Prostitution In India
Author: LawSphereX
Category: General Law
Published:
Updated:
PROSTITUTION IN INDIA
Ishika Gupta, BA LLB, New Law College, Pune.
ABSTRACT
Prostitution has always been a debatable issue in the society. In cases related to prostitutes and sex workers, the judiciary keeps on giving judgments and keeps on revising provisions. Conflicts occur whenever the rights, opportunities, and welfare of sex workers are considered. This article aims to analyze various views, provisions, and interpretations related to prostitution. This article talks about landmark judgments, The Indian Penal Code,1860 and The Immoral Traffic Prevention Act, 1956, and their respective provisions on prostitution. Moreover, this article states the difference between the legality and the illegality of prostitution in India. Keywords: Prostitution, sex- workers, illegality, trafficking, judgments, welfare, rights.
I.
INTRODUCTION
The term “Prostitution” originates from the Latin word “Prostituere” which means to offer or expose publicly. Prostitution is the practice or business where people participate in sexual activity in exchange for money, and a person engaged in this field is referred to as a prostitute. According to the National AIDS Control Organization (NACO), there are over 8 lakh women sex workers in India, and more than 6000 female sex workers have been subject to physical violence, and other forms of abuse according to the National Crimes Records Bureau Report
202021. Prostitution has been a part of human societies for centuries, but its legal status and
treatment vary widely across cultures and legal systems. In India, the practice of prostitution has long been subject to complex social, moral, and legal debates. This article seeks to explore the legal framework surrounding prostitution in India, analyze its implications on the lives of sex workers, and consider potential reforms to address better the concerns of both law enforcement and human rights advocates.
II. BACKGROUND
Prostitution has been a part of Indian society for thousands of years. It has a complex history intertwined with cultural, social, economic, and legal factors. Its evolution reflects the interplay between traditional societal norms, colonial influence, and modern challenges.
1. HISTORICAL CONTEXT
ANCIENT INDIA: The Devadasi system predominated, where Hindus contributed their female children without brothers in exchange for the right to dance in temples and engage in acts of worship. The practice of prostitution was neither criticized nor excluded throughout the Mughal era. Courtesans or tawaifs lived in specific parts of cities titled “kothas” or “bazaars”. These women played a prominent role in royal courts, where they were admired for their beauty, cultural knowledge, and artistic talents, including music and dance. • MEDIEVAL INDIA: The status of prostitutes varied across regions. While some continued to enjoy royal patronage, others faced marginalization. Prostitution was a recognized profession in medieval India and was often associated with the1 performing arts.
Prostitutes were sometimes called ganikas, tawaifs, or devadasis, and were often paid salaries based on their ranks.
1 Chayanika Pathak, legal status of prostitution, (last visited Jan.29., 2025, 8:15 PM),
https://www.researchgate.net/publication/379898789_Legal_Status_of_Prostitution_in_India.
COLONIAL PERIOD: The practice of prostitution gained prominence during the 18th and 19th centuries with the British colonization. British colonial officials established and maintained brothels across the Indian subcontinent. The prostitutes who worked in such brothels were recruited from rural Indian families and paid directly by the British authorities. Prostitution was heavily regulated under the Contagious Diseases Acts (CDA), which were put into place in several British territories, including India. To prevent sexually transmitted diseases (STDs) among the European population, especially the military, these laws were first enacted in the middle of the 19th century. Instead of addressing the issues, the main emphasis was on safeguarding the health of British men rather than addressing the welfare or rights of the women involved.
2. SOCIO- ECONOMIC DRIVERS:
POVERTY AND INEQUALITY: Lack of education, financial deprivation, economic degradation, lack of employment opportunities, and so on were the factors the women were employed in such activities as they were being paid based on their status. • TRAFFICKING: The United Nations estimates that some 80% of persons trafficked are trafficked for sexual exploitation. They are mostly women and children. Victims are often lured with promises of employment or marriage and forced into sex work.2 • GENDER EQUALITY: Gender inequality has a deep impact on prostitution in India, reinforcing cycles of exploitation, marginalization, and lack of agency for those involved. Patriarchal structures normalize the exploitation of women in the commercial sex trade.
3. HUMAN TRAFFICKING AND ORGANISED CRIME:
Human trafficking is a major driver of prostitution in India. Women and children, especially from Nepal, Bangladesh, and poorer Indian states (West Bengal, Bihar, Jharkhand, Odisha), are often kidnapped, deceived, or sold into brothels. Traffickers use false promises of jobs, marriage, or education to lure vulnerable women into sex work.
III. ISSUES FACED BY PROSTITUTES
As per the Indian history, the prostitution is one of the oldest professions that still exists. And the individuals involved in this profession are looked down upon and have no place in society, 2 S&D, Sexual Exploitation and prostitution and its impact on gender equality, (last visited Jan., 29, 2025, 9:00 PM), https://www.socialistsanddemocrats.eu/content/sexual-exploitation-and-prostitution-and-its-impactgenderequality.
and most times are treated harshly by the entire society and even the law. The rights of sex workers are non-existent, and those doing such work face discrimination due to their criminalized status. This article explores the major issues faced by prostitutes in India, highlighting the legal, social, economic, and health-related challenges they endure. Addressing these problems requires comprehensive legal reforms, social awareness, and economic empowerment programs to ensure the dignity and rights of sex workers are protected.3 •
POLICE HARASSMENT AND ARBITRARY ARREST:
Prostitutes are often arrested, abused, or fined by police, even though engaging in sex work voluntarily is not illegal. Police rarely take action against pimps, traffickers, or abusive clients, focusing instead on harassing the sex workers themselves. • LACK OF ACCESS TO JUSTICE: Due to legal loopholes and discriminatory attitudes of law enforcement, prostitutes rarely get justice when they face violence, rape, or extortion. Many are afraid to report crimes because they risk arrest, blackmail, or being thrown out of their homes. • HIGH RISK OF HIV/AIDS AND STDs: Many prostitutes suffer from HIV/AIDS and other sexually transmitted diseases (STDs) due to lack of awareness and limited access to condoms. Clients often refuse to use protection, increasing health risks.
• POOR MATERNAL AND REPRODUCTIVE HEALTH: Pregnant sex workers receive poor or no medical care, leading to unsafe abortions, miscarriages, and childbirth complications. Many are forced to continue working even when they are sick or pregnant. • LACK OF GOVERNMENT SUPPORT AND REHABILITATION: There are very few rehabilitation programs for sex workers. Even when there are programs, bureaucratic hurdles and lack of funding prevent them from being effective. • IMPACT OF COVID-19 ON PROSTITUTES: Massive loss of income as lockdowns shut down red-light areas. No access to relief funds due to lack of ID proof. Increased police and landlord harassment due to inability to pay rent. Rising cases of malnutrition, disease, and suicide among sex workers. 3 India. com, International Sex Workers Day 2020: Problems And Challenges Sex Workers Face Everywhere, (last visited Jan. 30.
, 2025, 12:45 PM), https://www. india. com/festivals-events/international-sex-workersday2020-problems-and-challenges-sex-workers-face-everywhere-4046995/.
IV. INDIAN LAW CONCERNING PROSTITUTION
IS IT LEGAL IN INDIA: The legal status of prostitution in India is complex, it falls under the second category where prostitution is legal but with certain limitations, the act of engaging in sex work is not illegal, but several related activities are criminalized under the Immoral Traffic (Prevention) Act, 1956 (ITPA) and the Indian Penal Code (IPC). While sex work conducted privately is permitted, operating brothels, soliciting clients in public places, pimping, and human trafficking are punishable offenses4. Over the years, the judiciary has recognized the rights of sex workers, emphasizing their dignity and protection under the law. However, the legal ambiguity surrounding prostitution continues to fuel debates on regulation, decriminalization, and the rights of sex workers in India. India falls under the second category where prostitution is legal but with certain limitations.
According to the Indian constitution, prostitution is not completely illegal because it is nowhere mentioned that a person practicing prostitution is to be punished by law but it is written clearly about a few activities related to prostitution that are punishable by law such as running brothels, soliciting, trafficking, and pimping under the Immoral Traffic (Prevention) Act, (1956). •
KEY LEGISLATION:
(i)
THE IMMORAL TRAFFIC (PREVENTION) ACT, 1956 (ITPA):
As per the provisions of the Indian Penal Code, it is to be noted that prostitution itself is not classified as an illegal act. However, it is important to highlight that certain activities associated with prostitution, namely the operation of a brothel, trafficking, and pimping, are considered punishable offenses in India as stipulated by the Immoral Traffic Act of 19565. The Immoral Traffic (Prevention) Act, or ITPA, also called the Prevention of Immoral Trafficking Act (PITA) is a 1986 amendment of legislation passed in 1956 as a result of the signing by India of the United Nations declaration in 1950 in New York on the suppression of Trafficking. The objective is to restrict and eliminate the practice of prostitution in India by progressively criminalizing different facets of sex work.
Some of the crucial provisions of the act are as follows:- 4 Garima Harsh, Prostitution: Legality and Morality in India, (last visited Jan. , 30, 2025, 6:15 PM), https://timesofindia. indiatimes. com/readersblog/welfaremeasuresunderthefactoriesactacriticalappraisal/prostituti on-legality-and-morality-in-india-55396/.
5 Drishtiias,, Immoral Traffic (Prevention) Act, 1956, (last visited Jan., 31, 2025, 8:00 PM),
https://www.drishtiias.com/daily-updates/daily-news-analysis/immoral-traffic-prevention-act-1956.
1. CRIMINALIZATION OF BROTHELS (Section 3): It states that any person who keeps,
runs, or gives premises to use as a brothel will be held liable. Under the act, a brothel is defined as any place, house, or room given for the use of running the profession of prostitution. Punishment: First-time offenders: Up to 2 years imprisonment or a fine up to ₹2,000. Repeat offenders: Up to 5 years imprisonment. If a child (under 18) or minor (under 16) is found in the brothel, the punishment increases.
2. LIVING OFF THE EARNINGS OF A SEX WORKER (Section
4): The section additionally elucidates that any individual, aged 18 years or older, who sustains their livelihood through prostitution shall be deemed liable. Punishment: Up to 2 years imprisonment or a fine of ₹1,000. If the person involved is dependent on the sex worker (like a child or elderly parent), the provision does not apply6.
3. PROHIBITION
OF
PROCURING,
INDUCING,
OR
TRAFFICKING
FOR
PROSTITUTION (Section 5): States of “procuring, inducing, or taking a person” for prostitution. It criminalizes the actions related to forcing individuals into the profession of prostitution. Punishment: 3 to 7 years imprisonment for first-time offenders. If the victim is a child (under 18), the punishment increases to 7 years to life imprisonment.
4. PUNISHMENT FOR DETAINING A PERSON IN A BROTHEL (Section 6): The
detention of a sex worker at a brothel or other prostitution-related businesses is punishable under Section 6. Punishment: Minimum 7 years imprisonment, extendable to life imprisonment.
5. PROHIBITION OF PROSTITUTION IN PUBLIC PLACES
(Section 7): Prostitution is not allowed in public places or within 200 meters of schools, places of worship, or hospitals. Punishment: Up to 3 months imprisonment or a fine.
6 Akanksha Dave, PROSTITUTION IS LEGAL IN INDIA, ACCORDING TO A RULING BY THE SUPREME
COURT, Indian Journal of integrated research in law, Volume 3 Issue 1, (last visited Jan., 31, 2025, 10:00 PM), https://ijirl.com/wp-content/uploads/2023/01/PROSTITUTION-IS-LEGAL-IN-INDIA-ACCORDING-TO- ARULING-BY-THE-SUPREME-COURT.pdf.
6. SOLICITING OR INDECENT PUBLIC BEHAVIOUR BY A
SEX WORKER (Section 8): This section deals with soliciting clients in public places. It aims to control public solicitation for prostitution, contributing to the regulation of the trade and maintaining public order. Punishment: First offense: Up to 6 months imprisonment or a fine of ₹500. Subsequent offenses: Up to 1 year imprisonment.
7. PREVENTIVE ACTION AGAINST REPEAT OFFENDERS
(Section 18): A magistrate can order the eviction of brothel keepers or pimps from their area of operation. If a property is repeatedly used for prostitution, authorities can take action to seal or confiscate it. (ii)
THE INDIAN PENAL CODE (IPC, 1860)/ BHARATIYA
NYAYA SANHITA (BNS), 2023:
1. IPC- Section 372/ BNS- Section 98: Prohibits selling minors for prostitution. Anyone who
sells, lets to hire, or otherwise disposes of a minor (below 18 years) for prostitution or any unlawful or immoral purpose shall be punished with up to 10 years of imprisonment and a fine7.
2. IPC- Section 373/ BNS- Section 99: Prohibits buying minors for prostitution. The punishment
is the same as under Section 372.
3. IPC- Section 370/ BNS- Section 143: Criminalizes trafficking of persons for exploitation,
including sexual exploitation, forced labor, or slavery. It prescribes rigorous punishment ranging from 7 years to life imprisonment.
4. IPC- Section 366A/ BNS- Section- 96: Criminalizes procuring a minor girl (below 18 years)
for illicit intercourse. Punishable by up to 10 years in prison and a fine.
5. IPC- Section 366B/ BNS- Section- 141: Criminalizes importation of a girl below 21 years for
prostitution from a foreign country. Punishable by up to 10 years in prison and a fine.
7 Chayanika Pathak, legal status of prostitution, (last visited Jan., 31, 2025, 11:00 PM),
https://www.researchgate.net/publication/379898789_Legal_Status_of_Prostitution_in_India.
6. IPC- Section 375 & 376/ BNS- Section- 63 & 64: Define and penalize rape, including cases
where sexual exploitation occurs in the context of forced prostitution.
V. ROLE OF INDIAN CONSTITUTION
The Indian Constitution plays a significant role in shaping laws and policies related to prostitution in India. While prostitution itself is not explicitly mentioned in the Constitution, various constitutional provisions impact the legal status of sex work, the rights of sex workers, and measures to combat human trafficking and exploitation. Irrespective of gender, caste, religion, or social standing, it is imperative to note that the Indian Constitution unequivocally ensures the existence of specific legal provisions that steadfastly uphold the fundamental right to equality, freedom, and other such fundamental rights.
It is worth mentioning that the Constitution guarantees a range of rights, some of which are enumerated as follows8: Article 14: guarantees the right to legal equality ensuring that every individual has the right to be treated equally before the law and to lead a life without discrimination on any grounds. It grants each citizen equal opportunities. Article 15: guarantees that no citizen shall be subjected to discrimination based on gender, caste, race, religion, or place of birth. It explicitly prohibits the statistics from discriminating on these grounds. Article 21: safeguards the right to personal liberty and life, ensuring that no individual shall be deprived of these fundamental rights. Article 32: guarantees every citizen the right to seek intervention from the Supreme Court if they have been denied their rights.
Article 39(e) and (f): Protection from Exploitation: Article 39(e) directs the State to ensure that workers, particularly women and children, are not abused or forced into vocations unsuitable for their age and strength. Article 39(f) mandates the State to ensure that children and youth are protected against exploitation and moral degradation. This has been used as a basis for laws against child prostitution and human trafficking. Article 42: Just and Humane Conditions of Work: Encourages laws that ensure humane working conditions for all, including marginalized communities like sex workers. This supports 8 Akash Khan & Rajeshwari Singh, Legal aspects related to prostitution in India, blog. Ipleaders, (last visited Feb. , 01, 2025, 3:00 PM), https://blog. ipleaders. in/legal-aspects-related-to-prostitution-in-india/.
arguments for decriminalization and ensuring better working conditions for sex workers9.
VI. JUDGMENTS CONCERNING PROSTITUTION IN INDIA
(i) State of Uttar Pradesh vs Kaushalyaon, 1963: The Supreme Court upheld the law, stating that the state has the power to restrict the movement of individuals if their activities are considered harmful to public health and morals, as outlined in Article 15 of the Constitution of India10. (ii) Budhadev karmaskau vs. State of West Bengal, 201111: The Supreme Court ruled that sex workers should not be treated as criminals and emphasized their right to dignity and rehabilitation. Directed the government to create rehabilitation programs for sex workers. (iii) Gaurav Jain vs. Union of India and Others, 199712: The Supreme Court emphasized the need for social integration and rehabilitation of sex workers and their children. Stressed that the State must protect sex workers from exploitation. (iv) State of Karnataka vs. M.
R Hiremath13: The Karnataka High Court observed that prostitution is not illegal in India and that adults have the right to engage in consensual sexual activities for commercial sexual activities for commercial purposes. Also, the court highlighted the importance of regulating the sex trade to prevent exploitation and ensure the health and safety of sex workers.
VII. CONCLUSION
Prostitution is a complex social issue in India that intersects with poverty, gender inequality, human trafficking, legal ambiguity, and public health. From the abovestated facts, statements, case laws, research, and arguments it can clearly be said that if a major person indulges herself or himself in prostitution, it is not illegal. People should accept the laws, provisions, and judgments made by lawmakers regarding prostitution. Prostitutes or sex workers are entitled to equal dignity, respect, and opportunities. They must receive counseling and support whenever it is needed. Medical support should be given to them at their will. It is also held that sex workers
9 Vikash kumar, REGULATION OF PROSTITUTION IN INDIA- A CONSTITUTIONAL OBLIGATION OF
THE STATE, Indian journal of law, polity, and administration, (last visited Feb., 01, 2025, 7:00 PM), https://www.ijlpa.com/_files/ugd/006c7e_9dc9cb6d4e504f9cb1b9d084c5c84e05.pdf?index=true. 10 Vidhi Sharma, Prostitution- a legal review, Institute of legal education, (last visited Feb., 02, 2025, 11:00 AM), https://iledu.in/prostitution-a-legal-overview/.
11 Budhadev karmaskau vs. State of West Bengal, (2011) (11) S.C.C. 538 (India).
12 Gaurav Jain vs. Union of India and Others, (1997) (8) S.C.C. 114.
13 State of Karnataka vs. M.R Hiremath, (2019) (7) S.C.C 515 (India).
should be treated as victims rather than the accused whenever they register a complaint. In a country like India where people value their religions, customs, and ancestral beliefs, prostitution is still a big issue and is difficult to accept. Therefore, everybody should accept and respect every occupation equally without any bias. Curbing prostitution in India requires a multidimensional approach combining economic empowerment, education, community support, legal enforcement, and rehabilitation. By addressing root causes like poverty, lack of education, and trafficking, we can create a safer, more just society for vulnerable women and children.