SILENCE, SCREAMS AND SEX: LEGALITY OF

PROSTITUTION IN INDIA
Arya Senapati
Abstract: Prostitution or sex work is considered to be one of the
oldest professions in the world. Even if we look deep into Indian
history, we would find prostitution existing since ancient times.
The devadasi system that was prevalent in many states in ancient
India was nothing but sex work under the garb of religious
sacredness. Even in the Mughal empire, the harems of the kings
sheltered sex workers along with their wives. Even in the 16th and
17th century when Indian was a Portuguese colony, women were
brought as sex slaves and were made to carry on sex work in the
Indian subcontinent. The military established brothels during the
British rule which currently are the red light districts also fuelled
sex work and prostitution in India. Even ancient Indian literature
not extensively but including “Vaishali ki Nagarbadhu” by Acharya
Chatursen, The Sanskrit story Mrichakatika and Kalidasa’s
magnum opus “Meghadoot” mentioned characters involved in Sex
trade who played important roles in the plots of the book and were
respected in the society. Human Rights Watch Reports states that
there are more than 20 million prostitutes in India. India is home
to the biggest red light districts in the world- Kamathipura in
Mumbai and Sonargachi in Kolkata but if we ask the question – Is
prostitution legal in India? We can’t give a clear answer to that
owing to the ambiguous nature of the Indian law related to
Prostitution. On one hand we have an ambiguous law and on the
other we have a society that boycotts people who practice sex
trade, hence making life for these innocent citizens, a pitiable
predicament.
Keywords: Devadasi, Harems, Military Brothels, Indian Literature,
Kamathipura, Sonargachi, Ambiguous, Boycott.
INTRODUCTION:
The spectacle that Indian laws on Sex work provide is a blurry one
that’s ambiguous to a large extent. By the virtue of law, prostitution
by far is a legal practice but maintaining a brothel, pimping,
soliciting customers are acts prohibited by law and hence deemed
illegal. When legality presents a blur image on prostitution, the
spectacle of morality bats a blind eye towards it.
If we take a look at the studies conducted by Ministry of Women
and Child Development of the Indian Government, we can find that
India is home to three million prostitutes and 40% of them are
children1 and the numbers keep on increasing2 as economic
growth increases, showing a proportional relationship between
sex trade and economic development3. If we are talking about
economy, we can’t ignore the statistics that say that prostitution is
a 180-billion-dollar business4.
To examine the legal situation of prostitution in India, we need to
understand what leads to a person entering into the flesh trade.
The primary cause is economic factors and poverty. In present
times when the GDP of the country is increasing and on the other
hand the price of Indian Rupee is falling in comparison to United
States Dollar, it shows that wealth is concentrated in the hands of
a few and poverty is on a rise. This forces many poor citizens to
enter into sex work. Studies of sociology and psychology of
prostitutes of London shows that many sex workers entered into
the business due to family factors (an unloved child is more likely

1
Ministry of Women and Child Development, Indian Country Report: To Prevent and Combat
Trafficking and Commercial Sexual Exploitation of Children and Women, 4 (2008), available at
http://www.unodc.org/pdf/india/publications/India%20Country%20Report.pdf. The statistics
varies in reports of other organisations, example, Human Rights Watch states that there are 20
million prostitutes in India.
2
Upasana Bhat, Prostitution ‘Increases’ in India, BBC NEWS DELHI (July 3, 2006 11:57 GMT),
http://news.bbc.co.uk/2/hi/south_asia/5140526.stm. Last visited on 18/03/2019, 09:51
3 Ruth Rosen, The Lost Sisterhood, Prostitution in America, 1900-1918 1 (1982).
4
http://www.havocscope.com/tag/prostitution/ last visited on 18/03/2019, 10:05
to enter into prostitution) and marital factors (a divorced woman
who doesn’t have family support is likely to enter into
prostitution), Illegitimate motherhood and mental health issues
are only considered as reasons for people to enter into
prostitution.
After the causes, let’s understand the effect of prostitution, the
effects can be divided into social, health and economic. The social
impacts of prostitution might be personal or family
disorganisation. A married man having sex with a prostitute might
face family disturbance, the tear of moral fabric might lead to
mental health issues of the prostitute, they face social boycott and
exclusion along with hate speech and hate crimes, they often lead
a promiscuous life hidden from the society. The health related
effects are: a man may get contaminated with Sexually Transmitted
Diseases from a prostitute and a married man if gets contaminated
may spread the disease to his wife and children. The mental health
issues of psychic-impotency is also an effect of having regular sex
with a prostitute or a male prostitute having regular sex with his
clients, a female prostitute might lose her capacity to give birth to
a child due to uterine injuries caused by regular sexual intercourse.
The economic effects include: bars and hotels where prostitutes
carry on the business might treat them unfairly and they may be
forced to work in unhygienic working conditions. Trafficking and
forced prostitution are also economic effects of prostitution where
a pimp for economic intentions traffic young children and force
them to have flesh trade 5.
PROSTITUTION IN INDIAN PENAL CODE: PRE-INDEPENDENCE
LAWS RELATED TO PROSTITUTION
The sections in relation to prostitution in Indian Penal Code were:

5
Vadackumchery, Criminology penology, M/s Kairali, Books International, Trivandram 124
(1983)
Section 366: Kidnapping or abducting a woman, and in order that
she may be forced or reduced to illicit intercourse with any person,
including a woman to go from any place in order that she may be
reduced to illicit intercourse by criminal intimidation or by an
abuse of authority or under any other compulsion inducing a girl
who is under 18 years of ages, by any other means, go to from any
place or to do any act, in order that she may be forced or reduced
to illicit intercourse, kidnapping or abducting any person in order
that she may be subjected to the unnatural list of any person, each
of these was a grave offence punishable with imprisonment of
either description for 10 years or fine or both.
Section 372: Selling, letting for hire or otherwise disposing of, or
buying, hiring or other obtaining possession of any girl under 18
years of age for any unlawful or immoral purpose was made an
offence.
These provisions of Indian Penal Code didn’t make prostitution
directly illegal. For a woman who has cross the age of minority,
prostitution is illegal if accompanied with kidnapping or abduction
and for a female under the age of minority, prostitution is illegal.
If we look at the history of enactments, to counter prostitution, it
goes back to Bombay Prevention of Prostitution Act that was
passed in 1923. There were many other acts6 that were passed to
put a check on prostitution.
SUPPRESSION OF IMMORAL TRAFFICKING IN WOMEN AND
GIRLS ACT,1956: POST INDEPENDENCE VIEW
After India attained independence, the government started
considering prostitution as a social evil and started initiating
campaigns7 and conferences to put a check on it. These campaigns
and conferences led to the creation of Advisory Committee on

6
U.P. Naik Girls Protection Act 1929,
The Bombay Devadasi Protection Act 1934,
Madras Devadasi (Prevention of Dedication) Act 1947
7
Association of Moral and Social Hygiene
Social and Moral Hygiene by the Central Social Welfare Board to
further the process of taking steps to implement the convention
signed at New York in 1950 on Suppression of Immoral trafficking
in women and girls in India8. Which finally led to the parliament
passing the Suppression of Immoral Trafficking Act in 19569 whose
main provisions were:
-managing a brothel was declared illegal and rigorous
imprisonment of one to three years along with a fine of 2000INR
was considered to be the punishment10.
-a person above the age of 18 who lived on the earning of a
prostitute or procures her for sex work was considered guilty for
punishment in form of imprisonment or fine or both11.
-prohibition of practice of prostitution within a distance of
200yards of any public place12
-prohibition on soliciting customers13
-appointment of special police officers to deal with offences under
this act14
-prostitutes are provided a right under this act to seek shelter in
any protective homes15
-magistrates are given the authority to relocate any woman
carrying on prostitution in any premise16

8
Ministry of Women and Child Development, Government of India and UN Office on Drugs and
Crime, India Country Report, 4, (2007), available at
http://www.unodc.org/pdf/india/publications/India%20Country%20Report.pdf. Last visited
on 18/03/2019 13:59
9
Law Commission of India’s Sixty-Fourth Report on the Suppression of Immoral Traffic in Women
and Girls, 1856, 1975, available at http://lawcommissionofindia.nic.in/51-100/Report64.pdf.
Last visited on 18/03/2019 14:09
10 Section 3, Suppression of Immoral Trafficking Act, 1956
11 Section 4 and 5, Suppression of Immoral Trafficking Act, 1956
12 Section 7, Suppression of Immoral Trafficking Act, 1956
13 Section 8, Suppression of Immoral Trafficking Act, 1956
14 Section 13, Suppression of Immoral Trafficking Act, 1956
15 Section 19, Suppression of Immoral Trafficking Act, 1956
16 Section 20, Suppression of Immoral Trafficking Act, 1956
Even though the act had a mild approach towards prostitution, it
was wrongfully used by legal personnel to create problems for sex
workers as they had a mind-set that prostitution is a social evil.
This led to the act being amended in 1978 and it was further
amended in 1986 due to International debates on the matter of
commercial sex work, after this it came to be known as “Immoral
Trafficking in Persons Prevention Act”.17
COURT’S OPINION:
In State v. Gaya18, the Bombay High Court stated that SITA was
passed to prevent trafficking in women and children in accordance
to the signing of the International convention, it never intended to
punish the once who were trafficked.
In Re Ratnamala and Another19, the Madras High Court opined
that the act was to curb the commercial crimes involved in
prostitution, it never intended to declare prostitution illegal per se.
It also reviewed the definition of brothel under this act20, it stated
that a single woman has all the right to carry on prostitution
without the help of another prostitute or person being involved in
the maintenance of the place where she carries on the business. In
such a case, her residence will not be considered as a brothel.
In Gaurav Jain v. Union of India21, the obiter dicta stated that
“women found in flesh trade, should be viewed more as victims of
adverse socio-economic conditions rather than as offenders in our
society”
In Jacob v. State of Kerala22, the court stated that prostitution per
se is not a criminal activity but seducing or soliciting customers in
public is illegal by virtue of law.

17 supra note 10
18 State of Maharashtra v. Gaya, AIR 1960 BOM 289
19 State of Tamil Nadu v. Ratnamala and Another, AIR 1962 MAD 31
20 Section 2(a), Suppression of Immoral Trafficking in Women and Children Act, 1956
21
Gaurav Jain v. Union of India AIR 1997 SC 3021
22 T. Jacob v. State of Kerala AIR 1971 KER 166
In Maharashtra v. Madhukar Narain Mardikar23, the court
stated that right to privacy is one of the essentials of a human and
hence Article 2024 cannot be misused to enter into the houses of
women.
CASE STUDY OF GAURAV JAIN vs UNION OF INDIA:
Facts: In the case of Gaurav Jain vs Union of India, the petitioner
filed a petition in front of the honourable Supreme Court of India,
urging the Supreme Court to put its focus on how the children of
the women involved in sex work do not get adequate facilities to
avail education or healthcare.
Issues: -Is it justified to segregate the children from their fallen
mothers and place them at separate educational facilities?
-What are the ways to eradicate prostitution from its root?
-What are the rehabilitation facilities that can be provided to sex
workers?
Judgement: SC noted that women in flesh trade are victims of
poverty, misogyny and it’s their socio-economic status that leads
to towards the path of prostitution. It said that its necessary that
the stigmas attached to prostitution must be washed off the society
to adequately make the women and their children enjoy the
fundamental rights that they are bestowed upon by the Indian
Constitution.
It stated in its judgement that the three C’s must be adequately
applied to the victims of sex work: Counselling, Cajoling and
Coercion. It said that the society is responsible for the plight of the
women in the society and hence the NGOs must work towards their
rehabilitation and providing rights and opportunities to them.
They should be able to live a life of dignity.

23
State of Maharastra v. Madhukar Narain Mardikar, AIR 1991 SC 207
24
Supra Note 18
USING LAW TO BREAK STIGMAS ATTACHED WITH
PROSTITUTION:
Socially, prostitutes are considered to be women of infringed
character, they are looked down upon and are subjected to harsh
treatment and are ostracised significantly. They are not allowed to
be a part of social gatherings and functions. Researchers studying
law and sociology together believe that law can be used to change
the social norms attached to sex work. This is the virtue of
“Expressive Theory”25 which states that law doesn’t limit itself to
the function of sanction, it also has an expressive function 26 by
virtue of which, a declared law holds the power to change social
perspectives and mind set.
This implies that if prostitution is decriminalised entirely and not
just vaguely, a woman can enjoy her right to profess any
occupation, she can exercise her right to use her body in a way she
wants, she can earn her livelihood freely without being looked
down upon or without having to be a victim of social degradation.
In many cases, Police and other law enforcement agencies exploit
women involved in sex work and treat them wrongfully but this
will stop if the law declares prostitution legal and makes it a legal
wrong for a policeman to exploit a prostitute.
There are incidents where schools refuse to admit young children
who are rehabilitated after getting through sex work and even
children of sex workers are not given admission in some schools,
this will also stop as a result of the expressive function of law.
BRIDGING THE GAP BETWEEN MORALITY AND LEGALITY
WITH NEW LAWS:

25
Cass R. Sunstein, On the Expressive Function of Law, REV. 2021, 2022 (1996);
Now let’s understand what will be the impact of legalisation of
prostitution of India and what all new laws should India implement
in the field of sex work.
First of all, maintenance of a brothel should be legalised, reason
being it doesn’t harm the society or an individual in any way, if
maintenance of a brothel is legalised then the brothel owners may
be compelled by new laws to provide a proper working condition
to women and men involved in sex trade. They can be stopped from
inflicting violence on the sex workers.
Secondly, legalisation might entail clients to compulsorily use
condoms by virtue of new legislation hence putting a check on
spread of sexually transmitted diseases and on the other hand
preventing unwanted pregnancies. The clients perpetuating
violence on the sex worker may also be punished by virtue of law.
Clients who leave the sex workers unpaid may also be held
accountable under new legislations.
Thirdly, Rape and Trafficking will decrease, studies show that
countries with legal sex work have lower rate of rape and
trafficking.
The World Charter for Prostitutes' Rights27
It is a declaration of rights adopted in 1985 to protect the rights of
prostitutes worldwide. The distinction between voluntary and
forced prostitution was developed by the prostitutes' rights
movement in response to feminists and others who saw all
prostitution as abusive. The World Charter for Prostitutes' Rights
calls for the decriminalisation of "all aspects of adult prostitution
resulting from individual decisions. The World Charter also states
that prostitutes should be guaranteed "all human rights and civil
liberties," including the freedom of speech, travel, immigration,
work, marriage, and motherhood, and the right to unemployment,
insurance, health insurance and housing. Even the right to deny
27
https://www.walnet.org/csis/groups/icpr_charter.html last visited on 18/03/2019 15:44
services and be provided with proper working conditions is an
extension of this Charter.
CONCLUSION
After having reviewed and analysed past and present laws as well
as scenarios and mind-set concerning sex work, we can without a
doubt say that the laws are ambiguous and even though
prostitution per se is not a criminal offence according to the court’s
interpretation of statutes, sex workers are not free to practice sex
work freely and with all the essential conditions required for a
proper culmination of any profession.
Due to this vague nature of laws, neither are they able to exercise
their social/civil rights nor are they able to enjoy the rights every
commercial contract provides.
Hence, a step to change the vague nature if the law is important and
the law must be made certain and clear so as to prevent the adverse
effect of it.
Keeping prostitution as a closeted profession not only manifests in
harassment of sex workers but also extends to increasing risk of
contracting AIDS. Sex education for sex workers and brothel
owners is a must, along with special rehabilitation centre
establishment for women who want to quit sex work is necessary,
women police stations must be mandated with the task to handle
any cases related to female prostitution. It is time that the legal
intelligentsia starts taking this matter as an issue of grave concern
and start forming necessary laws.