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Legality of Prostitution in India

~ KS Ananya

Prostitution is the age-old business & observed as a taboo, often people feel shy to speak about this openly. It is a widespread misapprehension that it is illegal in India, relatively it is legal but possessing & running a brothel is illegal. There are many cities in India like Delhi, Mumbai & Kolkata where whorehouses are running unlawfully. As per the Indian Penal Code, certain actions connected to sex is not illegal. Although, activities such as seeking favor of prostitution at social place, executing prostitution in hotels, possessor of a brothel, arrange a sex worker etc. if discovered to be true, one is titled to be penalized. Usually the Government administrators disregard the reality that illegal trafficking of young children & women leads to boom prostitution as a trade & indicates indulging in sex activities, an alternative for money and consequently, encouraging the progression of sex industry.


Is Prostitution Legal in India?

Under Immoral Traffic (Prevention) Act, 1956– women & children trafficking, running a brothel, arranging any person into this profession, managing a sex racquet are made illegal. Under ITPA ‘Prostitution’ is defined as sexual exploitation or abuse of a female for monetary purposes & ‘Prostitute’ is the one who earns that monetary gain. The Indian Penal Code is only limited to child prostitution but importing a female from abroad for sex, kidnapping with an intention of seduction is illegal. Article23(1) of the Indian Constitution prohibits human trafficking & other forms of bonded labor. Article23(2) deals with punishment if anyone disobey this provision.


IMMORAL TRAFFIC (PREVENTION) ACT, 1956

This statute deals with Prostitution in India. In Uttar Pradesh v. Kaushalya[i], the question raised on the Constitutionality of the Act- in Kanpur, many prostitutes were pulled out from their residence to keep the decency of locality. The High Court of Judicature at Allahabad stated- Section 20 of the Act curtailed the fundamental right under Article14(d) & (e) of Article19(1) of the Indian Constitution & was decided that the Act is constitutionally reasonable.

This Act tries to save the women & girls to come out of prostitution & give chance to them to lead a decent life in the society. Under this Act, the Central Government is empowered to try offences by establishing a special court.

Under Article 21 of the Indian Constitution, even a prostitute is entitled to Right to Life. In Budhadev Karmaskar v. State of West Bengal[ii], the sex worker was brutally murdered & it was stated that prostitutes are human beings & nobody can murder or assault them. The prostitutes are not willingly engaged in these sexual activities but forced to indulge in because of poverty & guided central and directed the state government to initiate rehabilitation centers & to provide them vocational skills. Therefore, they could earn their livelihood.


Punishments

The conduct of sexual acts illegally amounts to rigorous punishments-

  • Running brothel - not less than 1 year to 3 years with fine upto Rs. 2000

  • Kidnapping a child for prostitution - not less than 7 years

  • Seducing for prostitution - 6 months imprisonment or fine 500(first conviction) and punishment upto 1 year or fine of Rs. 500(second conviction).

  • Under Section 370 of IPC 'misuse of minor' - the offender will get 5 to 7 years imprisonment.

  • The trading of minors for prostitution (child prostitution) is a crime under Section 372 of the Indian Penal Code.

  • In case of selling & buying a minor person for forced prostitution amounts 10 years imprisonment.


Prostitution amidst Covid-19

The pandemic has seriously affected the livelihood of prostitutes. Following the lockdown, they have been unemployed & become an overnight economic trauma. The social distancing & other methods are absurd. This happens in Kamathipura, GB Road - some major red-light locations where more than 50 people share a common bathroom. Such places enlarge the possibility of virus infection for these marginalized groups famine & eviction is more menacing than virus. In 2011, the panel of Apex Court decided to assess the status of prostitutes in India. Many sex workers struggle to get ID cards because of their residential address such as GB Road etc. devalues their status & large number of them live in brothels. The panel suggested that state administrators should ensure ration cards to them. Hence, it all remain unsettled.

Picture: lamanolaw.com

[i] 1964 AIR 416 [ii]2011 10 SCC 283

 
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