Report No. 64
1.4. Constitutional provision.-
It may be mentioned that Article 23(1) of the Constitution prohibits traffic in human beings. It also provides that any contravention of this provision shall be an offence punishable in accordance with law. Then, Article 35(a)(ii) of the Constitution confers on Parliament exclusive power to prescribe punishment for those acts which are declared to be offences under this Part of the Constitution (which includes Article 23). Article 35(a) also provides that Parliament shall, as soon as may be, after the commencement of the Constitution, make laws for prescribing punishment for the acts which are declared to be offences under this Part of the Constitution.
Finally, Article 39(f) of the Constitution provides that the State shall, in particular, direct its policy towards securing that childhood and youth are protected against exploitation and against moral and material abandonment It is, therefore, gratifying to note that soon after the commencement of the Constitution, the Act with which we are now concerned, made provisions which seek to carry out the constitutional provisions referred to above, although the Act purports to have been made in pursuance of an International Convention.1
1. Para. 2.1, infra.
1.5. The institution of prostitution is the external manifestation of the failure of man to control his animal will within the limits set by the institution of marriage. The view of Westermarck and many other scholars is that the institution of marriage has existed in human society since time immemorial. This is the generally accepted view. In no period of recorded human history has any civilised society existed,1 without the institution of marriage in some form or another.
With the help of this institution, man has tried to tame and control his brutal instincts and impulses. In this attempt, there has been a fair amount of success, but not full and complete success, because man has not always remained satisfied with the company of his wife and has sometimes sought the pleasures of the flesh by straying beyond the limits of the marital wedlock, with the result that institutions like prostitution and concubinage have existed side by side with marriage since times immemorial. For the greater good of, the family and society, man has tolerated these institutions as necessary social evils. In ancient India, concubinage and prostitution were not unknown.
In the Rig Veda Samhita, there is reference to the jara (paramour) and his concubine. There were heavenly prostitutes also. They were known as apsaras and urvashis. Quite often they were sent by the king of gods (Indra) and other gods too to entice human being who were engaged in the practice of austere penances for gaining knowledge of the. Supreme Reality. The prostitute was known as ganika and veshya, etc. Chanakya says, "salajja ganikah nastah" (Shy prostitutes are no good). In the drama "Mrichha Katika", it is stated2:
"Like the pond, creeper or the boat, you, who are a prostitute, you (should) adore every person."
1. (a) Hoebel Anthropology, (1966), p. 331. (b)Hobhouse Morals in Evolution, (1951), p. 138.
2. (Mrichha Katika).
$$ Hindi Matter 64.7