PROJECT REPORT

The problem of Prostitution an Indian perspective

Submitted By-

PRIYANKA SINGH
LL.M. 2ND Semester Submit To-

DR.A.K. DUBEY
(Faculty of Law)

College Of Law and Legal Studies TEERTHANKER MAHAVEER UNIVERSITY MORADABAD

2011-2012

INTRODUCTIONA prostitute is a person, "who allows her body to be used for lewd purposes in return for payment". Prostitution is the sale of sexual services, such as oral sex or sexual intercourse, for money. Prostitution the word itself speaks about the plight of a women .It is not a problem which exists in India but exists throughout the world. Prostitution was a part of daily life in ancient Greece .In the more important cities, and particularly the many ports, it employed a significant proportion of the population and represented one of the top levels of economic activity. In the ancient city of Heliopolis in Syria, there was a law that stated that every maiden should prostitute herself to strangers at the temple of Astarte. In Armenia the noblest families dedicated their daughters to the service of the goddess Anaitis in her temple at Acilisena.In ancient India prostitutes have been referred as to devdasis. Originally, devadasi were celibate dancing girls used in temple ceremonies and they entertained members of the ruling class. But sometime around the 6th Century, the practice of "dedicating" girls to Hindu gods became prevalent in a practice that developed into ritualized prostitution. Devadasi literally means Gods (Dev) female servant (Dasi), where according to the ancient Indian practice, young pre-pubertal girls are married off, given away in matrimony to God or Local religious deity of the temple. The marriage usually occurs before the girl reaches puberty and requires the girl to become a prostitute for upper-caste community members. Such girls are known as jogini. They are forbidden to enter into a real marriage. The system of devadasi started only after the fall of Buddhism and records about them start appearing around 1000 A.D. [Bharatiya Sanskruti Kosh, IV, 448]. It is viewed that the Devadasi`s are the Buddhist nuns who were degraded to the level of prostitutes after their temples were taken over by Brahmins

during the times of their resurgence after the fall of Buddhism. According to the 1934 Devadasi Security Act, this practice is banned in India. This ban was reinforced again in 1980s but the law is broken every day. Poverty and Untouchablity contribute to the persistence of this terrible practice. Reference to dancing girls in temples is found in Kalidasa's "Meghadhoot". The popularity of devadasis seems to have reached its pinnacle around 10th and 11th century CE. The rise and fall in the status of devadasis can be seen to be running parallel to the rise and fall of Hindu temples. The devdasi system was mostly prevalent in southern India and it reached its height during the Chola Empire. Though government has taken adequate steps in order to combat with the problem of devdasi, even the devdasi prohibition act was not fully successful in solving the problem in India. Most important reason still being poverty, ignorance and hunger which are forcing them to this kind of exploitation. Now this was the old story or the beginning of prostitution apart from these there is also references of prostitution in Kama sutra written by Vatsyayana sometime between the second and fourth centuries A.C.E. India is home today to Asia's largest red-light district--Mumbai's infamous Kamathipura, which originated as a massive brothel for British occupiers and shifted to a local clientele following Indian independence. The Mughal Empire (1526 -1857) also witnessed prostitution the word tawaif and mujra became common during this era. During the Mughal era in the subcontinent (1526 to 1857) prostitution had a strong nexus with performing arts. Mughals patronized prostitution which raised the status of dancers and singers to higher levels of prostitution. King Jahangirs harem had 6,000 mistresses which denoted authority, wealth and power. Even during the British era prostitution flourished the famous kamathipura a red light area in Bombay was built during this era for the

refreshment of British troops and which was later taken over by Indian sex workers. The prostitution continued from ancient and medieval india and has taken a more gigantic outlook in modern india, the devdasi system still continues ,according to a report of National Human Rights Commission of the Government of India, after initiation as devadasis, women migrate either to nearby towns or other far-off cities to practise prostitution. The practice of dedicating devadasis was declared illegal by the Government of Karnataka in 1982 and the Government of Andhra Pradesh in 1988. However the practice is still prevalent in around 10 districts of north Karnataka and 14 districts in Andhra Pradesh. Districts bordering Maharashtra and Karnataka, known as the "devadasi belt," have trafficking structures operating at various levels. The women here are in prostitution either because their husbands deserted them, or they are trafficked through coercion and deception. Many are devadasi dedicated into prostitution for the goddess Yellamma. Causes of prostitution: Ill treatment by parents. Bad company. Family prostitutes. Social customs. inability to arrange marriage, Lack of sex education, media. Prior incest and rape. Early marriage and desertion. Lack of recreational facilities, ignorance, and acceptance of prostitution.

 Economic causes include poverty and economic distress. Psychological causes include desire for physical pleasure, greed, and dejection. Notorious red light districts of India include GB Road in Delhi, Sonagachi in Kolkata, Kamathipura in Mumbai, Budhwar Peth in Pune and Reshampura in Gwalior. There are around 2.8 million prostitutes in the country and their number is increasing, as informed by Lok Sabha. Most of the girls are brought from Nepal and Bangladesh. ''Young girls are trafficked from Nepal to brothels in Mumbai and Kolkata at an average age of twelve. They are trapped into the vicious cycle of prostitution, debt and slavery. By the time they are in their mid-twenties, they are at the dead end. In modern India different kinds of prostitution is prevailing apart from prostitutes in brothel there are: Street prostitutes Bar dancers Call girls Religious prostitutes Escort girls Road side brothel Child prostitutes Fricatrice prostitutes Gimmick prostitutes Beat prostitutes every hour, four women and girls in India enter prostitution, three of them against their will. Prostitution is a problem in itself and child prostitution is making it more complex. Quoting a study on 'Girls/Women in prostitution in India', Minister for Women and

Child Development Renuka Chowdhury said that out of the total number of prostitutes in the country, 35.47 per cent entered the trade before the age of 18 years. Though in cases like Gaurav jain vs. Union of India [1]direction where given for the upliftment of prostitutes and establishment of the juvenile home for the childrens of prostitutes. Laws related to prostitution in India: Suppression of Immoral Traffic in Women and Girl Act -1956 Prevention of Immoral Traffic Act-1956 Immoral Traffic (Prevention) Act-1956 The Immoral Trafficking Prevention Act, 1956 ("ITPA"), the main statute dealing with sex work in India, does not criminalise prostitution or prostitutes per se, but mostly punishes acts by third parties facilitating prostitution like brothel keeping, living off earnings and procuring, even where sex work is not coerced. Section3. Punishment for keeping a brothel or allowing premises to be used as a brothel. (1) Any person who keeps or manages, or acts or assists in the keeping or management of, a brothel, shall be punishable on first conviction with rigorous imprisonment for a term of not less than one year and not more than three years and also with fine which may extend to two thousand rupees and in the event of a second or subsequent to conviction with rigorous imprisonment for a term of not less than two years and not more than five years and also with fine which may extend to two thousand rupees. (2) A any person who, -

(a) Being the tenant, lessee, occupier or person in charge of any premises, uses, or knowingly allows any other person to use, such premises or any part thereof as a brothel, or (b) Being the owner, lessor or landlord of any premises or the agent of such owner, lessor or landlord, lets the same or any part thereof with the knowledge that the same or any part thereof is intended to be used as a brothel, or is willfully a party to the use of such premises or any part thereof as a brothel, shall be punishable on first conviction with imprisonment for a term which may extend to two years and with fine which fine which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term which may extend to five years and also with fine. (2-A) For the purposes of sub-section (2), it shall be presumed, until the contrary is proved, that any person referred to in clause (a) or clause (b) of that subsection, is knowingly allowing the premises or any part thereof to be used as a brothel or, as the case may be, has knowledge that the premises or any part thereof are being used as a brothel, if, (a) A report is published in a newspaper having circulation in the area in which such person resides to the effect that the premises or any part thereof have been found to be used for prostitution as a result of a search made under this Act; or

(b) A copy of the list of all things found during the search referred to in clause (a) is given to such person. Section5. Procuring, inducing or taking person for the sake of prostitution. (1) Any person who-

(a) Procures or attempts to procure a person whether with or without his/her consent, for the purpose of prostitution; or (b) Induces a person to go from any place, with the intent that he/she may for the purpose of prostitution become the inmate of, or frequent, a brothel; or

(c) Takes or attempts to take a person or causes a person to be taken, from one place to another with a view to his/her carrying on, or being brought up to carry on prostitution; or (d) Causes or induces a person to carry on prostitution; shall be punishable on conviction with rigorous imprisonment for a term of not less than three years and not more than seven years and also with fine which may extend to two thousand rupees, and if any offence under this sub-section is committed against the will of any person, the punishment of imprisonment for a term of seven years shall extend to imprisonment for a term of fourteen years: Provided that if the person in respect of whom an offence committed under this sub-section, (i) Is a child, the punishment provided under this sub-section shall extend to rigorous imprisonment for a term of not less than seven years but may extend to life; and (ii) Is a minor; the punishment provided under this sub-section shall extend to rigorous imprisonment for a term of not less than seven years and not more than fourteen years.

So it can be seen that both the sections namely section 3 and section 5 punishes only the acts of the 3rd party and same does the other sections in the Act and so new legislation shall be passed as to punish the client who are visiting the prostitutes. The prostitution leads to many health problems for the prostitutes like: Cervical cancer Traumatic brain injury HIV STD Psychological disorders In a country like India where most of the people indulge themselves in unprotected sex with prostitutes it is very difficult to eradicate the problem of aids. Historically, the AIDS epidemic in India was first identified amongst sex workers and their clients, before other sections of society became affected. The sex workers are themselves taking steps to combat with aids in some brothels in India for example sonagachi a brothel in Kolkata; where the sex workers are insisting their clients for use of condoms in order to avoid aids. But in all the other brothels in India social workers and NGO`S are trying to acquaint the sex workers about the ill effects of AIDS and are insisting them for using condoms CASE STUDY Meena was married off at 12. Soon after she was taken to Delhi by her husband, where she found out that he was a pimp. In the last three years, she has serviced up to six clients a night. The major part of her earnings goes to pay rent on the little room; the rest goes to her husband. Maya, 10, was taken to Gorakhpur in Uttar

Pradesh by her aunt who was paid Rs 3 000. When she refused to have sex with a client, she was locked in a room for two days, scared with snakes and beaten unconscious. When she came around she was raped by the client. Four years on, Maya lives in the red-light area of Mumbai. Her two year old spends the night in a crche run by a social service organization. When he was only a few Months old, she used to drug him and put him under her working cot. Steps that should be taken in order to fight with prostitution: # Formal education should be made available to those victims who are still within the school going age, while non-formal education should be made accessible to adults # The Central and State Governments in partnership with non-governmental organizations should provide gender sensitive market driven vocational training to all those rescued victims who are not interested in education

# Rehabilitation and reintegration of rescued victims being a long-term Recruitment of adequate number of trained counselors and social workers in institutions/homes run by the government independently or in collaboration with non-governmental organizations # Awareness generation and legal literacy on economic rights, particularly for women and adolescent girls should be taken up. # Adequate publicity, through print and electronic media including child lines and women help lines about the problem of those who have been forced into prostitution. # Culturally sanctioned practices like the system of devadasis, jogins, bhavins, etc. which provides a pretext for prostitution should be addressed suitably.

Chapter -1Prostitution: Legal or Illegal in India?

A news item in todays Times of India, New Delhi edition, says that the Health Ministry has opposed a proposed amendment in the Immoral Traffic Prevention (Amendment) Bill, moved by the Women and Child Development Ministry, aiming to enhance the punishment for those involved in human trafficking for sex, and includes clients among the offenders. The objection of the Health Ministry is not against the entire proposal but against bringing clients under its ambit, rendering them liable to imprisonment up to six months and a fine extending up to Rs. 50,000. The objection was raised in a Group of Ministers meeting to which the amendment bill was referred for wider consultation and to iron out the differences between the two Ministries. The ground for the objection is that if clients were punished, it would encourage underground sex work and that would act as a major stumbling block in checking (the spread of) AIDS. The news item says that at present, clients dont come under the purview of the Act. The proposed amendment defines the client as a person who visits or is found in a brothel. It has also attracted protests from NGOs who have argued that the new amendments would drive sex work underground and criminalize clients. I searched the Google database for material to understand the legality or otherwise of prostitution itself. A PowerPoint presentation, Is Prostitution Legal or Illegal in India topped the search criteria. It is an open source presentation and is copyright free and in fact, the organization, Alternative Law Forum, Bangalore, that has uploaded the presentation says in the last slide: This is copy left material Please feel free to use, modify and circulate it. When you modify this presentation please send us a copy. It is a very useful presentation, containing comprehensive

material on the subject matter, covering, among other things, the constitutional provisions affording protection to women and children. As it appears, there does not seem to be any specific law to regulate prostitution or ban it altogether. It appears to be in a perfect trishanku where it is in suspended animation. The presentation rightly says: The Immoral Trafficking Prevention Act, 1956 ("ITPA"), the main statute dealing with sex work in India, does not criminalize prostitution or prostitutes per se, but mostly punishes acts by third parties facilitating prostitution like brothel keeping, living off earnings and procuring, even where sex work is not coerced. (But then, we often get to see the images of the sex workers and clients being herded in to police vehicles and kept behind bars. Why? That could be because they would still be tried under common law, as opposed to criminal law, for offences like disturbing public order, peace etc?) The rationale behind the said Act itself was that the Government of India in the year 1950 ratified an international convention for suppression of traffic in persons and of the exploitation of the prostitution by others. Article 1 of the Convention says: The Parties to the present Convention agree to punish any person who, to gratify the passions of another: (1) Procures, entices or leads away, for purposes of prostitution, another person, even with the consent of that person; (2) Exploits the prostitution of another person, even with the consent of that person.

And Article 2 stipulates: The Parties to the present Convention further agree to punish any person who: (1) Keeps or manages, or knowingly finances or takes part in the financing of a brothel; (2) Knowingly lets or rents a building or other place or any part thereof for the purpose of the prostitution of others Article 14 of Constitution of India provides for equality in general and Article 15(3) provides for special protective discrimination in favour of women and children. Article 16(1) covers equality of opportunity in matters of public employment and Article 23 prohibits traffic in human beings and forced labour and makes it punishable under Suppression of Immoral Traffic in Woman and Girls Act 1956 (which was renamed in 1986 as The Immoral Traffic (Prevention) Act. The name of the Act was changed to Immoral Traffic (Prevention) Act in view of widening the scope of the Act to cover all persons, whether male or female, who are exploited sexually for commercial purposes). Article 39 provides that the state should direct its policy towards securing, among other things, a right to adequate means of livelihood for men and women equally and equal pay for equal work for their age or strength. Article 46 directs that state shall promote the educational and economic interests of the women and weaker sections of the people and that it shall protect them from social injustice and all forms of exploitation. According to the Immoral Traffic (Prevention) Act, 1956, prostitution means the sexual exploitation or abuse of persons for commercial purposes, and the expression prostitute shall be construed accordingly. This is a vast improvement on the earlier provision by which prostitution meant the act of a female offering

her body for promiscuous sexual intercourse for hire, whether in money or in kind and whether offered immediately or otherwise and the expression prostitute will be construed accordingly. The objectives of the Act are: punish immoral trafficking punish traffickers punish persons living on earnings of the woman Welfare measures directed towards rehabilitation of sex workers By implication, the emphasis is NOT on the sex worker but on the pimps/brothel owners etc. The various provisions for punishment under the Act for an offence are as under: Punishment for keeping a brothel or allowing premises to be used as a brothel (Section 3): Not less than one year rigorous, not more than three years, and also with fine up to two thousand rupees. (On first conviction) Not less than two years rigorous but not more than five years, also with fine up to two thousand rupees. (Subsequent occasions) Punishment for living on the earnings of Prostitution (Section 4): Up to two year and fine of one thousand rupees

 If this earning is out of child or minor shall be punishable with imprisonment for a term of not less than seven years and not more than ten years. Procuring, inducing or taking person for the sake of prostitution (Section 5): Punishment not les then 3 years, not more than seven years. If the offence under the sub-section is committed against the will of the person imprisonment for a term of seven years shall extent to fourteen years: If it is child not less than 7 years, but may extended to life; If it is minor, not less than 7 years, and not more than 14 years. Detaining a person in premises where prostitution is carried on (Section 6): Not less than 7 years but may be for life. (With or without consent) Prostitution in or in the vicinity of public places (Section 7): With the imprisonment for a term which may extend to three months. Where the offence is committed is in respect of a child or minor the person committing the offence shall be not less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine Seduction of a person in custody (Section 9): Any person who having the custody, charge or care of, or a position of authority over any person causes aid or abets the seduction for prostitution of that person

shall be punishable upon conviction for a term which shall be not less than seven years but which may be for life or a term which may extend to 10 years and shall also be liable to fine Thinking aloud, one cannot but come to the conclusion that no one has the social or political courage to legalize prostitution and regulate it. And it is a dichotomy that we also do not want to completely discourage it by having a legal provision to punish either the prostitute herself or himself or the client or both. In fact, when the Health Ministry and the National AIDS Control Organization (NACO) officials argue that if clients were punished, it would encourage underground sex work and that would act as a major stumbling block in checking the spread of AIDS, it is a tacit acknowledgement that the existence of the institution of prostitution is a reality that no one can deny. And when they talk about possible underground sex work, are they acknowledging that the present situation is better? Then, can we call it unofficially legal prostitution? Hmm, is it something like lifting prohibition law to combat the menace of bootlegging and illicit liquor? If it is, why dont we then legalize and regulate prostitution? Interestingly, then, is prostitution legal under Immoral Traffic (Prevention) Act, 1956, if: a prostitute works for self and not for a pimp or a brothel; and uses her/his own premises for entertaining clients Such an arrangement would also not violate the provision under Section 7 of the Act regarding prostitution in or in the vicinity of public places. We cannot, however, expect a small-time sex worker to have her own premises and will the owner of the rented premises be liable to punishment, under Section 3 of the Act,

in such a situation? This would probably depend on whether a lone sex worker working for self is considered as a brothel under law. Having considered the issue in detail, I for one feel that all agencies including NACO and NGOs must work towards evolving a consensus for legalizing and regulating prostitution. And they can have their own cooperative and a demarcated area like SEZs and Technology Parks, on the outskirts. That will also probably be in the time-tested traditions under the rule of erstwhile royalties?