Prostitution is a controversial issue in India. According to encyclopedia, prostitution means a practice in which a female offers her body for promiscuous sexual intercourse for hire. Major cities like Delhi, Mumbai & Kolkata are operating illegal brothels in the areas of Sonagachi in Kolkata, Kamathipura in Mumbai and G.B. road in Delhi. The constitution of India prohibits trafficking in human beings, beggars and other similar forms of forced labour under Article 23(1) and any contravention of this provision shall be an offense punishable in accordance with the law under Article 23(2).

The right to life incorporated under Article 21 of the Indian Constitution is available to a prostitute which was highlighted in the case of Budhadev Karmaskar vs State of West Bengal. Under the case, the accused, Budhadev Karmaskar was held liable for murdering a sex worker in Kolkata in the year 1999. The court stated that the woman was indulged in prostitution not for pleasure but out of poverty. The court also stated that had the same woman got an opportunity to learn technical or vocational training, she would have earned her livelihood from her skill instead of selling her body. Section 372 and 373 of the Indian Penal Code,1860 deals with prostitution but it is not adequate.

 In India, there are special legislations like Immoral Traffic Prevention Act (ITPA) and local legislation like Goa Children’s Act etc. in addition to the provisions in the IPC (Indian Penal Code). Of these, The Immoral Trafficking Prevention Act, 1956 (“ITPA”) is the main statute dealing with sex work in India. 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.

As per section 2(f) of The Immoral Trafficking Act (1956) it gives the definition of “prostitution” as sexual exploitation or misuse of any persons for any business purpose. The constitutionality of this Act was challenged in the case of The State of Uttar Pradesh v Kaushalya. Under this case, a number of prostitutes were required to be removed from their residence to maintain the decorum of the city of Kanpur. The High Court 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.

Section 372 of IPC states “ Whoever sells, lets to hire, or otherwise disposes of any [person under the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any age be] employed or used for any such purpose, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall be liable to fine”. Section 373 of IPC states “Whoever buys, hires or otherwise obtains possession of any [person under the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, of knowing it to be likely that such person will at any age be] employed or used for any purpose, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine”.

During the lockdown in India when people were forced to remain in their house, prostitutes were struggling to make their ends meet. Supreme Court took note of their plight and told Centre and States to urgently provide them relief in form of dry rations, monetary assistance as well as masks, soaps and sanitizers under the National Disaster Management Act[1]. ‘Traffic in human beings’ means selling & buying men & women like goods and includes immoral traffic in women and children for immoral” or other purposes.”

 In 2006, an amendment to the Immoral Traffic (Prevention) Act was proposed, but has not been enforced till date. According to the amendment, it deleted the provisions that penalized prostitution by soliciting clients. There exist numerous reasons which compels a woman or a man to take up prostitution out of which poverty and unemployment are two major influential factors that causes them to engage in commercial sex.

It has been seen that women of the remote areas fall prey to unscrupulous intermediaries who gives them assurance of decent job opportunities and then sells them as prostitutes[2]. In the recent times there has been an emerging trend of trafficking of child prostitutes in this profession. Such girls are not kept at one place for a long period of time. Instead, they are shifted occasionally so as to avoid familiarity with customers and also to avoid police detention. Since prostitution is not recognised as a morally acceptable profession in India, therefore, a lot of stigmatization is experienced by those involved in the sex trade. These stigmas lead to marginalization and ultimately prevent the prostitutes from proper healthcare, education and, most importantly, the right to practice the business of making money from sex[3].

There have been multiple suggestions for legalising prostitution. But the question whether such legalisation would really result into overcoming the faults of the existing system or whether it would come up with its own unique problems affecting rights of sex workers remains unanswered. It is essential that the present status be changed and necessary steps be taken to ensure that Sex workers should enjoy the same protections and benefits as other citizens and workers.

[1] Harshit Anand- LEGAL ASPECTS OF PROSTITUTION IN INDIA, Legal Aspects of Prostitution in India – Aishwarya Sandeep, visited on 20-08-2021 at 18:09hrs.

[2] Priyadeep Mahapatra- PROSTITUTION IN INDIA : RIGHTS OF PROSTITUTES AND ITS VIOLATION, Prostitution in India : RIGHTS OF PROSTITUTES AND ITS VIOLATION – Aishwarya Sandeep, visited on 20-08-2021 at 19:19hrs.

[3] Ibid.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

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