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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
Indulge in prostitution by arranging a sex worker
Arrangement of a sex act with a customer
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.
Prostitution denotes providing sex work in exchange for money. It not just indicates gratification of sex but also other accompanying acts such as solicitation of customers, management of brothels, pimping or dealing with prostitutes, sex traffics and other activities that facilitate prostitution, thus promoting the growth of sex industry.
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.
In the Indian context, prostitution is not explicitly illegal though pronounced to be unethical by the Court, certain acts that facilitate prostitution are regarded as illegal and acts like managing a brothel, living off the money procured by means of prostitution, soliciting or luring a person into prostitution, traffic of children and women for the purpose of prostitution, etc. are made explicitly illegal by the Immoral Traffic (Prevention) Act, 1956 (ITPA). For example, running a sex racquet is illegal but private prostitution or receiving remuneration in exchange for sex with consent without prior solicitation might not be illegal.
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.
It was stated in Raj Bahadur v. Legal Remembrancer, 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 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 Kaushalya. 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 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. 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.
A proposal was made in 2006 to amend the Immoral Traffic (Prevention) Act and has not been enforced yet. The amendment bill deletes the provisions that penalize prostitution by soliciting clients. This proposal recommends enhanced punishment and an increased fine amount. It intends to criminalize the act of visiting a brothel for the purpose of sexual exploitation of trafficked victims with imprisonment of at least three months or a fine of Rs. 20,000 which has not been criminalized in the Act. The bill constitutes authorities at the center and state level to combat trafficking. The term “trafficking in persons” has been defined with a provision for punishing any person who is guilty of the offence of trafficking in persons for the purpose of prostitution.
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.
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.
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.
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.
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.
The issue of prostitution has become the need of the hour and Governmental agencies are required to address this issue at the earliest. The legalization of prostitution appears to be more practical and feasible than trying to abolish prostitution as the government has been trying it for decades and hardly struck that note. The lives of prostitutes are saddening and it is in the hands of the society to evolve which could be catalyzed by the Governmental Institutions. The male prostitution industry is still unrecognized by law and it calls for due attention. On that note, laws shall be amended to include men along with women.
Can a customer of prostitution be penalized?
In the present scenario, private prostitution is not recognized as an offence. Thus a customer is not penalized and there is no provision under any statute to do the same.
What are the shortcomings of laws related to prostitution?
Prostitution is a topic where laws are have not fully evolved yet. It is silent about male prostitution and bisexual acts of prostitution. The rights of sex workers have no place in any statute.
Is the red light area legal in India?
According to Section 7 of the Immoral Traffic (Prevention) Act, 1956, the existence of red light areas in the vicinity of public places like schools, colleges, temples, etc. are prohibited and penalized. However, there is no provision stating that the red light area is illegal as such.
What is the punishment for child prostitution in India?
The Indian Penal Code of 1860 penalizes child prostitution by granting ten years of imprisonment or fine for a person convicted for buying or selling children for the purpose of prostitution.
Is it legal to operate a prostitution website in India?
The answer is no. Operating a website for prostitution will amount to the solicitation and this is an offence under the Prevention of Immoral Traffic Act, 1956.
Are newspaper advertisements providing escort services allowed?
They are not allowed as such an act is considered to be solicitation which constitutes an offence.
Can I be punished for merely contacting an escort agency?
Any person contacting an escort agency will not be punished as there is no law to punish the customers of prostitution.
 AIR 1953 Cal. 522
 1964 AIR 416.
 Available at https://indiankanoon.org/doc/1302025/