Is Prostitution Legal in India?

The word prostitution comes from the Latin word called prostitute which means to expose publicly. Prostitution basically means providing sexual favors in return for money. In addition to the other types of discrimination against women, prostitution is a gender-specific problem as most of the victims are women. To argue that men are not at the end of sexual assault and exploitation, however, would be a bit ignorant. Furthermore, when we call for attention to the injustices of India's prostitution system, the transgender population is frequently overlooked. It would be foolish to ignore prostitution and act as though the system and its shortcomings don't exist in a culture where it has been an age-old profession and is still a thriving industry. This article will address prostitution-related legislation and the reasons in favour of and against its legalisation.
 

What are the Actions that Constitute Prostitution?

Prostitution is the practice of performing sexual acts for payment. It not only indicates the gratification of sexual desires but also other related behaviors including the customer solicitation, brothel management, interacting with prostitutes or pimping them, sex trafficking, and other behaviours that support prostitution and foster the expansion of the sex business.
 

Consult top-rated Criminal lawyers in your city

641+ Lawyers are online

FIND MY LAWYER NOW

Causes Of Prostitution in India

After the Mughal Empire's collapse, conditions worsened for the most disadvantaged, particularly women in harems, palaces, and brothels. Poverty is the primary driver of prostitution. In India's patriarchal society, financial independence is elusive for uneducated, oppressed women, pushing many into prostitution. The vulnerability of women to sexual exploitation is a consequence of India's rigid and traditional societal norms, which objectify them. The prevalent caste system also plays a significant role, subjecting marginalized women to sexual exploitation within this degraded system. Additionally, prostitution is fueled by a lack of sex education and incidents of kidnapping and abduction.
 

What is the History of Prostitution in India?

Tawaifs were courtesans who served India's nobility, especially during the Mughal era. They excelled in music, dance, theatre, and Urdu literature, known for their etiquette expertise. Predominantly in North India, they played a vital role in Mughal court culture and gained prominence as Mughal rule waned. Tawaifs greatly impacted the preservation of traditional arts and the rise of modern Indian cinema. Goa, a Portuguese colony in early India, had Portuguese slaves and saw the trade in Japanese slaves during the late centuries, with Portuguese traders and lascar crew members bringing young Japanese women and girls as sexual slaves. Nautch, a captivating dance style, thrived during the later Mughal Empire and British East India Company rule. British forces established and ran brothels in India, recruiting rural women, and red-light districts, like in Mumbai, emerged. Many princely states regulated prostitution earlier, but the British introduced the Cantonment Act to manage it in their military bases. This act permitted licensed Indian women (chaklas) to associate with British soldiers. Additionally, European and Japanese women were trafficked into India to serve as prostitutes for British soldiers and local men in the 19th and early 20th centuries. Prostitution in India is an age-old profession. There are in fact, mentions of sex workers in various Hindu mythological inferences referred to as Apsaras. Giving up a female child as a symbol of one's devotion to god was a common practice among Hindus during the pre-colonial era under the devadasi system. Literally translated, "devdasi" means "devoted to the god," implying that they were married to him and exempt from having a marriage with humans. These were sexually liberated women who were talented in music and classical dance, among other forms of art. However colonisation also brought with it an oppressive and exploitative structure. The British began to impose societal restrictions on these women, transforming the fundamental ideas of femininity, sexual liberation, art, and culture into concepts like bhakti and devotion. Additionally, as colonialism came to an end and feudalism declined, these women began to be mistreated by temple priests. Consequently, they become more susceptible to poverty and sexual exploitation. This is among the most traditional types of prostitution that exist in India.
 

Is Prostitution Legal in India?

According to the Indian Penal Code, prostitution in its broader sense is not really illegal per se but there are certain activities which constitute a major part of prostitution that is punishable under certain provisions of the act:

• Soliciting services of prostitution in public places

• Carrying out prostitution activities in hotels

• Being the owner of a brothel

• Pimping

• Indulge in prostitution by arranging a sex worker

• Arrangement of a sexual act with a customer

Prostitution is defined as the sexual exploitation or abuse of a female for monetary gain under the Immoral Traffic (Prevention) Act, 1956 (ITPA), and a prostitute is a person who receives this commercial profit. Also known as SITA, this act was approved in 1956. This law basically says that although prostitutes can start their business in private, they are not permitted to do it in public. In accordance with the statute, customers who are found guilty of performing a sexual act in public can be arrested. It is forbidden for woman to engage in commercial sex within 200 yards of a public location. Given the distinctive character of their employment, sex workers are exempt from the existing labour laws; yet, they are subject to all Indian citizen rights, including the right to rehabilitation and rescue if they want to.

The latest amendment to the original act is the Immoral Traffic (Prevention) Act, 1986. According to this statute, if prostitutes are discovered soliciting their services or seducing people in, they will be arrested. It is also prohibited for call girls to make their phone numbers public. If caught doing so, they face a six-month prison sentence in addition to penalties. If a client engages in sexual activity with a sex worker within 200 yards of a public space, they may get 3-month jail sentence and penalties.

If an adult is discovered having sex with a minor, he/she can be jailed a maximum 10-years. In addition, an adult male may be considered guilty if he cohabitates with a prostitute. In the event that he is unable to demonstrate his innocence, he can face imprisonment from 2 to 4 years. SITA (1956), which was subsequently amended to ITPA (1986), is a significant piece of legislation since its preamble states that it was created to put into effect the Trafficking Convention. The preamble refers to the law as An act to provide in pursuance of the International Convention signed at New York on the 9th day of May 1950, for the prevention of immoral traffic in women and girls, enacted by Parliament in the Seventh Year of the Republic of India. In the landmark Judgement of State of Uttar Pradesh v. Kaushalya, the constitutionality of the ITPA was contested. According to the facts stated in the present case, some of the prostitutes were requested to leave their locations in order to preserve Kanpur's decorum. The High Court of Allahabad ruled that Article 14 and subclauses (d) and (e) of Article 19(1) of the Indian Constitution were curtailed by section 20 of the act. Since there was a discernible distinction between a prostitute and someone who was causing a nuisance, the Act was deemed to be constitutionally valid. Additionally, the Act is consistent with the goal that it seeks to accomplish, which is to uphold decorum and order in society. The act's major goal is to fulfil a public objective of upholding decency and decorum in society, saving the lives of fallen women and girls, and giving them opportunity for rehabilitation and becoming respectable members of society. The act seeks to criminalize prostitution essentially and empowers the central government to form a special court for the trial of the offenses under this act.

Proposed amendment to the Immoral Traffic (Prevention) Act : An amendment to the Immoral Traffic (Prevention) Act was proposed in 2006. The sections that penalise prostitution by attracting customers are eliminated by the amendment bill. The proposal suggests more severe punishments and a higher fine. It seeks to make it punishable to visit a brothel with the intention of using trafficked people for sex, punishable by at least three months in jail or a fine of Rs. 20,000. This is not already illegal under the Act. The bill establishes federal and state authority to combat human trafficking. A provision for penalising anybody found guilty of the crime of trafficking in persons for the purpose of prostitution has been included in the definition of the phrase "trafficking in persons." Article 21 of the Indian Constitution states the protection of life and personal liberty. No person shall be deprived of their life or personal freedom other than in accordance with the procedure established by law.

The case of Budhadev Karmaskar v State of West Bengal : It was decided in this case that the sex workers should be treated with humanity and dignity since they are human beings. They are not entitled to be physically attacked by anyone. The ruling also brought attention to the issues and predicament that sex workers faced. The court believes that these women are forced into prostitution due to social and economic factors rather than because they want to or because it is their choice. In order to improve the sex workers' employment prospects, the court ordered the federal and state governments to establish rehabilitation facilities and enrol them in technical and vocational programmes.Section 21 of the Immoral Traffic (Prevention) Act mandates that the State Government create and maintain protection homes, and that the houses must be governed and licenced by them. An appropriate authority should be in charge of investigating the application for home protection. These were nontransferable, temporary licences. Section 23 of the act grants the state the authority to create supplementary regulations pertaining to the licencing, upkeep, and administration of these residences or related things. Additionally, Article 23(1) states that the trafficking of persons, beggar, and other types of forced labour are prohibited and that violating this article would result in legal repercussions.
 

Consult top-rated Criminal lawyers in your city

641+ Lawyers are online

FIND MY LAWYER NOW

Legalization of Prostitution

The issue of providing prostitutes in India legal status has been discussed extensively. It has been noted that since there is little prospect of prostitution being outlawed, it is best to regulate it. Prostitution has been regulated and made legal in a number of nations, including Wales, Denmark, France, Germany, Canada, and others. In Germany, for example, the occupation is not only legal but also subject to taxes, and through HR businesses, brothels are permitted to post ads and provide employment offers. In order to safeguard prostitutes, Germany also enacted new laws in 2016 that mandated a prostitute registration certificate and a permission for any kind of prostitution. Better law enforcement defends against abuse and exploitation of the system, and a system that regulates the profession and prioritises the safety and well-being of sex workers tends to cause less harm to the industry. These sex workers are not only exposed to dangerous sexually transmitted diseases like HIV and AIDS but they also, suffer from police brutality, a dip in income, harassment, etc. In 2009, Supreme Court itself suggested prostitution be legalized.

Arguments supporting the legalization of prostitution:

1. The legalization of prostitution will protect minors from being vulnerable to sexual exploitation. There are almost around 10 million children who are pushed into prostitution, worldwide. Child prostitution is a bitter reality in almost all countries but in Asia and South America, the situation is worse. Strict regulations in the industry can ensure the prohibition of minors from the system.

2. Regulated health checkups of the sex workers will ensure the curbing of sexually transmitted diseases especially, AIDS which is just so common among sex workers. Adequate birth controls will ensure unwanted pregnancies and curb other health hazards. Regular health checkups and strict guidelines will ensure cleaner and hygienic working conditions. A compulsory provision of condoms will also, be beneficial for both the sex workers and the customers.

3. Legalization of the prostitution will enhance and upgrade the system. There will be a removal of middlemen and pimps from the system and the sex workers will have more wage-earning and the criminal and exploitative factors would be reduced to negligible.

4. It will reduce sexual violence, rapes, and other sexual assaults as people will resort to a legal and easier alternative to satisfy their sexual urges. An example of Queensland can be taken where the region experienced a 149% increase in rape rate after the closing of brothels.

5. Eradication of forced prostitution

6. Prostitution in India constitutes around 8.4 billion dollar business. Legalizing and taxing the process will be like an incentive for the government.

7. The rights of the workers will be protected. Even though sex workers do not come into the ambit of usual labor laws still, they should get all the rights of a citizen and a laborer.

Pros and Cons of legalizing prostitution: If prostitution is legalised, the State will be required to oversee brothels; it can do this by granting licences to those who meet the requirements. In addition, it will create policies for the minimum age at which a prostitute may become, a database of clients, appropriate compensation, and access to healthcare for them. The prostitutes can get certain rights by this way, like the right to healthcare, the right to an education for their offspring, the right to be free from rape and abuse, etc. The elimination of prostitution on the streets and in secret, sex racquet operations, and prostitute abuse are all made possible by this strategy. For prostitutes who have lost their job or who were coerced into prostitution but no longer choose to live that lifestyle, protection homes will be set up.

In order to help these prostitutes discover alternative sources of income and support their lifestyle, the government can also provide them with training and a basic education. Conversely, it is possible to misunderstand the legalisation of prostitution as its promulgation. This could encourage more women to engage in prostitution and open the door for prostitutes to make easy money. There is a strong chance that the government will be able to make money from this business. The least the government can do to solve this issue is to enforce strict regulations on this business to prevent it from becoming legitimate.
 

What did the SC say?

The Supreme Court bench, comprised of Justices L Nageswara Rao, BR Gavai and AS Bopanna, has upheld that sex workers and their children are entitled to the protections provided under Article 21 of India's Constitution, which guarantees life and personal liberty under due legal process. Furthermore, Article 21 guarantees every Indian individual's right to live an honorable and dignified life regardless of profession - authorities dealing with trafficking cases must bear this constitutional provision in mind when considering trafficking cases. The order also states that during raids on brothels, as voluntary sex work is not illegal and only running the brothel is unlawful, sex workers should not be arrested, penalized, harassed, or victimized. Police should avoid taking any criminal action when it is evident that the sex worker is an adult participating with consent. It further said, "When it is clear that the sex worker is an adult and is participating with consent,the police must refrain from interfering or taking any criminal.
 

What changes with SC order?

The Supreme Court has established clear limits on police involvement with sex workers, ensuring their legal parity with the general population. The order specifies that consensual adult sex work and the mere presence of sex workers in a brothel cannot be grounds for arrest or police harassment, addressing a longstanding issue. The law can endanger sex workers in Red Light Areas, particularly during anti-trafficking operations. Supreme Court guidelines stress the importance of safeguarding sex workers, treating their complaints as valid rather than considering them offenders. The apex court stated, “ Any sex worker who is a victim of sexual assault should be provided with all facilities available to a survivor of sexual assault, including immediate medical assistance.” This assistance follows the guidelines in Section 357C of the Code of Criminal Procedure and those from the Union Health Ministry for sexual violence survivors. The apex court acknowledged the challenges faced by sex workers and their children due to social stigma. They emphasized the importance of protecting their human decency and dignity. The court's order prohibits the forcible separation of children from sex workers and ensures that children are not presumed to be trafficked if found living with them. Tests may be conducted to verify claims of parentage and prevent forced separation.
 

Problems with the Indian laws and their purpose

The main issue with these provisions lies in the perception of prostitution as something immoral and indecent, which is believed to disrupt societal decorum. However, it is a fact that engaging in sex work under proper precautions and regulations does not harm any individual. The negative connotation associated with prostitution and the perception of sex workers as indecent is primarily due to the taboo surrounding sex in our society, and the regulation of the supply and demand for sex is frowned upon. Indian society struggles to confront sexual violence due to entrenched societal norms surrounding sex. People adhere to these norms, hindering effective action. Criminalizing acts associated with prostitution merely skirts the real issue and results in inadequate, temporary measures to combat the problem. Indian laws concerning prostitution often overlook a significant aspect & ndash the failure to recognize that sexual exploitation affects not only women but also men and transgender individuals. They too experience sexual violence, exploitation, and oppression.
 

Consult top-rated Criminal lawyers in your city

641+ Lawyers are online

FIND MY LAWYER NOW

Rights Available to Sex Workers in India

As per our Indian Constitution, fundamental rights are available to every citizen of India, and therefore sex workers also citizens are entitled to enjoy these rights. A prostitute has the right to life guaranteed by Article 21 of the Indian Constitution; this was highlighted in the Budhadev Karmaskar v. State of West Bengal case. In this case, Budhadev Karmaskar, the accused, was found guilty of murdering a sex worker in Kolkata in 1999. The court went on to say that a woman engaged in prostitution out of poverty rather than for pleasure. Such a woman can earn her basic living from her ability rather than selling her body if she has the opportunity to receive technical or vocational training. In light of this, the Supreme Court ordered the federal government and state governments to develop plans for providing sex workers with vocational training throughout the nation.
 

What is the Punishment for Indulging in Illegal Activities Related to Prostitution?

Immoral Traffic (Prevention) Act, 1956 declares certain acts to be illegal. These offences include solicitation for prostitution, managing a brothel or permitting the use of specific locations as brothels, living off the earnings of a prostitute, forcing a girl into prostitution, detaining girls in brothels, seducing someone who is in custody for prostitution, and engaging in prostitution within 200 metres of any public location, such as hospitals, schools, colleges, temples, or other establishments. Even in the event of a first conviction, the aforementioned actions are punishable by severe consequences, including regorous punishment. The minimum penalty for operating a brothel is two thousand rupees in fines in addition to a period of jail that ranges from one year to three years. The offense of procuring a girl child for prostitution attracts rigorous imprisonment for a term of not less than seven years but may extend to life. Seducing or Soliciting for prostitution under the unamended Act for the first conviction attracts a punishment of imprisonment for six months or a fine of rupees five hundred and for the second conviction, imprisonment up to one year or with a fine of rupees five hundred. In addition, the Indian Penal Code under Section 370A punishes the offender for the exploitation of a trafficked minor with imprisonment of five to seven years.
 

Prostitution: Legality and Morality in India

India's approach to prostitution is characterized by a nuanced interplay of ethical and legal considerations. The country's prostitution laws exhibit complexity and regional variation. While certain aspects such as public solicitation, trafficking, and pimping are ostensibly illegal, explicit prohibition of prostitution remains absent. Prostitution, despite its legal status in India, is widely considered by many as morally objectionable and a deviation from cultural values. A prevailing sentiment deems it a challenge to the sanctity of marriage and family bonds, with a widely held belief that it exploits and degrades those involved, predominantly women. However, some argue that prostitution should be recognized as a legitimate profession, granting women autonomy over their bodies. Supporters of sex workers' rights say it boosts women's safety, and lowers STD transmission, as shown in a recent Indian Supreme Court ruling. In 2018, the court encouraged the government to prevent the exploitation of women in the sex industry and explore regulated prostitution in specific areas. The government subsequently took action to address these issues. An awareness campaign educates about commercial sex trade risks. The National Commission for Women safeguards the rights of women and girls in prostitution. India contemplated legalizing prostitution in a 2016 bill, but it's not yet a law. Prostitution's ethical concerns in India will remain debated. Enforcement of anti-trafficking laws is crucial to protecting women and girls from exploitation, and governments must raise awareness of risks in the sex trade in order to end women's prostitution exploitation.

Advocate Chikirsha Mohanty

Greater Kailash - 1, Delhi
5 years

GET LEGAL HELP

GET LEGAL HELP