Introduction
The Indian Constitution is considered the governing law of the nation. It provides the framework for the functioning of government and also enlists the various rights of citizens and sometimes of non-citizens also. These rights are guaranteed to everyone, irrespective of the caste, creed, gender, religion, race, language, place of birth, and occupation. Therefore, even the prostitutes or the sex workers are also entitled to the constitutional rights in the country. This important observation of the Supreme Court has the potential to bring some effective changes in the lives of sex workers.
The present article aims to highlight various rights of the sex workers in the country, analyses of whether prostitution is legal in India, and the law that governs the prostitution and the illegal trafficking in India and the Supreme Court Judgment on prostitution.
What is prostitution? Constitutional provisions on prostitution?
Prostitution is an activity that essentially involves the voluntarily exchange of sexual favors or sexual activities in exchange for money. When someone engages in some sexual activities in lieu of money, then she is called a sex worker. Apparently, the activity looks immoral in nature; however, prostitution is not prohibited in India. Article 19(1)(g) of the Constitution gives freedom to every citizen of India to carry out any trade, occupation, or business. This right is subject to only the following limitations:
- The state may restrict or limit any occupation, business, or trade to itself only or have its monopoly, or
- May provide some restrictions with respect to fulfilling some essential requirements of qualifications or skills with respect to any particular business.
Therefore, by virtue of Article 19(1)(g), prostitution is not completely prohibited in India; it is only regulated.
It is to be noted that prostitution must be done on a voluntary basis. If any element of force or compulsion is involved, then it shall amount to rape and is prohibited.
Regulation of Prostitution in India
Prostitution is generally regulated through the following Acts in India:
- Immoral Trafficking (Prevention) Act, 1956
- Bhartiya Nyaya Sanhita, 2024.
- Protection of Children from Sexual Offenses Act, 2012.
Immoral Trafficking (Prevention) Act, 1956: This Act prescribes penalties and punishment for keeping a brothel or allowing premises to be used as a brothel (Section 3), procuring, inducing, or taking persons for the purpose of prostitution, and practicing prostitution in the public premises. Seducing persons for prostitution in public places or threatening or detaining persons for prostitution. This Act is the principal Act to regulate mange and prostitution in India.
Section 96 of the BNS: According to Section 96 of the BNS, whoever induces any child to go from one place to another when having knowledge or intention that such child shall be used for the illegal intercourse, then such person shall be punished with imprisonment of 10 years and fine.
Section 98 and Section 99 of the BNS: Section 98 and 99 of the BNS prevent the exploitation of children through selling, buying, or otherwise disposing of them for prostitution.
POCSO ACT: The POCSO Act also prescribes strict punishment for using children for sexual activities and, in a manner, prohibits child prostitution in India.
Indian Supreme Court on Prostitution (Is Prostitution Legal in India)
The Supreme Court, at various instances, has clarified that prostitution is not fully illegal in India. If it is consensual, not done in public places, and minors are not involved, then it may be carried out. In the case of Bhudadev Karmaskar v. State of West Bengal (2011), the Supreme Court clarified the law on this subject with the help of the following points:
- India has witnessed a significant development in the human rights jurisprudence. Article 21 of the Constitution has been broadened largely according to changing scenarios to promise meaningful rights to the citizens. In the case of Francis Coralie Mullin v. Administration, a wide interpretation was given to the word life in Article 21. Such broadened meaning of life is also available to sex workers or prostitutes. Therefore, prostitutes are equally entitled to rights promised under Article 21.
- Since there is no definite law in India to recognize the rights of sex workers, the Supreme Court used its power under Article 142 to draw some definite lines on which Parliament may come up with a definite law.
- Firstly, criminal law shall be equally applicable to the sex workers with respect to age and consent. In the absence of valid consent, BNS or POCSO shall be applicable.
- In appropriate cases where force is involved, sex workers may also be taken as victims of sexual assault.
- Other safeguards of law that mandate compulsory treatment by the private and government hospitals to the victims of sexual assault shall be applicable. Sex workers must not be harassed, penalized, or victimized.
- Police should not subject them to inhumane treatment but must treat them equally with others. Their rights must be protected by the police officers.
- It is also the responsibility of the Central Government and State Government that they carry out awareness programs with the National Legal Service Authority and State Legal Service Authority to make the sex workers aware of their various rights.
- Sex workers are also entitled to keep their children with them if it is shown that the child is not used for that purpose.
- Also, the requirement of proving address to issue an Aadhar card is relaxed in the case of sex workers. They are equally entitled to the Adhar Card and every other right related to it.
Also, in the case of Kajal Mukesh Singh v. State of Maharashtra, 2020, the Supreme Court of India clarified that whenever any person is involved in prostitution, then that person shall not be punished under the Immoral Trafficking (Prevention) Act, 1956. Such person shall be taken as the victim under the Act. Because the purpose of the Act is not to abolish prostitution. No provision has been made under the law that makes prostitution per se illegal or an offense. It is only when solicitation is done in public or a brothel is established that legal repercussions may follow.
Conclusion
It can be concluded that in India, prostitution is not per se prohibited. It is only prohibited with respect to minors and at public places. The Supreme Court has rightly recognized the various fundamental rights of the sex workers. These judgments serve as the turning stone in the lives of prostitutes. However, it is required to take effective actions to protect and promote these rights in real.
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