Prostitution in India
Author: Vaishnavi Dandotikar, ICFAI Law School, Hyderabad
In its recent judgement on the issue, the High Court of Bombay in the case of State of Maharashtra vs A.M. Saraogi and anr., opined,
“There is no provision under the law which makes prostitution per se a criminal offence or punishes a person because he indulges in prostitution. What is punishable under the Act is sexual exploitation or abuse of a person for commercial purposes and to earn the bread thereby, except where a person is carrying on prostitution in a public place…”
The High Court’s analysis of the present legislations leads us to a conclusion that when a person who is over the age of 18 consensually partakes in the practice of sex work to earn a living, such a person cannot be punished by any legislation in force, for there are none unless they do so in a public space or are forcing someone into the activity.
Historical Overview –
Sex work was a respected profession during the pre-colonial era. The women enjoyed positions of power and enabled the formulation of key government policies. Their position in society has become so wretched now that the Supreme Court had to direct the State Governments to provide these women with financial aid to help get them by. How have things come to this?
Their downfall can be said to have started with the fall of the Mughal Empire. Following which the Tawaifs were forced out onto the streets and with no other way to earn money, they started indulging in this activity.
It was through the Contagious Diseases Act 1886 that the colonial government tried to legalize prostitution. The main aim behind this move was to provide British soldiers in India with a safe space to relieve their needs and to curb the spread of sexually transmitted diseases among the troops. When Britain was hit by a movement to criminalize prostitution for the people there perceived it to be immoral, the same was done in India. Anyone who indulged in the activity of sex work was accused of tarnishing the countries honour.
Due to this, the sex workers and their issues were pushed into the shadows. This empowered the authorities to treat them as outcasts and the same became a part of the popular discourse.
Current Laws –
When India was finally granted freedom from its colonial masters, the Government of India legislated the Immoral Traffic (Prevention) Act, 1956. The Act was in accordance with the international Convention that was signed in New York in 1950. The main aim of the Act was to prevent women and children from being trafficked and their selling into sexual slavery. The Act while not criminalizing the practice of prostitution in itself, does punish the third parties such as the pimps or the brothel owners, or the middle persons who enable the sex workers in going about their job. The Act under section 4 states that anyone who benefits from the activities of a prostitute shall be punished with imprisonment and or a fine.
According to section 3 of the Act, anyone who runs a brothel or allows their property to be used as a brothel shall be punished with imprisonment of not less than two years and not more than three years along with a fine which shall not be less than ten thousand rupees. The Act also punishes those who hire sex workers with imprisonment and fine.
From the provisions of the Act, it is pretty clear that even if the act of providing sex in exchange for money isn’t punishable, those who indulge in it are persecuted. This disables the sex workers from coming out in the open to report any crimes which were committed in the course of business. It also restricts their access to government policies and healthcare facilities due to the ever-present fear of persecution.
The Constitution of India under article 23, prohibits the traffic of human beings. Clause one of the article states,
“Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law”
In the IPC, sections 372 and 373 criminalize the buying and selling of, minors for the purpose of prostitution. Section 372 states that anyone who attempts to sell, hire, or dispose of a minor into sex work, shall be punishable with imprisonment up to ten years along with a fine. Section 373 states that anyone who buys, hires or gains access to minors for the purpose of sex work, shall be punished with shall be punishable with imprisonment up to ten years along with a fine.
All these legislations aim to protect those who have been forced into sexual slavery. They aim to provide people with a medium using which they can demand justice. Combined with the present societal outlook on prostitution, these laws act as a deterrent force for legalized sex work. They discourage sex workers from actively peddling their occupation and denies them access to mainstream society. This only furthers their already poor conditions.
Recent Judgements –
In its recent judgement, the High Court of Bombay had ruled that –
- Consenting adults over the age of 18 are free to partake in sex work. They have the right of choosing their occupation under article 19 of the Constitution.
- The court had clarified that no statue in force expressly criminalises prostitution. There are several provisions which ensure that no one is forced to do it. The occupation in itself is not criminalised.
- It was made clear that unless the court can justify with a proper reason, women who are arrested on the charge of prostitution cannot be forced to live in a court-appointed home for more than three weeks.
- If the court decides to detain a woman for more than one year and less than three years, they need to constitute a committee of five members who will look into the matter.
In the case of Manoj Shaw vs State of West Bengal, the High Court of West Bengal had opined that no sex worker who has been commercially exploited, shall be treated as an accused under the Immoral Traffic (Prevention) Act unless there is substantial proof to support that the sex worker was involved as well.
In the case of Budhadev Karmakar, the Honourable Court had directed the State Governments to provide sex workers with ration and other necessary items. This is so that they aren’t forced out onto the streets in this time of crisis.
From the recent judgments, one thing has been made clear. The courts want to promote the right to choice of occupation as listed under article 19 of the Constitution. For far too long, we have conformed to the western way of thinking. Our rich history and culture are proof enough to show that when people are given the right support at the right time, society will excel. If the sex workers are recognized by the law and the Government formulates well-thought policies for their protection, the cases of being forced into it are bound to go down. People will also feel more confident in reporting any crimes which were committed during the course of business. This will only enable us as a society to move forward. To sum it down, sex work is neither immoral nor is it a criminal offense.
- Dr. Tulsing Sonwani, “Prostitution in Indian Society: Issues, Trends and Rehabiliation,” Banaras Hindu University, available at https://www.ugc.ac.in/mrp/paper/MRP-MAJOR-SOCI-2013-25158-PAPER.pdf.
- Ratnabali Chatterjee, “The Indian Prostitute as a Colonial Subject,” 13 Canadian Woman Studies 51-55, available at https://core.ac.uk/download/pdf/230905109.pdf.
- The Immoral Traffic (Prevention) Act 1956, § 3,4.
- The Constitution of India, articles 19, 23.