Commercialization Of Sexuality For Prostitution: Need For Multi-Pronged Approach To Gender Reform
Written by: Ronika Tater, Student, University of Petroleum and Energy Studies
This article provide a better insights into the latest developments in the issues related to protection of women and children of India and also provide a global perspective to the said matter. It also reflects one of the deepest roots of the problem in a socio-legal approach that tends to consider a woman’s body as a property. To this end, the article concludes that the solution of this deep-rooted problem has to be social as well as legal.
The Ministry of Women and Child Development recognizes the incidence of crime against women cannot be controlled unless mindsets of people, in general, are made to change. There are many reasons behind increasing crimes against women, such as unequal economic, the social and political status of women, patriarchal mindsets, etc. The framers of the Constitution were aware that the issue of women’s autonomy could not be addressed without providing them equal level in society. Hence, the Constitution of India safeguards woman’s rights by putting her at par with man socially, politically and economically.
The principle of the gender equality is enshrined in the Indian Constitution in its Preamble, Fundamental Rights, Fundamental Duties and Directive Principles of State Policy, with some other provisions. In addition to the above, there are various provisions in the Penal Code, 1860. However, there is still a vast gap between the goals enunciated in the Constitution, legislation, policies, plans, programs, and related mechanisms on the one hand and the situational reality of the status of women in India on the other.
II. INTERNATIONAL REGIME
Human trafficking is one of the fastest increasing criminal industries worldwide, and the crime of trafficking girls is dehumanizing as well as utterly shameful to our civilized society. Despite constitutional dictums and legal provisions, humanity is still struggling to combat human trafficking. It is a complex policy challenge that intersects many policy paradigms. However, this issue has only topped the policy agendas of the international community. The term “trafficking in persons” is not defined in the ITP Act. As per the United Nations Palermo Protocols, it is an obligation on the State parties to device adequate mechanisms to prosecute perpetrators, protect victims, and prevent trafficking.
While the UN Trafficking Protocol is the primary international agencies in this area, there exist other international instruments that will have relevance in preventing human rights breaches caused by trafficking. Two of the major human rights treaties, the Convention on the Elimination of All Forms of Discrimination against Women (art.6) And the Convention on the Rights of Children (art.35) contain a substantive reference to trafficking.
III. ISSUES RELATED TO PROTECTION OF WOMAN AND CHILD OF INDIA
The definition provided by United Nations Palermo Protocol, has to be taken into account while framing charges against a person accused of trafficking as laid down in Vishaka Case:
“The international Conventions and norms are to be read into them in the absence of enacted domestic law occupying the field when there is no inconsistency between them. It is now an accepted rule of judicial construction that regard must be had to international Conventions and norms for construing domestic law when there is no inconsistency between them, and there is a void in the domestic law.”
In 2013, India enacted the Criminal Law (Amendment) Act, which redefined the offenses of Human Trafficking under Section 370 of Indian Penal Code.
The offenses for human trafficking is far more heinous than drug trafficking. The kingpins behind such sex rackets exert considerable influence in the area and are bound to intimidate the victims. Traffickers breach an individual’s right to liberty, dignity, and security and severely violate human rights. The 2014 crime in India report issued by National Crime Records Bureau reveals an investigation of 3056 trafficking cases and a conviction of 577 traffickers during 2014. According to the National Crime Records Bureau report in 2018, 5264, human trafficking cases were reported in India in 2018. Disturbingly, about 25 percent of such cases of sexual exploitation for prostitution and child pornography. The complex and troubling as emerged in the instant case, in essence, a conflict between collective morality of the society and markedly distorted legislations which keep evading the law and punishment, to perpetrate such heinous crime. There seems to be an all-pervasive puritan, the moral, anti-prostitution posture of the government, still, in practice, there is a yawning gap between the law and its enforcement, which results in abysmally low conviction rates.
The commercialization of sexuality is seen as a part of the explanation for prostitution. It is seen as the worst expression of the unequal distribution of power between men and women. Although, the lawmakers should prescribe a stringent punishment regime for offenders who involves clandestine and unlawful trafficking of girls. Unfortunately, legislation to address trafficking in India is inadequate. Therefore an amendment to incorporate the definition of trafficking complying with the UN Trafficking Protocol and the provision of criminalization of trafficking- related offenses are yet to be put into effect as a good law in India. The safety and security of women and children in the country are of utmost priority for the government.
Rights are not about the international Convention, consensus building, or lawmaking. They are not even about the grand narratives of covenant’s declaration and Constitution. Instead they are about the contested cultures of the quotidian, the mundane negotiation of the personal- what Asef Bayat calls “non- movements,” “the collection endeavors of millions of non-collective actors, carried out in the main squares, back streets, courthouses, or communities.” One that ranges from institutional education to grass-roots activism will provide the rupture in the tradition of perverted imagined values towards sexuality.
Birendra Kumar Tiwari, ‘ A – Glimpse of Gender Justice in India,’(2015) International Journal of Research in Economics and Social Sciences, 5 (7) p. 201.  National Policy for the Empowerment of Women, 2001.  Article 23, 24, 39(f) and 51A(e). The United Nations Convention against Transnational Organized Crime was adopted by the United Nations General Assembly by GA resolution 55/25 of 15 November 2000. It was opened for signature by member states at a high-level Political Conference convened for that purpose in Palermo, Italy, on 12-15 December 2000 and came into effect on 29 September 2003. The Immortal Traffic (Prevention) Act, 1956. The United Nations Convention against Transnational Organized Crime, art. 3(a). Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children. Convention was adopted by the United Nations General Assembly by GA resolution 55/25 of 15 November 2000. It was opened for signature by member states at a high level Political Conference convened for that purpose in Palermo, Italy, on 12-15 December 2000 and came into effect on 29 September 2003. [ratified by India on 5.05.2011]  The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), art 6. Convention was adopted by the United Nations General Assembly on 18 December 1979 and came into effect on 3 September 1981.  The Convention on the Rights of the Child (CRC), art 35.Convention was adopted by the United Nations General Assembly on 20 November 1989 and came into effect on 2 September 1990.  Vishaka v. State of Rajasthan (1997) 6 SCC 241.  Ibid.  The Committee constituted by the GOI to look into the possible amendments of the criminal law to provide for quicker trial and enhanced punishment for criminals, accused of committing sexual assault of extreme nature against women. The Committee headed by Justice J.S Verma (Retd) has submitted its report on 23.01.2013.  Panchanan Padhi v. State of Odisha, 2020 SCC OnLine Ori 492.  Roza Pati, Human Trafficking: An issue of Human and National Security, 4 UM NSACLR 30-42 (2014).  The Criminal law (Amendment) Act, 2013.  A. Bayat, Life as Politics: How Ordinary People Change The Middle East ix-x (2010).
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