LEGALIZING THE PROSTITUTION IN INDIA
K. Suveda & Janani G.
VIT School of Law, Chennai
ABSTRACT
Prostitution is engaging oneself in the sexual activities for the payment. The one who engages
in such kind of activities are known as prostitutes. This is a way long practised activity since
the society was organised. This is a problem which is been prevalent both in ancient and
modern India. In ancient days it was practised in the form of devadasi system. In a literal
sense they have been devoted to god which means they are the wife of god and don’t require
to marry a mortal being. Later these women were mishandled by the priests of the temple.
The report suggests that the women who indulge in such kind of activities are from the poor
background and has no way for survive since they don’t get any parental guidance. Though
it’s been practised in India for a very long period of time, prostitution as an institution is
always been evil. On the other hand, some part of the society states that prostitution is a
necessary evil in order to avoid rapes and unwanted sexual coercion. The prostitutes are the
most vulnerable people in the society. In order to protect them there are many laws in the
society. In 1956, immoral traffic (suspension) act was passed, which ban the practise of
prostitution in public but can be done privately. Section 372 of IPC prohibits the selling of
children for prostitution. Though there are certain provisions and act to protect them, it is not
been clearly mentioned whether prostitution is legal or illegal unlike United Kingdom where
it had made prostitution as illegal. This paper is all about prostitution and effect of legalising
prostitution in India. Will also be analysing effect of not legalising prostitution in India and
also the laws which protects the prostitutes in India?
Keywords: prostitution, legalising, prostitute, sexual coercion, women.
INTRODUCTION
Prostitution is the act of involving in sexual activities in exchange of money. The term
prostitution is derived from the Latin term called prostitute which means to expose publicly.
It is sometimes mentioned as commercial sex or hooking. It is an assortment of structures,
and its legal status varies from one nation to the other. It is just one part of the sex business
the other side include pornography or other sexual entertainments. Like other form of
violence that is been committed against women, prostitution is another gender specific issue
because women are the one who are vulnerable and the victim of such kind of activities. But
we wouldn’t be completely being ignorant on the fact of sexual exploitation and violence
against men. Earlier only females were working as prostitutes and men were their clients. But
in this era both men and women are indulged in this profession. According to the report of
BBC, the rate of men prostitutes in India are hiking. Male prostitutes are called as gigolo.
Moreover, the transgender often gets unnoticed when we speak about prostitution. Billions of
profits are been made in India out of the prostitution by taking advantage of socially and
economically backward class people. Basically, taking advantage of the vulnerable people in
the society. Prostitution in India is a way old profession. In Hindu mythological inferences
sex workers were referred as asparas. Prior to the colonial period devadasi system was much
prevalent in the Indian society. The women were given to god but when feudalism and
colonialism diminished, these women were been exploited by the temple priests. This is one
among the oddest forms of prostitution in India. Even the Vedas there was a reference to the
prostitution. In Rig Veda as stated by Kausalya, “women who lived by their beauty can
entertain men”. This shows the existence of prostitution in ancient India. In India prostitution
is legal only if it is carried out in the private but it excludes some other form of sexual
activities such as owning or managing brothel, kerb crawling, soliciting in public place, and
prostitution in hotel and child prostitution. But many brothels illegally have been operated in
metropolitan cities of India.
LEGAL PROVISIONS RELATED TO PROSTITUTION IN INDIA
Immoral trafficking act, 1956, defines prostitution as sexual exploitation or abuse of a
female for monetary purpose and a prostitute is a person who gains the commercial benefits.1
This act is also known as SITA. This act mentions that the prostitutes can carry out their trade
in private but not in public. The clients will be arrested if it is been carried out in the public.
According to this act, women shouldn’t indulge in commercial sex within 200 yards of public
place. Even the prostitute doesn’t come under the ambit of labour laws.
1
https://indiankanoon.org/doc/69064674/
Later an amendment was made to this act in the year of 1986, where it stated that the
prostitutes can be arrested if they are found soliciting in the public or seducing others. The
mobile numbers of the call girls shouldn’t be posted in the public. If it is been published then
they can be punished for 6 months along with the penalty. If the client is indulging with the
sex worker within the area of 200 yards of public space can be imprisoned for 3 months with
fine. In case of involving in a sexual activity with the minor, he/she can be punished with
imprisonment of 10 years. If an adult man lives with a prostitute then he is found guilty
unless he proves himself as innocent or he will be punished with imprisonment for 2-4 years.
The ITPA, 1986 is vital because it is in accordance to the preamble as well gives effect to the
trafficking convention signed at New York on 9th May, 1950 for preventing the immoral
trafficking against women and children.
In “The State of Uttar Pradesh vs. Kausalya”2 the constitutional validity of the ITPA was
challenged. The facts of this case are that few of the prostitutes were asked to be removed
from the city of Kanpur in order to maintain the decorum of the city. The HC of Allahabad
held that section 20 of this act abridged article 14 and article 19(1) (e), (d). The act was held
to constitutionally valid and there was an intelligible differentia and also the reason ought to
be achieved by the act.
This act it focuses on maintains decorum and morality in the society and also to rescue the
women and girls by providing them with rehabilitation so that they become decent member of
the society.
A proposal was made to amend this act in 2006. The amendment bill it removes the provision
which penalize prostitution by soliciting the clients. Also intended to criminalize the person
who visits the brothel for the purpose of sexual exploitations of the trafficked victims with
fine amount of Rs. 20,0003
Article 21, it discusses about right to protection of life and personal liberty. Also mentions
that no person shall be deprived of life and personal liberty except according to the procedure
established by law.
2
1964 AIR 416, 1964 SCR(4)1002.
3
Diva Rai, legal aspects related to prostitution in India, from https://blog.ipleaders.in/legal-aspects-related-to-
prostitution-in-india/.
In the case of “Budhadev Karmaskar v. State of West Bengal”,4 in this case it was held that
the sex workers are also human beings and they should be treated with humanity and dignity.
This shows that article 21 was upheld in this case.
In the constitution of India, a provision for trafficking is explicitly mentioned. Article 23
prohibits trafficking in every form including sexual exploitation of women and girls. In
addition to the ITPA and the constitution, we have certain provisions mentioned under IPC.
Under IPC
1. Section 366-A deals with procuration of minor girls
2. Section 366- B deals with importation of girls.
3. Section 372 deals with selling of girls for prostitution.
4. Section 373 deals with buying of girls for prostitution.
The provision related to rape is also applicable for the rape of brothel inmate but it must be
without her will. The minimum punishment is 7 years under IPC.
LEGALIZING PROSTITUTION IN INDIA
Legalizing prostitution what does the term legalizing mean? Does it mean that they can open
a sex parlour or brothel? Does it mean that like doctors they could also open the parlour and
hang the board mentioning the availability of girls? It is not in such a way. Legalizing mean
giving legal recognition to those sex workers so that they have certain rights. There have
many arguments and discourses regarding giving legal status to the prostitution in India.
Many countries like France, Canada, Germany, Denmark, Wales etc... Have regulated and
legalized the prostitution.
In the German country the prostitution is being considered as a profession not only legal but
also taxed, where the brothels are allowed to advertise and send job offers to the companies
and the country had passed the recent legislation in 2016 which regulates and protects the
prostitutes but providing the permit for all prostitution trades and a prostitution registration
certificate.5
4
C.R.A. NO. 487 OF 2004.
5
Dr. Sandhya singh, prostitution- an overview of socio- legal perspective, IJTRS international journal of
technical research & science, volume 3 issue VI, July, 2018.
In India, there’s no provision under law which states that prostitution is a criminal offence
but, seducing any person in the intention of prostitution or running a brothel is illegal6.
Bombay high court, justice prithiraj chavan said that prostitution is not considered has a
criminal offence under the immoral traffic (prevention) act, 1956.7
To say that legalising the prostitution would reduce the rape rate in India. The logical solution
could be to legalise the prostitution with the hope that the government would able to regulate
the trade in the interest of the sex workers.
EFFECTS OF LEGALISING THE PROSTITUTION
• It constitutes the better life for the sex workers
• It ensures the labour rights for sex workers
• Generally, prostitutes are scared to go to police station, if it’s legalised the fear for going
police station would change and they will have a right to go to the police station without any
fear.
• Sex workers will have respect in the society and not degraded.
• The government will have track or have a data and ensure that no minor is being involved
• Regular health check-ups would ensure that no more sexually transmitted disease
• The concept of forced prostitution will be abolished since when its legalised and the
government will have a tap on it
• The major change will be reduction of rape rates and trafficking
• The sex work will be considered as a work and will not be degraded
• It will boast the economic empowerment
• Taxes must be introduced instead of bribes
• Rehabilitation and related service must have the special legislation or the provision for the
same.
• Legalisation of prostitution will enhance and upgrade the system.
• The main thing is about eradication of the forced prostitution will come to an end
• The right of the sex workers will be protected.
6
Yashi Verma, legalisation of prostitution, from http://www.legalserviceindia.com/legal/article-3392-
legalization-of-prostitution-in-india.htm.
7
https://www.indiacode.nic.in/handle/123456789/1661?locale=en#:~:text=India%20Code%3A%20Immoral%20
Traffic%20(Prevention)%20Act%2C%201956&text=Long%20Title%3A,the%20Prevention%20of%20Immoral
%20Traffic.
Thus, the scope of gender equality which must include equal dignity and respect towards the
women who chooses this line of profession of prostitution and future policy needs to focus on
the growth of such areas, government, social and security support to NGO’s working for the
same cause will add more effective and power of the struggle towards this where the
authorities can join hands with the locals and once it becomes legal then the harm of
harassment of women of the sex workers and the fear of police would reduce completely.
EFFECTS OF NON-LEGALISATION THE PROSTITUTION
On the other side it becomes more socially acceptable. “It’s wrong” since the human body is
a gift, meant to be kept pure. Selling it would lead to immoral. Feminist view on against the
prostitution argues deprived of lives of most women who enter into this trade. 8 No doubt that
India’s position in prostitution of the sex worker industry is being looked down upon and
degraded. And to put an end for trafficking the right way is to criminalise the prostitution.
The others effects are thus following;
• It reduces the trafficking
• Violent sex would be abolished
• No to male dominance over females
• The minor sex workers will be reduced
• Low pay
• No longer there will be an effect on the prostitutes
• Decrease in STDS.
• It won’t change the social stigma attached to prostitution.
Thus, there are more benefits of regularisation and legalisation of prostitution that not
legalising it.
SOLUTIONS
The problems involved in the prostitution are very much complicated. It can be solved in two
ways
1. Prevention of entry of new prostitutes.
2. Rehabilitation program for the women who are into prostitution.
8
Prostitution and beyond: An analysis of sex work in India (New Delhi: SAGE publisher, 2008).
PREVENTION OF ENTRY OF NEW PROSTITUTES
1. Counselling and guiding programmes should be given to the public with regard to the cause
and problems of the prostitute. More economic opportunity should be given to the prostitutes
since they are most vulnerable in the society. The concept of community policing should be
made popular so that the police officers would be familiar with the local inhabitants. The
involvement of civilians and NGO in policing can be done.9
2. The children of the prostitutes should be given respectable future.
REHABILITATION PROGRAM FOR PROSTITUTES
The government along with the NGO should conduct rehabilitation program along with that
for the victims they have to conduct vocational training so that they get other jobs and have a
respectable life in the society.
CONCLUSION
Prostitution is an old profession which is been flourishing for a very long time. It is the legal
responsibility of the government to conduct the rehabilitation programmes for the women
involved in the prostitution. Decriminalising the sex workers with proper health security and
better wages and protection would lead to better society. Not only in the society but it will
lead to a progressive step which will eliminate many social evils, from the society like rapes
and child prostitution, etc.., A better inclusive legal legislation, laws and frameworks and
implementation of all the safeguard would lead a better society.
9
Dr. Tulsing sonwani, prostitution of Indian society: Issues, trends and rehabilitation.
