brothel, who buys, hires, or otherwise obtains possession of a female under the age of 18 years shall, until contrary is proved, be presumed to have obtained possession of such female with that intent that she shall be used for the purpose of prostitution.

In this context also, ‘illicit intercourse’ has the same meaning as in section 372 mentioned above. This section aims at the punishment of those persons who are buyers or hirers in any such transactions as those provided in section 372. However, this section 373 does not apply to a case where a man solicits a girl to have sexual intercourse with him.

Suppression of Immoral Traffic in Women and Girls Act, 1956
Trafficking was first dealt with by the Suppression of Immoral Traffic in Woman and Girls Act, 1956 which was passed on 31 December, 1956. The legislation was enacted in pursuance of the U.N. Conventions of 1950. The Act was enacted under Article 35 of the Indian Constitution with the object of inhibiting or abolishing the immoral traffic in women and girls. The Act aimed to rescue the exploited women and girls, to prevent deterioration of public morals and to stamp out the evil of prostitution which was rampant in various parts of the country. According to SITA, prostitution is not illegal per se. The prostitute can carry on her trade wherever she likes subject to certain restrictions. Section 7(1) of SITA operated against the interest of the prostitution, the sexual partner who brings her for sexual gratification gets away because of the inherent defects of the act. Being a penal statute SITA should have atleast some welfare provisions. Section 19 is the only section which says that if a women or a girl wants to go out the profession she should be placed in a protective home or under the care of the court; but the prostitutes are, in the majority of cases, the unfortunate victims of circumstances. In Upendra Bakshi Vs State of U.P, it was found that the inmates of Agra Protective Homes were living in inhuman and degrading conditions in blatant violation of Article 21 of the constitution.

The Immoral Traffic Prevention Act, 1956

The Suppression of Immoral Traffic in Women and Girls Act, 1956 proved to be inadequate to combat the increasing commercialization of trafficking. Parliament amended the law in 1970 and later in 1986. As a result of substitution of the words “ Immoral Traffic Prevention Act” for the words “ Suppression of Immoral Traffic in women and girls Act” made by section 3 of the amending Act No 44 of 1986, the principal Act was short titled as the Immoral Traffic Prevention Act, (104 of 1956). This Act has introduced the concept of child victims as against minors and majors and imposes higher degree of criminality to sexual exploiters of children. Section 9 of this Act provides greater punishment to persons who cause, aid or abet the seduction of women and girls, over whom they have authority or who are in their care and custody for prostitution. This Act empowers the Central Government to appoint trafficking officers. These special police officers can search without warrant any premises where this offence is suspected of being committed, and they can rescue any person who is being forced into prostitution or is carrying on or is being made to carry on prostitution.

Rescue and Rehabilitation of Children and Minors under the ITPA, 1986

When a magistrate has reason to believe from information received from the police or from any other person authorized by the state government that any person is living on, or is caring on, or is being made to carry on prostitution in a brothel, he may direct a police officer not below the mark of sub-inspector to enter such brothel and to remove such person and produce the person before him. A minor as a child rescued under the Juvenile Justice Act, 1986 is treated as a neglected child which is also known as child in need of care and protection, now the Juvenile Justice Act,2000 and has to be produced before the Juvenile Welfare Board, now the Child Welfare Committee for reception and rehabilitation, and placing in safe custody.

The Criminal Procedure Code, 1973

The Criminal Procedure Code of 1973, also protects girls from sexual exploitation. It states that a presiding Judge or District Magistrate may, upon complaint that a female child under the age of 18 years is abducted or unlawfully detained, order the immediate restoration of the girl to her liberty or to her parent, guardian or husband. Section 98 is intended to give immediate relief to a woman or girl abducted or detained for any lawful purpose. An action under this section cannot be taken except upon complaint made on oath.

The Juvenile Justice (Care and protection of children) Act, 2000


The Act was passed in consonance with the Convention on the Rights of the Child, to consolidate and amend the law relating to the ‘juveniles in conflict with law’ and ‘children in need of care and protection’. This Act has elaborate provisions for the care, protection, treatment, education, vocational training, development and rehabilitation of children rescued from those procuring, inducing or taking person for the sake of prostitution and detaining person in premises where prostitution is carried on. The definition specifically includes the child who is found vulnerable and is therefore, likely to be induced into trafficking. The problem that was raised in the case of Gaurav Jain Vs Union of India, seem to have been solved to a larger extent. Obviously, with the setting up different institutions such as the Children’s home, special home and shelter home and participation of the government and also the non-government voluntary social service organizations and rehabilitation of juveniles and children who need care and protection, there is hardly any justification for separate hostel or school for the prostitute’s children. Children of prostitutes should not be permitted to live in undesirable surroundings of prostitutes homes. The court ruled in favour of shifting these children to existing juvenile institutions. There was an implicit assumption that these juvenile institutions would be better run and organized and help the rehabilitation of these children.

Information Technology Act, 2000

Digital technology has also allowed child pornography to be produced without a child actually being present, introducing into the review of laws on child porn issues that are complex and that go beyond the argument that child pornography records a criminal act. Trafficking, Commercial Sexual Exploitation, Sex tourism and Pornography are all interrelated crimes. The Information Technology Act, 2000 extends throughout India and also has extra-territorial jurisdiction. Under section 67, publication and transmission of pornography is an offence.

Indecent Representation of Women (Prohibition) Act, 1986

To prevent indecent representation of women in numerous forms, Parliament passed the Indecent Representation of Women (Prohibition) Act, 1986. The object of the Act was to prohibit indecent representation of women through advertisements or in publications, writings, paintings, figures or in any other manner. It defines ‘indecent representation of women’ as the depiction in any manner of a figure of a woman, her form of body or any part thereof in such a way as to have the effect of being indecent, or derogatory to, or is likely to deprave, corrupt or injure public morality. The Act puts a restriction on the publishing or sending by the post, of books, etc containing indecent representation of women.

Trafficking For Forced Prostitution:

According to the UN Special Rapporteur on Violence Against Women, trafficking means the recruitment, transportation, purchase, sale, transfer, harbouring or receipt of persons; by threat or use of violence, abduction, force, fraud, deception or coercion (including the abuse of authority) or debt bondage for the purpose of placing or holding such person, whether for pay or not, in forced labour or slavery, like practices in a community other than the one in which such person lived at the time of original act of transportation, etc.

There are many forms of trafficking but the most visible and widespread is the trafficking of women and children for commercial exploitation. Women and girls are trafficked both within South Asia and to other regions. Poverty remains the main cause for which the victim initially wants to move and forced prostitution remains the primary cause behind trafficking. Nearly 2 million children are abused and trafficked globally every year. South Asia and South East Asia take the lead in the volume of trafficking in children for sexual exploitation. It is the prime duty of a state to protect their children from any kind of exploitation. Child trafficking is worse form of child exploitation. The numbers related to sexual exploitation of minor girls in India are hard to believe. The latest National Crime Records Bureau (NCRB) statistics show that human trafficking rose by 25% in the year 2015. 40% of these cases involve the exploitation of children, with 1.25 million girls being forced into child prostitution.

End Child Prostitution And Trafficking-Ecpat International:
ECPAT (End Child Prostitution, Child Pornography and Trafficking of Children for sexual purposes) is a non-governmental organization and a global network of civil society organization exclusively dedicated to ending the Commercial Sexual Exploitation of Children (CSEC). It focuses on ending four main manifestations of CSEC: child pornography, the exploitation of children in prostitution, the trafficking of children for sexual purposes and the sexual exploitation of children in travel and tourism. ECPAT is a network of 102 member organizations in 93 countries with one common mission: to end sexual exploitation of children. It seeks to encourage the world community to ensure that children everywhere enjoy their fundamental rights free and secure from all forms of commercial sexual exploitation.

Conclusion:
Child prostitution is a unique form of child abuse that is often hidden from the public eye. It is not just limited to developing countries, child prostitution is a global issue and also a significant global problem that has yet to receive appropriate medical and public health attention. These children rarely choose to engage in prostitution services but instead are tricked or lured into the business. Once in the business, the children face traumatic psychological and physical abuse that no person like a child should never experience. Those children that are lucky enough to escape remain traumatized for the rest of their lives. However, not all child prostitutes are able to escape from the business. Many do not survive to adulthood and remain sex workers forever.

Recommendations:
All children should provide atleast basic education. The quality of education must be improved so that a child enable to think on its own and be able to choose a way of life with human dignity. There should be counseling and guidance services for children in school and out of school. Awareness about child prostitution should be given to the public. Laws should not only to just remove the child prostitutes but also to change the mentality of people who are interested in those activities by punishing them in such a manner so that people of same mentality will dare to indulge themselves in similar activities.

References:
1. Sankar Sen, Human Rights in a developing Society,(Page.187).
2. Ennew, Judith 1986, The sexual exploitation of children. Cambridge, Polity press.
3. Ferze . Z, in children and the transition to the Market Economy Edited by Giovanni Andrea, and et la.UNICEF,1991(page 69-89).
4. Documents of UN World Conference on Human Rights, Vienna, 1993.
5. Mukherjee K.K., Child Prostitution in India, Gram Niyojan Kendra, unpublished manuscript, 1997.
6. Kaustubh Nandan Sinha, The problem of prostitution an Indian perspective.
7.’The magnitude of the problem, Trade in Human Misery- Asia Region, An Information Folder', UNIFEM, 1998.
8. http:// www. ecpat. org.
9. http:// www. victims of violence. on.ca research-library/child prostitution.

Legal Research Award This article has been Awarded Certificate of Excellence for Original Legal Research work by our Penal of Judges

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