CRITICAL ANAYSIS OF PROSTITUTION LAWS IN INDIA
The Author of this blog is Ms. Akansha Anand of Fairfield Institute of Management & Technology, New Delhi
major hubs for the brothel of the Prostitution are Delhi, Mumbai, and Kolkata.
In the Indian context, prostitution is not legal. However, Prostitution is an
unethical practice in India but acts like managing a brothel, living off the
money procured employing prostitution, soliciting or luring a person into
prostitution, traffic of children and women for prostitution, etc. are illegal
practices states under the Immoral
Traffic (Prevention) Act, 1956. In other words, prostitution done by an
individual woman by providing sex in exchange for money is legal but running a
sex racket business is illegal.
the Indian Penal code, 1860 certain acts which have been described above are
illegal and punishable as an offence in the eyes of law. 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 in India changes with the change in time, in ancient time there
was a practice known as Devadasis which was popular in the Hindu religion, the
people called it as pratha that should be done by Hindus in the name of their
god. In this practice of devadasis, the Hindu gives their daughter to the
temple for dancing and singing in the name of God, they called it a ritual but
by the passage of time the priest of the temple stated misusing the females by
taking advantage of them. We can say that it was the starting phase of the
practice of prostitution.
time, the era which had come was British era in India where Britisher came here
and start their business by the organization of East India Company, due to the
economic pressure and for livelihood, many women of India started working as a prostitute
where they provide sex with the exchange of money.
the main problem that is faced by those women was the problem of exploitation,
the inhuman behavior with them, and the non-acceptance of the society.
LAWS RELATED TO PROSTITUTION
has been defined under the Immoral Traffic (Prevention) Act which states that
‘sexual exploitation and abuse of a woman for a monetary purpose is known as
Prostitution’ and Prostitute defined as a female who does sex with someone for
gaining of commercial benefit. The Indian Penal code also deals with the
prostitution but it mainly limited to the child prostitution and human
trafficking, kidnapping or attempt to kidnap a child or a woman for seduction
and luring a person into sex, importing and exporting of females and it has
also described their punishment as well as with their definitions.
Constitution of India has also had some provisions regarding illegal human
trafficking and forced labor which indirectly includes the trade of prostitute
and illegal trafficking of a woman. In Article 23(1), the Constitution
prohibits forced labor and beggars and other similar types of human
trafficking. In clause (2) of the constitution of India, it declares that any
contravention of this provision shall be an offense punishable under the law.
the case of State of Uttar Pradesh V.
it was held that the number of prostitutes was needed to remove from a
particular place to maintain the balance and decorum of residence in the city
of Kanpur. Hence the constitutionality of the act Immoral Trafficking (Prevention) Act was challenged as Section 20
of this act abridges the fundamental rights provided in the constitution under
Article 14, 19. It was held by the High Court that the act is constitutionally
valid as there is no difference between a person and prostitution if someone
causing a nuisance it needs to get stop to maintain the order and decorum in
ITPA aims at proving the society equal opportunity and to safe girls and children
from the practice of prostitution and safe them from indulging in this
practice. The act seeks that the illegal act should be criminalizedwhich gives
rise to the profession of prostitution and police should stop them from working
under the laws.
FACTS ABOUT PROSTITUTION IN
are the facts of prostitution in India-
is legal in India, however, the executive machinery of the Government of India
should take care of the rise in brothel or person forcibly engaging women and
girls to this profession. The state should make static data that should
indicate the number of prostitutes in a particular area and there other basic
information should be on the record.
Ministry of Home Affairs has made a report in 2016 which was called National
crime statistics, in which the crimes were recorded. It was estimated that 110
crimes were recorded against the women for forceful prostitution which consist
of every age women including 50 children in which one-fourth was kidnapped and
abducted in the metropolitan cities.
the year 2016, a total number of 2300 cases came under the Immoral Trafficking
(Prevention) Act in which 100 cases out of 2300 were men victims.
LOOPHOLES IN THE EXISTING LEGAL MECHANISM IN
law enforcement scenario, seen from the traditional viewpoint, presents a
dismal picture. The Action Research conducted by the National Human Rights
Commission, during 2002 -2004 shows that the major issues in the existing
scenario of law enforcement are as follows:
of priority: The law enforcement agencies and justice delivery agencies for
various reasons, give the lowest or nil priority to the issues of prostitutes.
Lack of sensitivity is a major challenge in response to prostitutes. It is more
of an attitudinal issue.
of the victim: More often trafficked women have been arrested and penalized as
‘soliciting persons; The NHRC study shows that around 85 to 90 percent of the
arrested persons are women and most of them are victims of trafficking.
One of the major drawbacks in law enforcement is the fact that there is no
database of traffickers and other exploiters. There is no sharing of
intelligence among the stakeholders and therefore, the offenders indeed act
elaborate discussion with regards to the problems of the prostitutes in India,
loopholes in the existing legal mechanism dealing with the prostitution
industry, merits of regulation of this industry, etc now leads us to the
out problems is easy, but finding solutions is a mammoth task. Here, we have
tried to list out a few steps which can be taken to elevate the condition of
prostitutes in society.
conflation of sex work and trafficking in law and policy.
that anti-trafficking laws are not used to abuse the human rights of people in
of Adult Persons and Trafficking of Children should be dealt with under two
separate laws to ensure that consenting adults are not infantilized and
children are given justice.
efforts of community-based organizations and collectives of sex workers to
fight trafficking in their communities.
decriminalize sex work and related activities
laws that prohibit consenting adults in sex work such as laws against
"immoral" earnings, "living off the earnings" of
prostitution and brothel-keeping.
legal measures must be taken to ensure safe working conditions for sex workers.
8. Ensure that existing
civil and administrative offences
such as “loitering without purpose”, “public nuisance”, and “public
morality” are not used to penalize sex workers and administrative laws such as
“move on” powers are not used to harass sex workers.
down compulsory detention or rehabilitation centres for people in sex work.
mechanisms to recognise and act against violence faced by sex workers,
strengthen accountability of law enforcement
11. Guard against arbitrary arrest and detention
of sex workers,
and investigate complaints of
harassment, extortion and abuse by law enforcement personnel.
12. Maintain confidentiality and
respect privacy of
sex workers approaching
law enforcement agencies and judiciary for redress in cases of sexual
assault, exploitation and violence.
to issues faced by sex workers should be made a part of training for police
personnel, public prosecutors and the judiciary in partnership with community
organisations of sex workers.
sex workers’ access to justice
free legal aid services are available in rural areas for sex workers and
offered by lawyers who have been trained in issues faced by sex workers.
mandatory HIV and STI testing of sex workers following arrest.
17. Ensure implementation of
the Supreme Court
recommendations to issue
identity documents and ration cards to sex
workers at the national, state, district and sub-district levels.
participation in policy making.
the empowerment, active participation and leadership of sex work networks,
federations and collectives
in designing policies
and processes for
participation of sex work organizations in drafting/ amending relevant laws,
policies, and programs and in their implementation.
The issue that need of the hour for the government agencies, they should take into consideration about the problem of Prostitution. The need for law, especially for prostitution, should come and prevail in the society which includes men too consider in the laws regarding prostitution. The legislation needs to be more practical and make laws to uplift the women who are indulged in prostitution and save their rights. Society needs to be modern and accept the women who are prostitutes as it was the mis-happening with them which forced them to come into this profession and however, it is no wrong until it becomes illegal.
1964 AIR 416, 1964 SCR
Kiran; Nair.P.M 2008.
Julie Bindel,The Pimping of Prostitution: Abolishing the Sex Work Myth.