Prostitution is the exchange of sexual pleasure for financial benefits. Female prostitution is perhaps the oldest profession all over the world. It is perhaps the most hated profession. It can be defined “as the practice in which a female offers her body for promiscuous sexual intercourse for hire etc.” However, a new definition has been coined for the word ‘Prostitution’ in the Government of India’s Prevention of Immoral Traffic Act-1987, which gives the following meaning, “Sexual exploitation or abuse of persons for commercial purposes.”
In Indian mythology, there are many references to high-class prostitution in the form of celestial demigods acting as prostitutes. They are referred to as Menaka, Rambha, Urvashi, and Thilothamma.
In India, it is legal to practice prostitution but there are other activities that are illegal. For example; Soliciting in a public place, Kerb crawling, owning or managing a brothel, Prostitution in a hotel, child prostitution, pimping, and pandering.
It is rather difficult to enumerate all the factors conducive to prostitution because it has often been argued that prostitution has its roots deep in the fabric of society. The social and economic subordination of women by men has often been cited amongst the important causes leading to prostitution.
Abduction: This is the most common cause. A young girl is abducted from their villages / native places on some or other pretext, exploiting their innocence. Some of these are going to movies, cities, temples/pilgrims, making them film-stars offering job opportunities and marriage. Contrary to common beliefs, most kidnappers are females or couples. The incidence of prostitution through abduction is estimated to be 35 per cent.
Devadasi System: The inhuman system of prostitution with religious sanction “Devadasi System” still continues to flourish in the so-called progressive and democratic country. Every year thousands of girls are dedicated to goddess ‘Yellamma; ‘Renuka’ (mostly in the State of Karnataka and Maharashtra) and after a brief period of concubinage, they become accessible to urban-prostitution. Devadasi System contributes to 20 per cent of child prostitution and moreover it legitimizes the practise of putting them to prostitution.
Rape: About 6 per cent of the girls entered prostitution after they have been raped. Rape is a social stigma and, in some circumstances, the victims of rape are not even accepted at home. Apart from the delay or even the absence of justice, the victims have to face similar incidents every now and then. When they don’t find any safe place in society and don’t foresee any better future perspective, they find their ways in the brothels. About 8 per cent of the girls came to prostitution following the incidents of rape.
The inhumane buying and selling of women and girls into prostitution, their complete subordination by the perpetrators, and the subsequent physical and mental violence to which they are subjected constitute slavery or, at the very least, slavery-like practices. “Slavery occurs when one human being effectively ‘owns’ another, so the former person can exploit the latter with impunity.” The buying and selling of women and girls into brothels in India, and their forced confinement under inhuman working conditions, characterized by indiscriminate sexual exploitation by the traffickers, brothel owners, police and, pimps have been reported by Human Rights Watch and other non-governmental organizations.
The Constitution of India: The Indian Constitution prohibits trafficking in persons and guarantees many of the internationally recognized human rights norms, among them: the right to life and personal liberty, the right to equality, the right to freedom, and the right to constitutional remedies. These rights figure prominently in judicial decisions and academic discourse on the Indian Constitution. The right to be free from exploitation is also guaranteed as one of the fundamental rights of any person living in India. Article 23(1) declares that “traffic in human beings and the beggar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with the law.”
The Indian Penal Code: When the Constitution of India was adopted in 1950, it incorporated many parts of the Indian Penal Code, (hereinafter “IPC”), which dated back to 1860. Interestingly enough, the issue of trafficking in persons was addressed in the IPC, which prohibited the trafficking of women and girls into coercive prostitution in India and prescribed harsh punishment for offenders. The IPC states that anyone who buys or sells or obtains possession of anyone under the age of 18 years for “the purpose of prostitution or illicit intercourse . . .” or for an “unlawful or immoral purpose . . .” or “knowing it to be likely that such person will at any age be employed or used for any such purpose . . .” is subject to imprisonment for up to ten years. The IPC recognizes cross-border trafficking into prostitution and provides that whoever imports into India from any country outside India any girl under the age of twenty-one years with the intent that she may be, or knowing it to be likely that she will be, forced or seduced to illicit intercourse with another person, shall be punishable with imprisonment which may extend to ten years and shall also be liable to fine.
The provision pertaining to rape under the IPC applies also to the rape of a brothel inmate. The IPC defines rape as the act of sexual intercourse with a woman when the act is against her will, without her permission, or with her consent, when her consent has been obtained by threats or fear of death or injury, or with her consent when she is incapable of understanding the consequence of her consent, or with or without her consent when she is below sixteen years of age. Under the IPC, the minimum term of imprisonment for rape is seven years. These laws are directly applicable to brothel owners, brothel staff, and customers when they engage in sexual intercourse with children and minors, with or without their consent, or with those women who are kept in brothels under force or threat.
Domestic Legislation Subsequent to the Trafficking Convention: SITA (1956) and ITPA (1986) To give effect to these constitutional provisions and to provide coherence with the Trafficking Convention, India enacted SITA which was later amended and renamed ITPA. This is an interesting and important law because according to its preamble, the sole purpose of the ITPA is to give effect to the Trafficking Convention. The preamble, as the gateway to the legislation, refers to the law as “An Act to provide in pursuance of the International Convention signed at New York on the 9th day of May 1950, for the prevention of immoral traffic” in women and girls, enacted by Parliament in the Seventh Year of the Republic of India. An Act with such an exclusive purpose, to give effect to an international convention by enabling legislation at the domestic level, is not found in the case of any other human rights concern in India.
However, contrary to the Trafficking Convention, many provisions of SITA discriminated against victims of prostitution and punished the victims instead of perpetrators. It is the perpetrators who are the instigators and cause of the offences, if any, committed by the victims. Under the Trafficking Convention, victims of prostitution cannot be punished under any circumstances, and Article 1 contains provisions “to punish any person who, to gratify the passions of another: (1) procures, entices or leads away, for purpose of prostitution, another person, even with the consent of that person; (2) [e]exploits the prostitution of another person, even with the consent of that person.” Under Article 2 of the Convention, the Parties to the Convention further “agree to punish any person who: keeps or manages, or knowingly finances or takes part in the financing of a brothel; knowingly lets or rents a building or other place or any part thereof for the purpose of the prostitution of others.” These are the only offences enumerated under the Convention, and none of these provisions suggests that a victim of prostitution or a “prostitute” can be an offender. The clear intent is to punish those who are involved in procuring, enticing or trafficking anyone for the purpose of prostitution, or who are exploiting the prostitution of another person, even with the consent of the victim. The provision of the consent mentioned can be construed in a way that denies traffickers or other perpetrators involved in the business of prostitution the means to be absolved from culpability by clothing their crimes in the garb of victim consent.
The treaty aims to discourage every form of sexual exploitation, thus prohibiting trafficking of persons into prostitution; however, it does not prohibit prostitution or commercial sex work by individuals by their own choice.
In India, neither SITA, nor ITPA, prohibits prostitution, nor does either aim at the abolition of prostitution or make it per se a criminal offence. However, many provisions of SITA discriminate against the victims and punish them, in direct contravention of the Trafficking Convention. The following sentences detail the main features of SITA: Section 2(f) defined prostitution as “the act of a female who offered her body for promiscuous sexual intercourse for hire . . ..” Under this definition, prostitution can only be carried on by women or girls and not by men or boys. It provided punishment by imprisonment of up to three months for any woman or girl engaging in prostitution within a distance of two hundred yards of any public places. There was a discriminatory sentencing provision under this law in which a woman arrested for soliciting could face imprisonment of up to one year, whereas, for the same offence, a pimp could be imprisoned only up to three months. The biggest drawback of SITA was that it addressed only street prostitution and prostitution behind closed doors was left alone. No norms were prescribed for the protection of the rights of the inmates, an omission that had the effect of promoting the establishment of thousands of exploitative brothels in India. Also, very minimal punishments were prescribed for the pimps, traffickers, and brothel owners. Since closed-door prostitution was allowed without prescribing legal safeguards or imposing responsibility for the protection of inmates, thousands of girls were enslaved under the garb of their consent.
Another provision that created controversy in the early 1960s relates to the removal of prostitutes from any place. Under Section 20 of SITA, sweeping power was given to a magistrate to remove any woman/girl believed to be a prostitute from her home or any other place in the jurisdiction. The woman could be removed to an unspecified destination, and the magistrate could prohibit her from re-entering his jurisdiction. This provision was challenged before various High Courts, and subsequently, the matter reached the Supreme Court on the grounds that it violated Article 14 and Article 19(1)(d) and (e) of the Indian Constitution. Article 14 of the Constitution of India guarantees the right to equality and ensures that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” Article 19 protects the right to freedom; under 19(1)(d) and (e) “all citizens shall have the right . . . to move freely throughout the territory of India . . .” and “to reside and settle in any part of the territory of India . . ..” The following section discusses the Indian Cases that have challenged the provisions of SITA that violate the Indian Constitution as discussed above.
The most important difference is the substitution for “women or girls” by “persons,” making the new law more gender-neutral than SITA. Irrespective of this substitution, Section 20 remains largely unchanged, except that now any person thought to be a prostitute in the eyes of a magistrate can be removed or deported from his/her residence or locality to an unspecified place. The important point to be noted here is that the Full Bench decision of the Supreme Court in State of Uttar Pradesh v. Kaushailiya is still the law of the land under Article 141 of the Constitution, because the enabling Act related to this provision has not been repealed or amended, nor has it been overruled by the Supreme Court in any subsequent decision.
In addition to making anti-trafficking laws more gender-neutral, ITPA addresses the issue of under-age prostitution. It defines “minor” and “child,” and prescribes severe punishment for those who profit from their sexual exploitation. The Act defines anyone who is under 16 years as a child, anyone between 16 to 18 years as a minor, and anyone older than 18 years as major. The Act provides rigorous imprisonment from 7 years to life for the said offences against a child, while offences against a minor may result in 7 to 14 years imprisonment. In the case of a person promoting child/minor prostitution in a public place, the imprisonment is not to be less than 7 years, which may extend to life. ITPA comprises detailed provisions regarding trafficking and prostitution. This law describes keeping a brothel or allowing premises to be used as a brothel, living on the earnings of prostitution, procuring, inducing or taking (a person) for the sake of prostitution, detaining a person in premises where prostitution is occurring, prostitution in or on the vicinity of a public place, seducing or soliciting for the purpose of prostitution, and seduction of a person in custody as punishable offences. Any person convicted of any of these offences may be punished with imprisonment and a fine. This also includes any person who keeps or manages, or acts or assists in the keeping or management of a brothel is to be punishable on first conviction with rigorous imprisonment from one to three years, and for second and subsequent conviction from two to five years with fines. However, in seducing and soliciting in public for the purpose of prostitution, women are given more severe punishment than men. For example, women can get 6 months to one-year imprisonment for this offence, whereas men can get 7 days to 3 months imprisonment, which explicitly shows the remaining discriminatory provision in the law, inconsistent with Article 14 of the Constitution.
There are provisions for the rehabilitation of the victims rescued or escaped from brothels, or for those who have left prostitution voluntarily and have sought shelters. Under the law, state governments are obligated to establish and properly maintain protective homes or rehabilitation centres. Except for the discriminatory provision previously mentioned, by and large, all other provisions indicate the good intention of the legislature; however, there is a huge gap between the law on the books and the law in practice. If these provisions had been implemented effectively, thousands of innocent girls and women could have been saved from enslavement in innumerable brothels in India. If the government were to decide to implement these provisions, hundreds of victims rescued or escaped from brothels in India could undoubtedly be found who would be able to provide details of life in brothels and the atrocities committed against inmates.