CHAPTER-2

PROSTITUTION: SOCIO LEGAL ASPECTS

This could include providing a spouse through forced marriages, kidnapping possible organ
donors, surrogates, and other methods. Victims might be of any age, nationality, religion, or race,
and they may have fallen prey to traffickers who employ a variety of tactics such as
manipulation, assault, and false promises.

Human trafficking is defined by lowering a person's self-worth and forcing them to put
themselves on display and act as a money-making machine for predators. The unifying factor in
the stories of the various victims rescued is poverty. Predators exploit the situation to their
advantage in order to entice people into human trafficking. Many times they are promised a
better life but blinded by the harsh reality and left to be abused.1

The most widespread misunderstanding about the phrase "Human Trafficking" is that it refers to
sex trafficking. This nearsighted conviction reaches a point in the psyche of persons where it is
restrictive in character, reducing the understanding of this extensive phrase. Forced labour, sex
trafficking, and other forms of human trafficking are frequent. The IPC 1860, the CrPC, the
constitution, the Immoral Traffic (Prevention) Act 1956, the Bonded Labor System (Abolition)
Act 1976, the Child and Adolescent Labour (Prohibition and Regulation) Act 1986, the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989, the Transplantation
of Human Organs and Tissues Act 1994, and the Protection of Children from Sexual Offences
Act, 2012 to prevent and punish the various forms of trafficking in humans.

DWELLING IN HISTORY

Human trafficking is not a new problem; it has existed since the beginning of mankind. Slaves
were considered personal property that the owner could do whatever they wanted with. Later, as

1
Kumar, Urban sociology, 7th ed, publisher lakshmi Narayan Agarwal, Agra, 198-202 (2008)
human rights emerged, it became widely understood that an individual's fundamental rights
should take precedence over the masters' financial gain.2

Human trading has relocated from established markets to underground markets, and so yet, little
has changed. The phrase "human trafficking" is highly contested and ambiguous, and there is no
clear understanding of how to deal with it. To characterise and differentiate between prostitution,
migrant crisis wage payment concerns, and other issues, many theoretical techniques are being
used.

The European women were trafficked as prostitutes or concubines to the Middle East and Arab
countries around 1900. The meaning of human trafficking changed dramatically at the same
time. Originally, the definition of prostitute trafficking required women to cross international
borders, but this requirement was dropped by 1910.3

Migration and human trafficking were given independent perspectives in the late nineteenth
century, and the United Nations promulgated several international rules to protect refugees and
track down traffickers.

FALIURE OF THE NATIONS

We often neglect to ponder whether our domestic workers, ladies at nightclubs, or beggars on the
streets are victims of human trafficking while sitting within the four walls of our happiness. The
unfortunate reality is that the above-mentioned assumption is right the vast majority of the time.
Human trafficking affects 40.3 million people globally, according to the International Labor
Organization. It’s also heart-wrenching to note that the real estimates are far away from the
official estimates.

2
Vadackumchery, Criminology penology, publisher , M/s Kairali, Books International, Trivandram 124 (1983)
3
Asim Sarode, Contesting legal positions on prostitution from a human rights perspective, Prostitution and beyond:
an Analysis of Sex Work in India (New Delhi: SAGE Publishers, 2008).
To make matters worse, most worldwide governments are completely unaware of the situation;
the directior of UNODC, Antonio Costa, put it, "governments are still in denial." They refuse to
recognise that such situations continue to exist, and that such cases are not being properly
documented. As the number of convictions for human trafficking rises, two out of ever 4y five
countries have no laws in place to prevent it. Disappearances of women and children occur on a
regular basis in war-torn nations such as Syria, Palestine, Israel, and others, while inadequate
enforcement provides fertile ground for predators.

The perpetrators also take advantage of the plight of refugees by directing them to a safe haven.
Ironically, they are abused and consigned to festering holes. The development of the refugee
crisis created the path for dealers to pursue them, and cross-border streams provide them with the
most convenient means of conducting human trafficking.

Armed groups have also been seen asserting their territorial authority through instilling fear of
human trafficking among civilians in order to keep them under control. Armed soldiers also
recruit children into their armies in order to boost the army's prospective strength. In the current
situation, the Middle East and the Muslim Rohingya problem have resulted in refugees falling
prey to human traffickers. The main worry is that most victims of human trafficking are unable
to recognise themselves as victims and hence are unable to benefit from the protection offered.5

PROSTITUTION

Women make up 79 percent of human trafficking victims, according to the UNODC, with 95
percent of them ending up in prostitution. One of the most lucrative criminal enterprises is
prostitution. Many women and children are driven into prostitution as a result of their terrible
living situations.

4
Supplementary Convention on the Abolition of Slavery, Slave Trade, and Institutions and Practices Similar to
Slavery, 266 U.N.T.S 40 (April 30, 1956).
5
Shweta Punj. Human Trafficking for Sex: Thousands of Girls live in slavery While Society Remains Silent. .
Available from https://www.indiatoday.in/magazine/cover-story/story/20171113-human-trafficking-minorgirls-west
bengal-jharkhand-child-andwomen development-1077354-2017-11–03
In the name of false adoptions and marriages, the traders brainwash or manipulate parents or
women.] It's nearly impossible for them to get out of this deep-rooted network once they've been
ensnared. Sex taboos and the patriarchal society of India might also be identified as reasons that
contribute to the growth of this trade.

Domestic violence against women in their homes, a lack of knowledge of their legal rights and
remedies, the prevalence of bad cultural and religious traditions, and many other factors can all
play a role. There situation is vulnerable both physically and mentally and also to fatal sexually
transmitted diseases like HIV-AIDS.

SOCIAL IMPLICATIONS OF PROSTITUTION

Prostitution in India dates back to the British era, when European prostitutes were imported to
curb gay behaviors. Bangladeshi, Pakistani, Nepalese, and Sri Lankan women are trafficked to
India in large numbers and coerced into prostitution. As a result, both locally and internationally,
Indian women are coerced into prostitution.

The most contentious issue in the literature seems to be should prostitution be legalized. The
repercussions of legalizing or outlawing prostitution are viewed differently by different authors.
Because of its nature of exploitation and objectification of women, some think that prostitution
should be fully abolished. Prostitution is merely another way for men to demonstrate their
authority over women, and it should be abolished in the current day in accordance with
increasing gender equality concepts. Others, on the other hand, see prostitution as a means of
empowering women. Women have the freedom to decide what they want to do with their bodies,
including whether or not to sell them. Restricting this freedom through regulation would be
oppressive to women and hence encourage gender inequity (Storkey 109). Although the
literature differs significantly between the two groups, these appear to be the main points of
contention. In any case, it appears that many people agree that prostitution is linked to other
societal issues like gender equality and women's rights to the vote.6
6
Khan M.Z, Singh D.R (1987): Prostitution, Human Rights, Law and Voluntary Action; The Indian Journal of
Social Work, Vol. XLVI
 There are also conflicting viewpoints on whether or not prostitution is damaging. Some argue
that prostitution is a victimless industry in which both parties involved profit from the
transaction. Others claim that prostitution is similar to casual sex, and that since casual sex is no
longer considered detrimental by society, prostitution should be as well.

The belief that because prostitutes earn a reasonable wage for their services, their tactics cannot
be intrinsically harmful is also widespread. Many people believe that because a prostitute signed
up for her work, she automatically consents to whatever sex act she performs. As a result, the sex
act cannot be harmful because it is voluntary. But, as Moen so eloquently put it, "consent is
insufficient to ensure harmlessness." To put it another way, simply because a sex worker
consents to and gets compensated for sex does not make prostitution inherently harmless.
Obviously, there are enormous economic implications to the argument over prostitution.

Several proponents view prostitution as a basic economic transaction, identical to any other
buyer-seller contact. A prostitute is frequently seen as just another worker in capitalist culture.
He offers his services like any other corporation, rather than advertising for himself. Despite the
fact that prostitution is a socially despised institution, it has a significant economic impact.
Prostitution is an economic engagement at its most basic level, and as such, it is intricately
related to the entire economic system, especially in a capitalist economy (Davis 749).
Prostitution is not solely a product of economic factors, despite its deep economic roots.7

When it comes to sex workers, there is undoubtedly a double standard in society. As previously
stated, prostitution falls into a separate category of crime in countries where it is prohibited. The
client is viewed as a law-abiding citizen in the prostitution contract, but the prostitute is viewed
as a law-breaking citizen.(Davis 752). 8A crime like rape may be classified in the same way, with
one side, the victim, being a normal, law-abiding citizen and the other party, the sexually
aberrant criminal. The question then becomes: why is the prostitute considered as deviant in one
situation but not the rape victim in the other, despite the fact that they both have painful sexual
events? There is certainly a case to be made for choice, in which the prostitute chooses to be in

7
Shikha Sarma. How the Supreme Court has failed India’s already marginalized sex workers. Youth kiAwaaz
Available from https://www.youthkiawaaz.com/2016/12/supreme-courton-sex-workers-and-rape-cases/
8
Samudranil, Legalizing the Prostitution in India. 2015 Aug. Available from https://www.mapsofindia.com/my-
india/india/legalprostitution-in-india#
that scenario, therefore making her a deviant, whereas the victim did not choose to be in that
condition. However, this raises the question of whether prostitution is genuinely a choice.

JUDICIAL INVOLVEMENT

The court in Geeta Kancha Tamang v. State of Maharashtra dismissed the convict's request for
mercy release after he had served 14 months in prison at the time. Human trafficking is illegal
According to Article 23 of the Indian constitution, according to the court, and it is a fundamental
right of every citizen to be free from it.

On February 14, 2011, Justice Markandeya Katju of the apex Court of India ruled in the case of
Buddadev Karmaskar v. State of West Bengal that sexual predators are also individuals and that
no one has the right to abuse or assassinate them. Prostitution is something that people do
because they are poor, not because they like it. Instead of looking down on sex workers, society
should show sympathy for them.9

They are also entitled to a dignified life under Article 21 of the Constitution. A woman is obliged
to engage in prostitution not because she enjoys it, but because she is penniless, according to
Lord Justice. If such a woman is given the opportunity to get technical or vocational training, she
will be able to make a living rather than selling her skills and knowledge. In addition to issuing
the notice, the court ordered the Central and State governments to set up programmes in all
Indian cities to provide technical/vocational training to sex workers and sexually abused women.
Unless attitudes change and sex workers are given unlimited access to the legal system and safe
working conditions, violent crimes against sex workers will continue to go unreported,
neglected, and unpunished across the country. It is past time for the country to recognise sex
workers' rights and adopt policies to combat the growing problem of sexual assault against them.

LAWS RELATED TO PROSTITUTION

9
Lawyers Club in India. Prostitution in India and it’s legal analysis. Available from
http://www.lawyersclubindia.com/articles/Prostitution-in-India-and-it-s-legalanalysis--9151.asp
The most fundamental statute governing the status of sex workers. In 1956, Congress passed the
Immoral Traffic (Suppression) Act. SITA is another name for it. Prostitutes are allowed to work
their trade in private but not in public, according to this law. Indian law, on the other hand, does
not consider sex in exchange for money to be prostitution. Clients can be arrested if they break
the law. Various parts of the Indian Penal Code are used to prosecute sex workers for alleged
criminal offences such as public obscenity. They may also be charged of being a nuisance to the
public.

Indian Penal Code, Section 372 Anybody sells, rents, or otherwise safely dispose of a person
under the age of eighteen with the goal of forcing them into prostitution, etc. Various parts of the
Indian Penal Code are used to prosecute sex workers for alleged criminal offences such as public
obscenity. They may also be charged of being a nuisance to the public. 10

Indian Penal Code, Section 373. Acquiring felons for the purposes of commercial sexual
exploitation, and so on.” A felony is committed by anyone who buys, hires, or otherwise obtains
possession of a person under the age of eighteen with the intent that such person be employed or
exploited for the purpose of prostitution or illicit intercourse with any person, or for any other
unlawful and immoral purpose. Knowing there is a chance that such a person exists or used for
any purpose at any age, shall be penalised by imprisonment of any kind for a duration that may
exceed to 10 years, as well as a fine.

Under Article 23(1) of the Indian Constitution, Human trafficking, begging, and other forms of
slave labour are forbidden, and any breach of this clause is a criminal offence punishable by law.
This Act does not prohibit or punish prostitution or sex workers, but it does make surrounding
acts illegal. All third parties involved in this trade have been sanctioned, making it more difficult
for sex workers to engage in prostitution. It is, in my opinion, a direct violation of Articles 19
and 14 of the Indian Constitution as this Act purposefully makes it difficult for the sex workers
to carry out their profession without the fear of being caught.

10
Kausthab Nandan Sinha. The Problem of Prostitution in Indian Perspective. Available from
http://www.legalserviceindia.com/article/l269-Prostitution-in-India.html
Instead of focusing on human trafficking, the ITPA appears to be more concerned with ending
prostitution. Putting such regulations in place has only made life more difficult, vulnerable, and
dangerous for sex workers. This is a very incorrect approach to dealing with this profession;
rather than making their lives easier, the government has done the exact opposite. Prostitution
has never been eradicated in any country. Consider a circumstance in which a sex worker is
looking for a customer without the constraints of such laws. She can speak openly with the
customer without fear of being apprehended by the cops. Here, the woman is protected and free
to contact the authorities if something goes wrong, such as a client's use of force or failure to pay
her professional fees.

But now we've arrived at the reality, which is governed by laws. By enacting such regulations,
the system has fostered in the clients a dread of punishment. To evade the authorities, clients
prefer to meet the sex-worker in a dark and isolated location rather than in an open or public
spot.

PROBLEMS WITH LAW ENFORCEMENT AND INADEQUACY OF THE ITPA

The issue is not with the ITPA's shortcomings, but with its contaminated deployment. Because
without the customer the act of prostitution cannot be carried out, is likewise excluded, the law
intended to protect sex workers from exploitation works against them. This is why the legislation
has had such a limited influence and reach, despite the fact that the attitude of the police and
even the judges has not changed. As a result, other than souteneur, procurers, or brother owners
("madam"), the police typically round up female sex workers during raids.11

The ITPA's uneven enforcement against prostitute women can be attributed to a number of
factors. For starters,There is widespread coordination among public officials, law enforcement
authorities, and sex workers that obstructs the loyalty to the brand of the Act's requirements, and

11
Marina Fang. 1,00,000 Children are forced into Prostitution Each Year. Think Progress :Available from
https://thinkprogress. or g/100-0 00-chil dren -are -force d-intoprostitution-each-year-97472b01a9d/
this collusion must be exposed and removed. Law enforcement officials have a reputation for
being crooked. The common police processes utilised in ITPA cases are being overhauled, as
well as a closer examination of their corrupt activities, could result in a more desired outcome.
The police must be made aware of this in order to achieve this goal.

The second problem with the ITPA's implementation has been discovered through field research,
with one study revealing the challenges of acquiring enough evidence to make a clear conviction.
According to some police officers, the number of actual crimes and the number of crimes
documented in police records are substantially different, because many crimes are re-enacted.

third issue is the insufficiency of the reformative (corrective and rehabilitative) homes
established under the Act. These facilities are overloaded and unable to handle the enormous
number of sex workers sentenced under the ITPA. In protective home rules, Literacy and a
variety of career - related and vocational training based on the female's academic ability and the
market value of the job must be mandated; counselling to assist inmates in redefining themselves
as surviving human beings must be provided; and funded accomodation and care homes for
detainees expelled from homes must be instituted.

“Women found in flesh trade should be viewed more as victims of socio-economic

circumstances and not offenders of the society,” Justice Ramaswamy wrote in the case of Gaurav
Jain v. Union of India and others. “Some police authorities have already set out the process of
sensitization towards sex workers and their treatment.”

IMPACT

Prostitution had both physical and mental consequences for women. Women who engage in
these activities are subjected to a great deal of suffering. Some of them were compelled to pursue
this career. According to the health repercussions, prostitution exposes women to injury and
infection. Injury is one of the physical health repercussions.

In a 1994 survey of 69 female who were sexually exploited for at least 12 weeks, it was
determined that half had been victimised by their buyers, and one-third had been assaulted at
least once a year. Those who had been assaulted had been beaten into a coma in 23% of cases.
90% of women have been victims of domestic violence, which has resulted in miscarriages,
stabbs, and other injuries.

sex is physically hazardous to prostitution women. HIV/AIDS, Chlamydia, gonorrhoea, herpes,

human papillomavirus, and syphilis are among the most common STDs among prostitutes.
Women are rarely seen without coming into contact with STDs, including AIDS. They had
gynaecological issues, chronic pelvic pain, and pelvic inflammatory disease in general.

Severe trauma, stress, despair, anxiety, self-medication through alcohol and drug misuse, and
food disorders are all examples of emotional health. The most commonly utilised substances
were crack cocaine and alcohol. Self-mutilation, suicide, and homicide are all common among
prostitutes.