This article is written by Akash Khan and Rajeshwari Singh, from Amity Law School, Kolkata, and Ghanisht Bagaria, pursuing a Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho.com. The authors discuss the legal implications of Prositution in India.

Definition of prostitution

Prostitution is the practice or business where people takes part in sexual activity in exchange for money and a person who is engaged in this field is referred as a prostitute. Prostitution happens in an assortment of structures, and its lawful status changes from nation to nation and also from locale to area within a nation, extending from being an upheld or unenforced wrongdoing, to unregulated, to a directed profession. It is one part of the sex business, alongside pornography, or any other sexual entertainment. Brothels are foundations explicitly devoted to prostitution. The situation of prostitution and the law changes generally around the world, reflecting contrasting conclusions. Some view prostitution as a type of abuse of or savagery against women, and kids, that assists to a new crime of human trafficking.

Are men also working as sex workers

Earlier only females were seen as prostitutes and males were their clients but now in the 21st century male, female and transgender, all are working in this profession. According to the BBC report, the males as prostitutes in India are rising at a great pace. It also states that when there are no female clients they sell sex to the male clients.  Male prostitutes are called gigolo.

History of prostitution in India

As per the Indian history, the previous adaptations of prostitutes were known as “Devadasi” who used to contribute their entire life to the devotion of Lord Krishna. Some religious convictions resolve that the Devadasis consider the Gods as their husbands and in this manner can’t wed other human men. They were later called as “Nagarvadhu” or the “Brides of the town” and were called upon by the royals and the rich to dance and sing.

As indicated by the history specialists the Devadasi were treated with deference and respect by the Royal families before the British rule. No man, including the Kings and Mughals, set out to even touch them. But this came to an end after the British steps in the country. The Devadasis began performing their art in front of the British officers and this became the beginning of one night stands. The Britishers began calling these artists for sexual joys and this made ready for Prostitution in a nation like India. During the British guideline, the development of Devadasi into prostitution prompted the decrease of dances in the temple. As with the passing of time during the British rule the Indian economy depleted and most people were not able to achieve their basic livelihood. Women then started selling their bodies to the British people for exchange of money.

During the late sixteenth and seventeenth century, when certain places of India were a province under the Portuguese, Japanese women were caught and brought to India as sex slaves. Another case of the expanded utilization of women as sex labourers can be during the Company Rule in India. The military built up whorehouses for its soldiers across numerous pieces of India. Village women and girls were utilized by the brothels and were paid by the military legitimately.

Causes of prostitution

There exist numerous reasons which compels a woman to take up prostitution out of which poverty and unemployment are two major influential factors that causes women to engage in commercial sex. It has been seen that women of the remote areas fall prey to unscrupulous intermediaries who gives them assurance of decent job opportunities and then sells them as sex workers. The most fundamental reason which drives the needy and helpless women towards prostitution is poverty. It is accepted that among all the components answerable for prostitution, poverty is supposed to be the significant explanation that brings individuals into prostitution.

The increasing rate of poverty has driven numerous individuals especially the young people into the urban territories where they consider prostitution to be a brisk method of addressing their necessities and those of their families. Taking a gander at the idea of prostitution basically, one will comprehend that prostitution was not as inescapable in pre-modern times as it is today. The procedure of urbanization has prompted a significant move in the structure of our reality. Urbanization has prompted the development of free enterprise which has offered an ascend to the polarization of classes, aggravating the frequency of destitution, joblessness, crime and estrangement. This situation has prompted a more noteworthy pervasiveness in prostitution as a way people particularly females attempt to adapt with the grim economic realities. Also some women are led into sex-work due to unemployment. The lack of job opportunities had compelled women to desperately resort to illicit deals as a way of generating income.

Around 6 percent of the women entered prostitution after the occurrence of rape. And many a times the sexual assault survivors are victimized by the shame and stigma imposed on them by the society who blames these women for being raped. And in certain cases not only the society but their very own family members have denied to accept them. Aside from the deferral or the denial of justice, the casualties have to confront similar situations from time to time. And after the passage of a certain tenure when they find no roof for shelter in our society and when there exists no ray of hope for them, they discover their routes into the darkness of prostitution. Around 8 percent of the young ladies came to prostitution following the episodes of incest. The most well-known incest is among father and little girl, trailed by uncle-niece. And when these youthful casualty of incest being sexually exploited at their very home, do not anticipate safety in anyplace in the general public, gradually winds up in prostitution. Other than the above mentioned factors there are several other reasons that drive women to become a prostitute.

Is prostitution legalized in India?

There are three kinds of countries in terms of prostitution. 

• Where prostitution is not tolerated and it is illegal to carry out prostitution eg. Kenya, Morocco, Afghanistan, etc.
• Where prostitution is legal but it is legal with certain limitations and restrictions eg. India, Canada, France, etc..
• Where prostitution is legal and regularised with proper laws eg. New Zealand, Australia, Austria, Netherlands, etc.

One of the biggest question is whether prostitution is legal in India and if so is there any rights available to the prostitutes?

The answer to this question is in the dilemma of both “Yes” and “No”. As per the Indian context, prostitution is not explicitly illegal as it is not specifically expressed prostitution to be punishable by law but few activities related to prostitution such as running brothels, soliciting, trafficking and pimping are all punishable offence in India under THE IMMORAL TRAFFIC (PREVENTION) ACT, (1956). Just for example, if a person is engaged in an activity of pimping then he/she will be punished under law but if receiving money in exchange of sex with consent and without any prior imploration might not be illegal in India.

Prostitution related laws in India

As per Section 2(f) of The Immoral Trafficking Act (1956) gives the definition of “prostitution” as sexual exploitation or misuse of any persons for any business purpose.

Section 372 and 373 of the Indian Penal Code 1860 also deals with prostitution but it is restricted to child prostitution only.

Though under sections 366A, 366B, 370A of the IPC deals with punishing for offences of procreation of minor girl, importation of girl from foreign for sex and exploitation of a trafficked person respectively. Thus under IPC laws related to prostitution is quite limited.

Is there any right available for the protection of sex labourers?

As per our Indian Constitution, the fundamental rights are available to every citizens of India and therefore sex workers being also the citizens are entitled to enjoy the 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 is indulged in prostitution not for pleasure but of 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 the sex workers across the whole country.

If it is legal then why is it carried out secretly

The legislation which put restrictions on prostitution is The Immoral Traffic (Prevention) Act, 1956 (Act/ITPA). This law penalises certain acts related to prostitution. The important sections are discussed below.

• Section-3 of the act prescribes a punishment for keeping a brothel or allowing premises to be used as a brothel. ‘Brothel’ has been defined in section 2(a) of the act which states that it can be any house, room or place which is used for prostitution.
• Section-4 of the act penelises any person who is living on the earnings of prostitution. This section does not even exclude the family members.
• Section-5 of the act penalises the procuring, inducing or taking person for the sake of prostitution. This section targets the pimps, brothel owners and traffickers.
• Section-6 of the act penalises the people who detains a sex worker in the brothel or any premises where prostitution is carried on. This section specifically targets the middle men and the brothel owners.
• Section-7 of the act penalises the prostitution when it is carried out in or in the vicinity of public places. Public places include any densely populated area, hostel, public religious worship, educational institution, hospital, nursing home or any other place which is notified by Commissioner of police, Magistrate and the state government. Vicinity refers to as two hundred meters.
• Section-8 of the act penalises the sex worker for seducing or soliciting a person for purpose of prostitution. According to this section a sex worker cannot do any gestures to invite someone for the purpose of prostitution.

This section is discriminatory as it prescribes different punishment for the same offence to the man, as the punishment is half of what is prescribed for the female.

Indian Penal Code, 1860 deals with prostitution as well but it majorly deals with the kidnapping and child prostitution. It penalises the buying, selling and importing of minor for the purpose of prostitution under Section 372 and Section 373.

The Constitution of India prohibits trafficking in human beings, beggars and other similar forms of forced labor under Article 23(1) and any contravention of this provision shall be an offense punishable in accordance with the law under Article 23(2).

Prostitution or sex workers are not banned or punishable by this Act but surrounding activities are made punishable in this act. All the third parties involved in this profession are made punishable, making it difficult for the sex workers to carry out prostitution. In my opinion it is in direct violation of Article 19 and Article 14 of the Constitution of India as this Act purposefully makes it difficult for the sex workers to carry out their profession without the fear of being caught.

The ITPA instead of checking on immoral trafficking of humans seems to be more focussed on eliminating prostitution. Putting such laws has only made the life of sex workers difficult, vulnerable and dangerous. This is absolutely a wrong way of tackling this profession, instead of making their life easy, the government has done exactly the opposite. No country has been able to stop prostitution with legislations^[1].

For a moment just imagine a situation where a sex worker is looking for a client without such restricting laws. She can talk with the client in open without any fear of being caught by police. Here, the woman is safe and free to approach the police if something goes wrong, be it forceful act by the client or not paying the professional fees to her.

But now come to the reality where laws are restricting. Here, the system has instilled the fear of punishments in the clients by making such laws. The clients instead of meeting the sex-worker in an open or public place prefer to meet at a dark and alone place to avoid the police. It is very easy for the client to commit a crime in such circumstances. Now decide, which laws are better for the sex worker?

Punishable activities related to prostitution under the Immoral Traffic (Prevention) Act,1956

The Immoral Traffic(Prevention) Act, 1956 has stated the following acts to be illegal and imposes heavy penalties accordingly:

1. Anyone who keeps or manages, or assists in keeping or managing a brothel will be punished with imprisonment for a term not less than one year which can extend to three years and also a fine of up to two thousand rupees.
2. Any person who is living on the earnings of a prostitute shall be punished with an imprisonment which may extend to two years, or with a fine up to two thousand rupees, or both.
3. Any person who induces, procures or kidnaps a girl for prostitution shall be punished with imprisonment for a term not less than seven years which may extend to fourteen years and also with fine up to two thousand rupees.
4. Any person who is detaining girls in brothels shall be punished with rigorous imprisonment for a term not less than seven years which may extend to ten years.
5. If any person carries on prostitution within two hundred metres of any public place such as educational institution, hostel, hospital, temples, etc. shall be punishable with imprisonment for a term up to three months. If such offence committed is in respect of a minor, shall be punishable with imprisonment for a term of seven years which may extend to ten years.
6. Anyone soliciting for prostitution attracts a punishment of imprisonment for a term not more than six months, or fine of rupees five hundred on first conviction and in second conviction imprisonment can extend up to one year and a fine of rupees five hundred.
7. If any person causes or assist in seduction of a girl for prostitution under custody shall be punishable with imprisonment for a term not less than seven years which may increase to life imprisonment.

Is prostitution bad for society

Prostitution has a great history of existence in our society. There is no confirmed year when it started. It has existed from long as there has been demand of sex workers. There are people who are willing to pay for sexual activity and there are people who are willing to do sexual activity in return for money or some valuables. 

The world is divided in two different opinions regarding prostitution. There are many countries which have legalised prostitution, some countries have legalised it with some restrictions and others have criminaised it. Let’s discuss both the sides.

In favour of legalisation of prostitution.

• It will lead to better lives for sex workers.
• Sex workers will get labour rights.
• Sex workers will have the right to go to police station without any fear.
• Their trade will be regularised.
• They will have respect in society.
• The government will have the date to keep a check that no minor is involved in prostitutiton.
• There will be regular health checkups, so no more sexually transmitted diseases.
• There will be no more forced prostitution when government is keeping a tap on it.
• There will be a reduced number of cases of rapes and trafficking.
• Sex work will be considered as work.
• Taxes instead of bribes.
• Economic empowerment.

In favour of criminalization of prostitution.

• It will reduce trafficking.
• No more violent sex.
• No more male dominance over females.
• Reduction in minor sex workers.
• Low pay.
• No long term effects on the prostitutes.
• Decrease in STDs.

There are much more benefits of regularisation and legalisation of prostitution than not legalising it. It’s been ages that prostitution has existed and I don’t see it being eradicated or eliminated from the society. Our history and experience teaches us that it is going to stay no matter how strict laws are made.

So instead of fighting this profession we must come to the rescue of sex workers by making laws which are in favour of them. It will surely provide them with all the rights they need. 

They should have a right to do their work without any fear and restrictions. They should have a right to lead a healthy life. They should be given a voice by recognizing them through laws. They should have a right to form organisations like any other profession under labour laws. These rights can only be enjoyed by sex workers when all parts of prostitution are made legal.

Recently in West Bengal a sex worker was killed by her clients because she refused to do sexual intercourse. In another case, a sex worker was killed by her client because instead of three hundred rupees she demanded one thousand rupees. Central government is directly responsible for all this because it is the duty of the government to frame sensible laws for the sex workers and prostitution. It is high time to consider prostitution as work and sex workers be given equal rights under Article 14 of the constitution of India.

The supreme court in Budhadev Karmaskar vs State of West Bengal said that sex workers are also human beings and hence they are entitled to a life of dignity. It has been well-settled by a series of decisions of this Court that the word `life’ in Article 21 of the Constitution means a life of dignity and not just an animal life.

For and against legalizing prostitution in India

There exists some people in our society who believes that prostitution is an evil in itself while on the contrary there are people who express endorsement for its presence in the society. Therefore, it can be seen in either way. However something which cannot be debated is that in this field of prostitution there are sex workers who are being sexually tortured or become survivors of viciousness from their procurers and even customers. Thenceforth there’s no doubt that legalizing prostitution will safeguard women from exploitation and brutality. Dissimilar to illegal prostitution in which the sex workers may be compelled to do sexual intercourse without the use of condom or any other precaution and thereby decriminalizing it can permit the state to put an obligation on the part of the sex workers and its clients to make use of condom or any other form of protection as sex work is prone to several occupational health risks.

Also legalization of the prostitution will help the state in generating a set of rules and regulations in regard to the age limit of the prostitutes, requisite earning and necessary clinical facilities to the sex workers. And with the help of this the sex workers will be able to exercise some of their rights, for example, they will get an equal opportunity to educate their children, right to medical treatment, they will be entitled to protest against exploitation, violence, rape and so forth. It has also been seen that in a country like India which has immense population and limited job opportunities, there are some women who enters into the dark world of prostitution for the sake of their livelihood. Also lack of education and awareness is responsible for the rapid growth of this industry. Thereby licensing prostitution will help the state in giving the sex workers basic education and also necessary training which will help them in developing income-generation skills like weaving, sewing, knitting, painting etc. Another major help that will be served by legalizing it is that the government will be able to keep a track record of the number of sex workers in our country. So that the government can device new ways for the protection of the sex workers and welfare the society.

However earning made by selling the dignity and esteem of a woman is something that is not at all admirable. And if prostitution is made legal in Indian society then people will start viewing it as a profession and therefore more women will be motivated to engage in this industry as easy way to earn money. As a result it will cause the massive growth of this industry. A subsequent concern centres around the hazard that sanctioning prostitution will lead to the increase of human trafficking. In India more than 84 million people are poor and for their survival many times people sell their female child to the sexual predators in exchange of money. And with the decriminalization of prostitution more children will be forced to become sex workers. Also there will be a rapid increase in the number of scams.

How legalising prostitution will help sex workers and society

It is on us as responsible human beings on how to deal with prostitution. Are we going to accept it with open arms and mind or keep on living in denial? Many countries have chosen the latter and many countries have legalised it. The following is a list of benefits of legalization of prostitution.

• Improvement in condition of sex workers- We can clearly see that the countries which have legalised it has only helped in the improvement of the condition of sex workers. A study conducted in countries where prostitution is legalised has shown positive results, which shows that violence and spread of disease has reduced to a great level.
• Reduction in trafficking- The biggest concern of legalising prostitution is that it will lead to the increase in trafficking of human being. I would say the results will be contrary if prostitution is legalised without restrictions such as criminalising the third parties involved in it. The government needs to work actively with the community to ensure that there are no cases of trafficking related to the prostitutiton. Newland is a leading example which has achieved the target where there is no case of trafficking after legalizing the prostitution. 

There will be stronger network available to the government like sex workers, pimps, brothel owner, etc. to help the government. They all will work with the government and will never do any illegal work which will put them out of work or their license being cancelled.

• Empowerment of sex workers- Legalising prostitution will empower sex workers. They will get the courage to approach the police when their rights will be violated. On the contrary, what happens now when sex workers approaches the police station for filing complaints regarding the rape or for the client who does not pay their professional fees, police don’t take them seriously as they know prostitution is not a profession which is properly recognised and it is still a taboo in the society.
• Improvement in the health of sex workers- Legalisation of prostitution will help the sex-workers to lead a healthy life. Legalisation will help the sex worker to fight for her right to have safer sex only i.e. sex with condoms or any other protection. Legalisation will help sex worker to get tested regularly for her safety and for the safety of the client. This will help in reducing the STDs. Sex workers in Nevada go to testing of sexually transmitted dieases every month. Nevada also requires condoms for all sex in brothels.
• Taxes instead of bribes- Prostitution will be considered a work after its legalisation. It will be considered a profession where people work to earn their living just like any other profession. We all are aware of the bribe culture. To work sex workers need to pay bribe regularly. Dennis Hof says that “If a consumer has a choice between a legal place of business and an illegal criminal operation, he’s going to go to the legal place. That’s because he knows there’s no problems waiting to happen there.” It will generate revenues as well.
• Reduction in involvement of minors in prostitution- With legalisation, as trafficking will reduce so the involvement of minors. There will be a license of every sex worker which will help in maintaining the data with the government. No person will be allowed to work without a license and under a certain age. 
• Reduction in rape cases- There are various researches available which found that legalisation of prostituiton has a huge impact on the reduction of rapes cases. It reduces the rape cases to a great extent. In Rhodes Island, the rape cases reduced to the extent of 39 after the legalisation of prostitution.

Stephen Kastoryano says that “Empirical results show that opening a tippelzone in the Netherlands reduces sexual abuse and rape. These results are mainly driven by a 30–40 percent reduction in the first two years after opening the tippelzone. For tippelzones with a licensing system, we additionally find long-term decreases in sexual assault.”

• Right of Choice– The sex workers will get the right to select to whom he/she wants to provide the services. Like the advocates enjoy the liberty of choosing the case he/she wants to fight, in a similar way the sex worker will also get the right to chose the client. Now they get violent clients and they don’t have options and remedies due to restrictions.

Conclusion

In the end from the analysis it can be inferred that for an issue like prostitution, there exists no requirement for any specific cure, such as criminalizing, decriminalizing or sanctioning it. From the past research it is difficult to refute the fact that legalization of prostitution bears both negative as well as positive effects. Therefore just providing legal validity to prostitution will not be sufficient to resolve this problem rather than this a uniform law must be made for its administration in our country. As regulation of prostitution will help to safeguard the sex workers and their children from getting exploited. Not only this it will ensure protection of the health of the sex workers and the society at large. Thenceforth a set of rules and regulations should be established in order to regulate this industry.

References

1. Narayan, Sathya, R Feb 12, 2018, Prostitution: A Brief History [https://www.speakingtree.in/allslides/prostitution-a-brief-history/child-prostitution-in-india].
2. Lawyers Collective, R Apr 30, 2012, Budhadev Karmaskar v. State of West Bengal, Criminal Appeal No. 135 of 2010 in the Supreme Court of India[https://lawyerscollective.org/2012/04/30/170-budhadev-karmaskar-v-state-of-west-bengal-criminal-appeal-no-135-of-2010-in-the-supreme-court-of-india/].
3. The Immoral Traffic (Prevention) Act, 1956 indiankanoon.org. Retrieved 28 November 2015 [https://indiankanoon.org/doc/69064674/] Accessed May 15, 2020.

^[1] 64th law commission report

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/lawyerscommunity

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.