Author: Paikar Mustafa
Law Graduate, 2019
Law College Dehradun, Uttarakhand
India has been a nation inclined towards morality and has a bearing of religions that preaches humanity, morality, ethics, and kindness in large terms. The inclination of people towards their beliefs and faiths has been adequately represented by the formal source of law and authority in India i.e., the Constitution of India. Out of several provisions it contains, Part III of it entails the Fundamental rights granted to citizens and persons in the arrangement made accordingly. Realizing the importance and essentiality of the existence of fundamental rights, they are made inviolable by the constitution itself and with the advancement in society, the judicial discipline made the Part III amongst the most valuable basic structure of the Constitution, safeguarding them from being amended according to the whims and wishes of the legislature and ensuring their accessibility unobstructed to the people.
In Ancient India, Devdasi Pratha (slavery system) was in vogue, which found its way to flourish in the Mughal period and transmitted into British India with more authority and sanctions from being in continuity since inception. Prostitution can be defined as the act or practice of engaging in promiscuous sexual relations especially for money.
It is thus a sexual act performed to harness commercial benefits. In India, the practice of prostitution as such is illegal and unlawful but can be seen prevalent in several other forms, whereby the women especially girls of tender age are trafficked, picked and tricked into the act of prostitution and subjected to extremely inhumane treatment to satiate the thirst of human trafficking market. Prostitution in Indian society could never be made legal subject to certain restrictions as Indian society in wide terms a conservative society and legalizing any such institution will work as disseminating immorality, but despite the laws and sanction against this immoral practice, the express prohibition has led to illegal forms of prostitution and women who are victims of this cause are stigmatized, alienated and not accepted by the society let alone living with the dignity.
1.2. INTERNATIONAL LAWS AND NORMS AGAINST PROSTITUTION
Globally, women's empowerment became the burning issue and need of the hour to attain holistic development for every nation. The first in line to address the concern of human rights was the Universal Declaration of Human Rights (UDHR), adopted by the United Nations General Assembly on 10th December 1948 in Paris. This declaration is considered as the Magna Carta of Human Rights. Article 4 expressly provides for freedom from slavery and prohibition of slave trades.
Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, 1949, of which India became the earliest party provided for the prohibition of prostitution and suggested punishment for any person who procures or entices any other person for prostitution.
The International Covenant on Civil and Political Rights (ICCPR), 1966 ratified by India in 1979 provides for the right to be free from slavery and this right has acquired the status of Jus Cogens (non-derogable norm) in customary International law.
The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) was adopted by General Assembly which requires states to take all appropriate measures to suppress all forms of trafficking in women and exploitation of the prostitution of women.
Further, The International Labour Organisation’s conventions held regularly provided for the prohibition of trafficking and slavery in women and children. The “Palermo Protocol” signed by India in 2002 and ratified in the year 2011 prohibits trafficking and slavery, especially in women and children.
The arrangements made under Indian national law can be categorized into the following three categories:
1) The Indian Constitution
The Indian Constitution is considered as the grundnorm (parent law) for all the laws and statutes enacted by the Parliament of India.
Article 23 of the Constitution of India enshrined in Part III provides for prohibition of trafficking in persons and declares that traffic in human beings and similar forms of forced labor are prohibited and violation of this provision shall be an offense punishable under the law.
Further, Article 14 guarantees the right to equality for every person. Article 19 contains several freedoms of which clause (1)(a) provides for freedom of speech and expression.
Last but not the least, Article 21, which is regarded as the Human Rights Jurisprudence code in the Constitution, provides for the right to life and personal liberty.
2) The Indian Penal Code, 1860
The Indian Penal code, a substantive penal law also provides for punishment against trafficking and prostitution.
Section 370 of the code makes provision for trafficking of persons and punishes the perpetrators with imprisonment for the term of seven years to life imprisonment, with fine based on the gravity of the offense.
Section 370A punishes exploitation of a trafficked person with imprisonment up to five years with fine and where any such person is minor, then imprisonment up to seven years and fine. Section 372 and 373 states that whoever sells or buys or hires or obtain possession of any person under the age of eighteen years for prostitution or illicit intercourse or immoral purposes shall be punished with imprisonment for up to 10 years with fine.
Section 366A punishes procuration of minor girls for forced or illicit intercourse shall be punished with imprisonment for ten years and with fine.
Section 366B recognizes cross border trafficking into prostitution and punishes importation of girls from a foreign country for forced or illicit intercourse with imprisonment for ten years and with fine.
The code provides for punishment of rape under section 376 with the minimum imprisonment for the term of seven years and with fine.
3) Statutes prohibiting trafficking and Prostitution
A) The Suppression of Immoral Traffic in Women and Girls Act, 1956.
This Act was enacted by the Parliament in the year 1956 in pursuance of the Trafficking convention of 1949, signed at New York in 1950.
Section 2(f) of the Act defined prostitution and further, the Act made provisions for keeping a brothel, detaining, or keeping women in prostitution, and for rescuing girls who are subject to trafficking and prostitution and rehabilitation of them.
It made offenses under this act cognizable and enabled the police officers to search without a warrant of any suspected premises. The major feature of the Act is that it provided for Protective Homes for the recovery and rehabilitation of prostitution victims. The Act further provided for the Removal of a prostitute from any place and be prohibited from re-entering it.
B) Immoral Traffic (Prevention) Act, 1986.
The Suppression of Immoral Traffic in Women and Girls Act, 1956 was subsequently amended and renamed as Immoral Traffic (Prevention) Act, 1986. This is the Central legislation and the provisions are almost in the semblance of the earlier Act of 1956, with some modifications to penalize those who facilitate and abet commercial sexual exploitation or prostitution. It provides for rehabilitation, correction of the victims, and makes provisions for the compensation. The major change that was brought was prostitution is made a gender-neutral offense by substituting the term woman and girl for a person.
1.3. JUDICIAL DECISIONS
The earlier interpretation of the Act of 1986 attracted some issues concerning section 20 of the Act, which is the same in the Amended Act of 1986. It provides wide discretionary power to the magistrate to remove any woman or girl or person who is believed to be a prostitute from her/ his home to any other place in his jurisdiction.
The first case that came challenging this provision was Kaushailiya v. State wherein the High Court struck down the said provision as violative of fundamental rights mainly Articles 14 and 19 (d) and (e).
In an appeal from the state to the Supreme Court, the issue was reconsidered in the case of the State of U.P. v. Kaushiliya The five-judge bench of the Apex Court reversed the judgment of High Court and held the said provision to be reasonable restriction of the Fundamental Rights under Article 14 and 19 and said that it falls under intelligible differentia of classification which has rational nexus with the object sought to be achieved by the Act.
Further in the case of Upendra Baxi and Lotika Sarkar v. State of Uttar Pradesh, popularly known as The Agra Home case, was concerned with the deplorable situation of the protective homes established under the Act, which instead of protecting were promoting the prostitution. The supreme court in the exercise of its epistolary jurisdiction turned the letter written by the petitioners to the newspaper into a writ petition. The Supreme Court held that victims must not live in inhumane and degrading conditions and the right to live with dignity under Article 21 should be made real and meaningful to them.
In another case of Visaljeet v. Union of India, 1990, the Apex Court held that “prostitution remains as a running sore in the body of civilization and destroys all moral values”.
In the landmark judgment of Buddhadev Karmaskar v. State of West Bengal, the Supreme Court held that Article 21 includes a prostitute’s right to lead a life of dignity as well. The Court observed that abject poverty compels a person to become a prostitute and not because she enjoys it. Society must have sympathy towards sex workers and must not look down upon them. The Court said that women indulged in prostitution must be given an alternate opportunity to distance herself from prostitution so that she could live a meaningful life.
The unabated discussions and concerns emerging out of the issue of prostitution have made India as a nation to stride and combat the issue and as evident, the presence of statutes and judicial decisions that lined up showed the seriousness of the practice and harm ensuing therefrom.
The Immoral Trafficking (Prevention) Act, 1986 in itself left many questions unanswered to be called as complete law in putting an end to prostitution.
The Act does not take into account the private prostitution and covert brothels that are not necessarily manifested as one.
The Act makes victims as offenders and provides punishment for them. The provision for corrective homes sounds more stringent and punitive than what the objective of the act ought to be from a victim’s point of view, i.e., prevention and rehabilitation.
Judiciary has undoubtedly, extended the active human rights application to the sex workers but the approach of the judiciary is rather strict and stagnant. The presence of Section 20 of Immoral Trafficking (Prevention) Act, 1986 and the upholding of the provision by the Apex Court makes it a law of the land under Article 141 of the constitution and hence denies the humanitarian and assimilating approach of sex workers in the society to which judiciary has shown the way initially.
The Indian legal structure does not take into account the consensual prostitution or the legalization of prostitution, thus restricting the freedom of choice to the persons indulging in the activity on their own volition. There should be strong guidelines and norms providing for regulation of prostitution business, to eliminate other associated evils.
In contemporary society, to eliminate a problem one-handed approach could never work effectively unless the law takes into account the multifarious scenarios that directly affect the problem. The level of tolerance in society and the open-minded approach of people towards these sex workers must be infused by generating knowledge of the peculiar kind. The measures adopted should be more preventive rather than punitive because the life of a victim is done for when punishment comes. The activism of the judiciary has shown the way to unexplored areas of rights and concerns, this issue should also be looked at from this side and remedied at the earliest.
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