9 Nov 2020 7:10 AM GMT
India in 1956 to curb human trafficking enacted the Suppression of Immoral Traffic in Women and Girls, 1956. The name was subsequently changed to the Immoral Traffic (Prevention) Act ("the Act") via an amended in 1986. However, even though the Act was formulated to prevent human trafficking, it became a weapon in the hands of law enforcement to penalize sex workers instead....
India in 1956 to curb human trafficking enacted the Suppression of Immoral Traffic in Women and Girls, 1956. The name was subsequently changed to the Immoral Traffic (Prevention) Act ("the Act") via an amended in 1986. However, even though the Act was formulated to prevent human trafficking, it became a weapon in the hands of law enforcement to penalize sex workers instead. The foundational reason for the same was the mode laid down by India in the Act to curb human trafficking. The Act instead of directly attacking the offence of human trafficking, set out to punish activities having a nexus to 'prostitution', treating it akin to trafficking. For example, Section 4 of the Act provided that if a person above the age of 18 lives off the income of prostitution, he/she is liable to be punished, as the Act presumes, he/she is a trafficker. It is amusing to note that an act, enacted to punish human trafficking does not use the term 'trafficking' or 'human trafficking' even once in it.
Thus, the legislature in 1986 changed the definition of 'prostitution' to prevent sex workers who voluntarily carry out the profession from becoming collateral damage in the government's war against human trafficking. The present article highlights that this change in definition has done more harm than good.
'Prostitution' as defined by the Act
Cambridge dictionary defines 'prostitution' as "the business of having sex for money" . Merriam-Webster defines it as "the act or practice of engaging in promiscuous sexual relations especially for money."
The law for three decades mimicked the dictionary meaning of prostitution and defined it as, "the act of a female offering her body for promiscuous sexual intercourse for hire, whether in money or in kind." However, the legislature vide an amendment in 1986 radically changed the definition of 'prostitution' to, "the sexual exploitation or abuse of persons for commercial purposes and the expression 'prostitute' shall be construed accordingly". A principal reason for the same was that the Act was never bought forth to punish prostitutes but to punish human traffickers. Ms. Margaret Alva, Minister of State in the Departments of Youth Affairs and Sports and Women and Child Development when introducing the 1986 amendment to the Act in the Rajya Sabha, stated that the purpose of the legislation was to, "provide a framework for penal action against those responsible for the abuse and exploitation of women for the purposes of prostitution, care, protection and rehabilitation of those rescued from the trade and inhibition of prostitution in a public place or any area specified as such".
Thus, the legislature by tweaking the definition of 'prostitution' set its course towards punishing someone who is sexually exploited or abused by another person for example a pimp, rather than someone who simply has sex in exchange for money. This would be in line with the intention behind enacting the Act.
Need for ironing out certain creases of the Act:
The position of law before the amendment was that only if the activity of sex work falls within the restrictions imposed under Section 7 and 8 of the Act would it be illegal. However, the legislature it failed to take into consideration the absurd effect the change in the definition would have while interpreting certain sections of the Act.
Section 7 of the Act begins with, "Any person who carries on prostitution and the person with whom such prostitution is carried on…". If one applies the new definition to the foresaid section, it would mean that an individual who voluntarily carries on sex in exchange for cash without anyone sexually exploiting or abusing him/her, that individual can have sex near public places. Such was the position of law as held by the Andhra Pradesh High Court in the matter of Arjun Rao v. State of Andhra Pradesh, "From the definition, it is therefore obvious that the prostitution in or in the vicinity of public places mentioned under Section 7(1) of the Act, has to be understood in the context of the definition of prostitution under Section 2 of the Act. Here, it cannot be said that the petitioners indulged in any sexual exploitation or abuse of persons for commercial purposes……In any event, mere having sexual intercourse by paying money does not attract 'prostitution' mentioned in Section 7 of the Act". However, this would be a ludicrous position to have where the law dictates that if you are being sexually exploited you are not allowed to have sex near a public place, however, if you are carrying out the profession voluntarily you can do the same. Thus, there is a need to amend the language of this Section to harmonise it with the new definition of prostitution.
Moving on to Section 8 of the Act. Section 8 of the Act states, "Whoever, in any public place or within sight of and in such manner as to be seen or heard from any public place, whether from within any building or house or not:- (a) by words, gestures, wilful exposure of her person (whether by sitting by a window or on the balcony of a building or house or in any other way), or otherwise tempts or endevours to tempt or attract or endevours to attract the attention of, any person for the purpose of prostitution; or (b) solicits or molests any person, or loiters or acts in such manner as to cause obstruction or annoyance to persons residing nearby or passing by such public place or to offend against public decency, for the purpose of prostitution…..."
Let us assume two situations, the first wherein a pimp commits the act mentioned in the section and another where the sex worker herself/himself does it. If one applies the old definition the section could be summarized to mean that if any pimp uses gestures to temp the attention of a person or solicits/seduces any person in a public place to have sex in exchange for money, with a sex worker, the pimp would be punished. The position would remain the same even if one applies the new definition, as the pimp would seduce/solicit or tempt a person to sexually exploit a sex worker and be punished for it.
However, in the second situation wherein a sex worker commits the acts mentioned in the foresaid section, the change in definition has an idiosyncratic effect. If one applies the old definition the section could be summarized to mean that if any sex worker uses gestures to temp the attention of a person or solicits/seduces any person in a public place to have sex in exchange for money, that sex worker would be punished. However, if one applies the new definition an absurd situation arises wherein the Act imagines a situation wherein a sex worker can seduce/solicit or tempt a person to sexually exploit himself/herself. This is preposterous as an individual cannot be exploited with his/her own volition.
An argument can be raised for using the dictionary or the old definition of prostitution when interpreting Section 7 and 8 of the Act, instead of the new definition. Section 2 of the Act which provides for "Definitions", starts with the statement, "In this Act, unless the context otherwise requires.", and thus it can be argued the context requires that the old definition be applied. The Supreme Court has held that for a term to be interpreted differently than what has been prescribed in the definition clause of an act, the court can take a look at the legislative mandate and intent to agree for this change. Thus, the argument can be buttressed by stating that if the old definition is not used a situation would arise where sex workers would be roaming and carrying out their profession in public places causing nuisance and this was against the intention of the Act.
This argument is a double-edged sword. Even though one intention of the Act was to 'inhibit' sex work in public place, the central intention behind the Act was to suppress the commercialize vice of human trafficking and penalize human traffickers and not sex workers. Thus, if the old definition is used to interpret Section 7 and 8, the person who has been trafficked and forced into the profession will be made criminally liable and this would fly in the teeth of the intention of the legislature. Majority of the people carrying out this profession are forced into the same and are coerced to carry out all acts restricted under Section 7 and 8. Thus it is essential that the new definition is used to ensure that under no circumstances are the victims of human trafficking being criminally penalized, even if it means that the small number of individuals who join the profession voluntarily are allowed to go scot-free. This would be in line with our criminal jurisprudence of letting ten guilty persons escape than punish one innocent. For example, if the new definition is not applied when interpreting Section 8 of the Act, a male child who has been forced by his pimp to solicit people for sex work by making gestures, he will be made criminally liable, as the sole circumstance when the fact of 'will' is taken in account is when a female exposes herself.
The 1986 amendment is a quintessential example that typifies the government's position of 'legislate in haste, amend at leisure'. The legislature with a lackadaisical attitude amended the definition of 'prostitution', without taking into consideration the nonsensical effect it would have while interpreting the provisions of the Act. It has been more than three decades since the amendment has been made, however, even the judiciary has failed to highlight such a clanger in the Act. This is evidenced by the fact that, the Bombay High Court in the case of Kajal Mukesh Singh & Ors. v. The State of Maharashtra, following a range of past judicial precedents made post the amendment reiterated that "What is punishable under the Act is sexual exploitation or abuse of person for commercial purpose and to earn the bread thereby, except where a person is carrying on prostitution in a public place as provided in Section 7 or when a person is found soliciting or seducing another person in view of Section 8 of the said Act". It is essential that the legislature amends the language of the Act to harmonize it with the legislative intent behind enacting the Act.
Views are personal.
(Author is a Practicing Lawyer)