IS PROSTITUTION LEGAL OR

ILLEGAL IN INDIA?
Are Prostitutes entitled to live a life
of dignity?
• The Immoral Trafficking Prevention Act, 1956
("ITPA"), the main statute dealing with sex work
in India, does not criminalise prostitution or
prostitutes per se, but mostly punishes acts by third
parties facilitating prostitution like brothel
keeping, living off earnings and procuring, even
where sex work is not coerced
 Reasons behind the Act:
• Government of India in the year 1950 ratified
an international convention for suppression of
traffic in persons and of the exploitation of the
prostitution of others.
 What the convention says
• Article 1
• The Parties to the present Convention agree to
punish any person who, to gratify the passions
of another:
• (1) Procures, entices or leads away, for
purposes of prostitution, another person, even
with the consent of that person;
• (2) Exploits the prostitution of another person,
even with the consent of that person.
Article 2

The Parties to the present Convention further

agree to punish any person who:

(1) Keeps or manages, or knowingly finances or

takes part in the financing of a brothel;

(2) Knowingly lets or rents a building or other

place or any part thereof for the purpose of the
prostitution of others
 What constitution says:-
• Article 14 provides for equality in general.
• Article 15 Prohibits discrimination on the grounds of
religious race, caste, sex or place of birth, or of any of
them.
• Article 15 (3) provides for special protective
discrimination in favour of women and child
relieving them from the moribund of formal equality.
It states that, “ nothing in this article shall prevent the
state from making any special provision for women
and children”
• Article 16 (1) covers equality of opportunity in
matters of public employment.
• Article 23 prohibits traffic inhuman beings and
forced labour and makes it punishable under
Suppression of Immoral Traffic in Woman and Girls
Act 1956 which is renamed in 1986 as The Immoral
Traffic (Prevention) Act.
• Article 24 prohibits employment of children in any
hazardous employment or in any factory or mine
unsuited to their age.
•Article 38, enjoins the State to
secure and protect as effectively as
it may a social order in which
justice – social, economic and
political shall inform all the
institutions of national life.

It basically says provide opportunities

to make equal results.
• Article 39 the state should direct its policy towards
securing, among other things, a right to adequate
means of livelihood for men and women equally and
equal pay for equal work their age or strength

• Article 39 (f) provides that the children should be

given opportunities and facilities to develop in a
healthy manner and conditions of freedom and
dignity: and that childhood should be protected
against exploitation.
• Article 45 makes provision for free and
compulsory education for children. Which is
now well settled as a fundamental right to the
children.

• Article 46 directs that state to promote the

educational and economic interests of the
women and weaker sections of the people and
that it shall protect them from social injustice
and all forms of exploitation.
 Universal Declaration of Human
Rights
• Article 1, all Human beings are born free and
equal in dignity and rights.
• Article 2, that everyone (which includes fallen
women and their children,) is entitled to all the
rights ad freedoms set forth in the Declaration
without any distinction of any kind such as
race. Colour, sex, language, religion, political
or other opinion, national or social origin,
property, birth or other status.
• Article 3, Right to life, liberty and security of
person.

• Article 4, that no one shall be held in slavery

or servitude: slavery and the slave trade shall
be prohibited in all their forms. (The fallen
victims in the flesh trade is no less than a slave
trade. AIR 1997 SC 3021. See At page 3028
Para 6, line 16.)
• Article 5, no one shall be subject to torture or
to cruel, inhuman or degrading treatment or
punishment.

(The fallen/trapped victims of flesh trade are

subjected to cruel, inhuman and degrading
treatment which are obnoxious, abominable
and an affront to article 5 of the said
declaration and also article 21 of Indian
constitution. AIR 1997 SC 3021. See At page
3028 Para 6 last 4 lines of the said Para.)
• Article 6, Declares that everyone has the right
to recognition everywhere as a person before
the law.
• Article 7, that all are equal before that law and
are entitled without discrimination, to equal
protection of the law.

(Denial of equality of the rights and opportunities

and of dignity and of the rights of equal
protection against any discrimination of fallen
women is violation of Universal Declaration
under Article 7 and as well as Article 14 of
Indian constitution.)
 LAW
• Suppression of Immoral Traffic in Women and
Girls Act-1956.
• Prevention of Immoral Traffic Act -1956
• The Immoral Traffic (Prevention) Act-1956
Why the name has changed?
It was proposed to change the name of the Act to
“Immoral Traffic (Prevention) Act” in view of
widening the scope of the Act to cover all persons,
whether male or female, who are exploited
sexually for commercial purposes:
OBJECTIVE OF THE IMMORAL
TRAFFICKING PREVENTION
ACT,1956 (ITPA)?
 Objectives of the Act- Continuing

• PUNISH IMMORAL TRAFFICKING

• PUNISH TRAFFICKERS
• PUNISH PERSONS LIVING EARNINGS OF
THE WOMAN
• WELFARE MEASURES DIRECTED
TOWARDS REHABILITATION OF SEX
WORKERS

* The emphasis IS NOT on the sex worker but the

clients/pimps/brothel owners etc.
 Continuing

• Licensing authorities are being empowered to

cancel licences of hotels where of hotels where
children or minors are detected to be used for
purposes of prostitution.
• Interrogation is don only by women police
officers if not in the presence of a woman
social worker.
• In case of seduction in custody, the
punishment is sought to be enhanced to that
laid down for rape in the Indian Penal Code:
 What is prostitution?
• 2 (f) means the sexual exploitation or abuse of
persons for commercial purposes, and the
expression “prostitute” shall be construed
accordingly.
• Section 2 (f) of the old Act:
Prostitution means the act of a female offering
her body for promiscuous sexual intercourse
for hire, whether in money or in kind and
whether offered immediately or otherwise and
the expression prostitute will be construed
accordingly
Section 3: Punishment for keeping a brothel
or allowing premises to be used as a brothel

• Not less then one year rigorous, not more than

three years, and also with fine up to two
thousand rupees. (in first convection)
• Not less then two years rigorous but not more
than five years, also with fine up to two
thousand rupees.
 Section 4: Punishment for living on the
earning s of Prostitution
• Up to two year and fine of one thousand
rupees
• If this earning is out of child or minor shall be
punishable with imprisonment for a term of
not less than seven years and not more than ten
years.
 Section 5: Procuring, inducing or taking
person for the sake of prostitution
• Punishment not les then 3 years, not more than seven
years.
• If the offence under the sub-section is committed
against the will of the person imprisonment for a term
of seven years shall extent to fourteen years:
• If it is child not less than 7 years, but may extended to
life;
• If it is minor, not less than 7 years, and not more than
14 years.
 Section 6: Detaining a person in premises
where prostitution is carried on.

• Not less than 7 years but may be for life.

(with or without consent)
Section, 7 : Prostitution in or in the vicinity of
public places:
• With the imprisonment for a term which may
extend to three months.
• Where the offence is committed is in respect
of a child or minor the person committing the
offence shall be not less than seven years but
which may be for life or for a term which may
extend to ten years and shall also be liable to
fine:
 Section 8
• Seducing or soliciting for purpose of
prostitution.
 Section 9 seduction of a person in
custody.
• Any person who having the custody, charge
or care of, or a position of authority over
any person causes aid or abets the seduction
for prostitution of that person shall be
punishable upon conviction for a term
which shall be not less than seven years but
which may be for life or a term which may
extend to 10 years and shall also be liable to
fine
 Section 13 of the Act
• 1.There shall be for each area to be specified
by the State Government in this behalf a
special police officer appointed by or on
behalf of that Government for dealing with
offences under this Act in that area.
• 2.The special police officer shall not be
below the rank of an inspector of police.
• 2(A) the District Magistrate may, if he considers it
necessary or expedient so to do, confer upon any
retired police or military officer all or any of the
powers conferred by or under this Act on a special
police officer, with respect to particular cases or
classes of cases or to cases generally:
• Provided that no such power shall be conferred on-
• Retired police officer unless such officer, at the time
of his retirement, was holding a post not below the
rank of an Inspector.
• A retired military officer unless such officer at the
time of his retirement was holding a post not below
the rank of a commissioned officer
• For the efficient discharge of his functions in
relation to offences under this Act-
– the special police officer of an area shall be assisted by
such number of subordinate police officers (including
women police officers where practicable) as the state
Government may think fit: and
• the state Government may associate with the special
police officer a non-official advisory body
consisting of not more than five leading social
welfare workers of that area (including woman
social welfare workers, wherever practicable) to
advise him on questions of general importance
regarding the working of this Act
• The Central Government may, for the purpose
of investigating any offence under this act or
under any other law for the time being in force
dealing with sexual exploitation of persons and
committed in more than one state, appoint
such number of police officers as trafficking
police officer and they shall exercise all the
powers and discharge all the functions as are
exercisable by special police officers under
this Act with the modification that they shall
exercise such powers and discharge such
functions in relation to the whole of India
 Delhi High Court
Mumtaj@Behri V. the state
• Para 3. The first and foremost challenge of
learned counsel for the appellant was as to
legality and validity of entire process of raid,
arrest, investigation and prosecution of the
appellant. Submission of learned counsel for
the appellant was that Section 13 of the Act
mandates State Government to appoint Special
Police Officer for dealing with the offences
under the Act
 Kerala High Court.
Joseph v. sub inspector of Police

• Has repeated the Delhi and West Bengal High

Court decisions. At para 4.
• 4. In Superintendent and Remembrancer of Legal Affairs on behalf
of State of West Bengal v. Sardar Bhadur Singh and Ors. (1969)
Crl. LJ. 1120) the High Court of Calcutta held that the expressions
"police duties" and "dealing with offences" are of the widest
amplitude and necessarily connote all that the police has to do in
connection with the offences under the Act including detection,
prevention and investigation. In Delhi Administration v. Ram Singh
(AIR 1962 SC 63) the Supreme Court held that the expression
"dealing with offences" in Section 13(1) of Suppression of Immoral
Traffic in Women and Girls Act will include any act which the
police has to do in connection with the offences under the Act. The
expression "function in relation to offences" in Section 13(3) also
includes its functions connected with the investigation of the
offences. What has to be understood in the light of what is said in
the above decision is that the expression "dealing with offences
under the Act" includes detection, registering of the crime and
investigation of the crime. Section 13 provides for appointment of
special police officer for each area to be specified by the State
Government and in that section it is said that the appointment of
special police officer is for dealing with offences under the Act.
• A plain reading of Section 13 would go
to show that the detection, registering
and investigation of the crime have to be
done by the special police officer.
 Section 14,
• Offences to be cognizable- notwithstanding
any thing contained in the code of Criminal
Procedure, 1973 (2 of 1974), any offence
punishable under this Act shall be deemed to
be a cognizable offence with the meaning of
that Code,
• Provided that, notwithstanding anything
contained in that code-
(i) Arrest without warrant maybe made only by the
special police officer or under his direction or
guidance, or subject to his prior approval:

(ii) When the special police officer requires any officer

subordinate to him to arrest without warrant
otherwise that in his presence any person for an
offence under this act, he shall give that subordinate
officer an order in writing, specifying the person to be
arrested and the offence for which the arrest is being
made and the latter officer before arresting the person
shall inform him of the substance of the order and, on
being required by such person, show him the order:
• (iii) Any police officer not below the rank of sub-
inspector specially authorized by the special police
officer may, if he has reason to believe that on account
of delay involved in obtaining the order of the special
police officer, any valuable evidence relating to any
offence under this act is likely tobe destroyed or
concealed, or the person who has committed or is
suspected to have committed the offence is likely to
escape, or if the name and address of such a person is
unknown or there is reason to suspect that a false name
or address has been given, arrest the person concerned
without such order, but in such a case he shall report,
as soon as maybe, to the special police officer the
arrest and the circumstances in which the arrest was
made.
 The High Court of Kerala
Sinu Sainudheen vs. sub inspector of police
• 5. Section 14 of the Act says that
notwithstanding anything contained in the
Code of Criminal Procedure, any offence
punishable under the Act shall be deemed to
be a cognizable offence within the meaning of
that Code. The proviso to the above Section
says that notwithstanding anything contained
in the Criminal Procedure Code, arrest without
warrants may be made only by the special
police officer or under his direction or
guidance or subject to his prior approval.
• The second proviso to the Section enjoins that
when the Special Police Officer requires any
Officer subordinate to him to arrest without
warrant otherwise then in his presence any
person for an offence under the Act, he shall
give that subordinate officer an order in writing
specifying the person to be arrested and the
offence for which the arrest is being made.
• Para 7. What is said in the second proviso to Section 14 is
that for the purpose of arresting any person, an order in
writhing specifying the person to be arrested has to be
given to the subordinate officer by the special police
officer. Such an order in writing can be given by the
special police officer specifying the person to be arrested
only after seeing that a particular person has committed an
offence. There is also provision in the proviso which says
that in the order in writing given by the special police
officer the offence for which the arrest is being made also
has to be mentioned. That also would indicate that the
special police officer can give an order in writing to a
subordinate officer for arresting a person only after he is
being convinced that there are reasons to believe that a
particular person has committed an offence.
• Here the sanction govern by the Assistant
Commissioner of Police who is the special
police officer cannot at all be said to be a
sanction given for effecting arrest by a
subordinate officer as is said in the second
proviso to Section 14 since the sanction order
was made even before the raiding of the house
of the first accused. For the reason it cannot be
said that there was sufficient authorisation
given by the special police officer to the Sub
Inspector of Police for effecting arrest as
mentioned in Section 14 of the Act.
 Section 15 search without warrant:

• In the case of T.Jacob v, state of Kerala

• 7. Before parting with the case, I like to point out that the
Assistant Superintendent of Police, who conducted the
raid in the instant case, was not justified in doing so
without complying with the provisions of Section 15 (1)
of the above Act. There was no ground stated in the
charge or anywhere else why he did not call at least one
woman witness of the locality to attend and witness the
search. It is a mandatory provision. See the view
expressed in Harnam Singh v. State, AIR 1964 Punj 436
at P. 437. Even apart from that, the conduct of the Police
Officer in proceeding into the bed room of the revision
petitioner and entering through the back door without the
civility of a knock on the front door, which was locked
inside or warning the revision petitioner for the intrusion
would be a misuse of his powers in the instant case.
• Anyway, the Police Officer at least could have knocked at
the front door and got it opened. The place of occurrence is
a Room No. 10 of the Beach Hotel, Calicut, which is a
reputable hotel in the locality. It is very strange that the
Police should have gone to such a hotel and conducted a
raid of this type and brought down the prestige of the hotel
in the estimate of the public without any regard for decency
or decorum. It is also surprising that the Police Officer had
taken into custody all the moveables including the personal
belongings under a mahazar. One of the articles was the
button hole pin inscribed with "Rotary International", which
has nothing to do with the commission of the crime.
• It would be seen that every article, whether
belonged to him or not had been removed out of the
room. There was absolutely no necessity for
removal of all these articles unless they were
required for the proof of the crime. Anyway, the
charge having been found against I do not propose
to take any further action in the matter.
• 8. In the result, the revision petition is allowed. The
revision petitioner is discrageed under Section 251-
A (2), Criminal P. C. The moveables recovered from
the revision petitioner will be handed over to him
immediately.
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