Is Prostitution Legal in India?

“Why is it immoral to be paid for an act that is perfectly legal if done for free?”

• Gloria Allred

The Latin term prostituere, which means to expose publicly, is where the word "prostitution" originates. Prostitution is the practice of providing sexual services in exchange for payment. Prostitution, like other male-on-female acts of violence, is a problem that is primarily a problem for women because most of the victims are female.

To claim that men are not victims of sexual exploitation and violence would be a little naive, though. Moreover, when we highlight the flaws in India's prostitution system, the transgender minority frequently remains overlooked. The majority of the billions of dollars made by prostitution in India and around the world comes from exploiting those who are weak on the social and economic front. 

Is Prostitution legal in India?

Prostitution is considered as a legal profession in India according to the latest judgment passed in 2022 by a three-judge bench of the Supreme Court. The three-judge bench of Justices was L Nageswara Rao, BR Gavai, and AS Bopanna. The SC said that sex workers are entitled to dignity and equal protection under the law. Prostitution is not explicitly illegal in India. For instance, it may not be illegal to engage in private prostitution or receive payment for sex performed on a consenting adult without first being approached.

However, according to the Immoral Traffic (Prevention) Act, 1956 (ITPA) certain actions that facilitate prostitution are explicitly illegal. These actions include managing a brothel, living off the money earned through prostitution, soliciting or luring a person into prostitution, trafficking children and women for prostitution, etc.

Laws Related to Prostitution

The ITPA defines "prostitution" as the sexual exploitation or abuse of a female for financial gain, and the individual who benefits from this practice is referred to as a "prostitute." Although it only addresses juvenile prostitution, the Indian Penal Code of 1860 addresses prostitution in general. However, it makes an effort to stop crimes like importing a foreign lady for sex and kidnapping for seduction and coercion, among other things.

Additionally, beggars and other similar forms of forced labor are prohibited by Article 23(1) of the Constitution. Any violation of this clause, according to Article 23(2), is an offense subject to legal sanctions.

Main provisions of the Immoral Traffic (Prevention) Act, 1956

The Immoral Traffic (Prevention) Act, 1956 is the law that governs prostitution in India. The State of Uttar Pradesh v. Kaushalya lawsuit contested the legality of this Act. In this instance, it was necessary to evict several prostitutes from their homes to uphold order in the city of Kanpur. The defendants' basic rights under Article 14 and clauses (d) and (e) of Article 19(1) of the Constitution were curtailed, according to the High Court of Judicature in Allahabad. Due to the clear distinction between a prostitute and a person producing a nuisance, the Act was found to be constitutionally valid. The Act is also in line to uphold social order and decency, which is what is intended to be accomplished.

This Act aims to eradicate prostitution among women and girls while attaining a public goal, namely the rescue of the lost women and girls, the eradication of prostitution, and the provision of all opportunities to these lost victims for them to become respectable members of society. This law aims to make the aforementioned behaviors that constitute prostitution illegal and gives police the power to arrest offenders, shut down brothels, and transport them to facilities where they may undergo rehabilitation. It enables the Central Government to set up a Special Court to adjudicate cases involving offenses against this Act.

Laws for the Protection of Sex Workers and their rights

A prostitute is likewise entitled to the protections of Article 21 right to life. In the case of Budhadev Karmaskar v. State of West Bengal, this was explained. It was argued that because sex workers have the right to live, no one has the right to attack or kill them. The judgment also brought attention to the plight of sex workers and expressed sympathy for the fact that these women are forced to engage in prostitution not out of passion but rather due to extreme poverty. It also ordered the Central Government and State Governments to open rehabilitation centers and to provide technical and vocational training, such as sewing, to help these women find alternative sources of income.

Section 21 of the Immoral Traffic (Prevention) Act has been included as a rule for the State Governments to build and maintain protective houses, and they should be governed by licenses issued by them. This is done following the directive. To investigate the licensing application for the protection homes, the proper authorities should be chosen. These licenses are only good for the period mentioned and are not transferable. Under Section 23 of the Act, the Government has the authority to adopt ancillary rules regarding the licensing, management, and upkeep of protection houses, as well as other ancillary matters.

What are the laws to prevent forced prostitution?

Young toddlers or teenagers who are forced into prostitution do so for a variety of reasons. The Indian Penal Code, 1860 makes child prostitution illegal, including the purchase and selling of minors for prostitution. Selling a minor for prostitution is punishable by at least ten years in jail under Section 372 of the Code. Purchasing a juvenile for prostitution is punishable by ten years in jail under Section 373 of the Code. These parts' explanations exclusively mention the trade of young girls, not boys.

What are the illegal activities related to prostitution?

The Immoral Traffic (Prevention) Act of 1956 declares several behaviors to be forbidden. The solicitation of prostitution, running a brothel or allowing the use of certain locations as brothels, living off the earnings of a prostitute, coercing or kidnapping girls for prostitution, holding girls in brothels, seducing someone in custody for prostitution, and engaging in prostitution within 200 meters of any public location, such as a school, college, temple, hospital, etc., are examples of these acts.

Punishment and penalties for indulging in illegal activities

Even after a first conviction, the aforementioned actions carry severe punishments like lengthy imprisonment. The minimum penalty for operating a brothel is imprisonment for not less than one year nor more than three years, as well as a fine that may reach 2,000 rupees. The crime of obtaining a girl kid for prostitution carries a strict jail sentence of at least seven years and up to life. According to the unamended Act, the first conviction for seducing or soliciting prostitution carries a penalty of six months in jail or a fine of Rs. 500, and the second conviction carries a penalty of up to one year in jail or with a fine of Rs. 500. In addition, the Indian Penal Code's Section 370 imposes a five- to seven-year prison sentence on offenders who take advantage of a kid who has been trafficked.

Supreme Court Recognizes Prostitution as a Profession 

The Supreme Court of India recently stated that police harassment of sex workers is inappropriate since "sex work is a profession" like any other.

The Court ruled, “Sex workers are entitled to equal protection of the law. Criminal law must apply equally in all cases, based on ‘age’ and ‘consent.’ When it is clear that the sex worker is an adult and is participating with consent, the police must refrain from interfering or taking any criminal action.” 

The court's decision is significant because it upholds the worth of sex workers. It will make it possible for sex workers to utilize the same services and advantages as other citizens.

It should be noted that while prostitution and sex work are both permitted in India, trafficking for sexual exploitation is against the law. The Indian Penal Code (IPC) and the Immoral Trafficking Prevention Act (ITPA) both have penalties for sex work as an organized trade, which includes pimping, soliciting, exploitation, and renting out premises for sex work. 

Since there was a lot of publicity surrounding the most recent court decision, campaigners who fight to traffic against sexual exploitation have made it clear that the decision does not sanction the "flesh trade" in brothels. It is intended to safeguard sex workers (prostitutes), not those who benefit financially from the sex industry, such as brothel owners and traffickers, who may face legal action.

According to Justice L. Nageswara Rao's three-judge panel, Article 21 of the Indian Constitution guarantees all citizens the right to a life of dignity. This includes sex workers. 

What changes with the Supreme Court Order?

The Supreme Court's ruling limits police measures against sex workers and equalizes sex workers, their children, and other citizens.

According to the SC ruling, consenting adult sex acts and the sheer fact that sex workers are present in a brothel do not call for an arrest or police intervention. This is crucial since the police have a history of intimidating sex workers.

According to the ISHR article, the law exposes sex workers who reside in Red Light Districts to police action who, while enforcing anti-trafficking laws, frequently overstep their bounds by taking action against sex workers and their clients who are engaged in consensual and private sex work. Following SC standards, this would need to halt.

The SC further noted that when a sex worker filed a complaint, it would be handled just like any other complaint, and she would not be considered an offender but rather a complainant.

"Any sex worker who is a victim of sexual assault should be provided with all facilities available to a survivor of sexual assault, including immediate medical assistance," The SC stated.

This support will be following Union Health Ministry guidelines and protocols for survivors and victims of sexual violence as well as Section 357C of the Code of Criminal Procedure.

"Needless to say, this basic protection of human decency and dignity extends to sex workers and their children, who, bearing the brunt of social stigma attached to their work, are removed to the fringes of society, deprived of their right to live with dignity and opportunities to provide the same to their children," The apex court stated noting issues faced by sex workers. 

The SC order forbids the separation of children of sex workers by force as well. "Further, if a minor is found living in a brothel or with sex workers, it should not be presumed that he/she has been trafficked. In case the sex worker claims that he/she is her son/daughter, tests can be done to determine if the claim is correct and if so, the minor should not be forcibly separated," The order stated.

About The Author:

Adv. Siddhanth Deshpande is an accomplished legal professional with a strong background in criminal and civil law. In his 8 years legal career, he has practiced in several courts in Mumbai and Pune, including the Hon'ble High Court at Bombay, city, civil and sessions courts, as well as district and family courts in Greater Mumbai, Pune, Kolhapur, Ahmednagar, and beyond. Siddhanth handles a wide range of legal matters, from criminal and civil cases to family law and election matters. Siddhanth is dedicated to providing comprehensive legal representation to his clients, ensuring access to justice across Maharashtra.