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Legalising Prostitution in India

Mar. 27, 2020   •   Architi Batra

On 13 May 2016, the Allahabad High Court in Sushil v The State of Uttar Pradesh held that “even a prostitute has the fundamental right as well as the moral and social rights and she is at her liberty to permit a person for sexual intercourse.” The judgment was no doubt a breath of fresh air, especially for a community as tight-knit as India when it comes to the cynical perception towards sex work.

Prostitution is one of the oldest known professions and has been consistently present throughout ancient and medieval India. According to a recent census, around 3 million sex workers exist across India. This country is home to a few of Asia’s largest red-light hubs like Kamathipura in Mumbai and GB Road in New Delhi. Estimates show that these brothels in India are run on several illegal trafficking of girls on all levels, from the age of 14 to 50, which include girls who are Indian, Nepali, Bangladeshi and Russian.

The devadasi system still continues even after it was declared illegal by the Government of Karnataka in 1982 and Andhra Pradesh in 1988, according to a report of the National Human Rights Commission of the Government of India. This class consists of girls who have been offered by the parents of the service of God and their religion. Also prevalent in parts of the Bengal state of India is the Chukri System, whereby a female is coerced into prostitution to pay off debts as a form of bonded labour, which is completely illegal.

Some women and girls are by tradition born into prostitution in India to support the family. The Bachara Tribe follows this tradition with eldest daughters often expected to be prostitutes and they are forced to join the profession. Another example was when during our field visit to GB Road for an empirical study relating to the manner of living of prostitutes, we met a procuress who went by the name Shivani and belonged to Rajasthan. She stated that she had voluntarily joined the profession as it was her family occupation.

But most women we interacted with during our study had taken upon prostitution because of compelling circumstances such as providing financial support for their family, some even involuntarily.

Some research studies suggested the following factors to be conducive to prostitution: [1]

  1. Abduction: Young girls are abducted under some false pretext. Contrary to common belief, most kidnappers are females or couples. The incidence of prostitution through abduction is estimated to be 35%.
  2. Devadasi and other similar systems: System of prostitution with religious sanction still continues to flourish. Every year thousands of girls are dedicated to goddess ‘Yellamma; ‘Renuka’ (mostly in the State of Karnataka and Maharashtra) and after a brief period of concubinage, they become accessible to urban-prostitution. Devadasi System contributes to about 10% of total prostitution in India and to 20% of the child prostitution.
  3. Rape: About 6% of the girls entered prostitution after the incidence of rape. Rape creates a great social stigma and in some circumstances, the victims of rape are not even accepted at their own homes. Delay or even absence of justice cancels any better future perspective, and they often find their way into the brothels.
  4. Marriage: Though the problem of prostitution directly through marriage is not very common, in Pune nearly 15% of the women in prostitution came through marriage. Social factors also contribute to prostitution. The view of women as a commodity is pervasive in popular manifestations of Hindustan culture in India. Women who have had sexual experiences are considered to be ‘used goods’ and are unlikely to ever marry. Without a husband, a woman has no source of income. She is an impoverished cultural outcast. The prevailing line of reasoning is that she at least has a useful place as a prostitute. Women who have been widowed or divorced are also confronted with this social stigma. If a woman’s husband dies, she has essentially outlived her purpose. Since she is not a virgin, she obviously cannot marry again. The social stigma, which leads a woman to believe that her life is worthless after her husband’s death, is also attached to a woman whose husbands choose a different woman as their wife.
  5. Children of women in prostitution: Female children of the women in prostitution invariably end up in prostitution (98%), as there is no safe place for the children and there is no program for them till date, to get them out of these areas and to provide them alternation livelihood. This contributes to about 10% of prostitution.

Prostitution is a problem in itself and child prostitution is making it more complex. Quoting a study on 'Girls/Women in prostitution in India', Minister for Women and Child Development Renuka Chowdhury said that out of the total number of prostitutes in the country, 35.47% entered the trade before the age of 18 years. Though in cases like Gaurav Jain vs. Union of India, directions were given for the upliftment of prostitutes and the establishment of the juvenile home for the children of prostitutes. [2]

Following are the laws related to prostitution in India:

● Suppression of Immoral Traffic in Women and Girl Act, 1956 (SITA)

● Prevention of Immoral Traffic Act, 1956 (PITA)

● Immoral Traffic (Prevention) Act, 1956 (ITPA)

ITPA is the main statute dealing with sex work in India and is an amendment to SITA. It does not criminalize 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.

Section 3. Punishment for keeping a brothel or allowing premises to be used as a Brothel shall be punishable on first conviction with imprisonment for a term which may extend to two years and with fine which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term which may extend to five years and also with fine.

Section 5. Procuring, inducing or taking person for the sake of prostitution shall be punishable on conviction with rigorous imprisonment for a term of not less than three years and not more than seven years and also with fine which may extend to two thousand rupees, and if any offense under this subsection is committed against the will of any person, the punishment of imprisonment for a term of seven years shall extend to imprisonment for a term of fourteen years:

Provided that if the person in respect of whom an offense committed under this subsection, -

(i) Is a child, the punishment provided under this subsection shall extend to rigorous imprisonment for a term of not less than seven years but may extend to life; and

(ii) It is a minor; the punishment provided under this subsection shall extend to rigorous imprisonment for a term of not less than seven years and not more than fourteen years.

It is evident that both sections punished only the acts of the 3rd party and not the client who is equally involved in this activity. These laws are meant only with regard to women involved in this profession and nowhere are male prostitutes recognised by any law in India. 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 are found to be true, one is entitled to be punished in accordance with the 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 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. The only viable solution to the existing contradictory and perplexing legislation would be legalizing prostitution in spite of the social stigma it entails. It is high time that the sex industry is empowered with legal safeguards as it did not only benefit the sex workers, but also the society as a whole.

The legalization of prostitution will help control the sex industry and to some extent, put a lid on the amount of human trafficking involved as it will expose clandestine prostitution even if it increases the demand for paid sex. As the occupation the women are involved in would be legally safeguarded, it will mean they will have rights that they can exercise against their exploitation. It will also promote easy healthcare facilities for prostitutes.

In 2009, the Supreme Court had suggested that prostitution be made legal. The National Commission for Women, a national-governmental body, has changed its stance on the issue as well. Lalitha Kumaramangalam, its head, has stated that if prostitution is properly regulated then authorities would be in a better position to stop trafficking, especially that of children. It would also help in improving the squalid conditions in which the clients and workers operate and reduce the spread of HIV-AIDS as well as any other disease. [3]

Besides legalizing prostitution, tiny steps from the Central government and State governments would go a long way too in furthering the cause, such as teaming up with local non-governmental organizations and analyzing the ground level situations. Upon identifying the victims, either adolescents or adults, they should be made available with rehabilitation and trained counsellors to help them get out of this vicious cycle. Culturally sanctioned practises like the system of devadasis, jogins, bhavins, etc. which provides a pretext for prostitution should be addressed suitably.

If prostitution is legally recognized as an economic activity, it would curb most shortcomings of the business as sex workers would be considered as normal wage workers. Being able to practice their occupation legally, the fear of being exploited by the clients, middlemen, brothel owners and the police would dissipate. It would also make this industry liable to tax return which would make a huge difference due to the number of sex workers present across the country.

[The author Aishani Vij is a 3rd Year BA.LLB student from Vivekananda Institute of Professional Studies affiliated with Guru Gobind Singh Indraprastha University respectively.]


  1. https://www.ugc.ac.in/mrp/paper/MRP-MAJOR-SOCI-2013-25158-PAPER.pdf
  2. http://www.legalserviceindia.com/article/l269-Prostitution-in-India.html
  3. https://www.mapsofindia.com/my-india/india/legal-prostitution-in-india#

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