Wharton’s Law Lexicon defines prostitution as act of promiscuous sexual intercourse for hire, offer or agreement to perform an act of sexual intercourse. It is considered to be the world’s oldest profession. Earliest mention of prostitution is in Vedas. The women were considered as personal property of man. They were given as dakshina to officiating priests. In Vatsagulma region a king would summon minister’s wives to palace and they had to oblige his command. Poor women took it to please their masters while some women willingly participated in it. There were also category of women who were forced into it such as slaves, girls who were unable to get married and women who were captured during war times. Then as part of tantric practice there developed a culture of dedicating young maiden girls to temples who would spend their entire life in service of temple, used as dancing girls for temple ceremonies and for entertainment of rich upper class. These girls were known as Devdasis which means God’s servant. Initially this began as noble practice in which Devdasis enjoyed higher status. With British taking the power in India this practice of dedicating girls to Hindu gods developed into ritualised prostitution which deteriorated their status in society. In Karnataka –Maharashtra border there has since time immemorial the practice of dedicating young maiden girls to goddess Yellama. In British India the laws that regulated prostitution were Cantonment Act of 1864 &1895 and Contagious Disease Acts. The Cantonment Act were meant for military personals but when more and more army men were found to be suffering from venereal disease new Act called Indian Contagious Disease Act was passed. This Act allowed prostitutes to be arrested.
Forty 2% population of India are children, still there is no single specialised legal framework in India which specifically deals with the issue of child sexual abuse. There are growing numbers of child trafficking incidents, child sex tourism is thriving in places like Madurai and Goa, and crimes like child pornography, incest, child rape are on rise. United Nations Centre in a report indicated that nearly 200 girls enter sex work on every day basis. More than 160 are coerced into it. About 2 million children are exploited every year in the global commercial sex trade. Even when trafficking of women and children for sexual exploitation is criminalised in 134 countries it still continues to be fastest growing criminal enterprise throughout the world. Most of total numbers of prostitutes are minors in most of the red-light districts all over India. About 5,000-7,000 Nepalese girls are trafficked to India every day.
LEGAL FRAMEWORK OF PROSTITUTION IN INDIA
The Constitution of India in Article 19 of gives freedom to carry on any profession or any occupation. Article 23 of Indian constitution prohibits trafficking. According to this Article trafficking in human beings, beggar etc. all is forms of forced labour are punishable under law. Earlier prostitution and sex work was dealt by the Suppression of Immoral Traffic in Women and Girls Act 1956, the major drawbacks of the Suppression of Immoral Traffic in Women and Girls was that it included only women in the definition of prostitution not the males, which was later replaced by word person in amended Act. Secondly it considered prostitution was always voluntary act and excluded forced form of prostitution , thirdly it divided females into two groups as women and girls but if they were caught soliciting in public both were awarded same punishment. Hence this Act was amended and changed into Immoral Traffic Prevention Act 1986, which till date is major statute dealing with prostitution in India. This Act per say does not criminalize the prostitution in India but criminalises the various facets of prostitution in India. According to Section 3 of Immoral Traffic Prevention Act keeping brothel or allowing places to be used as a brothel is crime. This section also lays down punishment for keeping or owning a brothel and it even punishes those who assist in the management of brothel. Section 6 it states when any person is found with a child in brothel he is presumed to have committed an offence and shall be punishable with imprisonment which can extend up to 10 years. This Act does not criminalize prostitution if it is solicited in private but it does prohibit commercial activities of the flesh trade. So current position of law in India that prostitution is legal. Indian Penal Code 1860 criminalises the surrounding activities of prostitution like keeping or managing a brothel, criminalizes pimps, solicitation of sex in public place, pandering, kerb crawling etc. The Indian Penal Code, 1860 in its 20 Sections makes trafficking illegal. Thus if a woman in India voluntarily and individually uses her body for prostitution she goes unpunished.
WHY PROSTITUTION SHOULD BE CRIMINALISED
Prostitution objectifies woman, it portrays woman as givers of sex which is something very derogatory. Legalising prostitution means legalising the concept of 'women's body on sale' giving it judicial and societal acceptance. Prostitution looks at woman like a cheap commodity having no feelings, emotions and spiritual sentiments thus exploiting her personality. This will not only further degrade the status of women in country like India but will also make sex trade as an attractive means to earn money. In India poor and uneducated families already consider their girl child as a burden; these people would find it easy and attractive way to earn money. Innocent women who are struggling with poverty will be lured into it. Thus legalising makes condition of women more vulnerable. Legalisation of prostitution will only work in favour of pimps, traffickers who will coerce more women and children into sex trade with legal backing, thus further deteriorating the condition of these trafficked children and will lead to their exploitation. Legalising would encourage traffickers because with the legalisation the demand for sex would go up and would lead to more trafficking of girls. In India most of the prostitutes do not enter this business by choice but due to socio-economic conditions, hence further exploiting these women as legalising will give a message that they are willingly performing this job hence will never be rescued. Prostitution is considered to be against perceived notion of morality. Prostitution is considered to be immoral and against religious sentiments which encourages infidelity. In a study conducted it was shown that rise in divorces can be linked to prostitution. Prostitution should be criminalised because one way or the other women or children caught in it are exploited. Other study shows that there is no decrease in rate of rapes due to prostitution which was the argument proposed by advocators legalising prostitution; most often young girls and children are raped when they resist. There is no point in legalising prostitution as it still continues to form a profession in which majority of workers are there are by force or due lack of economically viable options, most of the times prostitutes do no join the business freely. Legalising prostitution will lead to an increase in hidden and street prostitution which earlier had been illegal further jeopardising these women and children caught between the claws of traffickers. Prostitution will make a source of easy money for teenagers who are a valuable resource of a nation; they would get a legitimate excuse to dropout from college which in turn would lead to loss of valuable workers / professionals. This will lead to unrecognised potential and forte.