Prostitution in India: A Protected Vocation?

The author, Parigya Verma, is a second-year law student studying at National Law University Odisha.

Going back to as far as 2400 BCE, prostitution can be easily touted as one of the oldest professions across the globe, transcending continents and societies. In India as well, the profession could be traced as early as the origin of the Vedas, with the practice being prevalent in the form of 'Devadasis' and 'Nagarvadhus', as well as present and popularized in mythology by Apsaras[i]. While the ancient and medieval times observed a sense of respect and organization being accorded to the profession, the present times have excluded it from the societal narrative altogether by viewing it from a moral lens.

While prostitution is legal in India, although the public answer to this question would indicate otherwise, involved practices such as owning and operating a brothel, kerb-crawling, soliciting, trafficking, pimping and other similar practices are, however, illegal. The Immoral Traffic (Prevention) Act,[ii] is the primary legislation in India apart from the Indian Penal Code[iii] (IPC) that deals with the practice and its legalities. The IPC's provisions, however, are limited to prostitution of minors and exploiting trafficked persons.

As the preamble of the Immoral Traffic (Prevention) Act indicates, this Act was enacted in pursuance of the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others signed in New York, as a measure to curb human trafficking. However, instead of serving its aim, it became a tool in the hands of law enforcement to penalize activities related to prostitution by treating them akin to human trafficking. Although attempts were made to remedy the same by the amendments brought in 1986, bringing in the changes to the definition of prostitution and Section 7 and 8 of the Act, although it did not yield many results. The foundation of the Act itself, pursuant to which the Act was enacted in the first place has itself been riddled with similar controversies. The Convention has not been signed and ratified by many countries that accept prostitution as an occupation, as Article 1 of the Convention requires its party states to punish any individual that "procures, entices, or leads away, for purposes of prostitution, another person, even with the consent of that person", hence eliminating voluntary prostitution.

However, this perspective appears to be missing from the Act, as is indicative by Section 2(f) of the Act as well, which defines prostitution as "the sexual exploitation or abuse of persons for a commercial purpose", hence not eliminating the voluntary choice of prostitution as a profession as long as it does not exploit or abuse. Nevertheless, this inclusion is rendered redundant as it makes other acts associated with the profession illegal, making it difficult to practice the trade altogether. The Act penalizes the following actions, in no particular order-

• To allow one's premises to be run as a brothel, or to run a brothel;
• To live off the earnings of prostitution, or to solicit or seduce someone for such purposes;
• To procure, induce or take people for the sake of prostitution, and to detain persons at the place where such prostitution is taking place against their will;
• To practice prostitution within 200 meters of any public place, akin to an educational institution, hospitals, temples, etc.

Although penalizing such actions does not necessarily outlaw prostitution, but it does put prostitutes under the radar for being penalized anyway. Despite the supposed intention being geared towards human trafficking and exploitation, it fails to live up to its purpose. The amendments made themselves pose many discrepancies, which successfully depict the lack of required attention paid to the legislation in terms of its amendments and drafting. The amended Section 8, for instance, penalizes any person who solicits or molests any person for the process of prostitution. Hence, when read with Section 2(f) of the Act, a situation could arise wherein sex workers themselves could solicit a purpose to sexually violate or exploit themselves, which is impossible and preposterous to consider.[iv]

A similar notion regarding the legality of prostitution as a profession was reiterated by the Bombay High Court in the recent judgment of Kajal Mukesh Singh & Ors. v. The State of Maharashtra[v], wherein the Court stated, "What is punishable under the Act is sexual exploitation or abuse of person for commercial purpose and to earn the bread thereby, except where a person is carrying on prostitution in a public place as provided in Section 7 or when a person is found soliciting or seducing another person in view of Section 8 of the said Act." The Court also struck down the order detaining the women involved in the case in a women's hostel instead of being sent back to their parent's houses in Kanpur, based on the premise that the women belonged to a community holding a long-lasting tradition of prostitution. The order violated Article 19 of the Constitution, and the women were allowed to reside at their place of choice and practice a vocation of their choice as well.[vi]

Despite the recent light at the end of the tunnel, there still exist many hurdles yet to be crossed to allocate sex work, and sex workers the same amount of dignity and respect every human being is entitled to. The current backdated laws criminalizing prostitution, whether directly or otherwise, are indicative of archaic moral philosophy that shuns the existence of this vocation despite its rampant existence. An unorganized and back-alley prostitution industry instead, serves the counter of what the legislation primarily aims to achieve- to reduce trafficking. An unregulated industry, such as the one in India currently, provides no recourse in case of sexual harassment or exploitation by solicitors and allows non-consenting individuals to be pushed into the industry either through abductions or through inducement. What India currently requires is well-drafted legislation aiming at provisions that are acceptive and inclusive of sex work as a valid profession, and that regulate the industry instead of assigning the moral lens of 'right' and 'wrong'.

FAQs

1. Is Prostitution legal in India?

Yes, prostitution is legal in India as per the definition given in The Immoral Traffic (Prevention) Act, 1956. However, the Act is often used to target sex workers rather than curb trafficking, which it intends towards.

1. What is kerb-crawling?

It refers to the practice of driving slowly alongside the sides of the road with the intention to solicit a prostitute.

1. Is it legal to practice prostitution in a public place?

No, it is illegal to practice prostitution within 200 meters of a public place.

References:

[i] Dr Tulsing Sonwani, 'Prostitution in Indian Society: Issues, Trends and Rehabilitation' < https://www.ugc.ac.in/mrp/paper/MRP-MAJOR-SOCI-2013-25158-PAPER.pdf> accessed on 3 December 2020.

[ii] The Immoral Traffic (Prevention) Act [1956].

[iii] The Indian Penal Code (1860).

[iv] Shantanu Lakhotia, 'Immoral Traffic (Prevention) Act, 1956; An Example Of 'Legislate In Haste, Amend At Leisure'' (Live Law, 9 November 2020) < https://www.livelaw.in/columns/immoral-traffic-prevention-act-1956-an-example-of-legislate-in-haste-amend-at-leisure> accessed 4 December 2020.

[v] 2020 SCC OnLine Bom 954.

[vi] Kanchan Chaudhari, 'Bombay HC sets three sex workers free, says women have right to choose vocation' The Hindustan Times (Mumbai, 25 September 2020) <https://www.hindustantimes.com/mumbai-news/bombay-hc-sets-three-sex-workers-free-says-women-have-right-to-chose-vocation/story-8inKJ8LrFohrkq4Dl45rwO.html> accessed 4 December 2020.

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