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An Analysis: Legalization Of Prostitution In India

Prostitution comes from the Latin word "prostituere" which means to expose publically. In layman's terms prostitution can be expressed as providing sexual favours in return of money. Like other forms of violence that are committed in India, prostitution can be said to be a gender specific form of violence as a majority of the victims are women. However we cannot say that men are not victims of the same, also the transgender community can be counted in as a major part of the victims today.

Prostitution itself is an old civilization of India, it has been a part of our society since marriages were first introduced. Prostitution happens in different structures around the world, and its lawful nature changes from nation to nation. Brothels are the basic foundation of prostitution and are responsible for a major part of its regulation.

Causes and history of prostitution in India:

Poverty is a major cause of prostitution in India. In the Indian society, it is comparatively difficult for a woman to be financially independent and also a majority of women today are deprived of education and other skills that could make them financially stable, prostitution thus becomes a way of earning money for the same group. Lack of sex-education, kidnapping and abduction are also major causes for the practice of prostitution in India.

Legality of prostitution in India and its reliefs:

Even though prostitution can be considered as a major problem in India, it is nowhere specifically mentioned to be illegal in India. The major laws related to the practice of prostitution are mentioned in the Immoral Trafficking Act, 1956 and the Indian Penal Code, 1860. Section 2(f) of the Immoral Trafficking Act defines "prostitution" as sexual exploitation or misuse of any person for any business purpose, whereas the Indian Penal Code also talks about prostitution but is very limited and deals with child prostitution only dealt under Sections 372 & 373 of the same.

The Immoral Traffic (Suppression) Act, 1956 is also known as SITA. This act gives laws dealing with problems such as, allowing prostitutes to practice their trade in private places but not in public areas, dealing with prostitutions being conducted in brothels etc.

Given below are the important sections that deal with the regulation and control of prostitution in the territory of India:

  1. Section 3: It deals with the punishments for keeping a Brothel (defined in Section2(a)) or allowing any premises to be used as a brothel
  2. Section 4: It deals with the penalties implied on anyone living on the earnings of prostitution.
  3. Section 5: It deals with the activities of procuring, inducing or taking any person for the sake of prostitution.
  4. Section 6: It deals with penalties for any person who detains a sex worker in any premises where the act of prostitution is carried on.
  5. Section 7: It deals with penalties for carrying out prostitution in or near (in the vicinity) of any public place.
  6. Section 8: It penalises any sex worker for seducing/soliciting any person for the purpose of prostitution.

The Immoral Traffic (prevention) Act was passed in 1986 and is an amendment of the Immoral Traffic (Suppression) Act, 1956. As per this prostitutes can be arrested for seducing others towards their services, call girls are not allowed to make their phone numbers public etc.

Those who violate the laws given under this act can be imprisoned for a maximum period of 6 months along with penalty. In case of someone indulging in the activities of prostitution of someone below the age of 18, the person can be sentenced to jail for a period of 7- 10 years. Also article 23(1) of the Constitution of India prohibits the trafficking of human beings and any such offence is punishable under article 23(2) of the Constitution of India.

Supreme Courts Recent Judgment on Prostitution:

On 27th May, 2022 the Supreme Court of India recognized prostitution as a profession and said that sex workers are entitled to equal status and dignity under the eyed of law. The Supreme Court said that sex-workers should not be arrested, penalised, harassed or victimised during raids on brothels.

In cases where it is clear that the sex worker is an adult and is practicing the profession with consent, then the police must refrain from interfering or taking any criminal action against them. The Supreme Court laid down that every individual in this country has the right to live with dignity under article 21 of the constitution. Also a sex worker's child should not be deprived of her mother's care on the ground that she is a sex-worker.

The court also instructed the police not to discriminate against the sex-workers while lodging a complaint, if the offence against them is of sexual nature. A major point of the judgment was that use of condoms "should not be construed by the police as an evidence of offence by sex-workers".

Also, sex workers should be produced before a magistrate and should be send to correctional homes for not less than 2-3 years, wherein if the magistrate decides that the sex-worker has consented, they could be set out of the same.

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