Indian Journal of Law and Legal Research Volume III Issue II | ISSN: 2582-8878

PROSTITUTION IN INDIA: A SOCIOLEGAL PERSPECTIVE

Harsh Gunjay, Maharaja Agrasen Institute of Management Studies, Affiliated to GGSIPU

ABSTRACT

The article aims to discuss about the contemporary scenario of prostitution

in India from a legal and social perspective. Prostitution, its legalities, and
the ordeals of sex workers are rarely talked about topics. In this article, we
have dealt with the brief history of prostitution in India, the social and
economic situation of sex workers, the plight of sex workers in the pandemic,
the legislations that govern prostitution, and lacunae that the legislation fails
to address. This article briefly discusses the important sections and
provisions of the law that regulates prostitution in India. It ends on a
suggestive note, addressing the need of the hour and discussing where
legislation fails to meet the ground reality.

Keywords: Prostitution, legislation, Immoral Trafficking (Prevention) Act, Sex

workers, penalize, society

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INTRODUCTION

Prostitution and prostitutes, two words that seldom find space conversations of civil society.
Prostitution is generally defined as the business of having sex in exchange for money1, the trade
of prostitution is known to be existing for ages and will probably exist till society continues,
however prostitutes themselves are rarely a part of civil society. Prostitutes are often termed
with degrading terms and are considered incapable of fitting into the community. Although
ostracized and neglected socially, the trade is still booming, according to estimates, the
prostitution industry is valued as large as 8.4billon dollars in India alone 2 . Currently
unregulated and borderline illegal, one can only guess how much revenue it will generate if
regulated and taxed, regulation will also safeguard the rights and interests of sex workers.

However, India is gradually proceeding towards the betterment of sex workers, it can be seen
in the recent judgement of the Supreme Court dated 15 Dec 2021, while hearing the application
of Durbar Mahila Samanwaya Committee, the court directed the states and union territories to
comply with the decree, of providing ration and adhar cards to sex workers, that was passed a
decade ago3. ‘Supreme court has once again directed the states to comply with the decree of
proving basic amenities to sex workers’, this statement in itself speaks volumes about the
neglect and disregard that sex workers have been subjected to. India as a society needs a
substantial moral and social ‘rewiring’ for it to accept, let alone respect prostitutes.

Being an unregulated but thriving industry (before pandemic), the trade of prostitution has been
accompanied by human trafficking, the practice of forcing unwilling women and even children
into prostitution has been prevalent for decades. Regulation and licensing of brothels can help
fight human trafficking too, as the administration can keep a record of every new woman
entering into trade thus making it borderline impossible for traffickers to force unwilling
women and minors into prostitution. According to estimates, between 12000 to 50000 women

1
Prostitution definition and meaning | Collins English Dictionary,
[Link] (last visited Dec 17, 2021).
2
Prostitution Revenue By Country – Havocscope, , [Link]
(last visited Dec 17, 2021).
3
’Right To Dignity A Fundamental Right’ : Supreme Court Directs Issuance Of Ration Cards, Voter IDs To Sex
Workers, , [Link]
ids187770?infinitescroll=1 (last visited Dec 17, 2021).

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and children are trafficked from different states and neighboring countries every year as part
of the sex trade4. It is unfathomable to imagine the sorrow and pain of the trafficked individuals,

subjected to sexual gratification of strangers every day for the sake of survival.

HISTORY AND CONTEMPORARY SCENARIO OF PROSTITUTION OF INDIA

Prostitution is an age-old business practiced across the globe. Documented instances of early
versions of prostitution can be traced in ancient India, where mentioning of “nagarvadhu” is
found, according to historians “nagarvadhus” were considered pious and were not a subject to
the trade of flesh and pleasure. It was in fact during the Mughal era the concept of “tawaif” was
introduced5, tawaif(s) were trained artists in dance and singing, serving as entertainment to the
royal court by the day and subject to the sexual gratification of royals by night. Another practice
of prostitution is found in the 16th-century Portuguese colony of Goa, being a seaport, Goa was
a prominent trade station, during the late 16th and early 17th century, young Japanese women
were trafficked as sex slaves to Goa6.

Legally regulated brothels were first established during the Company rule in India, British
military established and regulated several brothels across the subcontinent for its soldiers.
Under Cantonment Act of 1864, the British administration established licensed brothels for its
troops. Such brothels were to be used only by soldiers and the prostitutes were directly paid by
the British administration 7 . This was arguably the first and possibly the last practice of a
licensed brothel in India.

The late 19th and early 20th centuries saw a spike in human trafficking for sexual gratification,
several brothels and designated ‘red light’ areas emerged and the business of prostitution
bloomed8 . Prostitution as a business came along with certain inevitably accompanying evils
such as sexual exploitation, sexually transmitted diseases, human trafficking, child prostitution,
etc. The government of India after independence legislated the Immoral Traffic (Prevention)

4
Child Trafficking in India | Initiatives, Acts & Policies on Child Trafficking | CHILDLINE 1098, ,
[Link] (last visited Dec 17, 2021).
5
Brief History of Prostitution in India - NewsGram - Lens to India from Abroad, ,
[Link] (last visited Dec 14, 2021).
6
Gary P. Leupp, Interracial intimacy in Japan : western men and Japanese women, 1543-1900 313 (2003).
7
Sudhanshu Bhandari, Prostitution in Colonial India, XLVIII MAINSTREAM WKLY. (2010),
[Link] (last visited Dec 18, 2021).
8
Id.

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Act of 1956. The act followed after the United Nation’s International Convention on the
‘Suppression of Immoral Traffic in Persons and the Exploitation of the Prostitution of others.’9
The act aimed to eliminate human trafficking and child prostitution alongside curbing the
practice of pimping, brothels, and soliciting. According to the act prostitution per se is not

illegal as long as a woman over 18 years of age is practicing it voluntarily and is not operating
within 200 meters of a public place.

However, even after making brothels and pimping explicitly illegal and punishable many
prominent cities have a functioning and dedicated ‘red light aeras’. This area operates illegally
but unimpeded. According to reports, the Sonagachi district of Kolkata is a host to 362 brothels
employing over 9000 prostitutes serving over 40000 customers a day 10, all this is effectively
functioning despite being penalized in the act, the reason for this is the social and political
nexus of the business owners and somewhat corrupt and unwilling to interfere administration.

Another aspect of this is Male prostitution, no reliable statistics are available on the number of
men working as prostitutes in India, but it is simply undeniable that the number is significant
enough to not be ignored. Male prostitution is simply not recognized by law in India, meaning
in the eyes of law male prostitution is a non-existent phenomenon. It may take another decade
or so for the law to recognize men as prostitutes and grant them their deserved rights and
protection.

PANDEMIC AND PROSTITUTION

Needless to say, like every other business, the pandemic has also severely affected prostitution.
The trade of prostitution requires physical contact, which has been abolished for safety, during
the pandemic. Sex workers are forced to resort to high-interest loans from informal money
lenders like brothel owners and landlords for survival. The government of India has helped the
most vulnerable sections of society through certain schemes but to avail any benefit or help
from any scheme of administration, documents like adhar card, ration card, address proof, etc,

9
The Immoral Traffic (Prevention) Act, 1956, , [Link], [Link] (last visited Dec
18, 2021).
10
PROSTITUTION IN INDIA | Facts and Details, ,
[Link] (last visited Dec 14, 2021).

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are prerequisite and sex workers have always been deprived of documentations as reiterated by
the honorable Supreme court in Durbar Mahila Samanwaya Committee case.

NGOs and certain philanthropists gave what they possibly could, but one could not depend on
private individuals or organizations for life and livelihood, to ensure a dignified life is the duty
of government as mandated by the constitution of India. Bereft of work and livelihood was only
half of ordeals, patients of HIV and other STDs (Sexually Transmitted Diseases) were deprived
of their basic need of healthcare as a consequence of the collapse of the healthcare

system in the country11. Barely clinching to livelihood before the pandemic, sex workers, came
to the verge of starvation. Matters were worse for those who had no means of income other
than this to support an entire family. Kids and all dependent members were pushed to the brink
of starvation. Due to lack of acceptance and social sanction in society sex workers rarely ever
come up to ask for help or to even enroll in a government scheme, they prefer to be in their
zone with their people, which provides a sense of belonging. There were instances during
complete lockdown when sex workers chose suicide instead of bare survival.

Pandemic ordeals would have been enough for us as a society and for the administration to
come forward and help them, but sadly Supreme Court still has to direct states and union
territories to provide sex workers with basic documentations let alone recognize them as
‘workers.’ Neglected, ostracized, disregarded and disrespected they still are continuing the
trade of sex due to lack of any better option. It's high time especially after the pandemic that
the trade of prostitution gets regulated and each sex worker gets registered, effectively
eliminating human trafficking and making them a subject to avail the benefits under
government schemes.

LEGISLATIONS AROUND PROSTITUTION IN INDIA

The Immoral Traffic (Prevention) Act, 1956 is the primary legislation that regulates
prostitution in India. Sec 2(f) of this act defines prostitution that is “sexual exploitation or abuse
of persons for commercial purposes or consideration in money or any other kind” this definition
in itself is very negative as its terms prostitution as sexual exploitation or abuse and not as work

11
Locked Down: Sex Workers and Their Livelihoods, , ECON. POLIT. WKLY. 7–8 (2015),
[Link] (last visited Dec 18, 2021).

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or profession. Prostitution in India is not illegal per se. The laws around prostitution aim to
eliminate human trafficking curb surrounding activities of prostitution, like pimping, keeping,
or managing brothels, living on the earnings of prostitution of someone else, all of which, are
explicitly illegal and punishable under the act. Prostitution is not illegal except for section 7 of
the act.

Sections that penalize activities around prostitution are:

Section 3- this section prescribes punishment for any person who keeps or manages, or acts or
assists in keeping or management of a brothel, of rigorous imprisonment up to 3 years with a
fine of ten thousand upon first conviction and rigorous imprisonment up to 7 years with a fine

of two lakhs rupees upon a subsequent conviction.

Section 4- under this section, any person above the age of eighteen who knowingly lives on the
earnings of prostitution of another person is punishable with imprisonment up to two years and
a fine of two thousand rupees, and if the prostitute happens to be a child, then upon conviction
the jail term is not less than 7 years.

Section 5- in this section, any person who procures, induces, or takes another person for sake
of prostitution with or without her consent is liable to be punished for up to 7 years of rigorous
imprisonment (her consent involved) and up to 14 years rigorous imprisonment (without her
consent). This
section also states that if the prostitute in question happens to be a minor (legally, minors are
incapable of giving consent) then rigorous imprisonment may extend to life.

Section 5(A)- Recruiting, harboring, transferring, or receiving a person through threat,

abduction, fraud, deception, abuse of power, in exchange of payments, etc. deemed to be human
trafficking as stated by the section. Attempt or abetment to do human trafficking is will also be
punishable same as choate human trafficking. The punishment prescribed is 7 years upon first
conviction and imprisonment to life upon a subsequent conviction.

Section 5(C)- states that any person who is found in a brothel for the purpose of sexual
exploitation of any victim of trafficking, shall upon first conviction may be punished with
imprisonment extending up to 3 months and a fine of twenty thousand, and in event of

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subsequent conviction, imprisonment of up to six months and fine extending to fifty thousand
rupees.

This section somewhat makes visiting brothels illegal although, with certain conditions and
aforementioned, it is a rare instance when ‘customers’ are also subject to punishment in the
business of prostitution.

Section7- Section 7 is the only section that makes prostitutes subject to punishment it states
that any person who practices prostitution under a distance of 200 meters of a public place i.e.
a place of religious worship, educational institution, hospital, or any other place that may be
notified in this behalf by the commissioner of police or magistrate, upon conviction will be
liable to be punished with imprisonment up to three months.

Certain sections of The Indian Penal Code,1860 also talk about human trafficking of minors
for purpose of prostitution that is, Section 372 and 373. Both sections together state that buying
and selling of minors for the purpose of prostitution is punishable with ten years of
imprisonment and a fine. Sections also state that any person who sells a minor to a prostitute
or someone who keeps or manages a brothel, until the contrary is proved, is to be presumed
that the selling was done for the purpose of prostitution vice versa applied for sec. 373 that is,
any person who keeps or manages a brothel if procures/receives/buys a minor, until the contrary
is proved is to be presumed that such procurement for done for purpose of prostitution.

SUGGESTIONS AND CONCLUSION

Seeing the current state of prostitutes after the pandemic it is imperative to rethink the Immoral
Traffic (Prevention) Act, 1956, and modify it in such a way that it would regulate the trade and
safeguard the rights of sex workers at the same time. Laws around business are always meant
to facilitate the trade and not to make it arduous. On the other hand, laws around crimes are
meant to prevent and act as a deterrent for crime.

In my opinion, The Immoral Traffic (Prevention) Act, 1956, so far neither facilitates the trade
of prostitution nor deters prostitutes from practicing it. The act effectively chokes the business
by penalizing all the accompanying activities around prostitution. The act makes it illegal for
prostitutes to solicit customers by pimps or operate a brothel, this complicates the business as
brothels and soliciting by pimps are the necessary part of prostitution, as a result, all of the
necessary surrounding activities are practiced illegally. Making brothels illegal also prevents

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prostitutes from forming a union, or availing the benefits under labor laws of India and enjoying
the general social and political strength that unity provides. The act was enacted to deter human
trafficking and to the very extent it has served that purpose but it leaves the actual business of
prostitution in a difficult spot by penalizing the surrounding activities that are not always
morally and legally wrong. The act shall be amended in a way that at the same time eliminates
human trafficking while safeguarding and facilitating the business of prostitution .