PROSTITUTION – A LEGALISTIC APPROACH WITH SPECIAL REFERENCE TO HUMAN RIGHTS
S.Jagirial B.A., B.L., M.L.,
ABSTRACT
The human right discourse, which ought to be in the central current of the tributary of criminal justice administration, still flows on the side, and often remains alienated from the main stream. This topic asserts that rule of law needs to be strengthened in India to bring down human right violations especially the so called Prostitution, force Prostitution, trafficking in human beings demonstrate insensitivity and indifference of the police to human rights. Rehabilitation of prostitutes is an important as their liberation. Weak strategies and ineffective implementation of policies result in the prostitute reverting back to their profession. To combat with human right violations, there is a need to updated laws. This topic shows the urgent need to infuse in the police the constitutional human rights ethos, judicial and human rights institutional concern for human rights especially right to life and rule of Law. In these situations it is important to analyse various issues relating to Prostitution with Judicial and legalistic approach. The problem involved trafficking of persons, generally associated with commercial sex work is differently perceived at varying tines both by the people and by the government. The change in public perception and consequent variations in legislative policies have been influenced by public and health conditions, law and order concerns, attitudes towards sex and morality, human rights standards and most importantly in the light of the UN conferences of the past decade, the issue of women’s status and gender justice.
In the process of changes in public perceptions and attitudes, the enforcement of legislative policy suffered a great tended to prevent commercial exploitation of sex, what actually resulted is corruption in the enforcement machinery and wider exploitation in more surreptitious ways often with the protection of the so-called law enforcement apparatus.
The challenge for those NGOs and social Workers concerned with the issue of commercial sex work is more in the manner of the enforcement of the law than the sex industry itself. Though the manifestation of the sex industry are posing serious threats to human dignity, public health and morality and to women’s rights,this is the agenda that legislative reform must aim to address.
On the other hand, those calling for “legalization” generally want to license or register the women concerned and thus require them to have regular health checks and stop working when they are unable to do so medically due to AIDS or other such related diseases. This line of thinking also advocates licensed brothels and consequently leaving women not legalized outside the licensed premises. This approach endorses State Control with no concern for the women involved in the profession.
The sexual revolution, apart from liberating all our repressed psyches and libido is also supposed to have a liberating effect on other area of life. Men no longer need to project themselves as macho stud bulls, and can admit to the softer emotions. Abolition of the trade to a considerable degree is a long term goal, whereas prevention and control are processes yielding result it taken up in right earnest, and involvement, Mobilisation and participation of the people however, forms the key to both.
To make an effective impact on the problem as it exists today, steps will have to be taken firstly to prevent new entrants into flesh trade, and secondly, to rescue and rehabilitate those women who are unwilling functionaries of the trade. The National Commission for Women is to achieve “zero level” prostitution.
To arrive at the ‘priority Objective’ of zero level, both positive and negative methodologies must be adopted. Positive methods involve rescue operations and rehabilitation measures for victims already in the profession. Negative measures aim at negating entry to new entrants to the profession. For this every country should have access to fully developed intelligence network with efficient networking of information among countries of the region.
Prostitution – Introduction: Prostitution (from Latin word Prostituere, to expose publicly), as a word, may well be defined as promiscuous unchastely for gain. However, prostitution is most commonly defined as the “sale of sexual services for some form of remuneration- usually money, drugs, ornaments and Luxuries.
[1]
Sex- Meaning: Black’s Law Dictionary states that, the offence of prostitution it is essential that:
a) A female must offer her body to indiscriminate intercourse with men, usually for hire. It must be promiscuous intercourse for hire;
b) There must be sexual intercourse;
c) It must be for hire for which the consideration may be in cash or in kind.
“Brothel” means any place occupied or used by any two or more women or girls whether at the same time or at different time.
The Supreme Court in Gaurav Jain’s case while dealing with the aspect of rehabilitation of the children of women in prostitution held that”such children have right to equal opportunity, dignity care, protection and rehabilitation as to be a part of the mainstream of social life without any pre-stigma attached on them.[2]
- The demand is illegal, immoral unethical and violative of our constitutional provisions. The constitution gives the choice of profession but does not permit indulgence in socially undesirable activities.
- Sex abuse is the worst form of violation of human rights.
- Legalizing prostitution is not the remedy of the problem. The solution lies in rescuing and rehabilitating the women and children caught in the profession that offers no way out.[3]
- It would give anti-social elements the licence to indulge in the trafficking and trade of humans.
The role of procurers, brothel-keepers, pimps and touts;
Procurers are responsible for trafficking girls/ women for induction into flesh trade and occasionally for marriage. They work in close association with brothel-keepers and pimps. Their function remains confined to identification of girls/women, procuring them, and supplying them to the brothel-keepers. They exploit the situation in their favour when women are in distress and employ all their skills to entice and seduce the unwary and innocent victims to the brothels.
Economic Rehabilitation of Women and children in Prostitution:
As poverty is the main cause of trafficking the Government must take adequate steps for implementing poverty reduction programmes.
1. Trafficking can be controlled if there is proper awareness about the pros and consequences of trafficking among general masses and specifically woman and young girls. Awareness can be generated through slogan, pamphlets and wail writing in red light areas.
2. Educational facilities must be ensured as a part of rehabilitation package.
3. Trafficking legislation should be enacted making trafficking women and children a felony instead of misdemeanour.
4. N.G.O.s and agencies should take active steps to provide both physical safety and humanitarian aid to these victims to reintegrate them in their families.
Role of Judiciary: The Supreme Court of India and most of the state High Court have shown judicial activism for the enforcement of the rights of the people. We could see the same spirit of judicial activism in the judgements of the constitutional courts of India with regard to the matters involving trafficking, prostitution and sexual exploitation.
Sixty- Fourth Report (1975) Law Commission of India;
This Report deals with the Suppression of Immoral Traffic in Women and Girls Act, 1956.This Act will hereafter be referred to as ‘the Act’. The Commission has taken up the subject, in view of the importance of the Act as a measure of preventing the exploitation of women and girls for immoral purposes.
Thus, being a threat to the family as an institution, and a means of exploitation of females, prostitution is a social evil which leads to social injustice.
Method to rehabilitate Child Prostitute – The Juvenile Justice Act, 1986: There is no clear definition of the term ‘Neglected children’ in its conceptual and functional sense. Hence one has to fall back on the legal definition of the expression given in the Juvenile Justice Act of 1986. This social legislation which deals with neglected juveniles was enacted with the object’ to review the working of the existing children’s Act’s in order to lay emphases and to focus attention on the children ‘found in situations of social mal-adjustments, delinquency or neglect’.[4]
Role of Police: The importance of rehabilitation of Women in Prostitution is irrefutable, but somehow, the entire focus of Immoral Traffic and Prevention Act appears to be on eliminating prostitution rather than rehabilitation of prostitution in persons in the continuum of anti-trafficking initiatives, law formulation and enforcement is more or less restricted to the area of raid, rescue, repatriation and to a limited extent the rehabilitation aspect.
Need for adequate women police officers. It should be ensured that the number of women police officer is adequate for the discharge of the duties that may have to be specially entrusted to these police officers under the Act.
Reforms to ban on Prostitution: Accountability Measures: The contemporary prostitutes may be divided broadly into two categories; involuntary and voluntary, the involuntary ones are those women who are compelled, deceived or coerced to enter into the life of prostitution by inheritance, community customs, traditions, religious practices and beliefs, fictitious and deceptive marriages, by being kidnapped or sold by parents or relatives, by destitution and deception and those who through forcible, merciless or violent means are made to start as well as to continue prostitution. [5]The voluntary types generally emerge after being initially non –voluntary and had to accept the way of life being left with no other option and gradually persuaded, convinced and induced by their over – all life situation.[6]
Amendment of Immoral Traffic and Prevention Act, 1986: The Immoral Traffic in Persons Prevention Act 1986 (ITTPA) was passed in the winter session of parliament 1986. This Act is an amendment to the Suppression of Immoral traffic in women and Girls Act 1956, and was passed primarily in the context of the latter’s failure to suppress traffic in women and girls for commercial sex purposes.
In short-
(I) Profiting by the prostitution of another person, or
(II) Exploiting another person for prostitution, or
Soliciting in a public place etc., are the broad categories of the main offences created by the Act. But a woman or girl, who offers her body for hire, without soliciting or doing any of the other acts mentioned in the penal sections, is not guilty of an offence under the Act. The Act, thus, stops short of banning prostitution absolutely, and deals with only certain specified and concrete forms of immoral conduct. The ultimate object is, no doubt, to check prostitution, but the methods adopted are limited in their scope.[7]
Protection of Children from Sexual Offences Act, 2012 _An Act to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto. Whereas it is imperative that the law operates in a manner that the best interest and well being of the child are regarded as being of paramount importance at every stage, to ensure the healthy physical, emotional, intellectual and social development of the child.
Recommendation of National Human Right Commission:
The National Human Rights Commission is an apex body in India created is an Act of Parliament called the Nation Human Right Commission Act, 1996.the National Human Right Commission, India is also equally concerned over the menace of sexual exploitation of women and children.
For checking further entry of new girls/women into flesh trade, the following recommendation should be taken into consideration:
1. Awareness building about the causes and consequences of flesh trade, and traditional practices supporting it,
2. Involvement and mobilisation of the people in the prevention and control of the problems,
3. Counselling and guiding victims of the trade,
4. Initiating development programme and low cost and experimental rehabilitation programmes, including foster care and child care services,
5. Assisting in rescue operations in red-light areas,
6. Working as a watchdog and the eyes and ears of the people in ensuring that women are not exploited as sex objects,
7. Providing legal aid to the victims,
CONCLUSION:
The Prostitutes should no longer be treated as criminals or as objects of shocking sexual abuse. They are victims of circumstances and hence should be treated as human beings like others so as to bring them into the mainstream of the social order without any attached stigma. The Supreme Court of India gives a keen attention to rehabilitate the Prostitution nowadays. While implementing various reformations recommended by the Supreme Court of India and National Police Commission in the central Acts and State Acts, this issue of Prostitution should be highly considered.
Hence, instead of banning it totally, the law in every country has tried to regulate it so that it may be kept within its legitimate bound without unduly encroaching upon the institution of marriage and the family.
SUGGESTIONS:
· ITPA Amendment Bill, 2006 should be enacted at the earliest.
· The abolitionist approach that is being proposed to be brought into under the ITPA Amendment Bill, 2006 need to be introduced in a phased manner.
· Welfare and rehabilitation scheme should be introduced for helping the effective implementation of perceive abolitionist regime in India.
· Various Government and Non-Government Organisations and agencies should take active steps to provide both physical safety and humanitarian aid to these victims to reintegrate them in their families.
· The police personnel’s and judicial people must be sensitised to make the police station and Court environment friendly towards the victims of trafficking. This may help them to take up the cases more sympathetically.
BIBLIOGRAPHY
Primary Sources
Statutes
· Constitution of India
· Criminal Procedure Code, 1973
· Indian Penal Code, 1860
· Protection of Human Rights Acts, 1993
International Instruments
· Universal Declaration of Human Rights Act, 1948
· International Covenant on Civil and Political Rights, 1966
· European Convention for the Protection of Human Rights Act, 1950
· Charter for the Fundamental Rights of European Union
Secondary Sources
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· Justice PalakBasy “Law relating to Protection of Human Rights 2007 modern law Publications, New Delhi.
· Jain . M.P., The Indian constitutional Law, wadwa Lexis Nexis Butterworth, Nagpur, 2009
· Pandey J. N. “ The Constitutional Law of India” Central Law Agency, 2009
· Aware. 1997. Commercial Sex Workers of India. New Delhi: National Commission for Women
· Bhatia, S.C., ed. 1988. Social Audit of the Immoral Traffic Preventioin Act, Delhi : University of Delhi.
· Prasad K.J. 1996. Regional Profile on the Sexual Exploitation and Trafficking of Children, India
· Bhoruka Public Welfare Trust, 2001. A Study on Cross- border Girl Trafficking India
· Santhosh Kumar Mukerjee, Prostitution in India (1930)
· S.N. Sinha and N.K. Basu, History of Prostitution in India (1933)
· B. Joarder, Prostitution in Historical and Modern Perspective (1964)
· Lacroixpaul, History of Prostitution Part 1 and 2
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· Asian Age
· The Times of India
· The Week
· Front Line
· Tehalka Magazine
· Criminal Law Journal, 1996
· International Journal of Crime and Sociology Theory Dec. 2010
Committee, Commissions and Reports
· National Crime Commission 8th Report- 1980
· Malimath Committee Report, 2003
· Shah Commission of Enquiry 1977
· Second Administration Reform Commission 2007
· National Annual Report 2009
· National Annual Report 2010
· Lawyers for Human Rights and International Annual Report,2002
· Human Rights watch Report 2010
· Human Rights watch world report 2011
· People’s Union for Civil Liberties Report, 2007
· MahajanCommitteee Report, 1999
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[1] Immoral Traffic and Prevention Act, 1996 Sec.1 (a)
[2] AIR 1996 1 (SCC) 435
[3] The Special Reporter on the Sale, Prostitution, and child pornography 1990
[4] Srinivasan Amrit 1985 “Reform and Revival” The Devadasi in Economic and political weekly, November 1990 cri LJ 1469 AIR 1990 SC 1412
[5]The Times of India. 2003. ‘AIDS campaign to wind up by Jan 27’ (21 Jan)
[6]US State Department 2004. ‘Trafficking in Persons Report’. http;//gvnet.com`humantrafficking/00-Ratings.htm (accessed June 2015
[7] The Times of India, Wednesday – July 27, 2988 p-1