‘Prostitution’ is defined as the act of participating in sexual intercourse in exchange for remuneration. The legality of prostitution varies from one nation to the other. In some nations, prostitution is considered to be an unforgiveable taboo and is punishable with death, whereas, in other nations, it is considered entirely lawful in all forms. In the Indian legal context, prostitution is implicitly legal. Astonishingly, a lot of citizens are under a general misconception that prostitution is illegal in India, which is not true. Although acts such as pimping, owning a brothel, public soliciting, etc. is prohibited by the law.

 There exist various causes for prostitution viz. ill-treatment by parents, bad company, family profession, social customs, inability to arrange marriage, lack of sex education, media, prior incestual experiences, ignorance, lack of recreational activities, financial burden, etc.. The commercial sex industry in India is a multibillion-dollar market which, now incorporates unlawful strip clubs, massage brothels, phone sex, adult/child pornography, escorted prostitution as well as street brothels.

In India, Prostitution is governed under the Immoral Traffic (Prevention) Act of 1956, hereinafter referred to as the ‘ITPA’. The act defines “prostitution” as sexual exploitation or abuse of a person for monetary purposes and a “prostitute” as a person who gains such commercial incentives.  

HISTORY OF PROSTITUTION IN INDIA:

India has an extensive history of practicing prostitution, in fact, prostitution is considered to be the oldest profession in India. An entire chapter has been devoted to prostitution in Kautilya’s Arthashastra written in circa 300 BC and Vatsayana’s Kama Sutra written between the first and the fourth centuries AD. The devadasi (handmaiden of God) system, which was prevalent in the 300 AD, advocated the practice of dedicating young girls to Gods in Hindu temples, which often manifested them as ‘objects’ for sexual exploitation at the hands of the temple priests and pilgrims. With diminishing feudalism, the devadasis lost their guardians and were physically subjugated by the priests. Thus, prostitution was ubiquitous in India under the pseudonym of religious devotion. 

There exist several records of prostitution being practiced in major cities in India during the 18th and the first half of the 19th century of British India. A Calcutta based corporation published in 1806 that there were 2540 women in 593 brothels in 82 streets of Calcutta and they were tax-payers accounting for approximately 6% of Calcutta’s revenue. Moreover, during the British Raj in India, 75,000 prostitutes were congregated in the Lal Bazaars for military personnel and they roughly estimated for about 2% of the unabridged sex industry. The Indian prostitution trade remained independent of the British or other foreigners, and the sight of temple dancers, aristocratic courtesans, sex-workers from villages and established brothels were visible in every bend of the Indian subcontinent.

Attributable to the clandestine nature of the industry and the eclectic diversity in the geographical distribution of prostitutes, it is unfeasible to precisely calculate their number in the present day. However, some rough statistics such as I.S. Gilada’s estimate that there are approximately over 1 Lakh sex-workers in Mumbai and Kolkata, 40,000 in New Delhi and Pune, and around 13,000 in Nagpur. Nevertheless, according to some critics, there is a conflicting ideology that these figures are either overestimates or underestimates. 

PROSTITUTION AND THE LAW:

In addition to the ITPA, the Indian Penal Code, 1860 also deals with some aspects of prostitution but its ambit is exclusively confined to child prostitution. Article 23(1) of the Constitution of India, 1950 prohibits individuals and mendicants from participating in traffic or other similar forms of forced labour. Article 23(2) enunciates that any contravention of the former provision shall be an offence punishable in accordance with the law.

In the case of Raj Bahadur v. Legal Remembrancer, it was adjudicated that:

Clause (2) however permits the State to impose compulsory services for public purposes provided that in making so it shall not make any discrimination on grounds only of religion, race, caste or class or any of them. ‘Traffic in human beings’ means selling and buying men and women like goods and includes immoral traffic in women and children for ‘immoral’ or other purposes.”

The constitutionality of the Immoral Traffic (Prevention) Act, 1956 was challenged in the case of The State of Uttar Pradesh v. Kaushalya in which several prostitutes were required to be vacated from their place of residence in Kanpur for sustaining decorum. The High Court of Judicature at Allahabad adjudged that Section 20 of the ITPA abridged the fundamental rights of the respondents under Article 14(d), 14(e) as well as Article 19(1) of the Constitution, and the ITPA was held constitutionally lawful as there existed an intelligible differentia between a prostitute and a person alleged of causing nuisance. 

Therefore, the act is profound and in consonance with the object it seeks to achieve, i.e. facilitating law and order in the society. 

THE ILLEGAL AVENUES LINKED TO PROSTITUTION AND THEIR PENALTIES:

The ITPA affirms certain parallel activities to be illegal such as solicitation for prostitution, managing brothels, utilizing prostitutes for monetary gains, kidnapping or inducing a girl for prostitution, detaining girls in brothels and engaging in prostitution within 200 meters of public places such as educational institutions, hospitals, temples, etc.

The aforementioned activities incur substantial penalties including rigorous incarceration even at the first occasion of conviction. The minimum punishment for owning a brothel is imprisonment for a term of not less than 1 year which may extend up to 3 years and a fine up to 2,000 rupees. The offence of procuring a girl child for prostitution invites rigorous imprisonment for a term of 7 years which might extend up to life imprisonment. In addition, section 370-A of IPC punishes the offender for the exploitation of a trafficked minor with imprisonment of 5 years which may extend up to 7 years.

THE PITFALLS OF PROSTITUTION:

Sex-workers in India do not lead an easy life and have to frequently encounter social ostracism and a prejudiced treatment since prostitution is considered to be an anathema to society. Prostitutes are habitually frowned upon by the general public and their occupation is never discussed openly. Additionally, the rise in prostitution has depicted a significant rise in criminal offences which superimposes the lives of prostitutes under constant threat. To tackle such offences, various legal provisions have been envisaged, some of which are enumerated below:

  • S. 366-A – IPC: Procuration of Minor Girls
  • S. 366-B – IPC: Importation of Girls
  • S. 372 – IPC: Selling of Girls for Prostitution
  • S. 373 – IPC: Buying of Girls for Prostitution
  • Child Marriage Restraint Act, 1929 (Act No. 19 of 1929)

Prostitution poses a lot of health concerns for the workers as well as clients such as HIV, cervical cancer, psychological disorders, and other sexually transmitted diseases (STDs). In a nation where protected sex is a fable, it becomes extremely problematic to curb the rising infection curve of HIV. In 1989, a legislation regarding AIDS was introduced in the Rajya Sabha which aimed at providing sweeping authority to infringe the liberties of certain categories of people, but owing to strong opposition by several activist groups, it was withdrawn in 1992.

THE VERDICT – SHALL PROSTITUTION BE OVERTLY LEGALISED IN INDIA?

Prostitutes are normal people and they must be given equal status before the law as any other human being. Living one’s life with liberty, dignity, and integrity are the key tenets of universal human rights, which no individual shall be deprived of. For majority of the Indian women involved in prostitution, it is an experience of being oppressed, harassed, battered, and assaulted. 

Uprooting prostitution from its core is a herculean task since it is the demand which creates the supply. As long as people could purchase sex, prostitution seems inevitable and eventually appears to be ‘normal’ in India, as well as elsewhere. So, if abolition is not the solution, shall we consider legalization?

Legalization of Prostitution is not a credible recommendation in a society where such acts are considered to be flagrant and are perceived to be morally degraded. Therefore, we can conclude in a nutshell that, the most promising solution we could pursue in the best interests of the safety of the sex-workers as well as the concern of the general public, is to decriminalize prostitution and to penalize demands in the form of consumer sexual services. 

The sex-workers shall be rehabilitated under the supervision of the State and must be relocated to another sector of the industry with proper training. This will empower all sex-workers to live their lives with self-esteem and will simultaneously help to curb unemployment. Such a resolution could eradicate the preconceived notions of social-stigmatization towards sex workers immeasurably.  Until then, the government must integrate steps to educate sex workers across the nation regarding the importance of protected sex, as well as, to make them cognizant of their rights and remedies, which, unfortunately, they are totally unaware of. 

About the author

Indraneel Chakraborty is a law student pursuing B.A. LL.B. (Hons.) at the University of Petroleum and Energy Studies, Dehradun specializing in Energy Law. His passion for writing can be traced back to his kindergarten days. His areas of interest are Information Technology Laws, Cybersecurity, and Outer Space Laws. Inter alia, he loves traveling and getting to meet new people, playing football, listening to music, with Linkin Park being my all-season go-to artists.  Outside college, he is rigorously committed to virtual education and have been constantly engaged in digital learning platforms completing reputed courses with the likes of Harvard, Yale, and Penn Law. He speaks 4 languages and a bit of French. If you challenge him to Technology trivia, chances are that he will win. And yes, he totally agrees with Mario Puzo because “A lawyer with his briefcase can steal more than a hundred men with guns.”

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