Hidden Realities: A Closer Look At Prostitution In India

KEY TAKEAWAYS

• Prostitution is frequently viewed as a necessary evil in India.
• There are many variables that drive a woman to become a prostitute, but two of the most important ones are poverty and unemployment.
• An important piece of legislation in India that aims to combat human trafficking and the exploitation of people is the Immoral Traffic (Prevention) Act, 1956 (ITPA).

INTRODUCTION

In India, prostitution is still one of the taboos and least-discussed subjects despite its significant impact. In India, the practice of prostitution has existed for ages, and the status of those who engage in it also fluctuates. Prostitution is mentioned in both ancient Indian texts and the writings of well-known British Indian authors. Indian law addresses prostitution as well. Indian laws of today still maintain their anti-prostitution stance. However, it is equally undeniable that private prostitution is not illegal in India. The need for a clear legal framework regarding prostitution, particularly regarding voluntary and wilful prostitution, is also growing. This was felt, among other things, during the Covid-19 pandemic, when numerous reports from government and non-government organizations noted that the prostitutes' continued existence and means of subsistence were in jeopardy. 

Prostitution is frequently viewed as a necessary evil in India. Men can indulge their sexual urges without betraying their spouses, while women can use it as a means of earning money to support their families. In many regions of the nation, it is openly practiced and largely accepted despite being officially banned.

The prostitute industry in India is riddled with hidden truths. One is that young girls from low-income homes frequently use it as a means of escaping poverty. They can sustain their families and get money by engaging in prostitution. Many women who choose prostitution, do so, out of despair. For whatever cause, millions of Indians are affected by prostitution each year; it is a fact. To assist individuals involved more effectively, it is critical to comprehend the hidden realities of this profession. Many people and groups contend that sex work is unethical and violates Indian cultural and religious norms. Sex workers are stigmatized, which causes discrimination and social ostracization. Some people think that sex work reinforces gender inequity and takes advantage of weak people, particularly women.

HISTORICAL BACKGROUND

• In India, prostitution has existed in various forms for a very long period. The term "veshya" or "ganika," which refers to courtesans, is mentioned in ancient Indian scriptures such the Vedas, Ramayana, and Mahabharata. These courtesans entertained and accompanied affluent and noble patrons, frequently demonstrating talent in the arts like as dance, music, and poetry. 
• Prostitution persisted during the Middle Ages, frequently with the support of affluent elites and governing bodies. During this period, tawaifs—a sophisticated class of courtesans—emerged, especially in the Mughal courts. They had privileges and social standing in addition to having a strong education in the arts and literature. But as British colonial power spread, these courtesans' standing diminished.
• The impact of British colonial control on prostitution in India was substantial. With the use of legislation like the Contagious Diseases Acts (1868, 1869, and 1898), which sought to stop the spread of STDs among soldiers, the British tried to curb prostitution. These regulations frequently singled out prostitution-related women, which caused shame and marginalization for them. The British additionally instituted the 'Moral Codes of Conduct,' which sought to govern sexuality and other aspects of social life according to Victorian ideals.
• Following India's 1947 declaration of independence, attempts were made to outlaw or control prostitution. The Immoral Traffic (Suppression) Act of 1956 was passed to stop prostitution and the trafficking of women. Though there has been disagreement over these regulations' efficacy, prostitution has persisted, frequently operating behind closed doors.
• In modern India, prostitution is still a complicated problem. Despite being against the law, it persists because of several socioeconomic issues, including gender inequality, poverty, and a lack of opportunity for women. Another major worry is the trafficking of women and children for the purpose of sexual exploitation. NGOs and government organizations assist those involved in prostitution by offering them alternate means of support and rehabilitation.

WHAT LEADS TO PROSTITUTION?

There are many variables that drive a woman to become a prostitute, but two of the most important ones are poverty and unemployment. These conditions lead women to participate in commercial sex. It has been observed that women living in distant places are frequently duped by dishonest middlemen who promise them respectable employment prospects before selling them as sex workers. Poverty is the primary factor pushing desperate and defenceless women toward prostitution. It is widely acknowledged that poverty is the primary factor responsible for driving people into prostitution out of all the factors that contribute to prostitution.

In India, there is a serious issue with human trafficking, especially trafficking for the purpose of sexual exploitation. Traffickers frequently prey on those who are weak, such as mothers and children from low-income families or those who have been uprooted by war or natural catastrophes. They use coercion, deceit, or physical abuse to compel them into prostitution after luring them in with false promises of marriage or work.

Slums and informal settlements have grown in number in Indian cities as a result of rapid urbanization and migration from rural to urban areas. Due to their lack of resources and social networks, many migrants—particularly women and girls—end up in urban areas where they are more vulnerable to trafficking and exploitation, especially into the sex trade.

Around 6 percent of the women became prostitutes after being raped. Furthermore, the guilt and stigma that society places on survivors of sexual assault is oftentimes a victim's own, as it holds these women responsible for the rape. In certain instances, they have faced rejection not only from society but also from members of their own family. In addition to the postponement or denial of justice, the victims occasionally face comparable circumstances. And after a certain amount of time, when they are left without a place to live in our society and no hope left for them, they find their way into the shadowy world of prostitution.

AN INSIDE ON THE PROSTITUTION LAWS IN INDIA

IMMORAL TRAFFIC PREVENTION ACT,1956

An important piece of legislation in India that aims to combat human trafficking and the exploitation of people, especially women and children, in prostitution is the Immoral Traffic (Prevention) Act, 1956 (ITPA). The Immoral Traffic (Prevention) Act's main goals are to stop the trafficking of people for sexual exploitation and to put an end to related crimes such operating brothels, soliciting business clients, and subsisting on prostitutes' profits.

• The Act makes it illegal to buy or sell someone for the purpose of prostitution, as well as to traffic in people for that reason. 
• Prostitution-related begging is forbidden in public areas. 
• The Act also forbids operating or managing brothels with the intention of promoting prostitution.

 The ITPA defines living off the proceeds of prostitution as a crime.

The ITPA has provisions for prostitution-related people' rescue, rehabilitation, and social reintegration. For those who are saved, it requires the construction of protective houses and rehabilitation facilities. These institutions are designed to offer people looking to leave the sex trade support services like education, skill development, counselling, and healthcare.

The Act contains safeguards to protect victims and witnesses, guaranteeing their privacy and safety throughout court cases. Additionally, it gives law enforcement organizations the authority to stop trafficking and related acts by taking preventative action.

INDIAN PENAL CODE,1860

• The Indian Penal Code (IPC), section 370 that addresses human trafficking and stipulates penalties for those who use trafficked individuals for prostitution or other forms of exploitation.
• The Indian Penal Code (IPC) contains a section 354A that addresses sexual harassment and stipulates penalties for making unwanted sexual advances or requests for sexual favours.
• The Indian Penal Code (IPC) has a section 366A that addresses the crime of trafficking an individual, particularly a woman or juvenile, with the intention of forcing them into prostitution or marriage.
• The Indian Penal Code (IPC) has a section 376 that addresses rape offenses, particularly those committed against those who are involved in prostitution. It stipulates harsh penalties for rape offenders.

JUVENILE JUSTICE ACT, 2015

An important piece of law in India, the Juvenile Justice (Care and Protection of Children) Act, 2015, strives to safeguard children's rights and interests, especially those who are susceptible to abuse, exploitation, and trafficking, particularly for prostitution. In relation to the sexual exploitation and trafficking of minors, the Act specifies several offenses, including as the purchasing and selling of minors for the purpose of prostitution, the inciting or recruiting of minors into prostitution, and the use of minors for pornographic purposes.

The Juvenile Justice Act places a strong emphasis on the social reintegration and rehabilitation of children who have experienced abuse, trafficking, or sexual exploitation. It requires the creation of specific facilities and institutions for the upbringing and treatment of these kids.

The Act requires the creation of Special Juvenile Police Units to deal with situations involving kids who are in trouble with the law and kids who need to be looked after and protected. To protect and promote the welfare of children, especially those who are at risk of exploitation and trafficking, these units collaborate closely with other relevant parties.

POCSO ACT, 2012

An important piece of law in India, the Protection of Children from Sexual Offences (POCSO) Act, 2012, aims to shield minors from prostitution and other forms of sexual abuse and exploitation.

The Protection of Children from Sexual Offenses (POCSO) Act, 2012 aims to safeguard children's safety, dignity, and well-being by establishing a legal framework to prevent sexual assaults against them. The Act aims to give children appropriate protection and support, acknowledging their vulnerability to sexual abuse and exploitation, including prostitution.

Strict penalties are prescribed by the POCSO Act for those found guilty of sexual offenses against minors, including prostitution. Depending on the type and seriousness of the offense, offenders may be subject to fines, jail time, or both. The Act also stipulates that repeat violators will face harsher punishments. It mandates the implementation of awareness programs and educational initiatives aimed at sensitizing children, parents, and communities about the prevention of sexual abuse and exploitation.

PROSTITUTION AS A PROFESSION: Validity Under Article 19(1)(G) of the Indian Constitution

Discussions concerning the legality and regulation of prostitution in India give rise to the relationship between prostitution and Article 19(1)(g). Some contend that prostitution is an occupation or profession and, as such, is covered under Article 19(1)(g), which states that people should be allowed to work as consensually as possible in adult activities, including prostitution, to support themselves.

Prostitution does, however, have a complicated legal situation in India. Although the Immoral Traffic (Prevention) Act of 1956 and other similar laws punish numerous prostitution-related behaviours, including soliciting in public, operating brothels, and pimping, selling sex is not expressly forbidden by law. Because of this, there is a legal grey area where sex workers might be prosecuted for parts of their employment.

Article 19(1)(g) grants every person the fundamental right to engage in any trade, profession, or activity of their choosing, but it also places restrictions on the kind of trade, business, or profession that can be chosen. This article does not grant permission to engage in any trade, business, or profession that is considered illegal by the law. The parliament is granted broad authority under Article 19(6) to enact laws that restrict types of trade, company, or profession for the good of society.

• The Supreme Court recently declared in the case of Budhadev Karmaskar vs. the state of west Bengal & ors, the supreme court of India recognised prostitution as a legitimate profession and that those who engage in it should be treated with respect and given equal legal protection. The court made use of its special power granted by Article 142 of the Constitution.

Criminal Action: Adult and consenting sex workers are not to be the target of police interference or criminal action, according to a directive by the Supreme Court.

When a brothel is raided, the Bench ruled that sex workers should not be "arrested or penalized or harassed or victimized" because only operating a brothel is illegal, not providing sex services on a voluntary basis.

Right of Sex Worker Child: The court ruled that a sex worker's child could not be taken away from her mother just because she works in the sex industry.

The fundamental defence of human decency and dignity includes sex workers and their offspring. Furthermore, it shouldn't be assumed that a juvenile who is discovered living in a brothel or with sex workers was trafficked.

Medical-legal care: If a sex worker files a criminal complaint, the police are required by the court to treat them equally, particularly if the offence committed against them is of a sexual nature.

WHAT IS NOT LEGAL UNDER PROSTITUTION?

• Solicitation in public: It is frequently against the law to approach possible customers in public areas.
• Running brothels: In many jurisdictions, it is illegal to own or run a brothel, which is a place where several sex workers work.
• Pimping or procuring: It is generally regarded as unlawful to assist or arrange for the purpose of profit sexual transactions between clients and sex workers.
• Sex trafficking is a serious criminal violation that involves coercing, manipulating, or pushing someone into prostitution using threats or other means.
• Child sexual exploitation: Engaging in prostitution by someone under the legal consent age, which is typically 18 years old, is severely forbidden and is regarded as child sexual exploitation.
• Living off earnings of prostitution: It is illegal to profit monetarily from someone else's prostitution operations, and this practice is known as "living off the earnings of prostitution" or "pimping" in legal terminology.
• Forcing someone into prostitution: It is unlawful and a grave violation of human rights to force someone, against their will, to become a prostitute.
• Public indecency: Engaging in sexual acts in public places is often illegal and can lead to charges of public indecency or obscenity.

CRITICAL ANALYSIS OF THE LAWS PERTAINING TO PROSTITUTION IN INDIA

The intricate legal structure pertaining to prostitution in India has been the focus of examination and discussion.

• ITPA, or the Immoral Traffic (Prevention) Act of 1956:
• The punitive nature of the ITPA has drawn criticism since it frequently causes sex workers to be stigmatized and marginalized. Adults who provide their consent may be prosecuted since it does not clearly distinguish between forced or coerced prostitution and voluntary sex work.
• Sex workers are more susceptible to abuse, violence, and health hazards as a result of the absence of regulations. Sexual workers have a difficult time standing up for their rights and getting better living conditions if they don't have access to social services, healthcare, and education, as well as legal protections.
• Human rights breaches are sustained by the prohibition of some parts of prostitution, such as the arbitrary detention, arrest, and harassment of sex workers by law enforcement. Additionally, by forcing the sector underground and making it harder for sex workers to get assistance or report abuse, it impedes attempts to prevent human trafficking.
• The existing legal system ignores more significant social and economic issues that increase the vulnerability of sex workers in favour of law enforcement and incarceration. Meaningful participation by sex workers in the formulation and execution of policies is lacking.
• While there are some beneficial aspects of Indian prostitution laws that are intended to stop exploitation and trafficking, there are also some flaws and ambiguities in the legislation. A more sophisticated and rights-based strategy is required, one that addresses the intricate socioeconomic dynamics that underpin prostitution while placing a higher priority on the health, safety, and dignity of sex workers.

REFORMS NEEDED

The current legal system frequently does a poor job of differentiating between forced or compelled prostitution and voluntary sex work. To guarantee that the rights and dignity of sex workers are upheld, including their freedom to select their career without fear of discrimination or legal action, reforms are required.

• To combat the trafficking of people more effectively for the purpose of commercial sexual exploitation, prostitution laws must be reinforced. Improving law enforcement systems to find and apprehend traffickers while offering aid and support to victims of trafficking is one aspect of this.
• By guaranteeing access to healthcare services, including HIV/AIDS prevention and treatment, and by fostering safe working circumstances, reforms should place a high priority on the health and safety of sex workers.
• Prostitution in India is being called for to be legalized or decriminalized more and more. Decriminalization would mean keeping laws against exploitation, trafficking, and coercion in place while eliminating criminal sanctions for adult consenting sex employment. Legalization would entail regulating the sex industry, just like other professions, to protect the safety and rights of sex workers.
• If sex workers decide to leave the business, reforms should include steps to give them the financial and social support they need to do so. This could entail schooling, training for a trade, and alternate work options.
• To guarantee that the opinions and perspectives of sex workers are acknowledged and valued, policymaking should entail substantive involvement with these populations. Public education initiatives to combat stigma and prejudice against sex workers and advance awareness of the problems they encounter should be a part of reforms.
• India is required by several human rights treaties to uphold the rights of sex workers and prevent human trafficking. Reforms ought to be in line with these commitments and internationally recognized best practices.

INITIATIVES BY GOVERNMENT

The Indian government has launched several programs to better the lot of prostitutes and deal with the problems they encounter.

• The NACP, or National AIDS Control Programme: 

The Indian government introduced the NACP, a comprehensive initiative, to stop and manage the spread of HIV/AIDS. It consists of focused activities to support HIV prevention, testing, and treatment services for high-risk groups, such as sex workers.

• Scheme Swadhar Greh: 

The Swadhar Greh Scheme offers women in challenging situations, such as those who have been the victims of trafficking, abuse, or exploitation, temporary housing as well as rehabilitation services. With the help of various programs like skill development, counselling, and support, it seeks to enable women to live honourable lives.

• Ujjawala Scheme:                                                                                                        The Ministry of Women and Child Development's flagship program, the Ujjawala Scheme aims to rescue and rehabilitate victims of trafficking for the purpose of commercial sexual exploitation, as well as prevent trafficking. It allows rescued women and girls—including sex workers—to receive economic rehabilitation, counselling, vocational training, and shelters.
• Sex Workers' Collectives:                                                                                       

To empower sex workers and advance their rights, the government encourages the creation of sex workers' collectives and groups. These collectives frequently support social support for sex workers, healthcare access, legal help, and policy improvements.

•     Legal Aid and Support Services: 

Sex workers can receive legal aid and support services from several governmental and non-governmental organizations. These services include help with legal documentation, complaint filing, and seeking restitution for human rights violations.

•     Programs for Skill Development and Livelihood:

A few government programs are aimed at helping sex workers shift to other types of work by providing them with livelihood and skill development opportunities. To help sex workers become more economically independent, these organizations provide microfinance support, entrepreneurial development, and vocational training.

•     Programs for Sensitization and Awareness: 

To combat stigma and prejudice against sex workers and increase public knowledge of their rights and concerns, the government runs awareness and sensitization campaigns. These initiatives are aimed at several stakeholders, such as the public, law enforcement, and healthcare professionals.

CURRENT SCENARIO

India's proximity to Nepal, Bangladesh, and Pakistan—three nations with less developed economies than India—makes it a receiving, sending, and transit destination for sex labour. The Ministry of Women and Child Development's initial assessment on sex workers in India, carried out in 1997, claimed that there were 2 million of them; between 1997 and 2014, that number rose by 50%. A 2014 poll estimated that 1.2 million females were working in this field, with 35.47% of those girls beginning their careers before turning 18.

India is home to an estimated 275,000 brothels, and 20,000 women and girls are victims of sex trafficking out of 657,829 sex workers, according to a 2016 UNAIDS survey. In India, there are about 2 million prostitutes in major cities like Delhi, Mumbai, Kolkata, and Bengaluru. Asia's largest red-light district is located in Kamathipura in Mumbai and Sonagachi in Kolkata.

According to a Joint Women's Programme survey, 38% of young girls reported that their family background was Devadasi, and 63.6% of them accepted the system out of custom. The Devadasi system has been connected to the trafficking of girls for the purpose of commercial exploitation. Together with other sex workers, they are transported to the red-light districts of Mumbai, Pune, Bangalore, and other major cities.

CASE LAWS

• In the 1997 decision of Gaurav Jain v. Union of India, the Indian Supreme Court stressed the necessity of sex workers' rehabilitation programs and gave the government instructions to act in their best interests. The court acknowledged that, like any other citizen, sex workers should have the same rights and protections.
• In the 1997 case Durbar Mahila Samanwaya Committee v. State of West Bengal, the Calcutta High Court ruled that sex workers were entitled to organize into groups or unions to defend their rights and advance their interests.
• In the 2009 case of Nalini Jameela v. State of Kerala, the Kerala High Court ruled that, provided the sex workers are not causing a public nuisance, they cannot be arrested by the police merely for soliciting clients. The court demanded action to safeguard the rights of sex workers and underlined the necessity of treating them humanely.
• Delhi Domestic Workers' Union v. Union of India (1995): This case addressed the rights of domestic workers, including those who might also engage in sex work, even though it was not explicitly about prostitution. The Supreme Court ruled that domestic workers should be treated as employees with rights, including the right to fair compensation and respectable working conditions. They should also be entitled to the protection of labour laws.
• In the 1992 case of Bharati Dey v. State of Assam, the Gauhati High Court ruled that, in accordance with Article 19(1)(g) of the Constitution, which protects the freedom to engage in any profession, occupation, or trade, sex workers are entitled to the freedom to perform their trade. The court stressed that sex work is safeguarded as a fundamental right so long as it is consensual and does not contravene morals or public order.
• State of Andhra Pradesh v. P. Ratnamma (2010): The Andhra Pradesh High Court ruled in this case that sex workers cannot be arrested by the police without a warrant or proof that they are soliciting or participating in immoral activity. The court stressed how important it is that law enforcement respect sex workers' rights and abstain from harassing or making arbitrary arrests.

COUNTRY WISE LEGISLATIONS

CHINA

In China, sex employment is subject to both criminal and administrative law. According to China's Law on Penalties for Administration of Public Security 2005, it is unlawful to buy or sell prostitutes as well as to lure, shelter, or introduce someone to prostitution. It is illegal to coerce, organize, or encourage prostitution.

SOUTH AFRICA

The Sexual Offenses Act of 1957 forbids performing indecent acts for financial gain or having illegal carnal relations with another individual in South Africa. Additionally, it forbids running a brothel, hiring people to work as prostitutes or in brothels, facilitating prostitution, knowing to live off the proceeds of prostitution, soliciting in public for immoral reasons, and engaging in indecent behaviour. The Criminal Law Amendment Act of 2007 prohibits compensating someone above the age of 18 in any way for engaging in sexual activity, regardless of whether the act is carried out.

CANADA 

In Canada, buying sex is now prohibited by House Government Bill C-36 of 2014, however selling sex is still seen as a legitimate business. The former prostitution laws in Canada were replaced in December 2014 by the Protection of Communities and Exploited Persons Act. Under the new law, it is illegal to buy sex, profit materially from someone else's prostitution, and communicate for the purpose of prostitution near playgrounds, community centres, and schools by anyone other than sex workers.

GERMANY 

In Germany, prostitution is controlled and permitted. Brothels are permitted, and sex workers have access to social services and healthcare. Ongoing discussion surrounds the efficacy of regulations in mitigating problems including sexually transmitted illnesses, exploitation, and human trafficking.

FRANCE 

In France, solicitation, procurement, and running a brothel is illegal, but prostitution itself is permitted. The French government has put policies in place to deter prostitution, including providing support services and exit programs to sex workers who want to quit the business.

CONCLUSION

In a society where market-driven, capitalistic systems of exploitation, misogyny, and oppression are common, there is a propensity to conceal the true nature of unfair systems that oppress vulnerable, marginalized people and favour a select few. The reality that prostitution will always exist in society makes it necessary to legalize it. Prostitution cannot be treated on an equal basis with other professions, even though sex workers should be treated with some dignity. Sex workers ought to be treated like human beings instead. The Supreme Court's recognition of prostitution as a profession facilitates the access of sex workers to fundamental rights.

It would be absurd to ignore it, to deny the system's existence and its issues in a society where prostitution has long been a recognized profession and continues to grow as a business. Adequate norms and regulations pertaining to the legalization and decriminalization of sex work will enhance the working environment, health security, and safety of those engaged in the profession. It will also benefit society since it will get rid of many social evils like child prostitution and rape, among other things. Sex trade is a very real issue in our country, and all parties involved can be guaranteed benefits if it is recognized as a legitimate profession with rules and regulations.