The Immoral Traffic (Prevention) Act (ITP), instituted in 1956, was primarily established to prevent human trafficking and the commercial exploitation of individuals, particularly women. The Act does not criminalize sex work, but it does condemn the operation of brothels and the solicitation or enticement of people into sexual activities.
The Act defines a brothel as any location utilized for sexual exploitation or abuse, providing monetary gain to another individual or mutual profit for two or more sex workers. Prostitution is described as the exploitation or abuse of persons for economic purposes.
Section 5 of the Act provides severe penalties for those found responsible for procuring, enticing, or leading individuals into prostitution. The punishment ranges from rigorous imprisonment for 3–7 years to fines of Rs 2,000. If the crime involves coercion or involves a child (anyone under sixteen years), the maximum sentence can extend to life imprisonment.
Recent Development: Kerala High Court Ruling on ITP Act
In a recent development, the petitioner (a customer at a brothel), was accused of offenses under the ITP Act’s Sections. The accused filed a plea, reasoning that as a customer, he should not be implicated under the ITP Act. However, the Kerala High Court, acknowledging that the term “procure” in Section 5 is not explicitly defined, interpreted it considering the act’s goals of suppressing immoral trafficking and preventing prostitution. The court ruled that the term includes customers; therefore, a customer can indeed be charged under Section 5.
However, the ruling only allows charges to be filed, leading to a trial, and doesn’t declare the petitioner guilty under Section 5. Also, the petitioner was discharged from offences under Sections 3, 4, and 7 by the High Court.
Divergent Views of High Courts on ITP Act
Different High Courts in India have presented diverse views on the interpretation of the ITP Act. For instance, the Kerala High Court ruled that a customer caught in a brothel can be prosecuted under the ITP Act while Andhra Pradesh and Karnataka High Courts opined that brothel customers should not be prosecuted under sections 3-7 of the ITP Act.
Legality of Sex Work in India
The Supreme Court of India has legally recognized sex work as a profession, asserting the practitioner’s right to equal legal protection. However, it emphasized that consent and age must be taken into account. The court held that voluntary sex is not a crime and that individuals, irrespective of their profession, have an equal right to conduct any business.
In various landmark judgments, the Supreme Court has upheld the rights of sex workers to dignity and legal protection. Keeping in mind the welfare of sex worker’s children, the Court stated that they have the right to equal opportunities, care, protection and rehabilitation and to be part of the “mainstream of social life” without any attached “pre-stigma”.
Government Initiatives for the Welfare of Sex Workers
Several initiatives have been undertaken by the Ministry of Women and Child Development, like the “Ujjawala” scheme, for the prevention of trafficking and rescue, rehabilitation, re-integration, and repatriation of victims of trafficking for commercial sexual exploitation.
The establishment of the National Commission for Women and recognition of sex workers as informal workers by the National Human Rights Commission point towards government efforts to safeguard the rights of women and girls involved in prostitution. In 2018, the Supreme Court urged the government to take action against the exploitation of women in the sex industry and consider legalization in specific locations with rigorous regulation.
Societal Perceptions & Challenges Faced by Sex Workers
Despite the legalizations, prostitution is often stigmatized and considered a violation of cultural morals and family values. Sex workers in India are one of the most discriminated and vulnerable groups, frequently dealing with social isolation due to the stigma associated with their profession.
The gendered dynamics of the profession make it even more challenging for women. Despite facing regular physical violence, discrimination, and derogatory terms, some argue that women should have the authority to decide what they do with their bodies and view sex work as a valid choice.
Advocating for a More Inclusive Understanding of Sex Work
While the debate on the ethical implications of prostitution in India continues, it’s vital to uphold trafficking laws to avoid victimization of women and girls. It’s equally important to promote open dialogue and educational programs to expose communities to diverse perspectives on sex work, while being sensitive to cultural nuances. Equal rights for all citizens, irrespective of their chosen profession, should be a fundamental principle.
