DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY,

LUCKNOW
2019-2020

FINAL DRAFT
TOPIC: “PROSTITUTION IN INDIAN SOCIETY: ISSUES, TRENDS
AND REHABILITATION”

SUBJECT: WOMEN AND LAW

SUBMITTED TO: SUBMITTED BY-

Dr. Aparna Singh Niharika Yadav

Dr. RMLNLU, LUCKNOW Enroll no.150101087

IX SEMESTER

B.A. LL.B. (Hons.)

 CONTENTS
ACKNOWLEDGEMENT ................................................................................................................................... 3
1. INTRODUCTION ..................................................................................................................................... 4
2. HISTORICAL BACKGROUND ................................................................................................................... 4
3. TYPES OF PROSTITUTES......................................................................................................................... 5
4. FACTORS CONDUCIVE TO PROSTITUTION ............................................................................................ 6
5. POVETY’S ROLE IN INDIAN PROSTITUTION ........................................................................................... 7
6. MISERIES AND SUFFERINGS OF PROSTITUTES ...................................................................................... 7
7. LAWS RELATED TO PROSTITUTION IN INDIA ........................................................................................ 8
8. MAGNITUDE AND TREND OF THE PROBLEMS IN INDIA ..................................................................... 11
9. POSSIBLE SOLUTIONS .......................................................................................................................... 11
10. PREVENTIVE PROGRAMMES ........................................................................................................... 11
11. REHABILITATIVE AND FOLLOW-UP PROGRAMMES ........................................................................ 12
12. SHALL INDIAN LEGALIZR PROSTITUTION?....................................................................................... 13
 ACKNOWLEDGEMENT

I would like to express the deepest appreciation to the Professor (Law) “Dr. Aparna Singh”
ma’am who gave me the opportunity to work on this wonderful research topic. She has also
shown the attitude and the substance of a genius; she continually and persuasively conveyed a
spirit of adventure in regard to research and an excitement in regard to teaching. Without her
supervision and constant help this study would not have been possible.

I would like to express my gratitude towards my parents and my colleagues for their kind co-
operation and encouragement which helped me in completion of this project. I would like to
extend my sincere thanks to all of them.

I am highly indebted to library of Dr. Ram Manohar Lohiya National Law University for
providing necessary information regarding the project.

THANK YOU

NIHARIKA YADAV
 1. INTRODUCTION

“Purely from the angle of economic return, the hard question is not why so many women become
prostitutes, but why so few of them do.” - K. Davis (1937)

Female prostitution is perhaps the oldest profession all over the world. Alas, it is perhaps the
most hated profession. Hated in the sense that people who visit them actually enjoy it, but in
society, they pretend otherwise.

The Encyclopaedia of social science defines prostitution as “the practice in which a female offers
her body for promiscuous sexual intercourse for hire etc”. However, a new definition has been
coined for the word ‘Prostitution’ in the Government of India’s “Prevention of Immoral Traffic
Act-1987, which now means “Sexual exploitation or abuse of persons for commercial
purposes.”

2. HISTORICAL BACKGROUND

Prostitution is one of the oldest professions of the world practiced since the birth of the organized
society. Prostitution is practiced in almost all the countries and every type of society. In India,
the Vedas, the earliest of the known Indian literature, abound in references to prostitution as an
organized and established institution. In Indian mythology, there are many references of high-
class prostitution in the form of celestial demigods acting as prostitutes. Aryan rulers of India
followed the system of celestial court and developed the system of guest prostitution. Prostitutes
were common during the reign of the Pandavas and Kauravas (Historical Indian rulers). They
had certain definite prerogatives, rights and duties. Vatsyayan, the noted Indian sage of the Third
century B.C. devoted a number of pages on prostitutes and their amorous ways of life in his
monumental treatise Kamasutra. Rules of conduct for popular and successful practice of their
trade have been prescribed. During the Mugal era in the sub-continent, prostitution had a strong
nexus with the performing arts. Mugals patronized prostitution which raised the status of dancers
and singer to the higher levels of Prostitution1. The Muslim rulers with the exception of
Aurangazeb recognized prostitution and the profession flourished under royal patronage. The
word ‘Tawaif’ and ‘Mujra’ became common during this era. This shows that prostitution existed
in India in some form or the other from time period to period and the evil has continued to
persist.

3. TYPES OF PROSTITUTES

Generally prostitutes can be classified on the basis of their ‘modus operandi’ which is as
follows2:

 Brothel Prostitutes: Their operations are carried out in the brothel which is owned by an
ex – prostitutes. The prostitutes work for a commission based on her sexual service.
 Call Girl Prostitutes: They generally operate independently from her place. She may be
available directly or solicit customers through middlemen.
 Street Prostitutes: This type solicits customers on the streets and takes the customer to a
place of assignation.
 Other Types: Clandestine forms of prostitution are also found in bare, massage parlours,
amusement centres, dance clubs etc.

1
BBC report on number of female sex workers in IndiaArchived 4 March 2016 at the Wayback Machine BBC
News.
2
Schoffield, Katherine Butler (April 2012). "The Courtesan Tale: Female Musicians and Dancers in Mughal
Historical Chronicles, c.1556–1748". Gender & History.
 4. FACTORS CONDUCIVE TO PROSTITUTION

The social and economic subordination of women by men has often been cited amongst the
important causes leading to prostitution. Some research studies suggested the following factors
to be conducive to prostitution3:

 Abduction: This is the most common cause. Young girl are abducted from their villages /
negative places on some or other pretext, exploiting their innocence. Incidence of
prostitution through abduction is estimated to be 35 percent.
 Devadasi System: The inhuman system of prostitution with religious sanction “Devadasin
System” still continues to flourish in the so called progressive and democratic country.
Devadasi System contributes to about 10 per cent of total prostitution in India. Devadasi
System contributes to 20 per cent of the child prostitution and moreover it legitimizes the
practice of putting them to prostitution.
 Rape: About 6 per cent of the girls entered prostitution after the incidence of rape. Rape
on the girls is a great social stigma and in some circumstances, the victims of rape are not
even accepted at home. When they don’t find any safe place in society and don’t foresee
any better future perspective, they find their ways in the brothels. About 8 per cent of the
girls came to prostitution following the incidents of incest.
 Marriage: Though the problem of prostitution directly through marriage is not very
common in Bombay, a few cases were noticed through this source. In Pune, nearly 15 per
cent of the women in prostitution came through marriage.
 Children of women in prostitution: Female children of the women in prostitution
invariably end up in prostitution (98 per cent), as there is no safe place for the children
and there is no programme for them till date, to get them out of these areas and to provide
them alternation livelihood. This contributes to about 10 per cent of prostitution.
 Social Factors in 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

3
Gilada I.S (1999): Prostitution in India: Causes, Extent, Prevention and Rehabilitation; Social Problems & Welfare
in India. N.Delhi.
 husband, a woman has no source of income; she also cannot wear the marriage bindi. She
is an impoverished cultural outcast. The prevailing line of reasoning is that she at least
has a useful place as a prostitute.

When strong cultural notions are combined with the potency of religion or poverty, even more
people are pressured into prostitution.

5. POVETY’S ROLE IN INDIAN PROSTITUTION

One of India’s most striking characteristics is its material poverty. An estimated 40% of India’s
population lives in poverty. This is an overwhelming, almost unimaginable statistic. This
desperate poverty is often cited as the root of India’s growing prostitution problem. It is however
argued that in many countries with prosperous economy, high standard of living, universal
education, full equality between men and women, the problem of prostitution remains unsolved.
This indicates that trade in human flesh goes on unabated not simply because of ignorance,
illiteracy, poverty or a like but also because human beings consciously choose this occupation
and are willing to be manipulated by others.4

6. MISERIES AND SUFFERINGS OF PROSTITUTES

Most of these workers are treated very inhumanly at the early stage of their stay at the brothel.
They are beaten frequently in order to create fear in their mind. Once they reach the age of
entertaining the customers they are physically forced to do so. Having achieved what the brothel
owner wants, these workers virtually remain under house arrest to prevent their possible escape5.

4
Bedi ,Kiran Nair.P.M (2008): Human Traffiking In India , Yojana ( Vol-52).
5
India, Ministry of Home Affairs, National Crime Record Bureau (2006), Crimes in India, N. Delhi.
The government estimates that there are three million sex workers in India. Most of them are not
only HIV affected but are suffering from various other diseases. They don’t have a proper access
to medical facilities.6

7. LAWS RELATED TO PROSTITUTION IN INDIA

Constitution of India, under article 23, prohibits trafficking in every form including commercial
sexual exploitation of women and girls. We have 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).

 Immoral Traffic (Prevention) Act-1956

The Immoral Trafficking Prevention Act, 1956 ("ITPA"), the main statute dealing with sex work
in India, 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.

(1) Any person who keeps or manages, or acts or assists in the keeping or management of, a
brothel, shall be punishable on first conviction with rigorous 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 and in the event of a second or subsequent to conviction with rigorous
imprisonment for a term of not less than two years and not more than five years and also with
fine which may extend to two thousand rupees.

(2) A any person who, - (a) Being the tenant, lessee, occupier or person in charge of any
premises, uses, or knowingly allows any other person to use, such premises or any part thereof as
a brothel, or (b) Being the owner, lesser or landlord of any premises or the agent of such owner,

6
"Mapping cultures". The Hindu. Chennai, India. 11 August 2004: accessed on 1st Oct, 2019.
lessor or landlord, lets the same or any part thereof with the knowledge that the same or any part
thereof is intended to be used as a brothel, or is wilfully a party to the use of such premises or
any part there of as a brothel, shall be punishable on first conviction with imprisonment for a
term which may extend to two years and with fine which 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.

(2-A) For the purposes of sub-section (2), it shall be presumed, until the contrary is proved, that
any person referred to in clause (a) or clause (b) of that subsection, is knowingly allowing the
premises or any part thereof to be used as a brothel or, as the case may be, has knowledge that
the premises or any part thereof are being used as a brothel, if, - (a) A report is published in a
newspaper having circulation in the area in which such person resides to the effect that the
premises or any part thereof have been found to be used for prostitution as a result of a search
made under this Act; or (b) A copy of the list of all things found during the search referred to in
clause (a) is given to such person.

Section 5: Procuring, inducing or taking person for the sake of prostitution.

(1) Any person who-

(a) Procures or attempts to procure a person whether with or without his/her consent, for the
purpose of prostitution; or

(b) Induces a person to go from any place, with the intent that he/she may for the purpose of
prostitution become the inmate of, or frequent, a brothel; or

(c) Takes or attempts to take a person or causes a person to be taken, from one place to another
with a view to his/her carrying on, or being brought up to carry on prostitution; or

(d) Causes or induces a person to carry on 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 offence under this sub-
section 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 offence committed under this subsection, -

(i) Is a child, the punishment provided under this sub-section shall extend to rigorous
imprisonment for a term of not less than seven years but may extend to life; and
(ii) (ii) Is a minor; the punishment provided under this sub-section shall extend to rigorous
imprisonment for a term of not less than seven years and not more than fourteen years.

So it can be seen that both the sections namely section 3 and section 5 punishes only the acts of
the 3rd party and same does the other sections in the Act and so new legislation shall be passed
as to punish the client who are visiting the prostitutes.

The law enforcement scenario, seen from the traditional view point, 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:

• Lack of priority: The law enforcement agencies and justice delivery agencies for various
reasons, give lowest or nil priority to HT issues.

• Insensitivity: Lack of sensitivity is a major challenge in response to human trafficking. It is

more of an attitudinal issue.

• Victimization of the victim: More often trafficked women have been arrested ad penalized as
‘soliciting persons; The NHRC study shows that around 85 to 90 per cent of the arrested persons
are women and most of them are victims of trafficking.

• Improper investigation: Whereas a trafficking crime extends across a large canvas as the scene
of crime, starting from the source point and extending to the transit places as well as the
destination areas, the investigation is more often unheard and unrepresented.

• Database: 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 stake holders
and therefore, the offenders indeed act with impunity.
 8. MAGNITUDE AND TREND OF THE PROBLEMS IN INDIA

The Bureau is collecting data under the following heads of crime which are related to
Prostitution and Human Trafficking7.

• Procuration of Minor girls (section 366-A IPC).

• Importation of Girls (Section-366-B IPC).

• Selling of Girls for prostitution (Section-372 IPC).

• Buying of Girls for Prostitution (Section-373 IPC).

• Immoral Trafficking (Prevention) Act 1956.

• Child Marriage Retrain Act, 1929.

9. POSSIBLE SOLUTIONS
The problem of prostitution is very complex one since it is deeply rooted in the society. Thus, it
has to be handled from two angles (1) Preventing new incumbents from entering prostitution (2)
Rehabilitating women who are already in prostitution8.

10.PREVENTIVE PROGRAMMES

Counselling and guiding programmes with a view to educate public with regard to the causes and
problems of prostitutes coupled with sex education is need of the hour. More and more

7
Jordar Biwanath (1984): Prostitution in Historical and Modern Perspectivess, Inter India Publication, N.Delhi.
8
Kishwar, Madhu (2008): On Legalising Prostitution, Yojana (Vol-52).
economic opportunities should be made available to the going vulnerable to prostitution. Police
should be directed to register cares related to abduction or abuse related to girl on priority basis.
Following steps must also be taken to ensure effective prevention9:

• Community Policing: The concept of Community Policing should be made popular, so that
involvement of civilians and NGO’s in Policing can be done, in order to prevent and combat
prostitution .Community Policing is a philosophy based on the paradigm of solving problem in
synergy where police acts as a facilitator and community is made to share responsibity.

• Second Generation Prevention: Problem of prostitution can be minimized, if the children of the
prostitutes are given respectable future.

• Synergy : The UNODC ( United Nations Office on Drugs and Crime), New Delhi, in
partnership with Government of India and State Government agencies as well as civil society
patners has set up Anti-Human Trafficking Units (AHTU) at Andhra Pradesh, Goa, & West
Bengal. These units with the help of trained manpower are making tremendous impact in law
enforcement scenario of India. The AHTUs in Andhra Pradesh have rescued more than 700
victims of which more than 100 are children below 18 years of age in a span of six months. They
have also arrested more than 1000 offenders including 300 customers. Such units should be set
up in all States and Union Territories of India10.

11. REHABILITATIVE AND FOLLOW-UP PROGRAMMES

Due to relentless efforts of the NGO’s social workers and other social development organization
it has been realized that prostitution is one of the worst social evils and has to be eliminated at
the earliest. This can be done through a concrete strategy and action plan of which rehabilitation
is an integral part.11

9
Khan M.Z, Singh D.R (1987): Prostitution, Human Rights, Law and Voluntary Action; The Indian Journal of
Social Work, Vol. XLVII
10
Nehal, Ashraf (1997): Crime Against Women, N.Delhi, Common Wealth Publication.
11
"Sex workers: Population size estimate - Number, 2016". www.aidsinfoonline.org. UNAIDS. Retrieved 1ST Oct,
2019.
Rehabilitation is both physical and psychological. Physical rehabilitation is essentially economic
whereas psychological rehabilitation has to be built up through a process of assurance and
reassurance. The two most go side by side. The first pre-requisite of psychological rehabilitation
is that the freed prostitutes must be wrenched away from the old habitat and be rehabilated at a
place where they will no longer subject to of the dalals or owner of the brothels. Unless they are
psychologically assured that after their release their overall conditions will improve, there is
every possibility that they may slide back to their old environment. In order to ensure
rehabilitation, it is very necessary that the Government with the NGOs must imbibe awareness
among the sex workers about their legal status and rights. A gender sensitive market driven
vocational training should be provided to all the rescued victims. It is observed that the
immediate requirement of the sex workers is financial security, as after leaving their old
profession they are even unable to earn their livings. Thus, a co-operative credit society lead by
the NGOs on their own or with the support of the government is the need of the hour. This effort
shall save them from the exploitation of the money lenders and humiliation by the banks12.

12. SHALL INDIAN LEGALIZR PROSTITUTION?

Some people opine that prostitution shall be made legal in India and accept them as a part of
society because the problem of prostitution is inevitable13. The benefit of legalizing prostitution
in India will be that at least we will have a track record of Sex workers as for example when
dance bar in Bombay were closed most of the bar dancers migrated to Gujarat and Karnataka and
other neighbouring state and started their business undercover. Legalizing prostitution will see
these women, who live life on the edge everywhere, gaining access to medical facilities, which
can control the spread of AIDS. There is a very strong need to treat the sex industry as any other
industry and empower it with legal safeguards. The practical implications of the profession being
legal would bring nothing but benefits for sex workers and society as a whole. Keeping
prostitution illegal also contributes to crime because many criminals view prostitutes and their

12
Shah, GiriRaj (1995): Encyclopedia of Women Studies, N.Delhi, Gyan Publications.
13
Pillai. M.G (2007): Child Abuse , Pointer publications, Jiapur
customers as attractive targets for robbery, fraud, rape, or other criminal acts14. The criminals
realize that such people are unlikely to report the crimes to police, because the victims would
have to admit they were involved in the illegal activity of prostitution when the attacks took
place, now if it is legal then they will easily go and report this to police 15. Benefits of legalizing
prostitution are:

• Legalization of prostitution and the sex industry will stop sex trafficking.

• Legalization of prostitution will control the sex industry.

• Legalization of prostitution will decrease clandestine, hidden, illegal and street prostitution.

• Legalization of prostitution will protect the women in prostitution as they will have rights.

• Women in systems of Prostitution want the sex industry legalized as they are the one who
suffers the most as they don’t have any rights.

• Legalization of prostitution will promote women's health as they can have easy access to
medical facilities which they don’t have when it is illegal.

• Recognizing prostitution as an economic activity, thus enabling women in India to obtain

working permits as "sex workers".

However, those who demand that prostitution should be “legalized” and treated and with
“respect and dignity” at par with all other professions and occupations need to answer a few
basic questions:

• What does the term “legalize” actually imply? Does it means that a prostitute can open a
brothel or sex parlour any where she likes and advertise her services? Does it mean men or
women supplying call girls should be able to set up an office in any neighbourhood they like, just

14
http://www.articlesbase.com/national,-state,-local-articles/the-problem-ofprostitution-an-indian-perspective-
545058.html
15
Magdalena Rojas (12 June 2016). "In Kamathipura's lanes, legalisation of prostitution seems like a faraway
debate". firstpost.com. Retrieved 1st Oct, 2019.
as doctors set up their clinics, and put up a hoarding outside the house proclaiming that call girls
are available between such and such hours?

• Since sex trade inevitably comes with sex slavery and violent forms of pornography and sex
trafficking it is essentially mixed up with criminal mafias even in those countries where it is
legalized. If a brothel owner is free to set up shop in my neighbourhood, does it not endanger my
life? How many even among those who are empathetic towards the plight of prostitutes are
willing to allow a brothel right next to their own house? How many of us are willing to let our
young children grow up amidst an atmosphere where renting a women’s body for sex is
considered a perfectly legitimate activity?

• If the vast majority of people in India do not want to have brothels functioning openly and
legally in their neighbourhoods, the only way to make provision for “legal” sex work is if sex
workers agreed to operate in specially designated areas traditionally known as red-light districts.
Sex worker can then seek individual licenses or licenses for registered brothels. But every sex
worker does not want to leave in openly identified sex zones.

• Most women, especially those who operate as high society call girls prefer to operate
surreptitiously, especially those who want to wear the mask of respectability. Most men who run
sex rackets, including trafficking of women would also not want to be openly known as pimps
and procurers. How does the law handle such persons? If people come to know that a person of
their neighborhood is using his premises to run a call-girl racket, do they have the right to seek
its removal or demand that the call-girl centre be shifted to a red-light district after the trade is
legalized? Or does it mean other citizens have to suffer the presence of such activities in the
name of “respecting” the rights of sex workers to an occupation of their choice and thereby
endanger their own lives?

• Those who demand that sex work be given the same “respect” as any other profession, need to
explain whose duty it is to give or ensure “respect” for prostitutes and pimps who are their
“helpmates” Is the government expected to enact a law requiring people not to shun prostitutes,
as for instance it did to ban the practice of untouchability ? One can prove that one does not
practice untouchability by freely intermixing and-dining with castes condemned as untouchable.
How does one prove one’s “respect” for a prostitute? Do we have to send our children to brothels
to intermix with the children of sex workers or do we hold special functions to socially honour
the most successful among them?

In ultimate analysis it can be concluded that Prostitution in the India requires no specific
remedy, per se, in the form of criminalization, decriminalization or legalization. It will be
remedied when women and men in this culture can celebrate their sexuality and their unique
identities.16 It will be remedied only when women and men are economically and politically the
same.

16
"Sex Work Law - Countries". Sexuality, Poverty and Law. Retrieved 1st Oct, 2019.