Prostitution Laws in India

1. Introduction

    “All of us, with the exception of the wealthy and unemployed, take money for the use of our body. Professors, factory workers, lawyers, opera singers, prostitutes, doctors, legislators – we all do things with parts of our bodies, for which we receive a wage in return. Some people get good wages  and  some  do  not;  some  have  a  relatively  high  degree  of  control  over  their  working conditions  and  some  have  little  control;  some  have  many  employment  options  and  some  have very few. And some are socially stigmatised and some are not.”        

 [Martha Nussbaum, Sex and Social Justice, 1999]

Prostitution is the business, trade or practice of engaging in sexual activity in exchange for monetary payment.[1][2] Prostitution is sometimes described as commercial sex, sexual services, or hooking. It is sometimes referred to as “the world’s oldest profession”. A person who works in this field is called a prostitute and is a type of sex worker.

Prostitution occurs in a various forms in the world, and its legal status varies from one country to another country (sometimes from region to region within a given country), ranging from being an enforced or unenforced crime; from unregulated to a regulated profession. It is considered as one branch of the sex industry, along with pornography, stripping, and erotic dancing. 

2. The Causes of Prostitution

The main cause of prostitution is generally, poverty or other economic constraints which drives people to get involve in prostitution practices. The poverty is increasing at an alarming rate due to which the risk of people falling prey to prostitution is also increasing at a very high rate.

Some of the people who enter the prostitution industry are victims of rape, human trafficking, child labour, slavery and thus they see nothing divine or important about sex, and on the contrary see sex as a profession. Their concepts about love and sex have been derailed due to their prior horrific experiences and many of them suffer from sexual disorders which lead them to join prostitution.

Mostly, children become wayward when they have no one to guide and monitor them. Children like these get exposed to various social vices which have the potential capacity to lure them towards prostitution. The causes of prostitution may include:

  1. Economic crisis and distress
  2. Rape Victims
  3. Social Customs
  4. Inability to marriage
  5. Bad company and improper guidance
  6. Early Marriage and desertion by the other spouse (generally husband)
  7. Human Trafficking
  8. Sex Tourism
  9. Lack of Sex Education

3. Male Prostitution in India

There has been a substantial rise in the male prostitution industry in past two decades. This industry got boosted by the wealthy foreign women who visited India in search of cheap sex and no fear of legal implications. Now, the Industry has made a place for itself in the market with clientele mostly being women of wealthy and rich families.

Sex workers in this industry are mostly Males of age group 19-35 years. The reasons which compel them to join this profession are mostly economic distress and poverty. But, many instances have been there where male sex workers were from affluent sections of the family and joined this profession solely for the purpose of enjoyment and easy money. The Industry is experiencing higher growth rate in India than ever and the scope of Industry is very bright.

Today, the male prostitution providing its services in different forms, some of those are Male Escorts, Call Boys, Play Boys, and Gigolos etc. In old days the male prostitution was not very organized and properly maintained, but now days with the help of technology such as internet, computer and mobile etc the male prostitution becomes very organized and properly providing best quality sexual services to women those want.

The two main male sex workers job can be classified into:

1.     Call Boy Services In India: 

Callboys are very much preferred by the Indian women who need sexual service for a short period of time i.e. for weekly once or monthly one sexual service then they hire call boys that provide their services take their payment and leave the client. The women clients also get relaxed and they many call that callboy again for service or can choose another call boy according to their own wish. So these types of male prostitution services are preferred by most of the Indian women those need sexual services.

2.     Gigolo Services in India: 

Some India women are present those belongs to rich families they need a permanent type of male prostitute who can provide them sex along with quality time. These types of women prefer to hire Gigolo Services because the gigolos are serving one client for a long period of time, they act as a real boyfriend or husband but the difference is they are charging money for being a boyfriend or husband.

The clientele of Male sex workers generally include mostly women of age group 30-50 years and men.

  1. Unsatisfied Wives.
  2. Divorced women.
  3. Teenage girls.
  4. Gay clients

One thing is need to be noted here that in most of the cases even if the male sex worker are heterosexual then also they are ready and comfortable to indulge in sexual acts with other male clients.

4. Laws related to Prostitution

4.1 Is Prostitution legal in India?

In the Indian scenario, prostitution is not explicitly considered as illegal, though it has been pronounced to be unethical by the Courts on various occasions, certain acts and practices 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, trafficking 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.

4.2 Laws related to Prostitution:

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, 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 sexual purposes, etc.

Additionally, Article 23(1) of the Constitution of India prohibits trafficking of human beings and beggars and other similar forms of forced labor. Article 23(2) of the Constitution of India declares that any contravention of clause (1) of Article 23 shall be an offense punishable in accordance with the law.

It was observed in Raj Bahadur v. Legal Remembrancer[3], 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.”

4.3 The illegal activities related to prostitution

Immoral Traffic (Prevention) Act, 1956 declares certain acts and practices to be illegal. These acts include managing a brothel, solicitation for prostitution or allowing the usage of certain places as brothels, kidnapping a girl for prostitution, living on the earnings of a prostitute’s money, inducing or 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.

4.4 What is the punishment and penalties for indulging in the illegal activities?

The above mentioned activities attract heavy penalties such as rigorous imprisonment even at the first instance of conviction.

In Guria, Swayam Sevi Sansthan vs State of U.P. & Ors[4], the Supreme Court observed that, the people who commit offences under the Immoral Traffic (Prevention) Act, 1956, must be dealt with utmost strictness as pimps and traffickers enhance the immoral traffic of prostitution which is the act against the society. In case they are released, these people would again indulge in these acts because they have no other business.

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 a 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.[5]

 In addition, the Indian Penal Code under Section 370A punishes the offender for exploitation of a trafficked minor with imprisonment of five to seven years.

4.5 Main Provisions of Immoral Traffic (Prevention) Act, 1956:

The main legislation 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[6]. In this case, a large 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 ITP Act abridged the fundamental rights of the respondents under Article 14 and sub-clause (d) and (e) of Article 19(1) of the Constitution. But the Supreme Court of India, held the Act as constitutionally valid as there was an intelligible difference between a prostitute and a person causing nuisance. The Act is also in consonance with the object sought to be achieved i.e. maintaining order and decorum in society.

4.6 Laws for protection of sex workers and their rights:

The right to life enshrined under Article 21 of the Constitution of India is also applicable to a prostitute. This hypothesis was explained in the case of Budhadev Karmaskar v State of West Bengal[7]. The Apex Court observed that sex workers are also 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 and difficulties of prostitutes and sex workers and empathized with them that these women are compelled to indulge in prostitution not for pleasure but because of abject poverty and directed the Union Government and State Governments to open rehabilitation centers and impart various technical and vocational skills like sewing, so that they can attain their livelihood by other means.

Following the direction of the Supreme Court, 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. It is stated in the Section 21 that, an appropriate authority should be appointed for conducting an investigation for the application of license for the protection homes. These licenses are not transferable and would be valid only for a specified period as mentioned in the Act. 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.

4.7 What are the laws to prevent forced prostitution?

Forced prostitution is generally where young children or teenagers are compelled to indulge in prostitution activities 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. This is a clear limitation of the code.

5. Some suggestions

5.1 Legalization of Prostitution:

Prostitution is considered as a taboo in India and is not discussed openly and hence, it is a topic frequently frowned upon. However, prostitution and like practices pose a huge threat to the Indian society for their role in weakening the institution of marriage, increase in sexually transmitted diseases, abduction of children, isolation of prostitutes from society, physical and mental trauma to people victims to such practices, etc.

Abolition of prostitution from India is a mammoth task as it is an ancient practice and has existed for too long. Though it has been described to be illegal by the courts on multiple occasions, it is still continued. This could be due to lack of enforcement of laws or due to inability to restrict this practice. To combat against this issue, legalization of prostitution could be adopted since abolition appears to be a daydream.

5.2 Pros and Cons of legalizing prostitution:

If prostitution is explicitly legalized in the country, the State will acquire the responsibility to manage brothels and the State can fulfill this obligation by issuing license to authorized persons. It would also formulate guidelines regarding the database on clientele, age of prostitutes, adequate remuneration and medical facilities to the prostitutes. Through this way, the prostitutes can acquire some rights such as right to medical care and attention, right to education of their children and themselves too, right against exploitation and rape, etc. Legalization of prostitution in an explicit manner can facilitate in the eradication of sex racquet operations, hidden and street prostitution, abuse of prostitutes, etc.

On the other side, legalization of prostitution could be misinterpreted as promulgation of prostitution. This could pave way for easy earnings for prostitutes and pimps; and would even encourage more women to practice prostitution. The legalization of prostitution may also lead to increase in sex tourism in India and even lead to rise in number of cases of human trafficking. 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.

6. Conclusion:

The issue of prostitution has become the need of the hour and Governmental agencies are required to address this issue at the earliest. A more practical and feasible option seems to be legalization of prostitution rather than trying to abolish prostitution as the government has been trying it for decades and hardly struck that note. The state of lives of prostitutes is disheartening and it is in the hands of the society to evolve with time, which could be catalyzed by the Governmental Institutions. The male prostitution industry is still unrecognized under law and it also calls for due attention. On that note, existing legislations and laws shall be amended to include men along with women.

References

  1. The Constitution of India.
  2. Immoral Traffic (Prevention) Act, 1956.
  3. Indian Penal Code, 1860.
  4. All India Reporter
  5. Supreme Court Cases
  6. Indian Kanoon
  7. www.merriamwebster.com
  8. www.livelaw.in

Questions

  1. What is prostitution? Is it a profession?
  2. What are the various causes of prostitution, in Indian context?
  3. Is prostitution legal in India? Are there any provisions in present laws of the country clarifying that prostitution is legal in India?
  4. Discuss the important provisions of the Immoral Traffic (Prevention) Act, 1956.
  5. Explain the male prostitution industry in India? Are there any rules or laws governing male prostitution in India?

[1] “Prostitution Law & Legal Definition”. US Legal.

[2]  “Prostitution – Definition and More from the Free Merriam-Webster Dictionary”. Merriam-Webster.

[3] AIR 1953 Cal 522, 57 CWN 507

[4] CRIMINAL APPEAL NO. 1373, 2009 [Arising out of SLP (Crl.) No. 2585 of 2006]

[5] The Immoral Traffic (Prevention) Act, 1956.

[6] 1964 AIR 416, 1964 SCR (4)1002.

[7] Budhadev Karmaskar vs State Of West Bengal. In the Supreme Court Of India, CRIMINAL Appellate Jurisdiction Criminal Appeal No. 135 OF 2010.

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