Is Prostitution Legal in India?
November 17, 2023 हिंदी में पढ़ेंTable of Contents
- What are the Acts that Constitute Prostitution?
- Causes Of Prostitution in India
- What is the History of Prostitution in India?
- Is Prostitution Legal in India?
- Legalization of Prostitution
- What did the SC say?
- What changes with SC order?
- Problems with the Indian laws and their purpose
- Rights Available to Sex Workers in India
- What is the Punishment for Indulging in Illegal Activities Related to Prostitution?
- Prostitution: Legality and Morality 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. As the different forms of discrimination that are committed against women, prostitution is another gender-specific issue because the majority of the victims are women.
However, it will be a little ignorant to say that men are not at the end of sexual exploitation and sexual violence. Moreover, the transgender community often goes unnoticed when we pinpoint the wrongs of the system of prostitution in India. In a society, where prostitution has been an age-old profession and is continuing to flourish as a business area, it will be ignorant to put a blind eye on it and pretend the non-existence of the system and its flaws. In this article, we will discuss the laws related to prostitution and the arguments for and against its legalization.
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What are the Acts that Constitute Prostitution?
Prostitution denotes providing sex work in exchange for money. It not just indicates gratification of sex but also other accompanying acts such as solicitation of customers, management of brothels, pimping or dealing with prostitutes, sex traffics, and other activities that facilitate prostitution, thus promoting the growth of the sex industry.
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. During the pre-colonial period, there existed the devadasi system where it was a prevalent practice among Hindus to give away their female child as a sign of their devotion towards god. Devdasi in a literal sense means devoted to the god, which is they were married to god and were not required to marry any mortal being.
They were sexually liberated women who excelled in various art forms including classical dance and music. However, colonialism brought a system of exploitation and suppression. The British started reflecting their own societal restrictions on these women where they morphed the fundamentals of sexual liberation, femininity, art, and culture into devotion, bhakti, etc., and further, with the diminishing feudalism and the end of colonialism, these women started getting mishandled by the temple priests. Therefore, leaving them vulnerable to sexual exploitation and poverty. This is one of the oldest forms of prostitution present in India.
Consult: T op Criminal Lawyers 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:
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Soliciting services of prostitution in public places
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Carrying out prostitution activities in hotels
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Being the owner of a brothel
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Pimping
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Indulge in prostitution by arranging a sex worker
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Arrangement of a sexual act with a customer
Immoral Traffic (Prevention) Act, 1956 (ITPA) defines prostitution as sexual exploitation or abuse of a female for monetary purposes and a prostitute is a person who gains that commercial benefit. This act was passed in 1956 and is also referred as SITA. This law essentially states that prostitutes are allowed to commence their trade in private but they cannot carry out their business in public. As per the act, the clients can be arrested if found guilty of engaging in a sexual act in public.
A woman cannot indulge in commercial sex within 200 yards of a public place. Sex workers cannot be put under the ambit of the existent labour laws considering how distinguished their profession is but they have all the rights of any given Indian citizen and are entitled to be rescued and rehabilitated if they want.
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Immoral Traffic (Prevention) Act, 1986 is an amendment to the original act. As per this act, the prostitutes are to be arrested if they are found soliciting their services or seducing others. Further, call girls are prohibited from making their phone numbers public. They can be punished for 6 months along with penalties if found doing so.
Clients indulging with a sex worker within the area of 200 yards of a public space can be imprisoned for a maximum of 3 months with fines. In case, someone is found indulging in sexual activity with a minor then, he/she can be jailed for up to 10 years. Pimps and similar people who live from the income made by a prostitute are guilty as well. For that matter, if an adult man lives with a prostitute he can be regarded as guilty.
If he cannot prove himself to be innocent, he can face imprisonment for between 2-4 years. SITA (1956) which was further amended to ITPA (1986) is an important law as according to the preamble of the act, the purpose of the act was to give effect to 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.
The constitutionality of ITPA was challenged in the landmark judgment of The State of Uttar Pradesh vs. Kaushalya. The facts enumerated in this case are that a few of the prostitutes were asked to be removed from their places in order to maintain the decorum of the city of Kanpur.
The High Court of Allahabad made the pronouncement that section 20 of the act abridged Article 14 and sub-clauses (d) and (e) of Article 19(1) of the Indian constitution. The Act was held to be constitutionally valid as there was an intelligible difference between a prostitute and a person causing a nuisance.
The Act is also in consonance with the object sought to be achieved ie. by maintaining order and decorum in society. The act focuses on achieving a public purpose to maintain the decorum and morality in society and rescue the fallen women and girls and provide them with rehabilitation and opportunities to the fallen victims so that they can become decent 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.
Consult: Top Criminal Lawyers in India
Proposed amendment to the Immoral Traffic (Prevention) Act
There was a proposal made in 2006 to amend the Immoral Traffic (Prevention) Act. The amendment bill removes the provisions that penalize prostitution by soliciting clients. This proposal recommends enhanced punishment and an increased fine amount. It intends to criminalize the act of visiting a brothel for the purpose of sexual exploitation of trafficked victims with imprisonment of at least three months or a fine of Rs. 20,000 which has not been criminalized in the Act.
The bill constitutes authorities at the center and state levels to combat trafficking. The term trafficking in persons has been defined with a provision for punishing any person who is guilty of the offense of trafficking in persons for the purpose of prostitution.
Article 21 of the Indian Constitution The article states the protection of life and personal liberty. No person shall be deprived of his life or personal liberty except according to the procedure established by law.
The case of Budhadev Karmaskar v State of West Bengal
In this case, it was held that the sex workers are human beings and should be treated with humanity and dignity. Nobody is entitled to physically assault them. The judgment also highlighted the problems faced by the sex workers and their plight. The court is of the view that these women are compelled to indulge in prostitution not out of choice or pleasure but merely out of economic and social causes.
The court directed the central and state government to enroll the sex workers in vocational and technical courses and open rehabilitation centers for better job opportunities for them. Immoral Traffic (Prevention) Act has incorporated Section 21 as a rule for the State Government to establish and maintain the protection homes and the houses should be regulated and licensed by them. There should be an adequate authority for the investigation of the application for the protection of homes. These licenses were temporary and nontransferable. The state has powers to make ancillary rules in respect of license, management, and maintenance of these homes or ancillary matters by virtue of section 23 of the act.
Article 23(1) also declares that traffic in human beings and the beggar and other similar forms of forced labor are prohibited and any contravention of this provision shall be an offense punishable in accordance with the law.
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Legalization of Prostitution
There has been a lot of discourse regarding giving legal status to prostitution in India. It is observed that it is best to regulate prostitution since the chances of its abolishment are negligible. Various countries like Canada, France, Germany, Denmark, Wales, etc. have regulated and legalized prostitution.
In Germany, in fact, the profession is not only legal but taxed as well where the brothels are allowed to advertise and send job offers through HR companies. Germany also passed the latest legislation in 2016 which purposed to protect prostitutes by requiring a permit for all prostitution trades and a prostitute registration certificate.
This sort of system where the profession is regulated and the safeguards of the sex workers are taken into consideration tends to do less harm to the sex workers and better implementation of laws protects the system from abuse and exploitation. 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:
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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.
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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.
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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.
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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.
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Eradication of forced prostitution
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Prostitution in India constitutes around 8.4 billion dollar business. Legalizing and taxing the process will be like an incentive for the government.
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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.
Consult: T op Criminal Lawyers in India
Pros and Cons of legalizing prostitution:
If prostitution is legalized, the State will acquire the responsibility to manage brothels and it can fulfill this obligation by issuing a license to authorized persons. It shall also formulate guidelines regarding the age of prostitutes, a database on clientele, adequate remuneration, and medical facilities for the prostitutes. By this method, the prostitutes can acquire some rights such as the right to medical care, the right to education for their children, the right against exploitation and rape, etc. This method can facilitate the eradication of sex racquet operations, hidden and street prostitution, abuse of prostitutes, etc. There shall be protection houses established for those prostitutes who have lost their livelihood, or those who were forced into prostitution but do not want that lifestyle anymore. Also, the government can impart training and basic education to these prostitutes so that they find other means to earn money and sustain their livelihood.
On the flip side, the legalization of prostitution could be misinterpreted as the promulgation of prostitution. This could pave the way for easy money for prostitutes and could encourage more women to practice prostitution. There is a great possibility that this could be a revenue-generating industry for the Government. Thus rules have to be stringent to regulate this industry so that it is not legitimized and that is the least the government can do to address this issue.
What did the SC say?
The Supreme Court, with Justices L Nageswara Rao, BR Gavai, and AS Bopanna, affirmed that sex workers and their children are entitled to the protections of Article 21 of the Indian Constitution, which ensures the right to life and personal liberty under due legal process.
The Supreme Court order emphasizes that every individual in India, regardless of their profession, has the right to a dignified life under Article 21 of the Indian Constitution. When dealing with trafficking cases, authorities must be mindful of this constitutional protection. 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 action."
Consult: Top Criminal Lawyers in India
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 – 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.
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.
The right to life incorporated under Article 21 of the Indian Constitution is available to a prostitute which was highlighted in the case of Budhadev Karmaskar vs State of West Bengal. In this case, the accused, Budhadev Karmaskar was held liable for murdering a sex worker in Kolkata in the year 1999. The court further stated that a woman indulged in prostitution, not for pleasure but for poverty. If such a woman gets an opportunity to learn technical or vocational training, she can earn her basic livelihood from her skill instead of selling her body. Accordingly, the Supreme court directed the Central Government and the State Governments to make schemes for giving vocational training to sex workers across the whole country.
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What is the Punishment for Indulging in Illegal Activities Related to Prostitution?
Immoral Traffic (Prevention) Act, 1956 declares certain acts to be illegal. These acts include a solicitation for prostitution, managing a brothel or allowing the usage of certain places as brothels, living on the earnings of a prostitute’s money, inducing or kidnapping a girl for prostitution, detaining girls in brothels, seducing a person under custody for prostitution and carrying out prostitution within 200 meters of any public place like schools, colleges, temples, hospitals, etc.
The above-mentioned activities attract heavy penalties such as rigorous imprisonment even at the first instance of conviction. The minimum punishment for brothel-keeping is imprisonment for a term of not less than one year and not more than three years and also with a fine which may extend to two thousand rupees. 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. Irrespective of one's view, enforcing anti-trafficking laws is crucial to safeguard women and girls from exploitation. The government must increase awareness of the risks in the sex trade to ultimately end women's exploitation in prostitution.
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