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Prostitution in India - Read its causes, legality, and law.

Prostitution in India is the oldest profession. It is a general misconception that prostitution in India is illegal, rather prostitution is legal but pimping, owning and managing a brothel is illegal. Mumbai, Delhi and Kolkata are the major cities in India where brothels are operating illegally in large numbers. Prostitution in itself is neither illegal nor punishable under the act.
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“Baap, bhai, beta, shohar...Begam Jaan ki chaukhat ke us paar, har mard murga hota hai...teen taangon wala murga”  as regressive as this dialogue sounds from movie Begam Jaan, Indian cinema from time to time has portrayed the ugly side of society (prostitution) which not only exists parallel to our society but its roots have gone deep into the Indian society.

Compared to last century, today prostitution in India has flourished into a full-fledged multibillion-dollar industry alone in India, with around two hundred thousand brothels, millions of commercial sex workers and this all just for the sake of money.

For a long time, the base for client-age of prostitution in India use to be truck drivers, migrant workers, but as a growing trend, it seems to bring in clients from every section of society. Nowadays even men have found prostitution as an easy way to earn quick money

Prostitution and legality involved

According to the Indian Penal Code, certain activities related to sex are not considered illegal per se and contradict laws that are in place. However, activities as enumerated below if found to be true, one is entitled to be punished in accordance with laws of the legal arena in place.

  • Soliciting services of prostitution at public places

  • Carrying out prostitution activities in hotels

  • Being the owner of a brothel

  • Pimping

  • Indulge in prostitution by arranging a sex worker

  • Arrangement of a sex act with a customer

Further Read: Law on Compensation to Victims of Sexual Crimes

Now the situation is such that the activities mentioned above are very much real and exist alongside. So by outlawing them does the Indian legal system make prostitution illegal? Because in most cases, government officials tend to ignore this fact that illegal trafficking of women and children is the root cause of growing prostitution as a business.

The Immoral Traffic (Prevention) Act, 1956 was brought into force in order to legalise and restrict the act of prostitution. According to this law, prostitutes can practise their trade privately but cannot showcase it in public.

  • Section 7 of the PITA, states that it is illegal to carry out the profession of prostitution with the distance of 200 meters of any public place like a place of worship, educational institutions, hospitals or hotels. Hence, in any place which is 200 meters away from any of these above-mentioned place, the act of prostitution can be carried out, away from public view.

  • Surprisingly, these laws are meant only with regard to women involved in this profession and nowhere are male prostitutes recognised by any law in India. And due to this reason, consensual sex (anal intercourse) between two adults of the same gender is prohibited under Section 377 of Indian Penal Code. These acts also state that if any person, who is major and is dependent on earnings of prostitution, shall be punished under Section 4.

  • Even the law seems to be gender-biased and an act of ‘Male prostitution’ needs to be recognised since any man living along with a prostitute is assumed to be living on earnings of the prostitute like a pimp, making the life of male sex workers as miserable and unrecognisable.

  • The act defines a child as any person who has yet not completed eighteen years of age. If a person is found with a child it is assumed that he has detained that child there for the purpose of sexual intercourse and hence shall be punishable to seven years in prison up to life imprisonment, or a term which may extend to ten years and also a maximum fine of one lakh rupees. 

  • If a child is found in a brothel and after medical examination has been found to have been sexually abused, it is assumed that the child has been detained for the purpose of prostitution.

  • If prostitution of a child is being committed with the knowledge of an establishment owner such as a hotel, the license of the hotel is likely to be cancelled along with the given prison sentence and/or fines.

  • Any child found in a brothel or being abused for the purpose of prostitution can be placed in an institution for their safety by a magistrate. Landlords, leasers, owner, an agent of the owner who unknowingly previously rented their property to a person found guilty of prostituting a child, must get approval from a magistrate before re-leasing their property for three years after the order is passed.

  • If any person who is in a position or in charge causes or aids or abets the seduction for prostitution shall be punishable with imprisonment of seven years or for a life time and shall be liable to fine. (Section 9)

  • Under Section 14 of this Act, any offence which is punishable under this section shall be considered as a cognizable offence within the meaning of code of civil procedure.

  • Under Section 18 of this Act, magistrate upon proper information and in violation of Section 7 (1) of the Act, may order to close any house, hotel, brothel or any property which is being used by any person or by prostitutes for carrying on their trade, issues notice of closure or eviction.

Though these laws sound like this profession is illegal, if done in accordance with the laws stated, it seems to be partially legal as well.

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History of Prostitution in India

From the ancient era of ‘dasi' system to the modern ‘Prostitute’ system, India has travelled a long way, not just in terms of how we perceive this profession of prostitution on morality grounds but also how we as a society in India have turned away from accepting prostitution as a profession. 
Today, many girls are kidnapped, tricked or some pick prostitution as a profession in India to raise money in order to support their families. In one of the survey, it was found that a third of all prostitutes in India re-enter this trade because of poverty and more than a fourth opts the profession of prostitution in India after marital problems.

Have you ever thought that what happened in due course of development of our Indian society that we as a society are hesitant to talk about sex or prostitution when our ancestors were so open to even display it as statues and worship it? So the real question remains, is prostitution legal in India?

Prostitution is legal in India

The answer is yes! Prostitution is legal in India but only partially. Article 19 (g) of the Indian Constitution which gives the right to practice any profession to the citizens of the country, also allows anyone to practice this as a profession but unlike other professions it is not legal to practice it, and is governed by The Immoral Traffic (Suspension) Act, 1956 (SITA) and The Immoral Traffic (Prevention) Act, 1986 (PITA).

Related Read: Child Labour: From Real to Reel

 

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External Link:

[1] The Immoral Traffic (Prevention) Act, 1956 - The Immoral Traffic (Prevention) Amendment Bill, 2006 amends the Immoral Traffic (Prevention) Act, 1956 to combat trafficking and sexual exploitation for commercial purposes.

[2] Article 19 (g) of the Indian Constitution - Protection of certain rights regarding freedom of speech, etc.

[3] The Immoral Traffic (Suspension) Act - An Act to provide in pursuance of the International Convention signed at New York on the 9th day of May 1950, for the suppression of immoral traffic in women and girls.

Reviewed by:
Prachi Darji
Associate - Legal, MyAdvo Techserve Pvt. Ltd.
Published on 13th Aug, 2019
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Prachi Darji is an expert corporate lawyer, currently associated with MyAdvo as an in-house legal advisor. She has finished B.Sc, LLB(Hons.) from Gujarat National Law University. She has an expertise in various domains of law including Intellectual Property Law, Company law, etc. At MyAdvo, she is taking care of litigation strategies and internal legal processes.

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