Is Prostitution Legal In India

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This article is written by Rhea Bazaz Legal content writer at Lawyers Troop

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Introduction

The term ‘prostitution’ means the act of engaging in sexual activities in return for an amount of money¹. It is a practice which has been around since the formation of society. However, what varies is the way it is looked at in different countries and how this practice has been carried out through the ages. One question which often comes up is whether prostitution is legal in India or not.

The answer to this question is not straightforward because while prostitution has not been mentioned as illegal in any statute, the attitude towards it is definitely like that towards an illegal activity, as far as the Indian society is concerned. In order to understand the legal position of prostitution in India, it is essential to look at its history and legal evolution over the years.

Prostitution has been referred to in the oldest works of Indian literature. In Hindu mythology, there are instances where celestial demigods have been referred to as what would today equate to high-class prostitutes. They have been described as having strong feminine charms and unsurpassed beauty.  They were supposed to be talented in dance and music and used to entertain guests in the court of Lord Indra, the king of Heaven. The Gods often used to send these apsaras to test the devotion and asceticism of the sages.

The Aryan rulers had a system of guest prostitution, where well-accomplished maidens were offered to kings as a token of friendship. There was also a set of girls who were selected and trained since infancy by being fed poisonous herbs and foods. There were the Vishkanyas or the poisonous virgins who were selected to destroy the enemies of the kings. The famous Arthashastra written by Kautilya laid down rules on how prostitutes should live their lives and it also had specific rules for those who sought the services of the prostitutes.

Vatsyayan, a renowned Indian sage of the 3^rd century BC classified prostitutes as public, private, common and clandestine and laid down rules for the trade to be carried out successfully in the eminent Kamasutra. The practice of sanctified prostitution has been mentioned in the Sanskrit texts written by Kalidasa in the 3^rd century AD.

Prostitutes started getting linked to the famous Mahakala temples in Ujjain, thereby starting the practice of holy or religious prostitution. These were the girls who had been offered by their parents to serve their God and religion. They are known as devadasi in South India and mukhies in North India, the former being a more common term. These girls were employed to dance during prayers and were accorded positions of honour.

They were considered to be married to the God and hence, were considered auspicious and were given the responsibility of maintaining the temples they were associated with². The patrons who used to financially sponsor them held a high status in society³.

The position of the devadasis suffered during the onset of Islamic rule in India. Since the Muslim rulers had gained a strong foothold over North India, they destroyed all the temples in the region.  This led to the devadasis to lose their livelihood and patronage since they depended on these temples. They had to resort to performing in private events and celebrations where they started getting exploited⁴.

While the devadasi system suffered, the system of prostitution was unhindered even during Mughal rule. With the exception of Aurangzeb, this profession flourished due to royal patronage. The words tawaif and mujra came to be used commonly in relation to prostitutes during this period. The prostitutes were well-versed in the performing arts, which raised the level of respect they commanded⁵.  

After colonization, the patrons who supported the devadasis were displaced by the British, who wanted to put an end to all customs and anglicize the Indian society⁶. Once the Mughal empire suffered its downfall, all the women who used to perform in the palaces were not trained for any other occupations and had to resort to sex trade. This led to their exploitation on a large scale.

Causes of Exploitation

• Poverty – Economic factors play the largest role in making women resort to flesh trade. The women who live in dire poverty and have no support system often have to enter this practice. In many cases, women have to sexually gratify their present or prospective employers in order to ensure job security. Female servants often have to face sexual advances by their employers and due to their position of abject poverty; they are unable to speak out. However, the concept of poverty is also relative. There have been cases where women from financially secure backgrounds have also gotten involved to maintain their lifestyles.
• Immoral Trafficking – Many women and young girls are abducted by trafficking gangs and mafia, especially from the poor areas and are trained in prostitution. Once the girls are mature, they are sold off as sex slaves.
• Illegitimate Motherhood – The women who get pregnant out of wedlock and are unable to get an abortion and are singled out and shunned by the society. They are looked at as women of easy virtue and are considered to be open for sexual advances. If these women are from poor backgrounds, they often have to turn to prostitution in order to support themselves in a hostile society.
• Vicinity to Red Light Areas – The children who grow up close to the brothels or immoral company end up thinking that these sorts of activities are normal. They often end up repeating the same cycle of abuse. The children of sex workers are often looked down upon and isolated by the society. Due to the lack of support, they often end up following their mother’s footsteps and the cycle continues⁷.

Legislations Which Are Often Applied to Prostitution

Article 23 of the Constitution of India guarantees the right of protection from exploitation to each and every citizen. The Indian Penal Code has various provisions which deal with sexual crimes against women and lay down the punishment for the same. The offences laid down are-

• Section 354 – Using criminal force to outrage the modesty of a woman.
• Section 366 – Abducting or inducing a woman to engage in a sexual act without her consent or taking her from one place to another for illicit sexual intercourse.
• Section 372 – Buying or selling or obtaining any girl under the age of 18 years for unlawful or immoral purposes.
• Section 376 – Provides for punishment for the act of rape

As mentioned above, while prostitution is not mentioned as an illegal act in any legislation, there are certain acts related to it which have been classified as unlawful. The Immoral Traffic (Prevention) Act of 1956 has defined prostitution as the sexual abuse or exploitation of a person for commercial activities⁸.

Under this Act, it is illegal to manage or assist a brothel or to detain girls in such brothels. The Act also prohibits pimping or taking away the earnings of a prostitute, seducing a person under custody for prostitution and kidnapping a girl for the purpose of prostitution. It is also illegal to carry out the act of prostitution within 200 meters from a public place like a school, college or a hospital.

This means that if a woman is consenting to an arrangement of providing sexual intercourse in exchange for a sum of money, it is not an illegal agreement. Practices like soliciting and pimping have been prohibited, perhaps to prevent the exploitation of such women and to ensure that this practice does not harm public morality.

An amendment to the Act was suggested in the year 2006. This amendment sought to decriminalize solicitation of clients and criminalize the act of customers visiting the brothel for sexual activities. It also aims to increase the fine and imprisonment term for other acts already deemed illegal. However, this proposal is yet to be implemented or considered⁹.

Judicial Decisions

The constitutionality of the Immoral Traffic Act was questioned in one case. In this particular matter, an order was passed to remove a number of prostitutes from a residential area in order to maintain decorum in that particular area in Kanpur.

Section 20 of the Act states that if a Magistrate receives information that a person living in or frequenting a locality within the local limits of his jurisdiction is carrying out prostitution, he can record this information and issue a show-cause to such a person. This section was alleged to be going against Article 14 of the Constitution of India.

The court held that this section was valid since the presence of a prostitute could have an impact on the morality and public order of the area. If the Magistrate goes out of his way to exercise undue influence over the prostitute, she has the option of applying for a remedy in the court. The restrictions here were held to be reasonable¹⁰.

In one case where a customer had murdered a sex worker, the Supreme Court held that Article 21 of the Constitution is available to a prostitute as well. In most cases, women are compelled to turn to this profession and the central and state governments must step in and provide basic vocational training to these women so that they don’t have to sell their bodies¹¹. The Apex Court has in the past also directed the Central government to form a Committee and frame a National Plan of Action for the rehabilitation of trafficked women and children¹².  

In one case, the Division Bench of the Bombay High Court issued guidelines that if a woman or child is found soliciting in public, then the Magistrate must first ascertain her age and if she is found to be below the age of 18, the case must be transferred to the Juvenile Justice Board if the child is in conflict with law or the Child Welfare Board if the child is in need of care and protection.

Such a juvenile should be released only after the Probation Officer has completed the inquiry. The juvenile should be handed over to the custody of the parent/ guardian only if the Child Welfare Committee finds them capable and fit to take on the responsibility. If the Child Welfare Committee doesn’t approve of the parent or guardian, the procedure given under the Juvenile Justice (Care and Protection of Children) Act, 2015 shall be followed to rehabilitate the child¹³.

In one case, the court refused the release of a woman trafficker, who had served 14 months in prison because she was the owner of a brothel in which a child was also detained. The offence of trafficking is a heinous one and the trafficker was bound to repeat the same and the court felt that the prosecution had not taken any steps to close the brothel or evict the offenders living there¹⁴. The Supreme Court issued guidelines for the advisory of committees at the Central and State level to curb the evil of child prostitution and to set up shelter homes for the victims of the same¹⁵. 

Suggestions

Despite the numerous guidelines issued by the courts as mentioned above, the ambiguity in the language of laws is what prevents them from being implemented. It is the society which looks down upon sex workers and considers it a dirty profession. In most cases, it is seen that the police is also unable to or rather unwilling to do anything about such cases due to the influence of the trafficking media and their own lack of sensitivity and awareness. 

One way to address the negative attitude towards prostitutes and their profession is to regulate the practice. The brothels should be allowed to function but with government supervision and regulation. Proper hygiene standards should be maintained and those who wish to seek such services must be made to submit details and identity proof.

The prostitutes must get direct control over their earnings, a certain amount of which would be taxed. If they get a chance to be independent and contribute to the workforce, this may help in changing the society’s thinking. If the profession is normalized, the exploitation against prostitutes would reduce and they would be able to live a life of dignity.

Conclusion

The practice of prostitution has gone a long way from being viewed with respect in the ancient times to now being viewed with judgment. Efforts have been made to restrict the practice and to protect against exploitation, however, they have not been effective because they do not directly grant any protection to the prostitute and the guidelines stated by the court to rehabilitate the victims are yet to be followed.

One way to ensure them a life of dignity is to remove the stigma around sexuality and encourage sex education in schools. After all, if the negativity around sexuality is removed, then using sex as a livelihood and seeking sexual satisfaction from outside would not be seen as condemnable actions.

Frequently Asked Questions:

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1. MERRIAM-WEBSTER DICTIONARY, https://www.merriam-webster.com/dictionary/prostitution
2. UNIVERSITY GRANTS COMMISSION, https://www.ugc.ac.in/mrp/paper/MRP-MAJOR-SOCI-2013-25158-PAPER.pdf
3. UCLA Women’s Law Journal, https://escholarship.org/uc/item/37z853br
4. Hyun Jin Lee, Temple Prostitutes: Devadasi Practice and Human Trafficking in India, 8 Regent J.Int’l L. 1 (2011)
5.  Supra note 2
6. Nash Colundalur, Devadasis are a Cursed Community, THE GUARDIAN, (January 20, 2011), http://www.theguardian.com/lifeandstyle/2011/jan/21/devadasi-india-sex-work-religion.
7. Haveripeth Prakash, Prostitution and its Impact on Society- A Criminological Perspective, Int. Res. J. Social Sci. ISSN 2319–3565 (2013)
8. The Immoral Traffic (Prevention) Act, Act No. 104, Acts of Parliament, 1956, (India)
9. Prachi Darji, Prostitution in India, MY ADVO, (September 12, 2019), https://www.myadvo.in/blog/prostitution-in-india-read-its-causes-legality-and-law/
10. State of Uttar Pradesh v. Kaushaliya, 1964 AIR 416, (India)
11.  Budhadev Karmaskar v. State of West Bengal, (2011) 10 SCC 283, (India)
12. Gaurav Jain v. Union of India, AIR 1997 SC 3021, (Ind
13. Prerana v. State of Maharashtra, 2003 BomCR Cri (2003), (India)
14. Geeta Kancha Tamang v. State of Maharashtra, Appeal No. 858 of 2009, (India)
15. Vishaljeet v. Union of India, 1990 AIR 1412, (India)