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Prostitution as a profession: Is that a crime in India?

Prostitution is legal in India. Other related activities such as pimping, running a brothel, soliciting is illegal. A brief discussion on cause of prostitution and violations against sex workers. An overview on laws covering prostitution in India.

“The word prostitution means an act of promiscuous sexual intercourse for hire or offer or agreement to perform an act of sexual intercourse or any unlawful sexual act for hire” (Gandhi, 2017). Section 2(f) of the Immoral Traffic (Prevention) Act, 1956, defines prostitution as “sexual exploitation or abuse of persons for commercial purposes or for consideration in money or in any other kind”.

Historical Significance
Female prostitution is recognized as the oldest profession all over the world since the birth of organized society. In Indian mythology there are many references of high-class prostitution in the form of celestial demigods acting as prostitutes. They are referred to as Menaka, Rambha, Urvashi, and Thilothamma. Aryan rulers of India followed the system of celestial court and developed the system of guest prostitution. They presented well-accomplished maidens in token of friendship of kings.

They were also offered as ransom to the victor to part with his most beloved prostitute. Empires fell and came up for her sake. Another class of girls from infancy were carefully selected and fed on poisonous herbs and venomous foods. They were called Vishkanyas[1]. The kings used to destroy their enemies by utilizing these prostitutes. During the Mughal era, a tawaif[2] was a courtesan who excelled in dance, music, theatre etc. They contributed significantly to the continuation of traditional dance and music forms and then emergence of modern Indian cinema.

After the downfall of the Mughal Empire, hordes of dancing, singing girls or the tawaifs came out of the royal palaces. They had no employment nor they were trained for any other profession. They faced economic issues and hence had no else choice other than taking up the trade of sex as profession. Since then the status of prostitution has gone down to an extent where this is addressed as a “hate profession”; even though the ones visiting the prostitutes visit them by their own will.

In the late 18th and early 19th century when there was British Rule in India, the British military established and maintained brothels for its troops across India. Women and girls were recruited from poor rural Indian families and paid directly by the military. The red-light areas of cities such as in Mumbai developed during these times. The place of women in this practice did not increase in times of British era. These women faced social and economic hardships for which they couldn’t come out. The gangsters of this profession took advantage of the helplessness of the women and eventually these women are treated as the ill of the society, till date.

Causes of Prostitution

While examining the immediate cause of prostitution the first thing that strikes mind is poverty. Also, there are many other factors which leads a woman into becoming a prostitute. One such factor is in India woman are still seen as a commodity. Girls who have experienced sexual intercourse[3] are considered to be characterless or “used goods” in local languages. The causes of prostitution can be all of the following;
  1. Rape:

    Any prior incident of rape or sexual assault is a result of girls entering into prostitution. Many parents and families refuse to accept their girls in house after they suffered a rape incident. As a result, the girls end up finding their ways into a brothel[4]. About 8 per cent of the girls came to prostitution following the incidents of incest. The most common incest is between father and daughter, followed by uncle-niece. The young girls who are exploited at home doesn’t foresee security in any part of the society and gradually ends up in prostitution.
     
  2. Sale by parents / guardians:

    In many cases the father or uncle or brother in law sell the girl to brothel houses. The reason for selling the girl can either be for money or because the child has undergone any mean of sexual intercourse and now is considered as an ill for the society.
     
  3. Financial crisis:

    Most women in India do not choose this profession but due to lacking resources needed for a basic livelihood. In order to support themselves or their children or family, the elder women work as prostitutes out of necessity. In cases like breaking up of marriage or being disowned or being thrown out of the houses, the women work as sex workers out of no choice.
     
  4. Children of sex workers:

    Children born out of prostitution practice is most likely to work as the same. These children suffer from lifelong stigma and are deprived of the basic human needs like education and health. “In Gaurav Jain v. Union of India[5] case, K Ramaswamy J invoked the article 149 of the constitution in a writ petition seeking directions upon the crucial issue of providing separate schools with vocational training, hostels with medical check-up facilities in each state and union territory and other places for the children of prostitutes, up to the age of 16 years to rescue them, from falling into the internal existence and the same immoral and depraved way of life by indulging in the vice profession of prostitution, pimps, drug-pushers and bootleggers and other hazardous employments and issued wide directions not only on this issues but also on the issues of welfare of prostitutes in general” (Gandhi, 2017).
     
  5. Religious and cultural cause:

    The Devadasi System[6] is one of those practice of prostitution sanctioned by religion. This system is a variety of offence of prostitution where girls under the age of 18 years are dedicated to the service of temples as “dasis”. This is a direct disposal of minors with knowledge of the fact that they will be used for the purpose of prostitution. The percentage of Devadasi is amongst the Bombay prostitution is 15-20 per cent; in Nagpur, Delhi and Hyderabad 10 per cent in Pune it is 50 per cent and in the urban centers bordering Belgaum Dist. (Kolhapur, Sangli, Satara, Miraj, etc.) it is up to 80 per cent of total prostitution. Devadasi System contributes to 20 per cent of the child prostitution and moreover it legitimizes the practice of putting them to prostitution. “In Vishal Jeet v. Union of India[7], a public litigation was filled against forced prostitution of girls, Devadasis, Joins and for their rehabilitation. The court directed that both central and state government having obligation to safeguard interest and welfare of children and girls must evaluate various measures and implement them in right direction” (Gandhi, 2017).
     
  6. Kidnapping and Abduction:

    Exploiting the innocence of young girls are abducted from their villages. Abduction are done mostly by promising job offers or offers for acting in films, and also by promising marriage. Most of these kidnapers are females or couples. Prostitution due to abduction is most common case in India (35%).

Brutality against sex workers

Prostitutes who work in a brothel are treated very inhumanly. The women are not allowed to go out of the brothel house to prevent escape. The brothel owners forcefully make the women entertain the customers and allows a very minimal part of the earning to them. The children that are born in the brothel are frequently beaten or threatened so that they develop fear in their mind. No proper health care facility or education is available in these houses.

There are reported cases of HIV positives and other various diseases of which these women suffer. Prostitutes are exploited by physical abuse, mental and sexual abuse. Outdoor prostitutes, inclusive of transgender, faces most physical abuse like being slapped, kicked or punched. There are certain types of psychological or emotional abuse that sex workers are more prone to such as denial of basic needs, forced drug or alcohol consumption. The sex workers are often considered as “whores” meaning undesirable women. The male customers exploit these women and rape them. High levels of rape and sexual violence while working as prostitutes is a result of higher level of Post-Traumatic Stress Disorder (PTSD)[8].

Legal provisions with reference to prostitution in India

Laws about prostitution are pretty much obscure in itself. The primary law dealing with prostitution is the SITA or The Immoral Traffic (Suppression) Act of 1956. This was amended in 1986 and is now known as The Immoral Traffic (Prevention) Act, ITPA or the Prevention of Immoral Traffic Act, PITA. Article 23 of the Indian constitution prohibits every type of human trafficking including commercial sexual exploitation of girls.

Article 23 of the Indian constitution says:

Prohibition of traffic in human beings and forced labour
  1. Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law
  2. Nothing in this article shall prevent the State from imposing compulsory service for public purpose, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them.

The ITPA says that one can practice prostitution and perform their trade in private but cannot solicit customers in public legally. Prostitution, as far is performed by the female voluntarily and by their own will, there is no legal restrictions.
  • The prostitutes must not perform public seducing acts and cannot publish phones numbers in public. The sex workers cannot practice their trade within 200 yards of any public place. If the do so the punishment is imprisonment up to 6 months with fine and 3 months with fine, respectively.
     
  • A client is guilty of consorting with prostitutes and can be charged if he engages in sex acts with a sex worker within 200 yards of a public place or notified area[9]. The punishment can extend to imprisonment up to 3 months. The client may also be punished if the sex worker is below 18 years of age.
     
  • Running a brothel business is illegal. A brothel owner or brothel keeper can be prosecuted, where punishment can extend to imprisonment for 1 to 3 years. Also detaining someone in a brothel and forcing prostitution is a crime. Punishment is imprisonment more than 7 years. In Guria, Swayam Sevi Sansthan vs State Of U.P. & Ors[10] case, the appellant would bring customer to get indulged in forceful immoral traffic with the minor girls who they had detained. They had made it their main business and brought the minor girls at the said place on having purchased them.

Section 3 of IPTA says:

Punishment for keeping a Brothel or allowing premises to be used as a Brothel. (1) Any person who keeps or manages, or acts or assists in the keeping or management of, a brothel, shall be punishable on first conviction with rigorous imprisonment for a term of not less than one year and not more than three years and also with fine which may extend to two thousand rupees and in the event of a second or subsequent to conviction with rigorous imprisonment for a term of not less than two years and not more than five years and also with fine which may extend to two thousand rupees.

(2) A any person who,
  1. Being the tenant, lessee, occupier or person in charge of any premises, uses, or knowingly allows any other person to use, such premises or any part thereof as a brothel, or
  2. Being the owner, lesser or landlord of any premises or the agent of such owner, lessor or landlord, lets the same or any part thereof with the knowledge that the same or any part thereof is intended to be used as a brothel, or is willfully a party to the use of such premises or any part there of as a brothel, shall be punishable on first conviction with imprisonment for a term which may extend to two years and with fine which fine which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term which may extend to five years and also with fine.

(2-A) For the purposes of sub-section (2), it shall be presumed, until the contrary is proved, that any person referred to in clause (a) or clause (b) of that subsection, is knowingly allowing the premises or any part thereof to be used as a brothel or, as the case may be, has knowledge that the premises or any part thereof are being used as a brothel, if:
  1. A report is published in a newspaper having circulation in the area in which such person resides to the effect that the premises or any part thereof have been found to be used for prostitution as a result of a search made under this Act; or
  2. A copy of the list of all things found during the search referred to in clause (a) is given to such person.
One who procures or attempt to procure anybody with the intention or purpose of exploitation falls under the category of human trafficking, which is illegal. In first conviction the punishment is imprisonment for 7 years with fine, can extend up to life imprisonment.

Section 5 of IPTA says:

Procuring, inducing or taking person for the sake of prostitution. (1) Any person who:
  1. Procures or attempts to procure a person whether with or without his/her consent, for the purpose of prostitution; or
  2. Induces a person to go from any place, with the intent that he/she may for the purpose of prostitution become the inmate of, or frequent, a brothel; or
  3. Takes or attempts to take a person or causes a person to be taken, from one place to another with a view to his/her carrying on, or being brought up to carry on prostitution; or
  4. Causes or induces a person to carry on prostitution; shall be punishable on conviction with rigorous imprisonment for a term of not less than three years and not more than seven years and also with fine which may extend to two thousand rupees, and if any offence under this sub-section is committed against the will of any person, the punishment of imprisonment for a term of seven years shall extend to imprisonment for a term of fourteen years:
Provided that if the person in respect of whom an offence committed under this subsection:
  1. Is a child, the punishment provided under this sub-section shall extend to rigorous imprisonment for a term of not less than seven years but may extend to life; and
  2. Is a minor; the punishment provided under this sub-section shall extend to rigorous imprisonment for a term of not less than seven years and not more than fourteen years.
  • Any adult male living with a prostitute is assumed to be guilty unless he can prove otherwise. Pimping is also illegal under this act.
The constitutionality of this Act was challenged in the case of The State of Uttar Pradesh v Kaushalya[11]. In this case, a number of prostitutes were required to be removed from their place of residence for maintaining decorum in the city of Kanpur. The High Court of Judicature at Allahabad contended that Section 20 of the Act abridged the fundamental rights of the respondents under Article 14 and sub-clause (d) and (e) of Article 19(1) of the Constitution.

The Act was held to be constitutionally valid as there was an intelligible difference between a prostitute and a person causing a nuisance. The Act is also in consonance with the object sought to be achieved, that is, maintaining order and decorum in society.

Section 372 and Section 373 of the Indian Penal Code addresses to punishment for those who buy and sell minors for the purpose of prostitution.

Section 372 says:

Whoever sells, lets to hire, or otherwise disposes of any [person under the age of eighteen 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 and immoral purpose, or knowing it to be likely that such person will at any age be] employed or used for any such purpose, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall be liable to fine.

Section 373 says:

Whoever buys, hires or otherwise obtains possession of any [person under the age of eighteen 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 and immoral purpose, of knowing it to be likely that such person will at any age be] employed or used for any purpose, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

These two sections strike at the seller, whoever he may be, and the purchaser who profits out of such transactions. The fact that visitors paying money to a manager of a brothel doesn’t proof of the act of hiring between manager and the visitors as held in Jogneshwar Ghose v. Emperor[12].

An estimate: 69 cases of Selling of Girls for Prostitution were reported in the country during 2007 against 123 such cases in 2006, thereby indicating a decline of 43.9% over 2006. West Bengal has accounted for 79.7% (55cases out of 69 cases) of the total cases of ‘Selling of Girls for Prostitution’ reported in the country. 40 cases of ‘Buying of Girls for Prostitution’ were reported in the country during the year 2007. This indicates a 14.3% increase in the incidence over 2006 when 35 cases were reported in the country. Maharashtra has accounted for 77.5% (31 out of 40) cases reported in the country in 2007.

Conclusion
Voluntary prostitution, unless violating the guidelines, is legal in India. This means a woman may perform this trade privately. Prostitutes in India are not provided with the benefits of Labour Law. They do have the normal citizen rights along with the protection acts. But due to the illegal stamp on the brothel and pimping activities, the woman under those practices suffers a lot of exploitations.

Despite being illegal these businesses are being run all along India and central and state governments are unable to force stop the businesses with legal action as thousands and lakhs of helpless woman will be left with nothing. Indian society doesn’t accept prostitution or sex workers. Hence a lot of debates goes on about legalizing the whole business of prostitution so that these women and the children born in brothel gets safeguarded by law.

Otherwise this is more like victimizing the victim as often prostitutes are charged with “public nuisance[13]” under the Indian Penal Code. On the other hand, legalizing prostitution would seem like the constitution is promoting selling of body for money. Also, with the amount of exploitation against girls and women, if now the brothel business is legalized, the mafias will get an easy free pass to perform trafficking culture.

The Indian governments and police forces are unable to stop the brutal exploitation of girls when they have sections to prosecute the law breakers, how does it even seem possible that the exploitation will reduce once legalization of prostitution business is done? Prostitution can be fine only when it’s a choice, and not by force.

Indian laws promote the same, but the laws need to be more specific and wider and it misses to address possible situations like male prostitution. Also, the government should take actions with the help of present laws and force stop the brothel business and organize house, education, job, safety and health cares for every woman.

End-Notes:
  1. A race of exotic female humanoids with poisonous blood
  2. A highly sophisticated courtesan who catered to the nobility of the Indian subcontinent.
  3. Sexual intercourse if happened by conscience or even if by force which means rape.
  4. A place where men visits prostitutes\place where prostitution runs as a business.
  5. (1997) 8 SCC 144:199 8 SCC (Cri)25.
  6. The process of dedicating a Devadasi to the goddess involves a traditional ceremony and is performed before the girl hits puberty
  7. (1990) 3 SCC 318
  8. Post-traumatic stress disorder (PTSD) is a mental health condition that's triggered by a terrifying event — either experiencing it or witnessing it.
  9. Notified are means a district or part of a district in respect of which a notification has been duly published.
  10. (2009) SLP (Crl.) No. 2585 of 2006
  11. (1964) AIR 416, 1964 SCR (4)1002
  12. (1936) 40 CWN 1186:65 CLJ 35I
  13. As per section 268 of the Indian Penal Code, a person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public…
Written By: Samriddha Guha

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