Is Prostitution Legal in India?

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This article is written by Soumya Shefali Chandrakar, a first-year law student of Hidayatullah National Law University

Prostitution is considered as one of the oldest professions in the world. Yet, in present scenario the sex workers or prostitute comes under the most vulnerable sections of society. whether it be violence, cruelty, atrocities or the web of laws which punishes them. They have to face the worst working conditions and are the one whose rights have always been violated. Most women do not choose prostitution; rather they are forced into this work because of drug addiction, poverty, lack of education and lack of awareness. And beside general health problem they are also exposed to high risk of getting HIV/AIDS and sexually transmitted diseases (STDs). There is a lot of misconception about its legal status in India. Here we will see the legality of prostitution in India.

Prostitution per se is legal in India, yet certain acts or activities related to it is regarded as illegal or are considered as punishable. If any person found to be indulged in the activities enumerated below, is entitled to be punished in accordance with laws of the legal arena in place:

  • Soliciting services of prostitution at public places
  • Running brothel
  • Carrying out prostitution activities in hotels
  • Pimping
  • Indulge in prostitution by arranging a sex worker
  • Arrangement of a sex act with a customer

A prostitute is a person, “who allows her body to be used for lewd purposes in return for money”. The primary law dealing with the status of sex workers is the 1956 law referred to as The Immoral Traffic (Suppression) Act (SITA).  The SITA act was passed in 1956 as a result of the signing by India of the United Nations’ declaration in 1950 in New York on the suppression of trafficking. However, in practice SITA is not commonly used. The Indian Penal Code (IPC) which predates the SITA is often used to charge sex workers with vague crimes such as “public indecency” or being a “public nuisance” without explicitly defining what these consist of. In 1986 the old law was amended as the Immoral Traffic (Prevention) Act or ITPA. In India, Prostitution itself is not illegal though it is pronounced to be unethical by the courts.

The ITPA Act defines certain acts that facilitate prostitution are regarded as illegal;

  • Section 2(a) defines „brothel‟ as “„any house, room, conveyance or place or any portion of any house, room, conveyance or place which is used for purposes of sexual exploitation or abuse for the gain of another person or for the mutual gain of two or more prostitutes‟.
  • Brothel keeping (Section 3)
  • Living on earnings of sex work (Section 4)
  • Procuring, inducing or detaining for prostitution (Section 5 & Section 6) Penalties are of more degree where offences involve children (under age of 18 years)
  • Prostitution in areas notified by Police & near public places (Section 7)
  • Soliciting (Section 8) all offences are cognizable i.e. police do not require a warrant to arrest or search.
  • (Section 14) Police personnel entrusted with the application of the Act locally (Special Police Officers) as well as at the national level (Trafficking Police Officers) are conferred special powers (Section 13) to raid, rescue & search properties suspected of serving as brothels (Section 15).
  • Magistrates are authorized to order arrests & removal, direct custody of rescued persons, close down brothels & remove sex workers (Sections 16, 17, 18 & Section 20).

The Act provides institutional rehabilitation for “rescued” sex workers. (Sections 19, 21, 23 & ITPA State Rules).

To know the Legality of prostitution in various countries, visit the site below.

 Countries Where Prostitution Is Legal by Population 2020

 Source: CIA’s World Factbook 2017

References

Prachi Darji. Prostitution in India. MY ADVO. https://www.myadvo.in/blog/prostitution-in-india-read-its-causes-legality-and-law/. 12.09.19.

Moushumi Das Gupta and Bhadra Sinha. ‘Consenting’ adult sex workers should not be arrested: SC panel. Hindustan Times. https://www.hindustantimes.com/india/adult-sex-worker-participating-with-consent-should-not-be-arrested-sc/story-plLs1o0QIcPRMqNjmz2PPM.html. 14.02.16.

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC141189/. Baker, Lynda M et al. “General health problems of inner-city sex workers: a pilot study.” Journal of the Medical Library Association : JMLA vol. 91,1 (2003): 67-71.

Deepali Chaudhary. The Immoral Traffic (Prevention) Act, an Overview. Young Arena Litigators. https://youngarenalitigators.blogspot.com/2017/08/the-immoral-traffic-prevention-act.html?view=classic. 06.08.17.

ProCon.org. “Counties and their prostitution policies.” 04.23.2018. https://prostitution.procon.org/countries-and-their-prostitution-policies/.

Image from https://www.legalcheek.com/lc-journal-posts/the-problem-with-policing-prostitution/

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