This article on ‘Laws Related to Prostitution in India’ was written by Swaroopa Royadu, an intern at Legal Upanishad.
Some say prostitution is unethical, but for some people, prostitution is the only source of income. Some say prostitution is immoral, but we still see thousands of customers for this service. This Article discusses prostitution, its history, reasons why prostitution is still prevailing, the legality of prostitution in India, and many other aspects relating to prostitution.
Prostitution is a sexual service rendered by a person for monetary benefits. In other words, it is an activity where a sexual act is conducted in return for a certain amount or fees. According to section 2(f). of The Immoral Trafficking Act, 1956 “Prostitution is sexual exploitation or misuse of any person for any business purpose’’
HOW OLD IS THE PROSTITUTION PROFESSION:
Prostitution in India has evolved in different forms. Earlier, the prostitution version was in the form of Devadasi. This practice originated during the early medieval period. In this practice, the girl child was devoted to the god in the name of performing the god’s duty. She was regarded as a servant of God. The 16th century was the beginning period of Tawaif. Tawaifs were the women who were well-trained dancers and singers. During the Mughal period, it became the culture of the court to have Tawaifs for the purpose of entertainment. Having Tawaifs in the court was considered a symbol of the wealthy kingdom in those days.
Both Devdasi and Tawaif enjoyed a respectable position in society along with learning art like music and dance. It was with the advent of British rule, the tawaif lost their value as they were invited for sexual pleasure, it was during this period women were used as sex slaves. Separate areas were formed for such sex workers. Later such areas were developed in different parts of the country. When the British left India these Tawaifs or sex workers lost their royal treatment and the area they stayed in were called red light areas or brothels.
REASONS WHY PROSTITUTION STILL EXISTS IN SOCIETY:
We may often think, Why prostitution didn’t end with British rule? Why does prostitution still exist despite losing its royal value and social respect as it had in ancient India? The answer is because of Poverty, illiteracy, lack of knowledge and skills to do other work, kidnapping and selling minors for money, pressure from family members, and Biological factors.
LEGISLATION GOVERNING PROSTITUTION IN INDIA:
By considering the problems of prostitutes and by analyzing the reasons for the continuation of prostitution various laws and Acts have been enacted. Legislation governing sex work or prostitution are:
- The Immoral Traffic (Prevention) Act, 1956: – This Act was enacted not to remove prostitution, but to punish the one who is sexually exploiting women and abusing them for commercial profits.
- Article 23(1), of the Indian Constitution: – The provision prohibits human trafficking and other such forced labor activities as punishable under law
- Indian Penal Code, 1860 section 372 and section 373: – Buying or selling of a minor girl for the purpose of prostitution is punishable.
LEGALITY OF PROSTITUTION IN INDIA AND OTHER COUNTRIES:
The perspective of every Country on prostitution is very different. The Netherlands, Austria, Germany, etc are a few countries where prostitution is Legal. Countries like China, Iran, Iraq, Afghanistan, etc made prostitution illegal. In Countries like India, U.K, France, Japan, etc prostitution is not totally banned but, is carried out with some legal restrictions.
In India, the provision relating to sex work are clearly mentioned in “The Immoral Traffic (Prevention) Act, 1956”. The Act protects sex workers and lays down grounds or circumstances where prostitution becomes punishable. Some activities which are punishable under this Act are:
- Keeping, managing, or assisting brothels. [A brothel is a place where prostitution activities are carried]
- People who live life on the earning of prostitution.
- Procuring, inducing, or kidnapping a minor girl for the purpose of prostitution.
- Carrying a Prostitution activity near public places such as hospitals, temples, schools, etc. is prohibited and punishable.
- Solicitation or seduction of a woman or girl also attracts the punishment.
- Detaining a girl in the brothel is punishable by rigorous imprisonment.
CASE LAW: BHDHADEV KARMASKAR V/S STATE OF WEST BENGAL:
In the year 2011, the above-mentioned case was bought before the Supreme Court as an appeal.
Facts of the case: Karmaskar, in the year 1999(September) attacked and killed sex workers in Calcutta city. The trial court convicted him under section 302 of the Indian Penal Code. In an appeal, the Calcutta High Court upheld the decision of the Trial Court. In the year 2011, the supreme court also rejected the appeal against the conviction of Karmaskar. In this case, the Supreme court passed directions to the state and central government to rehabilitate prostitutes in the Country.
Supreme court made a recent order to this case on 19th May 2022:
- The Supreme court holds prostitution as a profession equal to any other profession in the country.
- Like all other citizens, sex workers are eligible for equal status and equal protection under the law of the country.
- The right to live with dignity is a right that applies to sex workers too.
- Police cannot harass or arrest sex workers unreasonably.
- Children of sex workers cannot be separated from their mothers. One cannot assume children of sex workers are trafficked.
ANALYSING THE LEGAL PROVISIONS OF PROSTITUTION:
- Benefit for sex workers: Any work which has a legal backup is always eligible for remedies. Prostitution being recognized as a profession by the supreme court protects prostitutes with legal remedies. The safety and consent of the sex workers play a vital role. The acts of rape, murder, and forceful activities will be minimized. A person who does not possess any other skill can earn a living from the income earned through prostitution. Legalizing prostitution helps sex workers to get police protection when they are in danger.
- The downside of the life of sex workers: sex workers or their children may not get the social status the others enjoy. Legalizing prostitution may make the sex workers show their identity which may make their morale down.
- Impact on Society: Society still feels it difficult to accept prostitution as a dignified profession. Only the poor, unskilled or helpless person may prefer this profession. Section 7 of the Immoral Traffic (Prevention)Act, of 1956 is about not conducting the activity of prostitution near public places such as temples, educational institutions, etc. this indicates prostitution is not a socially acceptable profession.
Prostitution is one of the oldest professions not only in India but all over the world. Though the practice of prostitution style has changed from time to time, the need for the same has not vanished. From being ill-treating sex workers to getting legal status as professional work is a remarkable journey. Though the court has given sex workers a right to lead a dignified life, in reality accepting the same by society is quite a difficult task in our country.
- Factstar. “History of prostitution in India” Retrieved: https://www.youtube.com/watch?v=R4FOG1a9wTg
- Y. Ramachandra Reddy and R.M.Srldevi(26/ December/2018) “ The original and Historical development of Devdasi system in India’’– Retrieved: https://www.allresearchjournal.com/archives/2019/vol5issue1/PartB/5-1-11-352.pdf
- Akash Khan and Rajeswari Singh. (22/May/2020) “Legal aspects relating to prostitution in India” – Retrieved: https://blog.ipleaders.in/legal-aspects-related-to-prostitution-in-india/
- Varsha Nair. (25/June/22). “Implication of the recent Supreme Court order on sex work” -Retrieved: https://clpr.org.in/blog/implications-of-the-recent-supreme-court-order-on-sex-work/
- Pritam Saha. (27/May/22). “sex work legal, SC gives historic Judgment on prostitution” – Retrieved: https://zeenews.india.com/india/sex-work-legal-supreme-court-gives-historic-judgement-on-prostitution-2467824.html