About one quarter of India’s population comprises of girl children up to the age of 19 years. However, they are discriminated socially, psychologically, economically and sexually. This gender discrimination is socially defined and continues from cradle to grave. One of India’s most striking characteristics is its material poverty. An estimated 40% of India’s population lives in poverty. In a patriarchal set up, the section in families in societies that is affected is women and girl children. Violence against women, assault, and rape of women are not individual sexual or physical crimes. Desperation seems to characterize the lives of India’s poor. This desperate poverty is often cited as the root of India’s growing prostitution problem.
(II) The problem of Child Prostitution
Some eye- opening facts in this regard:
- The average age of girls supplied to the brothels in the last two years has decreased from 14 and 16 years to 10 and 14 years. A girl between 10 and 12 years fetches the highest price.
- There is the myth that a man can rid himself of sexually transmitted diseases if he sleeps with a virgin hence the fear of HIV/AIDS has increased the demand for virgins and children.
- Trafficking is another problem which India faces- About 7,000 sex workers cross over from Nepal into India every year. 66% of the girls are from families where the annual income is about Rs.5000. They may be sold by their parents, deceived with promises of marriage or a lucrative job or kidnapped and sold to brothel owners. Between 40 – 50% are believed to be under 18 years which is the age of consent in India, some are as young as 9 or 10 years old.
- Child sex workers are not confined to big cities. A survey in Bihar revealed that roadside brothels for truck drivers in the Aurangabad and Sasaram districts offered sex workers aged between 6 and 18 years.
- Everyday about 200 girls and women in India enter prostitution and 80% of them against their will. At the current rate of growth by 2025, one out of every five Indian girl children will be a child prostitute.
(III)Child Prostitution and the Law
Indian constitution has guaranteed Fundamental Right to save and protect the human life under Article 21, also Article 23(1) provides that trafficking in human beings is prohibited and any contravention of these provisions shall be an offence. Besides the Fundamental Right, the following Directive Principles also have relevance; (Article 39(a), 39(c), 39(f), 42, 46 and 47 etc.) Under the provisions of the Indian Evidence Act 1872, Section 114(a) and 151 are relevant in the context of trafficking. Also section 51(2), 53(2), 98, 160, 327(2) and 357 of the CrPC have relevance in this context. Provisions were also made in the IPC to deal with sexual offences. Sections 372, 373, 354, 366, 497 and 498 give the power and strength to the women.
The current laws in India that legislate sex workers are fairly ambiguous. It is a system where prostitution is legally allowed to thrive, but which attempts to hide it from the public. The primary law dealing with the status of sex workers is the 1956 law referred to as The Immoral Traffic (Suppression) Act or (SITA). Recently the old law has been amended as The Immoral Traffic (Prevention) Act or PITA. Prostitution in India is due to poverty and unemployment, lack of proper reintegration services, lack of options, stigma and adverse social attitudes, family expectations and pressure, resignation and acclimation to the lifestyle.
The Immoral Trafficking Prevention Act, 1956 (“PITA”), passed by both Houses of Parliament came into force from Monday 26th January 1987, is the main statute dealing with sex workers in India, does not criminalize prostitution or prostitutes per se, but mostly punishes acts by third parties facilitating prostitution like brothel keeping, living off earnings and procuring, even where sex work is not coerced. The PITA also contains a provision for presumption of guilt on the part of a person under certain circumstances when the victim is a child who has been sexually abused
Under this new act there are three categories of victims-children, minors and majors. Children are defined to be individuals up to 16 years of age, minors are those between 16 to 18years of age and majors are individuals above 18 years of age. The earlier act recognized only women and girls – a women being one who has completed 21 years. Punishments for offences committed against these categories differ in severity. Offences committed against children and minors will be dealt more severely than those against majors.
The new act provides for the appointment of a special police officer for investigating offences with inter-state ramifications the women who are resented by the police during raids will be questioned only by women police officers and if none are available they can be interrogated only in the presence of a female representative of a recognized welfare institution or organization. To make a search or conduct a raid to the police officer has to be accompanied by at least two police women. The law dealing with prostitution is ambiguous. While on the one hand it does not prohibit prostitution, on the other hand it penalizes those prostitutes who are caught soliciting customers whether by words or gesture or wilful exposure of her person. This can be punished with imprisonment of up to six months and/or fine of up to Rs. 500. Persons soliciting on behalf of a commercial sex worker in a public place can be similarly punished. Thus, pimps and procurers can also be booked. However, this law is mostly used to harass prostitutes, both adults and children. A sex worker can legally practice her profession inside a house but cannot solicit clients on the streets.
The punishment for procuring, inducing or taking away persons for prostitution has been enhanced to a minimum of three years and a maximum of seven years of rigorous imprisonment. Forcible detention for the purpose of prostitution can also be punished with seven years to a life term. In addition the law provides for special police officers, non-official advisory bodies and police officers specifically assigned to stop trafficking to be appointed by the central government, as well as special courts to deal with cases under the Act. It also provides for the establishment of protective homes meant exclusively for rescued girls who can stay there for a maximum period of three years.
(III) Steps that should be taken to fight child prostitution
# Formal education should be made available to those victims who are still within the school going age
# The Central and State Governments in partnership with non-governmental organizations should provide gender sensitive market driven vocational training to all those rescued victims who are not interested in education
# There should be Rehabilitation and reintegration of rescued victims being a long-term recruitment of adequate number of trained counsellors and social workers in institutions/homes run by the government independently or in collaboration with non-governmental organizations
# Awareness generation and legal literacy on economic rights, particularly for women and adolescent girls should be taken up.
# Adequate publicity, through print and electronic media including child lines and women help lines about the problem of those who have been forced into prostitution.
Our society has not only turned a blind eye to minor girls being enticed into prostitution but also is directly responsible for the continuance in growth of child prostitution. First the demand for virgin prostitutes, and secondly it abets child prostitution by failing to provide adequate facilities for orphan and destitute children. Unless the so called respectable sections of the society rise in revolt against sexual exploitation of minors, the future of younger generation looks bleak. We have to take due cognizance of their past and rehabilitate them. The Government should severely punish the people connected with this inhuman practice for the good of the future citizens of our country.
The law has many loopholes and inadequacies. It does not punish the client and it does not make any provision for the rehabilitation of women and children who are rescued from brothels. There is no single legal entity which oversees its implementation. The definition of prostitution is vague and tends to punish women and minor girls, who are the victims, rather than those who live off their earnings. Besides, though all offences are cognizable under the Act, they rarely result in convictions. While the minor girls are sometimes rounded up during raids and detained in remand homes, the pimps, kothamalkeens (women who own brothels) and clients go scot free. Kothamalkeens or madams arrested usually manage to secure bail and continue running their business of exploiting minor girls.
The elimination of child prostitution requires immediate redressal measures. Education and economic independence of women will counter their vulnerability and lead to the recognition and respect of women’s and the girl child’s dignity.
2nd Year Student,
Dr. Ram Manohar Lohiya National Law University, Lucknow
[Submitted as an entry for the MightyLaws.in Blog Post Writing Competition, 2011]