NAME:- Manav Ramdev

REGISTRATION NO.:- 11916433

SECTION:- L1901

COURSE CODE & NAME:- LAW 494 ; STUDENT CENTRIC

ACTIVITY- VIII

TOPIC: Human Trafficking & Prostitution

❖ INTRODUCTION:

Human Trafficking and Prostitution: An Ongoing battle in India

What is ‘Human Trafficking’?

Human trafficking is also called trafficking in persons, a form of moder-slavery involving the
illegal transport of individuals by force or deception, for the purpose of labour, or sexual
exploitation, or activities in which others benefit financially. Human Trafficking is a global
problem affecting people of all ages. People are frequently illegally trafficked through india.
Human trafficking is the part of the country which has only grown over the years and has never
really stopped. To define, in a layman term, it is buying and selling of human beings for money.
Traffickers can be classified into two broad types, namely, the primary traffickers which consist
of brothel owners, travelers. Trafficking gangs and networks, crime syndicate etc. the other
category is that of secondary traffickers which consist of rather close and blood relations like
that of parents, relatives, friends and also local or influential leaders.
What is ‘Prostitution’?

Prostitution is a practice or business where people take part in sexual activity in exchange for
money and a person who is engaged in this field is referred to as a prostitute. Prostitution
happens in an assortment of structure, and its lawful status changes from nation to nation and
also from local to area within a nation, extending from being an upheld or unenforced
wrongdoing, to unregulated, to a directed profession. It is one part of the sex business, alongside
pornography, or any other sexual entertainment. Brothels are foundations explicitly devoted to
prostitution. The situation of prostitution and the law changes generally around the world,
reflecting contrasting conclusions. Some view prostitution as a type of abuse of or savagery
against women, and kids, that assists to a new crime of human trafficking.

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 ❖ HISTORY

Historical Background of Human Trafficking and Prostitution:-

HUMAN TRAFFICKING

The study of the historical background of trafficking is of utmost importance in order to trace the
exact definition of it and the start of this never ending circle of buying and selling of human
lives. Trafficking can be traced very early in the world, back to the time of Greek city states.
History says that several failed attempts were made back then by the state in order to limit
certain sections of society and also certain activities like prostitution but it made a little
difference. It is clearly evident by the fact that prostitution has been a large part of big states for
more than 2000 years. This in itself shows how deep rooted this activity is in normal social life.
Even today, there are countries in which the governments are of the view that trafficking is equal
to the undocumented migration particularly for the purpose of prostitution. The history related to
human trafficking clearly depicts the inaccurate and late decisions of the governments as a result
of which, in today's world it will be appropriate to say that trafficking has over the years only
paved its way deeper and deeper into the system. 1

PROSTITUTION

As per the Indian history, the previous adaptations of prostitutes were known as “Devadasi” who
used to contribute their entire life to the devotion of Lord Krishna. Some religious convictions
resolve that the Devadasis consider the Gods as their husbands and in this manner can’t wed
other human men. They were later called “Nagarvadhu” or the “Brides of the town” and were
called upon by the royals and the rich to dance and sing. As indicated by the history specialists
the Devadasi were treated with deference and respect by the Royal families before British rule.
No man, including the Kings and Mughals, set out to even touch them. But this came to an end
after the British steps in the country. The Devadasis began performing their art in front of the
British officers and this became the beginning of one night stands. The Britishers began calling

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these artists for sexual joys and this made them ready for Prostitution in a nation like India.
During the British guideline, the development of Devadasi into prostitution prompted the
decrease of dances in the temple. As with the passing of time during the British rule the Indian
economy depleted and most people were not able to achieve their basic livelihood. Women then
started selling their bodies to the British people in exchange for money. During the late sixteenth
and seventeenth century, when certain places of India were a province under the Portuguese,
Japanese women were caught and brought to India as sex slaves. Another case of the expanded
utilization of women as sex labourers can be during the Company Rule in India. The military
built up whorehouses for its soldiers across numerous pieces of India. Village women and girls
were utilized by the brothels and were paid by the military legitimately.

History of Human Trafficking and Prostitution: An Analysis:-

Prostitution and trafficking, according to their history, both are so closely connected that one
cannot be used by the use of the name of the other. This has apparently turned out to be true in
today's era as well. To begin with the term prostitution, it is important to know the meaning of it.
According to the dictionary, prostitution means an occupation of engaging in a sexual activity
with a person for payment. A proper definition has been coined by the government of India's
prevention of immoral Traffic act 1987. Therefore, prostitution is now defined as sexual abuse
or exploitation of persons for commercial purposes. One can barely remember the time when
prostitution was not present in the world. Prostitution has been one of the oldest professions for
women all over the world. In India, specifically, almost every state is affected by prostitution as
a result of which trafficking rates are sky high. Giving out names, the north eastern states of the
country are considered to be the hub of human trafficking. Human trafficking, just like the older
times, is still always linked to prostitution and it is true that more than half of the people
trafficked are thrown into the racket of prostitution every year. However, it is not necessary that
women are always forcefully thrown into prostitution. Some women also opt out for it by choice.
This choice is perhaps, always a result of an empty stomach. Women join the various
prostitution rackets so that they can earn money and feed their families. The biggest irony is that
so called male chauvinist and sexists feel the pride of being a man when they visit such
prostitutes but when asked about this occupation personally, they have absolutely different
perspectives. Over the years, as trafficking has paved its way to the very roots and has become a

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crime which is very difficult to eradicate, the racket of prostitution has grown with it. It would
not be wrong to say that trafficking is mostly associated with prostitution. In India, if statistics
are taken into consideration, in the year of 2016, 129 women and girls were thrown and forced
into sex work by traffickers. In order to make the world trafficking free, it is important that the
matter is looked into at its core first. Trafficking involves transfer of people across domestic
borders. This however, is not possible until and unless some influential person is involved and
such a person must be having that much of a say that he can stop the police men present at every
border to not check a particular vehicle carrying trafficked humans. If this was not the case, then
it would have been very difficult to transfer people across domestic and international borders
without getting noticed by the people in uniform. It is a loss to humanity, seeing how cold
people can get when it comes to making money. People these days are ready to throw their
morals, values and esteem far off just to earn some extra money. These influential people who
help the traffickers in transferring trafficked humans always demand for their cut in the job. This
is how shamelessly they make their passive income.

❖ LEGAL PERSPECTIVE

Laws relating Human Trafficking in India :-

Article 23 of the Indian Constitution:- Prohibition trafficking of human beings and Forced
Labour.

Article 23 clause 1 and 2 states:

1. Traffic in human beings and beggars and other similar forms of forced labour are
prohibited and any contravention of this provision shall be an offence punishable in
accordance with law.
2. It shall prevent the state from imposing compulsory service for public purposes, and in
imposing such service the state shall not make any discrimination on grounds only of
religion, race, caste or class or any of them.

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 Case Law relating to ‘Human Trafficking’:-

Lakshmi Kant Pandey VS. Union of India, 1984 AIR 469

This case is one of the various landmark judgments made in the context of human trafficking.
The ruling date of the case was 6 February, 1984 in the apex court. In this case, the petitioner,
Laxmi kant Pandey wrote to the supreme court alleging that there have been malpractices and
neglect on the part of adoption agencies and other organizations as far as adoption of Indian
children by foreign parents are concerned. He quoted that these children face a lot of hardships
during their hazardous journeys to the foreign country. In the near history, there have been many
cases of sexual exploitation of children. The court declared this letter written to them as a writ
petition and this instituted the basis of public interest litigation. The court in its judgment was of
the view that there is a severe absence of laws and policies as far as the inter country adoptions
are considered. Such absence could nearly double the problems and hardships for the children
being adopted by foreign parents. The most important and basic problem would be that it would
openly set up the children to abuses like trafficking. The court therefore formulated certain new
standards and policies so as to at least keep a check on the various inter country activities as far
as adoption is considered. These policies and laws which are relevant including article 15(3), 24
and 39 of the Indian constitution. 2

The judgment kept a strong point turning it into a law stating that if any foreigner wants to adopt
a child or children from India, it is important for that person to be sponsored by a relevant and
licensed agency of his/her own country. It was further added that as far as the inter country
adoptions are considered, no Indian agency would directly take part in the matter. Only the
agencies which are licensed by the government of India and are working under it would be
allowed to look into the matter and that doesn't mean that that agency would have the authority
to decide whether such adoption will take place or not. This decision would solely depend on the
local courts. This judgment is indeed a landmark as far as the rising numbers of inter country
trafficking is considered. The new policies and laws introduced would surely work as a

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watchdog for the traffickers.

Prostitution:-

Is prostitution legalized in India? There are three kinds of countries in terms of prostitution.

● Where prostitution is not tolerated and it is illegal to carry out prostitution eg. Kenya,
Morocco, Afghanistan, etc.
● Where prostitution is legal but it is legal with certain limitations and restrictions eg.
India, Canada, France, etc..
● Where prostitution is legal and regularized with proper laws eg. New Zealand,
Australia, Austria, Netherlands, etc.

One of the biggest questions is whether prostitution is legal in India and if so are there any
rights available to the prostitutes?

The answer to this question is in the dilemma of both “Yes” and “No”. As per the Indian
context, prostitution is not explicitly illegal as it is not specifically expressed prostitution to be
punishable by law but few activities related to prostitution such as running brothels, soliciting,
trafficking and pimping are all punishable offence in India under THE IMMORAL TRAFFIC
(PREVENTION) ACT, (1956).

Laws relating prostitution in India :-

As per Section 2(f) of The Immoral Trafficking Act (1956) gives the definition of
“prostitution” as sexual exploitation or misuse of any persons for any business purpose.

Section 372 and 373 of the Indian Penal Code 1860 also deals with prostitution but it is
restricted to child prostitution only. Though under Sections 366A, 366B, 370A of the IPC deals
with punishment for offences of procreation of minor girl, importation of girl from foreign for

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sex and exploitation of a trafficked person respectively. Thus under IPC laws related to
prostitution are quite limited.

PROVISO-

Section 2 in The Immoral Traffic (Prevention) Act, 1956 3

2. Definitions.—In this Act, unless the context otherwise requires,—

(a) “brothel” includes any house, room, conveyance or place or any portion of any house, room,
conveyance or place, which is used for purposes of sexual exploitation or abuse for the gain of
another person or for the mutual gain of two or more prostitutes;

[(aa) “child” means a person who has not completed the age of sixteen years;

(b) “corrective institution” means an institution, by whatever name called (being an institution
established or licensed as such under section 21), in which [persons], who are in need of
correction, may be detained under this Act, and includes a shelter where [undertrials] may be
kept in pursuance of this Act;

(c) “magistrate” means a magistrate specified in the second column of the Schedule as being
competent to exercise the powers conferred by the section in which the expression occurs and
which is specified in the first column of the Schedule;

(ca) “major” means a person who has completed the age of eighteen years;

(cb) “minor” means a person who has completed the age of sixteen years but has not completed
the age of eighteen years;

(d) “prescribed” means prescribed by rules made under this Act;

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(f) “prostitution” means the sexual exploitation or abuse of persons for commercial purposes,
and the expression “prostitute” shall be construed accordingly;

(g) “protective home” means an institution by whatever name called (being an institution
established or licensed as such under section 21), in which persons, who are in need of care and
protection, may be kept under this Act [and where appropriate technically qualified persons,
equipment and other facilities have been provided], but does not include—

(i) a shelter where undertrials may be kept in pursuance of this Act, (ii) a corrective institution;

(h) “public place” means any place intended for use by, or accessible to, the public and includes
any public conveyance;

(i) “special police officer” means a police officer appointed by or on behalf of the State
Government to be in charge of police duties within a specified area for the purpose of this Act;
(j) “trafficking police officer” means a police officer appointed by the Central Government
under sub-section (4) of section 13.

Case Law relating to ‘Prostitution’:-

Gaurav Jain vs Union Of India & Ors on 9 July, 1997

Section 2 (a) of the Immoral Traffic (Prevention) Act, 1956 defines `brothel' to mean any
house, room, conveyance or place or any portion of any house, room, conveyance or place which
is used for purpose of sexual exploitation or abuse, for the gain of another person or for the
mutual gain of two or more prostitutes. The essential ingredient, therefore, is a place being used
for the purpose of sexual exploitation or abuse. The phrase `for the purpose of' indicates that the
place being used for the purpose of the prostitution may be a brothel provided a person uses the
place and ask for girls, where the person is shown girls to select from and where one does
engage or offer her body for promiscuous sexual intercourse for hire. In order to establish

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prostitution, evidence of more than one customer is not always necessary. All that is essential to
prove is that a girl/lad should be a person offering her body for promiscuous sexual intercourse
for hire. Sexual intercourse is not an essential ingredient. The inference of prostitution would be
drawn from diverse circumstances established in a case. Sexuality has got to be established but
that does not require the evidence of more than one customer and no evidence of actual
intercourse should be adduced or proved. It is not necessary that there should be repeated visits
by persons to the place for the purpose of prostitution. A single instance coupled with the
surrounding circumstances may be sufficient to establish that the place is being used as a brothel
and the person alleged was keeping it. The prosecution has to prove only that in a premises a
female indulges in the act of offering her body for promiscuous sexual intercourse for hire. On
proof thereof, it becomes a brothel.4

Many prostitutes themselves are child prostitutes (for short, the `CP' ; they and the children of
the prostitutes (for short, the COP') need to be removed from the red light area. Generally, the
police resort to IPC and ITP Act on this behalf but the forceful rescue of CP of COP in reality is
not successful in their rehabilitation. In this behalf, it is necessary to take aid of the definition of
"neglected child" defined in JJ Act. It is already seen and is reiterated for continuity that
'neglected juvenile' means one found in begging ; or found without having any home or settled
place of abode and without any ostensible means of subsistence and is destitute ; or has a parent
who is unfit or incapacitated to exercise control over the juvenile ; or lives in a brothel or with a
prostitute or frequently goes to any placed used for the purpose of prostitution or is found to
associate with any prostitute or any other person who leads an immoral, drunken or depraved life
; or who is being or is likely to be abused or exploited for immoral or illegal purposes or
unconscionable gain.

i) Institutionalized care - arrange sponsorship foster care

ii) skill development

4 https://en.wikipedia.org/wiki/Prostitution_in_India#:~:text=with%20sex%20workers.-,Legal%20status,legally
%20s olicit%20 customers%20in%20public

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ii) health

iv) on the job training

v) training for entrepreneurship Eligibility of Beneficiaries Children of any age between 0-18
years who are either -

● children of prostitutes, or
● children associated with prostitution or prostitutes, may be benefitted from this scheme.

In all deserving cases the scheme should extend services to those children above 18 years, only
if it is clearly seen that they are not yet able to feed for themselves and would be benefited by
further support. Those older than 18 years would be assisted as special cases. 5

❖ CONCLUSION

As the various newspapers, writing and statistics are taken into account, it would not be wrong to
say that trafficking is one the most severely deep rooted problems for the country. It would be
wrong to say that the appropriate governments haven't looked into the matter and drawn out new
laws and policies. Despite the establishment of such laws and policies, human trafficking rates
have only been increasing in the country with each passing year. If the statistics are brought into
consideration, the biggest reason for such an increase in the number of cases is poverty. India is
a country in which more than half of the entire population lives under poverty which makes them
vulnerable to falling into such traps. If poverty is eradicated from the country then automatically
the human trafficking rate would fall drastically. The country still has a long way to go.

In the end from the analysis it can be inferred that for an issue like prostitution, there exists no
requirement for any specific cure, such as criminalizing, decriminalizing or sanctioning it. From
the past research it is difficult to refute the fact that legalization of prostitution bears both

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negative as well as positive effects. Therefore just providing legal validity to prostitution will not
be sufficient to resolve this problem. Rather than this a uniform law must be made for its
administration in our country. As regulation of prostitution will help to safeguard the sex
workers and their children from getting exploited. Not only this it will ensure protection of the
health of the sex workers and the society at large. Thenceforth a set of rules and regulations
should be established in order to regulate this industry.

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