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Prostitution In India Through The Lens Of Immoral Trafficking (Prevention) Act,1986

Prostitution can be defined as non-optional sex work for money or other material possessions. In the 21st century, women are not the only ones who practice this profession. Men and transgender people also participate in prostitution, although less than women. Concerning India, the Rig Veda mentions prostitution, in medieval India, tawaifs served the nobility in dance, music and the like. It was an emerging form of prostitution that later evolved into sexual services for ordinary people.

Today it is called prostitution. The most critical question about prostitution is whether its legalisation is good or bad. Prostitutes often enter health services because of the stigma associated with prostitution. This includes unwanted pregnancy, HIV/AIDS and other sexually transmitted diseases among prostitutes. Thus, regulation of prostitution and brothels helps curb this menace.

Definition Of Prostitution

Prostitution as defined in the Oxford English Dictionary, is, "the practice or occupation of engaging in sexual activity with someone for payment."[1]. Prostitution is often regarded as one of the oldest professions in the world. According to Black's Law Dictionary, "prostitution is performing an act of sexual intercourse for hire or offering or agreeing to perform an act of sexual intercourse or any unlawful sexual act for hire.

The act or practice of a female of prostituting or offering her body to indiscriminate intercourse with men for money or its equivalent".
In the 21st century, females are not the only ones practicing this profession. Men and transgender persons are also involved in prostitution, although in lesser number than women. Prostitution can be of various forms, including street prostitution, escort prostitution, brothels or any other form.

Background Of The Act
Prior to the 1986 amendment in the prostitution was defined as "the act of a woman voluntarily offering her body for intercourse for monetary or non-monetary consideration and whether the offer is immediate or otherwise, and the term ``prostitute'' shall be construed. according to the new definition to mean prostitution the sexual exploitation or exploitation of people for commercial purposes.

Thus, the current definition is not limited to the act of a woman offering her body for free sexual intercourse with him but includes the sexual exploitation or exploitation of a man for commercial purposes. According to Black's Law Dictionary, "prostitution is the performance of a sexual relationship for pay or sex or an offer or consent to any illegal sexual act. The act or practice of a woman to prostitute herself or to offer her body for wanton intercourse with men for money or the like."

"Exploitation" and "Exploitation" under the Black's Law Dictionary define it as "the act or process of exploitation, exploitation or alteration. To take unfair advantage of another for one's own gain or advantage."

Regarding the meaning of the word "abuse", Black's Law Dictionary says: "anything contrary to the established order of use. Deviation from reasonable use; unreasonable or improper use. Physical or mental abuse. abuse, fraud, and female child. Attempt or carnal knowledge of genital injury short of actual penetration"[2].

But according to other authorities, the "assault" here has parallels or rapes. Any injury to the private parts of a girl is "violence" within the meaning of the Criminal Code[3], which provides for assaulting a girl under 12 with intent to obtain carnal knowledge of her; It is enough just to harm the private parts of the girls, even if they are not bruised, cut, torn or torn[4].

Should Prostitution Be Legalized?

Under the Immoral Trafficking Prevention Act, 1956[5], the objective of the act is to the law is intended to prohibit the act of a frequent prostitute, and therefore a single offer cannot be an offer for lascivious intercourse. The illegality of prostitution refers to the casual exchange of sexual services without any emotional attachment for financial reasons.

However, in In re Ratnamala[6] and Bai Shanta v. State of Gujarat[7], it was pointed out that the purpose of the Act is not to render prostitution per se a criminal offence, but it is to inhibit or abolish commercialised vice as an organised means of living.

In re Kamala,[8] the Court held that the entire scheme behind the Act is not the proof of a single incident of prostitution or of the activities of a prostitute, and there must be indiscriminate sexuality requiring more than one customer.

Prostitution has existed in India for centuries. It has recently gained many supporters to become a legal and standard profession without stigma. Prostitution is practised in India and is often associated with human trafficking and male sexual abuse. The prostitutes involved are victims of social isolation and are sometimes denied fundamental rights due to stigma.

Legalising prostitution in India also limits health problems such as sexually transmitted diseases and unwanted pregnancies. In this regard, he supported the legalisation of prostitution, which applies to sex workers themselves. Legalisation, especially in India, is helping to free prostitutes from exploitation and lack of health care. In countries where prostitution is legal, sexually transmitted diseases have decreased. Thus, analysing these policies can be considered a precedent for policymaking in India.

Has The Act Helped In The Prevention Of Prostitution?

Human trafficking and prostitution go hand in hand, which is an unfortunate circumstance; both are human rights violations where one is deprived of its right to life and identity, whereas the other though has the right to life but has no institution over it. The victims are victims of circumstance and are often blamed for them being na�ve to understand the motive of the perpetrator.
In 2017 , according to the NCRB report the number of cases which were registered of human trafficking was 90 in Delhi[9].

In 2018[10], this number rose to 98 and in 2019[11] it was 93 in Delhi. According to the data of National Crime Records Bureau on Purpose‐wise Human Trafficking under Sexual Exploitation for Prostitution of 2017[12] only 7 people in the Union Territory of Delhi out of which all 7 were children were saved under this act from prostitution.

In the 2018 report[13] only 40 people were rescued out of which 16 were female children and 24 were adult females from human trafficking being done for the purposes of prostitution. In the 2019 report by NCRB[14], only 9 people were rescued, out of which 7 were female children and 2 were adult females from human trafficking. The reports are shocking and yet not surprising to witness.

The question is whether the act has failed in its objective and purpose or is it not being executed in a correct sense. In my opinion, the execution of the act has failed terribly, as the prostitutes who are working are continuously harassed by the police officers who are supposed to protect them from further exploitation at the hands of men or are turned into lackeys for the police, which puts their lives at risk. The law must be very clear about sex work in the country because according to the current legislation i.e.,

The Immoral Traffic (Prevention) Act 1986, the law itself seems to be very confusing and gives vast powers to law enforcement agencies. Most importantly, for the betterment of prostitutes and their children, sex work must be added to the Ministry of Labour and Employment's list of occupations so that prostitutes are considered and treated as workers and receive all the benefits. In addition, sex work must be regulated by the government so that they can set the number of prostitutes and control venereal diseases.

  1. Prostitution, Oxford English Dictionary (2d ed. 2013).
  2. Lee v. State, 246 Ala. 69, 18, So. 2d 706, 707.
  3. Indian Penal Code, 1860, � 375, No. 45, Acts of Parliament, 1860 (India)
  4. Ard. v. State, 57 Ala. App 250, 327 So. 2d 745, 747.
  5. Immoral Trafficking Prevention Act, 1956, No. 104, Acts of Parliament, 1956 (India).
  6. AIR 1962 Mad 31
  7. AIR 1967 Guj 211
  8. AIR 1966 Mad 312
  9. Ministry Of Home Affairs, National Crime Records Bureau, State/Ut‐Wise Cases Registered Under Human Trafficking During 2017
  10. Ministry Of Home Affairs, National Crime Records Bureau, State/Ut‐Wise Cases Registered Under Human Trafficking During 2018
  11. Ministry Of Home Affairs, National Crime Records Bureau, State/Ut‐Wise Cases Registered Under Human Trafficking During 2019
  12. Ministry Of Home Affairs, National Crime Records Bureau, State/Ut‐Wise & Purpose‐Wise Human Trafficking Under Sexual Exploitation For Prostitution, 2017
  13. Ministry Of Home Affairs, National Crime Records Bureau, State/Ut‐Wise & Purpose‐Wise Human Trafficking Under Sexual Exploitation For Prostitution, 2018
  14. Ministry Of Home Affairs, National Crime Records Bureau, State/Ut‐Wise & Purpose‐Wise Human Trafficking Under Sexual Exploitation For Prostitution, 2019

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