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Is escort service legal

July 1, 2022

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This article is written by Prabha Dabral from IMS Unison University, Dehradun. This is an informative article that deals with the prostitution and escort service along with their legal status in India.

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

Sex work is considered the oldest occupation in India and even in the 21st century, it still remains taboo. In this country, a confused sense of morality runs high. The women involved in this profession are subjected to social discrimination and ostracism. The major reason behind this situation is that the law remains ambiguous about sex work and other activities related to it. This is why there is a huge misconception that prostitution is illegal in India. The prostitution service is considered immoral but it is actually legal. Only a few related activities like soliciting in a public place, kerb-crawling, owning or managing a brothel, prostitution in a hotel, child prostitution, pimping, and pandering, are considered illegal.

On the other hand, the escort services fall under the grey area between legal and illegal. This is because websites and agencies tend to hide between friendships to describe the service. Hence, the cops can not arrest them. One can say that escort services are not explicitly illegal in India. Providing a social or conversational service is not illegal, but taking payment for sex or communicating for arranging a contract for sexual services is.

The escort services had started in ancient times. During that time, the main name of this service was prostitution. But it is illegal if carried out as a local arrangement between parties. Hence, people came up with companies having escorts who can do it as a legal business. The main work of these escorts was to entertain people. This practice was very common in Asia. Only the wealthy people could afford these services and were fond of educated women as they had a high level of sophistication. There were many women interested in this activity and were called escorts.

What are escort services

An escort is a euphemistic term for a prostitute. They are referred to as a high-end sex worker who provides more than just sex. Technically, an escort is a companion who receives compensation for spending time with a client. Some escorts act like girlfriends or wives, etc., and accompany high-profile clients. They are trained and well-groomed so they easily adjust to the luxurious lifestyle. They are more educated also and are cultured enough to provide social escort services, engage in engaging conversation, and provide a girlfriend or boyfriend experience. Since they provide these extra services, they demand higher pay.

The compensation mentioned in this escort service is in the form of a donation. The client agrees to pay a donation for an agreed amount of time. In this arrangement, there is no mention of sex or any other sexual activity. It is just about the time spent with the client. It can be for a social event or a dinner date, etc. What happens between the two consenting adults during that time is between the two of them. As long as, money for sex or a particular sex act is not a part of the conversation, the arrangement purely refers to an escort service.

Escorts in this country are mostly struggling actors and models. People from the corporate sector or other sectors often join the escort profession for a limited period. This service provides them with a quick way to earn a lot of money. For a simple photoshoot, they may earn Rs. 2000 a day but an escort job approximately pays between Rs 20,000 to Rs. 40,000. “This business helps them sustain their lifestyle and buy clothes”, says one agency owner.

Escort agencies have now moved from print classified to online advertising. Other than websites, social media is now used to solicit clients. Earlier pictures of escorts were mailed to the client but today it is done through Whatsapp and the payment is also transferred online. These all are the activities included in an escort service.

Laws related to escort services

Sex work in India is primarily governed by the Immoral Traffic (Prevention) Act (ITPA), 1956. The Indian Penal Code (IPC), 1860, and The Juvenile Justice ( Care and Protection of Children) Act, 2015 also contain certain provisions that deal with prostitution and trafficking.

Indian law so far is mostly concerned with human trafficking and prostitution having a major focus on women and children. There still exists a lack of regulation of escort services. Under Indian law, prostitution from consenting sex workers is not illegal until and unless the remuneration is received in exchange for sex with consent and without prior solicitation.

There are some other provisions related to this profession. Section 2(f) of The Immoral Traffic (Prevention) Act, 1956 defines “prostitution”. It defines the term as sexual exploitation or misuse of any person for any business purpose. Section 372 and Section 373 of the Indian Penal Code, 1860 also deal with the provisions of prostitution but it is restricted to child prostitution only.

Some other sections like Section 366A, 366B, and 370A of the IPC deals with punishing for offenses of procreation of a minor girl, importation of a girl from a foreign country for sex, and exploitation of a trafficked person respectively. Thus under IPC, laws related to prostitution are quite limited.

The Constitution of India under Article 23(1) prohibits trafficking in human beings, beggars, and other similar forms of forced labour. Any contravention of this provision shall be an offence punishable as per the law under Article 23(2).

The need for regulation

Many schools of thought argue that sex work should be treated just like any other profession and should have the benefits that any other legal profession has. This is because just like any other profession, this profession also serves as the only source of income for some people.

There is a Delhi-based writer and photojournalist named Mayank Austen Soofi. He has written extensively about the brothels on the GB Road and has said that every sex worker he has met wants to be recognised legally because of the same reason. Nearly 7000 sex workers in Sonagachi i.e. Asia’s largest red-light district in Kolkata, admitted that they have no other means of survival. For some, being in the business of prostitution was the only source of their income. Some women have escaped from abusive marriages, rebuilt their homes, and single-handedly educated their children with the money that they earned from this profession.

Other than this, a lot more issues can be solved by making this profession legal.

Lalitha Kumaramangalam, who is the head of the National Commission for Women, argues that a regulated industry would help to stop forcible trafficking, improve hygiene among workers and clients and limit the spread of HIV and other diseases. Moreover, sex workers live in deplorable conditions and are often exploited by their pimps(men who control prostitutes and arrange clients for them, taking a percentage of their earnings in return). Very often, the sex workers are physically assaulted by their clients too. They are highly vulnerable to diseases from having unprotected sex. They don’t even have easy access to healthcare and hesitate to go to doctors or the police for fear of harassment. Making the profession legal would help prevent these exploitations.

To fight the hygiene issues, an NGO called Durbar made an effort in 1992 to unionise (make everyone act together) the sex workers of Sonagachi in Kolkata. The NGO brought all these sex workers together and empowered them to refuse sex without a condom. At present, all those sex workers at Sonagachi are a part of the union.

For escorts, selling their services on the anonymity of the internet can invite fraud too. As there is no telling who is buying services on the other end. They have to protect themselves when the law refuses it since an escort service is not a legal profession either. This can be proved by an incident that happened in Delhi. In the year 2016, the Delhi police rescued a 26-year-old aspiring escort who was being held captive for money. He was abducted by a group of 6 men who pretended to run a fake escort company. To avoid more of these incidents there is a need for laws protecting the people in this profession. The idea is neither to isolate these people nor to perceive them with pity. It is to straight-up give them the rights they deserve and enable them to protect themselves.

As per Article 21 of the Indian Constitution, the right to life is also applicable to prostitutes. In the case of Budhadev Karmaskar v. State of West Bengal (2011), this was explained clearly. It was held in this case that the sex workers are also human beings and no one has the right to assault or murder them. The judgment directed the Central and the State governments to open rehabilitation centres and impart technical and vocational skills so that these workers attain other means of livelihood.

Moreover, Section 21 was incorporated under the Immoral Traffic (Prevention) Act. The section gives the state governments power to establish and maintain protection homes that are to be regulated by licences issued by the government. Protection homes are for those prostitutes who have lost their livelihood or those who were being forced into this profession of prostitution but do not want that lifestyle.

How is escort service different from prostitution

Both escorts and prostitutes spend time with some person in exchange for money. It is their activities involved during the time spent together that determines whether a person is an escort or a prostitute.

Prostitution refers to the act of engaging in any sexual activity in exchange for anything of value from the client. In other words, it means offering to pay for sex with anything of value. On the other hand, escorting refers to paying someone for accompanying the client to an event or on a date. For example, escorting someone for a dinner date. Unlike prostitution, it does not necessarily include sex. Some prostitutes often disguise themselves as escorts to avoid getting in trouble. It is a very common practice and the police are aware of such practice. As in many countries other than India, prostitution is illegal but escort services are not. Hence, there are a few points that help distinguish an escort service from a prostitution service. They are as follows-

An escort, in most cases, accompanies their client to some social function or any other engagement whereas a prostitute does not attend functions with their client and does not leave the premises.
An escort may work under a contract for several days or even weeks whereas a prostitute is usually engaged for a shorter period.
Escorts sell their time. They give companionship and time to the client. There may or may not be any sex involved since that is not the purpose of the arrangement. On the other hand, a prostitute is hired only for sexual acts. A prostitute charges by the hour or by the specific sexual act.
Escorts are professionals. They need to be hired through escort agencies. Some escorts even have their websites. On the other hand, a prostitute can be hired from the street.
Escorts are usually socially adept, attractive, and presentable. They are a suitable companion for presenting to friends or colleagues. But this is not the case for prostitutes.
Escort service is legal in some countries as people are not getting paid for sex, whereas Prostitution is illegal. If someone is caught providing sex for money will be taken to jail and penalised.
Escorts are mostly considered part of the entertainment industry. They earn a huge amount of money and get the opportunity to enjoy a luxurious lifestyle. On the other hand, the workplace for prostitutes is a big concern as they give services in brothels that are usually unhygienic.

Are escort websites legal

Escorts are professionals and they need to be hired through agencies or their websites. It can be said that an escort agency is more like a virtual brothel or a brothel on the internet, where customers go to a particular website and book their escort.

The law is silent on what constitutes an escort website as said by The Supreme Court advocate, Pavan Duggal. He refers to the Information Technology Act, 2000 and mentions that if the escort websites use language which is obscene, lascivious, or appeals to prurient interests, then that website comes within the ambit of illegality.

There are certain acts in our legislation that list out the illegal activities done in this profession that are forbidden by the law. So, the websites that do not comply with the law are not considered legal. Some of the provisions are mentioned below-

The Indecent Representation of Women Act, 1986 prohibits the publication of any material that represents a woman indecently or derogatorily injuring the public morality or morals.
Section 67 of the Information Technology Act criminalises those publications that are lascivious or that appeal to prurient interests and are morally corrupting.
Section 8 of the Immoral Traffic (Prevention) Act, 1956 talks about the legal status of “soliciting in public”. It says that when a person solicits any person in a public place in a way offending the public decency, then that person is committing a criminal offence. If we look at the entire chain of events that take place in an escort service, one can comfortably argue that an escort indeed solicits their customers on the internet through their profile on the website. Here, the internet can be argued to be a public place or space.

If any of the websites offering escort services display such materials that are prohibited under these statutes, then they would violate the law.

Blocking escort websites

There is a Section under the IT Act that specifically deals with the blocking of websites i.e. Section 69 A. This Section authorises the government to issue blocking orders. There are even regulations that provide the details on the procedure to be followed while the government exercises its powers to block websites. These are mentioned in the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 or the Blocking Rules.

As per Rule 10 of the blocking rules, the government shall have the power to take action after it has received the certified copy of any order for blocking by a competent court.

In 2019, the Government of India banned a total of 240 websites that were offering escort services. It was done on the recommendation of an expert committee under the Ministry of Home Affairs. However, the industry criticised this move of the government and thought it to be directionless. It was said that the order had been issued without going into the essential technical details around it. Moreover, the website could again start working if the website slightly changes the name or the link. To control such activities, mobile numbers on the websites needed to be tracked.

Provisions of the Information Technology Act that come into play concerning websites providing escort services

Various laws regulate the working of websites. These laws are there to regulate the content of these websites so that peace and morality among the public can be maintained. This is important because the wrong content of a website can mislead the public, at large. There were lots of cases of cyber-attack which made a need for the lawmakers to bring a separate statute for cyber crimes. Hence, the Information Technology Act, of 2000 came into force to prevent cyber crimes against people.

Section 69A of the Information Technology Act, 2000

Section 69 of the IT Act empowers the Central or the state government to direct any agency to monitor, intercept or decrypt any information generated, received, or stored in any computer resource. Section 69A of the Act comes into play concerning websites providing escort services. This Section allows the government to deny public access to such websites or any apps which are found to be misleading and a threat to the national security of the nation. The intermediary who fails to comply with the direction issued by the government shall be punished with imprisonment for a term that may extend to 7 years and shall also be liable to a fine.

Section 79 of the Information Technology Act, 2000

This Section talks about the intermediary liability law which protects the service providers against any illegal activities of the user (i.e.third-party) on their platform. The Section also places certain obligations on intermediaries to remove or disable access to the information upon being notified by the government.

Conclusion

Prostitution is not explicitly illegal, though it is declared to be unethical by court. Only certain actions related to it are regarded as illegal in the eyes of law. For example, when prostitution is done in private with one’s consent and without prior solicitation it may at times not be illegal. But running a sex racquet is illegal. An escort on the other hand is not a criminal either. He/She has a right to give their body to anyone whoever they wish to please. Besides, an escort business usually involves accompanying the VIPs to important events. This arrangement may or may not end in sex.

These are the professions that are still frowned upon. The abolition of these professions is a difficult task to achieve since it is an ancient practice and has existed for too long. Clearly, it is because of the lack of enforcement of laws that these professions still exist. So, to combat this issue, the legalisation of this profession can be an option. At least, the state will require some responsibility and can issue licences to authorised persons. This can eradicate sex racquet operations and the frauds done by fake escort websites too.

FAQs

Can I be punished for simply contacting an escort agency?

No, a person contacting an escort agency can not be punished because no law criminalises such an act.

Are newspaper advertisements for providing escort services legal?

No, such an act is not legal because it constitutes solicitation and that is an offence under the law.

What is the punishment for child prostitution as per Indian law?

The IPC, 1860 penalizes child prostitution. It grants 10 years of imprisonment or a fine for a person convicted of buying or selling children for prostitution.

Is it legal to operate an escort website in India?

The answer is no. Operating a website will amount to solicitation which is an offence under the Prevention of Immoral Traffic Act, 1956.

What are the shortcomings of law related to escorts?

The laws related to escorts are not yet fully evolved. Moreover, no statute mentions the right of any sex worker.

Is hiring escorts without involving third parties legal in India?

As long as, there is no involvement of payment for sex or any communication done for arranging a contract for sexual service, hiring an escort is not illegal.

References

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