GIBS Law Journal 2024
PROSTITUTION IN INDIA:
A LEGAL AND SOCIAL ANALYSIS
*Reena Deepak
ABSTRACT
Regardless of whether it is actively outlawed, tacitly accepted, formally controlled, or a mix
of these, prostitution is a booming industry people who work in prostitution have long been
stigmatised as dirty and shameless by the society. The laws dealing with prostitution in India
are weak and lack a clear approach. The vast majority of those who engage in the sex
business experience regular verbal and physical abuse as well as discrimination in the legal
and social system. Prostitution has been linked in recent research to acts of violence,
prejudice, and exploitation. Policymakers in India have been slow to address the problem of
prostitution because of the stigma associated with the industry in the country. This article
uses doctrinal analysis to consider whether or not prostitution should be legalized, regulated
and treated like any other profession.
Keywords: Prostitution, Social Stigma, Law, Rights, Profession
INTRODUCTION
The English word "prostitute" comes from the Latin prostituta. According to some sources,
the verb is made up of the words "pro," which means "up front" or "forward," and "situere,"
which means "to offer up for sale."1 Prostitution has been defined by Britannicaencyclopedia2
as, ‘Sex for money is when one person makes sexual contact with another person for the aim
of getting money or other valuables, this is referred to as sex for money. Prostitution can
encompass heterosexual, gay, or transgender acts, however generally, the vast majority of
prostitutes have been women and customers have been men.’
The oldest occupation in the world is Prostitution. Sadly, it is the least popular and most
hated profession.3 According to some estimates,4 the worldwide prostitute trade makes $186
billion each year with prostitution in India accounting for more than 8% of this total. Many
nations are now contemplating, altering their legal attitudes towards sex worker in order to
benefit from the profession's income as well as maintaining the safety and health of
prostitutes and those who utilise their services. Although the Constitution of India grants
everyone the right to equality, this principle is not always realised in practise. Prostitution is
among the oldest professions in existence, dating back to the dawn of Indian civilisation.
* Pursuing Doctorate in Law from University of Kurukshetra, Haryana, India.
1
Dwivedi Richa, ‘Prostitution: A Controversial Career validity under Article 19(1) (g) of Indian Constitution’,
(2014) available at: [Link] (last visited June21, 2023)
2
Available at: [Link] (last visited June21, 2023)
3
[Link], ‘Prostitution in Indian Society: isues, Trends and Rehabilitation, available at:
[Link] ( last visited June 23, 2023)
4
GoyalYugank, RamanujamPadmanabha, ‘Conceived laws and Exploitative Sate towards Decriminalizing
Prostitution in India’ available at: [Link] ( Assessed on June23,2023)
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Inside the walls of the mother goddess temple at Mohanjodaro is a bronze sculpture of a
dancing girl. The earliest known references to prostitutes may be found in the Rigveda,
India's oldest literary text.5 A whole chapter has been devoted to it in Kautliya’sarthshashtra
and Vatsayna Kamasutra.6Jara and Jatini are portrayed as the male and female partners of a
married spouse.7 The Sanskrit and Pali terms for impermanent unions, mututta and
muthurtika, respectively, symbolised only temporary unions with no lasting connection.8
These 'Hetaerae' may be found all across the Buddhist scriptures (the Pitakas, Avadanas, and
Jatakas).9 Devadasi is a term for temple prostitution that has become socially acceptable in
certain parts of the country.10To show their devotion to God and to uphold the devdasi
system, pre-colonial Hindus had to sacrifice their daughters.11
Prostitution is a common occupation in the country nowadays. In 2016, there were reportedly
657829 prostitutes in this country.12According to unofficial estimates, the number of
prostitutes in India ranges between 3 - 10 million.13India has become a major destination for
sex tourists and sex industry is a multibillion-dollar sector that is growing rapidly.
SOCIAL STIGMA LEADS DISCRIMINATION
Stigma is a symptom of shame, societal disdain, or spoiled identity for sex workers. In India,
prostitution is a serious societal issue. Like other forms of violence against women,
prostitution is overwhelmingly an act of males against women, with the vast majority of
victims being girls and women.14Since marriage and motherhood are significant needs for a
woman to be valued in their own society, sex workers said that being a prostitute deprives
them of these types of respect.15According to sex workers, who described in painful detail
how their families rejected them, how they were thought to be vulnerable to sexual
exploitation, how they were evicted from their rented apartments, how their daughters were
deemed unfit for marriage, and how their children were teased at school because of their
parent’s profession. Widespread discrimination occurs against sex workers.16They have a
number of negative effects on both physical and mental health. The risk of developing
5
Thappa D.M, Singh N. Kaimal S, Prostitution in India and its Role in spread of HIV infection, Indian J Sex
Transm Dis 2007, 69-75.
6
Ibid.
7
Gosh Shreya, ‘Exploring Prostitution in Ancient India: a subversion of Contraries’ available at:
[Link] ( last visited June 23, 2023)
8
Bhattacharji Sukumari, Prostitution in ancient India (15) ,Social Scientist 1987, pp.32-61
9
Ibid
10
Tracing the history of Prostitution and Sex Trafficing in India, available at: [Link]
(last visited June 23, 2023)
11
Legalization of prostitution in India, available at: [Link] (last visited June 23,
2023)
12
Sex workers: Population Size Estimate- Number, available at [Link] (Last visited
June, 2023)
13
How many Prostitutes are in the United State and Rest of the world, available at:
[Link] (last visited June 24,2023)
14
Sharma Bhavna, ‘Prostitution in India: A Critical Analysis’ 11(10) Review of International Geographical
Education’ (2021)
15
Cornish Flora, ‘Challenging the stigma of sex work in India: Material Context and Symbolic Change’ 16(6)
Journal of community & applied social psychology 462-471. (2006)
16
Ibid
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HIV/AIDS or other sexually transmitted diseases is the greatest.17 Growing patterns have also
revealed a rise in mental illness and psychological discomfort among sex workers.18
The moral uncertainty of prostitution is bringing into question its formalisation.19 Perception
that sex workers in India are criminals rather than citizens contributes to the widespread
violence they face. As a consequence, sex workers' human rights, such as the right to life,
dignity, equality, equal protection under the law, and due process, have been violated on a
large scale and consistently. Sex workers are susceptible to attack for a number of reasons.
Because of the stigma associated with sex work, people are more likely to experience
personal abuse from family members and intimate partners. Violence is used to exercise
sexual authority, and it has come to be seen as a punishment for having sexual contact with
males. Lacking consistent legal protection, they are forcibly detained and rehabilitated; they
have difficulty accessing essential health services, including treatment; and they are subjected
to many kinds of abuse, including physical attacks and harassment, from clients, family
members, the community, and state authorities.20
PROSTITUTION IN INDIA IS SHROUDED IN LEGAL AMBIGUITY
Although prostitution is partially legal in India. The Immoral Traffic (Prevention) Act of
1956 is the current legislative framework in India that governs prostitution.21 Prostitution, as
defined by the Immoral Traffic (Prevention) Act of 1956, is the sexual exploitation or
manhandling of a person for financial benefit.22 It also does not violate the IPC. Despite
assertions that sex work is permitted, it is illegal to run a brothel. It goes against the definition
of prostitution itself. Since they are unable to open their own brothel, they have to find other
places to meet their clients, such as hotels. Such hotels are frequently the target of police raid,
during which both the hotel and its guests are detained. They are typically apprehended on
the grounds that their actions were unlawful. However, it is lawful. Along with the ITPA,
additional laws addressing prostitution and prostitution trafficking include the Indian Penal
Code of 1860, the Indian Constitution of 1950, the Juvenile Justice (Care and Protection of
Children) Act of 2015, and other state laws. Several acts associated with the prostitute
industry are forbidden by law even if prostitution itself is not unlawful. These include
operating a brothel, profiting from prostitution, pimping, soliciting, employing prostitutes in
institutions or elsewhere, and engaging in prostitution in public. In State of U.P vs.
Kaushailiya section 20 of the SITA was declared unconstitutional by the High Court because
it infringed constitutionally protected fundamental rights. The Supreme Court disagreed with
the High Court and overturned its verdict, concluding that the constraints imposed by Section
20 are "reasonable restrictions imposed in the public interest." The ruling of the High Court
17
Prostitution in India, available at [Link] (last visited June 24, 2023)
18
Ibid
19
S. Rajeshwari,‘Formalisation of Labour: The Economics of Prostitution in India’4(2) International Journal of
Social Sciences, 288-303 (2018)
20
‘Violation faced by sex workers in India, available at: [Link] ( last visited 23 June 2023)
21
Bhandhari Aastha, ‘A Critique of the Abolonist Approach to regulate Prostitution in India’ 5(4) International
Journal of English Literature and Social Sciences, (2020)
22
Legalization of Prostitution in India, available at: [Link] ( Last visited 23June, 2023)
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may be seen as significant in terms of professional independence as a Fundamental Right; it
sets the path for future legalisation.
In Gaurav Jain vs. Union of India23 the Court outlined ways to rescue and rehabilitate
prostitutes and their children. These rules are as follow:
• Prostitutes should be seen as victims of their social circumstances, not perpetrators.
• The court ordered juvenile institutions to protect and rehabilitate minors.
• It established a commission to investigate and plan the victims' elevation.
After this judgment, a petition for review was filed and moved to a three-judge panel, larger
than the original bench. The petition for review overturned the prostitution eradication ruling.
The petition for review affirmed the previous case's prostitutes' children guidelines. The
ruling was remarkable due to the fact that women were not considered to be the culprits. The
Bombay High Court decided in Kajal Mukesh Singh v. State of Maharashtra24 that there are
no national anti-prostitution legislation. Only commercial sexual exploitation or abuse of a
person is banned, save under some circumstances, such as when someone is caught soliciting
or seducing another person. The Supreme Court decided in Budhadev Karmaskar v. State of
West Bengal25 that sex workers had a fundamental right to human dignity and respect. It is
further held that engaging in sexual acts is considered as a profession. The Supreme Court
determined in Furthermore, it was decided that adult who freely participate in sex work
should not face any type of police criminal prosecution. It is a landmark decision that
provides a light of hope for the legalisation of this profession.
Despite these verdicts, Indian law fails to adequately safeguard the rights and welfare of
people engaged in prostitution and sex work. It not only takes a moral stance but also puts sex
workers in danger due to its ambiguity. The exploitative treatment of prostitutes was
described as follows: “According to Shabana, a sex worker in Karnataka who is a part of the
sex workers' union VAMP, the police would visit us at night and engage in sexual activity
without using condoms. Then they would leave in the morning after forcing us to have sex
with them. Shabana, there is a case against you, a different police policeman would then
arrive in the morning. Join us as we attend court. They used to charge us with stuff we had
never done. You were walking along the street, flirting with guys while your pallu was not
covering your breasts. There is a case against you because of this”26
23
(1997)8 SCC 114
24
Available at: [Link] ( last visited June 23, 2023)
25
2022 SCC Online SC 704
26
‘Rights and Issues of people involved in Prostitution and sex work in India’, submitted by Sampada Gramin
Mahila (SANGRAM) and VAMP for The Office of The United Nations High Commissioner For Human Rights.
Available at: [Link] (Last visited 23 June, 2023)
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SUGGESTIONS
India uses an abolitionist method to regulate prostitution, allowing both the buying and
selling of sex but forbidding practises such running brothels and public solicitation. This
places the buyer of commercial sex in the limelight and his involvement in driving demand
for the sex business is criminalized. The goal of the ITPA is to prevent and prosecute human
trafficking and to help victims with rehabilitation.
It penalize brothel owners rather than sex workers. The Immoral Trafficking Prevention Act
is a key law aimed at preventing human trafficking for sexual exploitation. But in practice
prostitution is deemed criminalized as a result of this misunderstanding, and sex workers face
the consequences as a result. When prostitution is done freely, it is not considered a crime.
The act of trafficking people for this reason should be punishable.27 This law fails to
distinguish between forced and consensual prostitution. Through its prohibitionist attitude, it
punishes the country's unpopular minority groups. India's abolitionist approach to regulating
prostitution in the country has to be changed.28 Prostitution is a fact that must be recognized.
When the government legalizes prostitution, it will also fight sexually transmitted diseases
and the AIDS pandemic. Laws will transform prostitutes from second-class citizens to
persons who earn a living in a legal manner. They should be given the opportunity to live
with pride.29
CONCLUSION
Prostitution is stigmatized that leads all violence. The country which is not good with gender
sensitivity there the exploitation is greater. Partially legalizing it without proper guidelines
and protection isn’t enough. The fundamental concern remains that people need to be made
aware of issues concerning women so that they do not commit such heinous atrocities against
them. Given these considerations, prostitution should be properly legalised, with a regulating
organisation in charge of monitoring the practice. The study concludes that decriminalizing
brothel, regulatory law provisions and regulating awareness in society about prostitution will
definitely provide sex workers and children rights and protection.
27
Prostitution and issues Surrounding it with Special Reference to the debate of crimilizing or decriminalizing
the Sex Trade, available at: [Link] (Last visited 23 June 2023.)
28
Supra Note 16
29
[Link] and Kannappam M,‘An empirical Studies on Legality of Prostitution in all States of India’, 17
(119) International Journal of Pure and Applied Mathematics 1073-1086 (2018)
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