AMITY UNIVERSITY

AMITY LAW SCHOOL, NOIDA

WOMEN & CRIMINAL LAW:

Legal Facets of Prostitution in
India

Submitted By:

Anoushka Chowdhury

BA, LLB (H) Sem 7 Sec D

A3211119213

Submitted to:

Dr. Jane Eyre Mathew

 What is prostitution?

Prostitution is the practice or business where people takes part in sexual activity in exchange for
money and a person who is engaged in this field is referred as a prostitute. Prostitution happens
in an assortment of structures, and its lawful status changes from nation to nation and also from
locale to area within a nation, extending from being an upheld or unenforced wrongdoing, to
unregulated, to a directed profession. It is one part of the sex business, alongside pornography, or
any other sexual entertainment. Brothels are foundations explicitly devoted to prostitution. The
situation of prostitution and the law changes generally around the world, reflecting contrasting
conclusions. Some view prostitution as a type of abuse of or savagery against women, and kids,
that assists to a new crime of human trafficking.

History of prostitution.

In India, it took the route of devotion. Anciently, there existed the Devadasi system where it was
a prevalent practice among Hindus to contribute their female child for the purpose of dancing in
temples and worship of God. However, with diminishing feudalism, these so-called Devadasis
lost their protectors and were mishandled by the temple priests. This was the earliest form of
prostitution. This practice further flourished in the British era when these outsiders curbed the
traditional textile industry, weaponry, etc. and these communities had to turn to prostitution for
livelihood.

As per the Indian history, the previous adaptations of prostitutes were known as “Devadasi” who
used to contribute their entire life to the devotion of Lord Krishna. Some religious convictions
resolve that the Devadasis consider the Gods as their husbands and in this manner can’t wed
other human men. They were later called as “Nagarvadhu” or the “Brides of the town” and were
called upon by the royals and the rich to dance and sing.

As indicated by the history specialists the Devadasi were treated with deference and respect by
the Royal families before the British rule. No man, including the Kings and Mughals, set out to
even touch them. But this came to an end after the British steps in the country. The Devadasis
began performing their art in front of the British officers and this became the beginning of one
night stands. The Britishers began calling these artists for sexual joys and this made ready for
Prostitution in a nation like India. During the British guideline, the development of Devadasi into
prostitution prompted the decrease of dances in the temple. As with the passing of time during
the British rule the Indian economy depleted and most people were not able to achieve their basic
livelihood. Women then started selling their bodies to the British people for exchange of money.

During the late sixteenth and seventeenth century, when certain places of India were a province
under the Portuguese, Japanese women were caught and brought to India as sex slaves. Another
case of the expanded utilization of women as sex labourers can be during the Company Rule in
India. The military built up whorehouses for its soldiers across numerous pieces of India. Village
women and girls were utilized by the brothels and were paid by the military legitimately.

Causes of prostitution

There exist numerous reasons which compels a woman to take up prostitution out of which
poverty and unemployment are two major influential factors that causes women to engage in
commercial sex. It has been seen that women of the remote areas fall prey to unscrupulous
intermediaries who gives them assurance of decent job opportunities and then sells them as sex
workers. The most fundamental reason which drives the needy and helpless women towards
prostitution is poverty. It is accepted that among all the components answerable for prostitution,
poverty is supposed to be the significant explanation that brings individuals into prostitution.

The increasing rate of poverty has driven numerous individuals especially the young people into
the urban territories where they consider prostitution to be a brisk method of addressing their
necessities and those of their families. Taking a gander at the idea of prostitution basically, one
will comprehend that prostitution was not as inescapable in pre-modern times as it is today. The
procedure of urbanization has prompted a significant move in the structure of our reality.
Urbanization has prompted the development of free enterprise which has offered an ascend to the
polarization of classes, aggravating the frequency of destitution, joblessness, crime and
estrangement. This situation has prompted a more noteworthy pervasiveness in prostitution as a
way people particularly females attempt to adapt with the grim economic realities. Also some
women are led into sex-work due to unemployment. The lack of job opportunities had compelled
women to desperately resort to illicit deals as a way of generating income.

Around 6 percent of the women entered prostitution after the occurrence of rape. And many a
times the sexual assault survivors are victimized by the shame and stigma imposed on them by
the society who blames these women for being raped. And in certain cases not only the society
but their very own family members have denied to accept them. Aside from the deferral or the
denial of justice, the casualties have to confront similar situations from time to time. And after
the passage of a certain tenure when they find no roof for shelter in our society and when there
exists no ray of hope for them, they discover their routes into the darkness of prostitution.
Around 8 percent of the young ladies came to prostitution following the episodes of incest. The
most well-known incest is among father and little girl, trailed by uncle-niece. And when these
youthful casualty of incest being sexually exploited at their very home, do not anticipate safety in
anyplace in the general public, gradually winds up in prostitution. Other than the above
mentioned factors there are several other reasons that drive women to become a prostitute.
 Pros and cons of legalizing prostitution:

If prostitution is legalized, the State will acquire responsibility to manage brothels and it can
fulfill this obligation by issuing a license to authorized persons. It shall also formulate guidelines
regarding the age of prostitutes, database on clientele, adequate remuneration and medical
facilities to the prostitutes. By this method, the prostitutes can acquire some rights such as the
right to medical care, the right to education of their children, right against exploitation and rape,
etc. This method can facilitate the eradication of sex racquet operations, hidden and street
prostitution, abuse of prostitute, etc. There shall be protection houses established for those
prostitutes who have lost their livelihood, or those who were forced into prostitution but do not
want that lifestyle anymore. Also, the government can impart training and basic education to
these prostitutes so that they find other means to earn money and sustain their livelihood.

On the flipside, legalization of prostitution could be misinterpreted as the promulgation of

prostitution. This could pave the way for easy money for prostitutes and could encourage more
women to practice prostitution. There is a great possibility that this could be a revenue-
generating industry for the Government. Thus rules have to be stringent to regulate this industry
so that it is not legitimized and that is the least the government can do to address this issue.

Prostitution related laws in India

ITPA defines “prostitution” as sexual exploitation or abuse of a female for monetary purposes
and a “prostitute” is the person who gains that commercial benefit. The Indian Penal Code of
1860 also deals with prostitution but it is limited to child prostitution. However, it attempts to
combat activities such as kidnapping in general, kidnapping for the purpose of seduction and
luring a person into sex, importing a girl of a foreign country for sex, etc.

In addition, Article 23(1) of the Constitution prohibits traffic in human beings and beggars and
other similar forms of forced labor. Article 23(2) declares that any contravention of this
provision shall be an offense punishable in accordance with the law.

The statute governing the subject of prostitution in India is the Immoral Traffic (Prevention) Act,
1956. The constitutionality of this Act was challenged in the case of The State of Uttar Pradesh
v Kaushalya1. In this case, a number of prostitutes were required to be removed from their place
of residence for maintaining decorum in the city of Kanpur. The High Court of Judicature at
Allahabad contended that Section 20 of the Act abridged the fundamental rights of the
respondents under Article 14 and sub-clause (d) and (e) of Article 19(1) of the Constitution. The
Act was held to be constitutionally valid as there was an intelligible difference between a

1
1964 AIR 416.
prostitute and a person causing a nuisance. The Act is also in consonance with the object sought
to be achieved ie. maintaining order and decorum in society.

This Act dims at suppressing prostitution in women and girls and achieving a public purpose viz.
to rescue the fallen women and girls and to stamp out of prostitution and also to provide all
opportunity to these fallen victims so that they could become decent members of the
society[3]. This Act seeks to criminalize the acts amounting to prostitution as mentioned above
and authorizes the police to remove them, to close brothels and move them to institutions that
may reform them. It empowers the Central Government to establish a Special Court to try
offences under this Act.

Forced prostitution is where young children or teenagers are compelled into prostitution due to
numerous factors. Indian Penal Code, 1860 penalizes child prostitution, namely selling and
buying of minors for the purpose of prostitution. Section 372 of the Code awards imprisonment
of at least ten years for a person selling a minor for the purpose of prostitution. Section 373 of
the Code awards imprisonment of ten years for buying a minor person for the purpose of
prostitution. The explanations to these sections indicate only the trade of minor girls and not
boys.

Immoral Traffic (Prevention) Act, 1956 declares certain acts to be illegal. These acts include a
solicitation for prostitution, managing a brothel or allowing the usage of certain places as
brothels, living on the earnings of a prostitute’s money, inducing or kidnapping a girl for
prostitution, detaining girls in brothels, seducing a person under custody for prostitution and
carrying out prostitution within 200 meters of any public place like schools, colleges, temples,
hospitals, etc.

The above-mentioned activities attract heavy penalties such as rigorous imprisonment even at the
first instance of conviction. The minimum punishment for brothel-keeping is imprisonment for a
term of not less than one year and not more than three years and also with fine which may extend
to two thousand rupees. Offence of procuring a girl child for prostitution attracts rigorous
imprisonment for a term of not less than seven years but may extend to life. Seducing or
Soliciting for prostitution under the unamended Act for first conviction attracts a punishment of
imprisonment for six months or fine of rupees five hundred and for the second conviction,
imprisonment upto one year or with fine of rupees five hundred. In addition, the Indian Penal
Code under Section 370A punishes the offender for the exploitation of a trafficked minor with
imprisonment of five to seven years.
 Legal status of prostitution in light of case laws and landmark judgments:

It was stated in Raj Bahadur v. Legal Remembrancer2, that

“Clause (2) however permits the State to impose compulsory services for public purposes
provided that in making so it shall not make any discrimination on grounds only of religion,
race, caste or class or any of them. 'Traffic in human beings' means selling and buying men
and women like goods and includes immoral traffic in women and children for immoral" or
other purposes.”

The right to life enshrined under Article 21 is also applicable to a prostitute. This was explained
in the case of Budhadev Karmaskar v State of West Bengal. It stated that sex workers are
human beings and no one has a right to assault or murder them as they also have the right to live.
The judgment also highlighted the plight of sex workers and empathizes that these women are
compelled to indulge in prostitution not for pleasure but because of abject poverty and directed
the Central Government and State Governments to open rehabilitation centers and impart
technical and vocational skills like sewing so that they attain other means of livelihood.
Following the direction, the Immoral Traffic (Prevention) Act has incorporated Section 21 as a
rule for the State Governments to establish and maintain protection homes and these should be
regulated by licenses issued by them. An appropriate authority should be appointed for making
an investigation for the application of the license for the protection homes. These licenses are not
transferable and they are valid only for the specified period. The Government is empowered to
make ancillary rules in respect of license, management, and maintenance of protection homes, or
ancillary matters by virtue of Section 23 of the Act.

Manoj Shaw and Majoj Kumar Shaw v. State of West Bengal (2013)

‘Sex workers should be treated as victims of crime rather than the accused’

The chief judge of Calcutta High Court ordered the investigating officer to issue notice against
the owner of the health spa under Section 41A of the Code of Criminal Procedure who had
employed minor girls in the business of prostitution in his spa. According to the reports of the
judicial officer, it was stated that the investigating officer was present during the hearing but on
the other hand it was contended that he was not present. The Court observed that in cases where
the offence is punishable for 7 years or more the investigating officer should consider all the
facts that whether it is in the interest of justice to issue the notice under Section 41A of the Code
of Criminal Procedure. The Court held such grave offences that come under Section 5 of the Act
that is carrying out prostitution under lawful businesses like health spa etc requires sensitivity
and attention and should be dealt with a serious approach. On the contrary, only notice was

2
AIR 1953 Cal. 522
issued against the spa owner and the victims were put in jail who were already exploited hailing
from a background that is financially not well off and is illiterate. The victims were minors and
forcing minors into the business of prostitution leads to punishment for more than 7 years under
the Immoral Trafficking (Prevention) Act.

The entire case reflects the glaring defects in the justice mechanism as the minor girls who were
victims were made more vulnerable for threats, intimidation, etc by putting them in jail as if they
were the accused themselves. The anticipatory bail of the petitioner was rejected as the Court
held that interrogation is needed from the petitioner. The Court ordered a show-cause notice
against the investigating officer and the victims to be released and their statements recorded
under Section 164 of the Code of Criminal Procedure. The victims were directed to be granted
interim compensation under the state victim compensation scheme and to accord rehabilitation in
accordance with the law.

Delhi v. Pankaj Chaudhry & Ors(2009)

‘No means no even if a woman is of an easy virtue’

The Court reversed the decision of the Delhi High Court of acquitting 4 accused of gang rape
and upheld the conviction of the trial Court. The Delhi High Court dismissed the conviction of
the accused because the women were in the custody of the police when the alleged rape is
supposed to have been occurred. Though the Court held that even if the woman is immoral no
one is permitted to rape her. She is as equally protected from being harassed as any ordinary
citizen would be. The Court asserted that the High Court has committed an error while relying on
the respondent’s contentions and ignored the complaints of the women. The police officers were
also not permitted to be heard. The Court quashed the grounds which were established against
the police officials for perjury. The Court emphasised that even if it is proved through material
evidence that a woman is habitual of sexual intercourse, no one can take advantage of her and
can raise the issue regarding her character or by contenting that she is a woman of ‘easy virtue’.
The Court observed that such women have the right to refuse to submit themselves for sexual
intercourse. The Court imposed a 10 years sentence for the accused as was held by the trial court
earlier.

Recent observation of Supreme Court on prostitution:

Kajal Mukesh Singh & Ors v. State of Maharashtra (2021)

The Apex Court observed that ‘Prostitution is not an offence, a woman has a right to choose
her vocation’
Observations by the court:

 The Magistrate ordered an inquiry regarding the age of the victims and for conducting
a medical examination to investigate the health status of the victims.
 Intermediate custody of the victims was given to an NGO for providing them with
primary education and for their counselling to restrain them from prostitution.
 It was revealed by the reports submitted by the probation officer as well as the
Magistrate that they belong to the ‘bediya’ community where girls after attaining the
age of puberty are sent into the business of prostitution.
 Their parents consented to them being prostitutes so the magistrate did not give the
victim’s custody to their mothers.
 The appeal was laid down challenging the said order in the Court of the Session at
Dindoshi which was dismissed.
 The victims were detained under an institution of government ‘Nava Jeevan Mahila
Vastigruha’ for their care, protection and shelter for one year.
 The Court was of the view that the victims who were detained for one year without
being prosecuted are declared accused in the matter or other words without any final
order.
 It was held that both the subordinate courts have taken the matter involved in the case
in a very casual manner ignoring the factual matrix of the case, specifically Section 17
of the Immoral Trafficking (Prevention) Act.
 The Court observed that the Act does not empower the Magistrate to hold the victims
under custody for more than 3 weeks without a final order from the Court. The Court
also observed that under Section 17(4) if the magistrate is satisfied with the inquiry
under sub-section(5) of Section 17 of the Act, he shall direct the custody of the
victims to a protective home.
 The inquiry under sub-section(5) is to be conducted by a panel of persons having
some social work background of which if practically possible 3 should be women.
 The Court also pointed out the use of the word ‘may’ ought to be interchangeable with
the word ‘shall’ as held in the case of Kumari Sangeeta & Anr v State & Ors
(1995) that because the word ‘may’ is used it does not specify discretion of the Court
but one should look at the intention of the legislature which it intends to convey
through an enactment.
  The Court highlighted the point that the purpose of the act is not to abolish prostitutes
or prostitution but what is punishable is sexual exploitation, commercial sex and
where a person is running a brothel or is seducing another person.
 After considering all the facts and circumstances of the case the Court was of the view
that there is nothing on record to show that they were seducing someone or that they
were running a brothel.
 They too have a right to reside freely at any place of their choice and to carry out the
vocation as they like as their fundamental rights are guaranteed under part III of the
Constitution.
 The consent of the victims should have been taken before putting them under a
corrective home as they are major and hold every fundamental right as an ordinary
citizen does.
 Both the orders of the metropolitan magistrate and Court of the session was quashed
and the victims were released.

2022 Supreme Court Order:

The apex court was hearing a plea that has raised the problems faced by sex workers due
to the COVID-19 pandemic. The plea has highlighted the destitution faced by sex
workers on account of COVID-19 and sought relief measures for over nine lakh women
and transgender sex workers across India.

In a major development, the Supreme Court instructed the police not to intervene with or take
criminal action against consensual sex workers. It stated that prostitution is a ‘profession’ and
that sex workers have the right to dignity and equal legal protection.
The bench comprised of three judges led by Justice L. Nageswara Rao issued six directives to
protect the rights of sex workers. The court stated, “Sex workers are entitled to equal protection
of the law. Criminal law must apply equally in all cases on the basis of 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. It need not be gainsaid that notwithstanding the
profession, every individual in this country has the right to a dignified life under Article 21 of the
Constitution.”

The court noted that sex workers should not be arrested, punished, harassed, or victimised during
brothel searches because voluntary sex work is not criminal and only the operation of a brothel is
illegal. The court also urged law enforcement officers not to discriminate against sex workers
who file complaints for sexually motivated crimes. Sexual assault victims who work in the sex
industry should be provided with all available resources, including prompt medical and legal
assistance.
The apex court also highlighted the plight of sex workers’ children. “The child of a sex worker
should not be taken away from her mother "on the basis that she is in the sex trade,” the court
ruled. “Basic protection of human decency and dignity extends to sex workers and their
children,” it stated.

“Utmost care to not reveal the identities of sex workers, during arrest, raid and rescue operations,
whether as victims or accused and not publish or telecast any photo that would result in
disclosure of such identities,” the court urged the media while reporting cases involving sex
workers. Justice Rao also stated that sex workers cannot be forced to live in correctional facilities
or shelters against their will.

Conclusion:

Prostitution is considered a taboo in India and is not discussed openly and a topic frequently
frowned upon. However, it poses a huge threat to the fabric of Indian society for its role in
weakening the institution of marriage, sexually transmitted diseases, abduction of girl children,
isolation of prostitutes from society, physical and mental trauma, etc. It is reported that there are
about 38000 sex workers in Delhi. The situation in Mumbai is more depressing. Thus there arises
an emergent need to control prostitution.

The abolition of prostitution is a mammoth task as it is an ancient practice and has existed too
long. Though it has been described to be illegal, it is still continued. This could be due to a lack
of enforcement of laws or due to the inability to restrict this practice. To combat this issue, the
legalization of prostitution could be adopted since abolition appears to be a daydream.