Prostitution in India: Legal?

Introduction: - Article 19(1)(g) of the Indian Constitution grants every Indian citizen the fundamental right to pursue a profession. This right extends to any place in India and can be exercised for any kind of work, trade, or business, as long as it does not conflict with Indian laws or the general public. The work, trade, or business under Article 19(6) is subject to reasonable restrictions imposed by our Parliament in the interest of the general public.

Now, the question is whether prostitution is considered a business or a profession under article 19(1)(g) or if it is illegal because many women in brothels are forced to engage in prostitution against their will due to customary practices that they must adhere to?

The legal perspective on prostitution: - While sexual exploitation, seduction, running brothels, pimping, soliciting, and other related activities are prohibited under Section 2(f) of the Immoral Traffic Prevention Act, 1956, prostitution itself is not a crime in and of itself under the Indian Penal Code. Furthermore, these prostitution-related offenses are punishable by the Indian Penal Code, 1860's Sections 366A, 366B, and 370A.

Prostitution is essentially a type of labour that not everyone can perform. Only a few communities and sects still regard it as their vocation and use it to support themselves. They have been adhering to it since those who follow those sects do not want to adapt to the advancements of the systems. Because they have no choice but to say no to these things because they have been doing them for a very long time, they are blindly adhering to these kinds of ideas and forcing their future generations to view them as part of their customs or traditions.

When people engage in prostitution inside of brothels, it can also be regarded as business. Another question that comes up when something is regarded as a profession or business is whether it is legal or illegal, and if so, is it limited to our country or is it practiced in other nations as well? The reason for this is that in certain nations, prostitution is not prohibited. The following nations recognise this profession legally:

1.???? Finland

2.???? Costa Rica (Central America)

3.???? New Zealand

4.???? Bangladesh

5.???? Germany

The situation is different in India. Prostitution is neither entirely prohibited nor permitted. It is lawful in certain situations but illegal in others. If someone chooses to engage in it voluntarily as a career, either due to societal norms or the lack of viable alternatives, it may be regarded as lawful. But it's against the law to run and own a brothel. Those who engage in this and encourage destitute and destitute women to pursue this line of work will be held accountable for the penalties prescribed by the law.

Legal measures to safeguard sexual workers: - The following legal provisions are designed to protect sex workers:

·?????? Prostitution is allowed by the Immoral Traffic Suspension Act of 1956, however it is against the law to approach individuals and entice them to engage in sexual activity. Additionally, it is against the law for anyone engaged in this sort of employment to be punished.

·?????? Prostitution is not "per se illegal" according to the law, but there are offenses that are, including using brothels, living off the revenues of prostitution, pimping, solicitation, enticing people into prostitution in jail or other locations, and prostitution in public places.

·?????? Based on the aforementioned information, we may conclude that prostitution is not illegal if it is carried out willingly as a career by the individual because they feel they have no other option for support or if it is part of their culture or custom.

?

Kajal Mukesh Singh & Ors. vs. State of Maharashtra (2020): -

The Hon'ble Sessions Judge Dindosh approved the criminal plea that was brought in opposition to the directives of the Learned Metropolitan Magistrate of the Special Court for ITPA, Mumbai. The Honourable Court finds errors in the decision made by the Learned Metropolitan Magistrate, Special Court for ITPA, Mumbai, and annuls the rulings of the Honourable Sessions Judge Dindosh.

?

Facts of the case: -

It was the case of three major women, who are between the ages of 23- 25, were apprehended by the police as part of a sting operation aimed at apprehending the individuals who were providing the women with prostitution work.

The primary culprit, Mr. Nijamuddin, who is behind the activity and for whom the sting operation was being carried out, was not apprehended by the police at the time of the raid on the aforementioned guest home, and after a day, they brought these women before the Honourable Judge.

The chief accused, Mr. Nijamuddin, the proprietor of the brothel house, who was providing the women to the guest home for prostitution, and the other policemen and panchas participating in that operation were not included in the police records. During the case presentation before the Metropolitan Magistrate's 54th Court in Mazfaon, Mumbai, the Honourable Judge refrained from providing specifics on the whereabouts of the female victims between September 28, 2023, and September 30, 2019. They did not specify the length of time the victim females should be detained in Navjeevan Mahila Vasatigruha. They also rendered their decision without providing the victim ladies with a chance to appeal.

The victim contacted Additional Sessions Judge Dinoshi, feeling aggrieved by the court's judgment, and the court upheld the same decision. Disappointed with the rulings from both courts, the appellant filed an appeal with the Mumbai High Court, where the Honourable Bench of Justice P.K. Chavan granted the petition and made an order supporting the accused ladies.

?

Court's Judgment: - The challenged order given by the Metropolitan Magistrate was invalidated by the Hon'ble Court after taking into account all the facts, arguments made by both counsels, and records that were submitted. This decision was further validated by the Additional Sessions Judge, Dindoshi. and ordered that the number of petitioners be increased while they are free from Mumbai's Navjeevan Mahila Vastigruha. If they would want, they are welcome to remain longer. and also instructed the petitioners to provide their evidence before the trial court and give the investigating officer their full residence address and phone number. The Special Magistrate was also instructed by the Honourable Court to make sure that the victims wouldn't be influenced while their testimony was being recorded.

Significance of the case law: According to this ruling, prostitution that is carried out voluntarily, without coercion, and where it is a woman's means of subsistence and a long-standing custom is no longer punishable as a crime.

Modifications made to the judicial system following this ruling: -

·?????? The Supreme Court's judgment places restrictions on police operations in instances involving sex workers and equalizes sex workers and their offspring with other members of society. They shouldn't be treated harshly because they are the ones who broke the law.

·?????? When a sex worker files a complaint, the police department is instructed to handle it like any other complaint; the complainant will not be considered a criminal but rather a complainant.

·?????? Additionally, the Police and Health Department are ordered to give all resources available to a victim of sexual assault, including emergency medical attention, to any sex worker who becomes a victim of sexual assault. This support must adhere to the Union Health Ministry's recommendations and protocols for survivors and victims of sexual abuse, as well as Section 357 of the Code of Criminal Procedure of 1973.

·?????? After taking note of all the issues that prostitutes were facing, the Apex Court issued the following ruling: "It goes without saying that this fundamental protection of human decency and dignity extends to sex workers and their children, who bear the brunt of social injustice and stigma attached to their work, and are removed to the fringes of the society by depriving them of their right to life and personal liberty which conferred by the Constitution of India. Therefore, let them live with dignity and their children can lead a secure life in the society on par with it."

·?????? Additionally, the SC judgment forbids separating children from their sex workers moms by force. "Moreover, it should not be assumed that a minor who is found living in a brothel or with sex workers has been trafficked," the directive said. Tests can be performed to see if the sex worker's claim that he or she is her son or daughter is accurate; if it is, the youngster shouldn't be taken away by force.

?

Conclusion: -

In addition, individuals who work as sex workers should not be denied their basic human rights due to their employment, regardless of the reason: - poverty, tradition, compulsion, custom, or any other factor. They are nonetheless qualified for the same basic human rights as everyone else, though. The aforementioned rights encompass the freedoms of expression, association, and employment, as well as the rights to equality before the law, life, liberty, and security of person.

There are several factors that might entice sex workers to enter the field, such as financial hardship, insufficient education or career prospects, and peer or familial pressure. They could also fall prey to sexual exploitation or human trafficking. Sex workers are entitled to the same human rights as everyone else, regardless of the motivations for their entry into the industry. Some claim that because sex workers engage in unethical or illegal acts, they shouldn't have the same human rights as other workers. Nonetheless, this does not imply that sex workers should lose their human rights just because it is forbidden or viewed as immoral. All persons have the same fundamental rights and freedoms, regardless of their line of work.

Women and minors cannot be trafficked in the name of sex employment. It is imperative that people who deal with sex workers have the appropriate training to help them transition out of the industry, as there is a constant risk of discrimination from society, instability for their offspring, and illnesses brought on by the profession itself. When sex workers want to quit the industry, they need to be given the right support and encouragement. Education and career training may help them become more confident and lead more respectable lives, just like the rest of society.