Author: Alisha Fatima Safvi from Shri Ramswaroop Memorial University
Introduction
The terms “prostitution” and “sex work” are frequently used interchangeably to describe the trade of sexual labour for cash, goods, or access to social resources. Industry participants may use these exchanges to their advantage, or they may be created independently and mediated by a third party. Prostitution and sex work are as old as human society itself, and while they are typically associated with women and girls, people of all ages, genders, colours, abilities, and sexual orientations participate in these systems of exchange. Large cities, rural hamlets, suburban cul-de-sacs—all have prostitution and sex work—and these activities are commonly associated with disenfranchised urban areas or disadvantaged cultural groups.
Starting in the mid-1500s, the word “prostitute,” originating from Latin terms meaning “to expose” or “place in front,” began to be used in the modern sense to describe the public offering or sale of sexual services1
Use Of Legal Jargon
Decriminalization – Removing criminal penalties from certain acts, making them legally permissible.
Commercial Sexual Exploitation – Engaging someone in sexual activities for profit through coercion, force, or deception.
Abolitionist Approach – A legal approach aiming to eliminate prostitution entirely, considering it a form of exploitation.
Sexual Liberalism – Ideology supporting the recognition of sex work as a voluntary and legitimate form of labor.
Human Trafficking – Recruitment or transportation of individuals through coercion for exploitative purposes.
Soliciting – Act of seeking or offering sexual services for payment in public areas.
Right to Life (Article 21, Indian Constitution) – Fundamental right guaranteeing dignity and livelihood.
The Proof
Indian Penal Code (IPC), 1860
1 https://link.springer.com/10.1007/978-3-319-59531-3_15-1
Sections 370 and 370A deal with punishing offenses related to human trafficking and the exploitation of individuals.
Sections 372 and 373 address child prostitution by making the buying and selling of minors for sexual exploitation illegal.
The Immoral Traffic (Prevention) Act, 1956 (ITPA)
Sections 3 to 8 outline punishable activities such as running brothels, earning money through someone else’s sex work, and public solicitation by sex workers.
Case Laws
1. Budhadev Karmaskar v. State of West Bengal (2011)
Citation: Criminal Appeal No. 135 of 2010
This case began as a criminal appeal concerning the murder of a sex worker by a customer. The Supreme Court upheld the conviction but took the opportunity to address broader issues related to sex workers’ rights. The Court emphasized that sex workers, despite their profession, are human beings and entitled to basic constitutional rights, particularly the right to live with dignity under Article 21 of the Indian Constitution. The Court observed that many women are compelled into sex work due to poverty and lack of education or employment opportunities—not by choice or pleasure.
In 2011, the Supreme Court constituted a panel of experts to suggest measures for rehabilitation and protection of sex workers, including access to healthcare, education for their children, and alternative vocational training.
This case is landmark in recognizing that prostitution, if voluntary, should not be treated as criminal, and that sex workers must not be marginalized or denied legal protections.
2. Supreme Court Directive – May 19, 2022
Bench: Justices L. Nageswara Rao, B.R. Gavai, and A.S. Bopanna
Important directives issued:
No criminal action should be taken against adult sex workers who are engaged in consensual sex work.
Police should treat sex workers with dignity and refrain from mistreating, exploiting, or abusing them.
Sex workers are entitled to medical care and social welfare benefits, including access to voter IDs, Aadhaar, and ration cards.
If a sex worker lodges a complaint of sexual violence or abuse, it must be treated like any other survivor’s case under the law.
Media must protect the identity of sex workers in any reporting.
This directive recognized the legitimacy of sex work as labour and focused on de-stigmatization and protection from police harassment, discrimination, and violence.
Cultural Perspective and Societal Attitudes- Global Case Study Into The Past
Different societies have different cultural values that shape how people view prostitution. Prostitutes have been viewed as members of a legitimate profession in certain communities, but they have also been scorned, vilified, and sentenced to death, incarceration, or stoning in others. Greeks and Romans in antiquity required prostitutes to pay high taxes and wear distinguishing clothing. Prostitution was restricted to foreign women by Hebrew law, but it was not outlawed. Moses established various laws pertaining to STD’s as part of his efforts to control public health.
In medieval Europe, Prostitution persisted despite efforts by religious authorities to rehabilitate and offer dowries for penitent prostitutes. It made a substantial financial contribution to the government and was licensed, regulated, and legally protected. Cities created public brothels; in Toulouse, the university received a portion of the revenues; in England, the bishops first issued the licenses, which was later approved by Parliament. In the sixteenth century, increased prevalence of sexually transmitted infections and the sexual morality of the Protestant Reformation and Counter-Reformation gave birth to more stringent regulations. The majority of attempts to shut down brothels and carry out medical examinations were unsuccessful.
The late nineteenth century saw a revival in attempts to outlaw prostitution, propelled by feminist critiques that framed male sexual behavior as a fundamental threat to women and by the rising influence of Protestant moral reform. These efforts were often connected with temperance and women’s suffrage movements. Beginning in 1899, international collaboration emerged, resulting in the formation of the League of Nations’ Committee on the Traffic in Women and Children in 1921 and the later adoption of the 1949 United Nations Convention targeting the exploitation inherent in prostitution.
In the U.S., prostitution was loosely controlled until the 1910 Mann Act forbade interstate transport of women for “immoral purposes.” Most states had legislation prohibiting brothels and controlling the revenues from prostitution by 19152. Prostitution was unofficially accepted in several cities after World War II, although it remained banned in most Western countries. Law enforcement prioritized offenses related to prostitution, including theft and the coercion of young women into sex work, commonly referred to as “white slavery.”
Harlotry is illegal in most of the U.S., except in some Nevada counties.
Prostitution is outlawed in many Asian and Middle Eastern countries, though it is often unofficially accepted. In Bangladesh, it is permitted but soliciting is prohibited, whereas Turkey has allowed it with health checks. In several Asian nations, the prevalence of child prostitution has contributed to a rise in “sex tourism.” While child exploitation, pimping, and brothels are prohibited in Brazil, prostitution is generally accepted throughout Latin America. Two pivotal events in the 1980s reshaped societal views on prostitution: the global outbreak of AIDS, which heightened public health concerns, and the renewed feminist perspective framing prostitution as a form of gender-based exploitation. Consequently, the term “sex worker” gained increased usage to describe individuals engaged in the industry.
2 https://www.britannica.com/topic/prostitution
Debate on Legalization Of Prostitution
A gendered framework that ignores the link between gender inequality and global society shapes the attitudes of both sexual liberals and abolitionists in the argument over legalizing prostitution.
Abolitionist’s, who advocate for criminalizing prostitution, see it as a form of violence against women. This viewpoint ignores the variations in living standards associated with legalized prostitution as well as cultural variances in living standards. Criminalization laws are based on the premise that banning prostitution will discourage individuals from offering or seeking sexual services. This approach is implemented in countries like Iran and most states in the United States. Criminalizing prostitution aims to prevent its occurrence rather than penalize those involved in it. An advocate of this strategy contends that prostitution ought to be outlawed if it is thought to essentially violate human dignity.
According to the sexual liberalism perspective, prostitution is a respectable line of work that gives women the freedom to choose and take charge of their own lives. According to this perspective, gender equality is a universally held value and non-Western ideas about gender, religion, and morality are not acceptable. This point of view supports the repeal of all laws and sanctions that make using one’s body during a sexual transaction illegal. New Zealand Australia, New South Wales are states that have completely decriminalized. Decriminalizing sex work would lessen the stigma in healthcare facilities and communities, shielding individuals from discrimination and violence. It would also offer them the opportunity to seek assistance from the healthcare system and law enforcement. They can form a community with other sex workers in order to obtain rights as workers and find techniques to combat harm.
Legal And Regulatory Frameworks
While prostitution per se is lawful in India, The Immoral Traffic (Prevention) Act of 1956 makes it illegal to engage in certain acts, including living off the revenues of a prostitute, owning or operating a brothel, and soliciting in public. The Indian legal system has general legislation, such as the India Penal Code, 1860, in addition to particular legislation. Parts of the Indian Penal Code (IPC), 1860, make prostitution and its related acts illegal.
Sections 370 and 370A3 of the Indian Penal Code (IPC) impose penalties ranging from seven years to life imprisonment for crimes related to slavery, servitude, and various forms of sex trafficking. Additionally, Sections 372 and 3734 of the IPC address prostitution, but they are specifically focused on child prostitution. Therefore, IPC laws concerning prostitution are very limited.
The right to life under Article 21 of the Indian Constitution applies to sex workers, as highlighted in the Budhadev Karmaskar vs. State of West Bengal (1999)5 case. Budhadev Karmaskar was found guilty of murdering a prostitute.
3 https://www.indiacode.nic.in/bitstream/123456789/2263/1/aA1860-45.pdf
4 https://www.indiacode.nic.in/bitstream/123456789/2263/1/aA1860-45.pdf
5 https://indiankanoon.org/doc/145721634/
The court noted that women turn to prostitution out of poverty, not pleasure, and suggested that vocational training could offer them alternative livelihoods. The Supreme Court directed the government to implement vocational training schemes for sex workers across the country.
The Immoral Traffic (Prevention) Act, 1956 (ITPA) restricts prostitution by penalizing various activities:
– Section 3: Punishes keeping or allowing a brothel.
– Section 4: Penalizes living off prostitution earnings.
– Section 5: Penalizes pimps, brothel keepers, and traffickers.
– Section 6: Punishes detaining sex workers in brothels.
– Section 7: Prohibits prostitution near public places.
– Section 8: Penalizes sex workers for soliciting, with harsher penalties for women.
It is against Indian law for foreign nationals to become prostitutes. Foreign nationals who are detected engaging in prostitution are subject to deportation under the Immigration Act of 1983, which prohibits their entry into the nation.
Distinguishing between sexual works and commercial sexual exploitation resulting from human trafficking is crucial. A precise definition of both trafficking victim and commercial sexual exploitation is necessary in order to achieve this.
In India, discussions over legalizing and controlling prostitution are still going on. Some advocate for tougher legislation to stop exploitation and human trafficking, while others favour decriminalization and accepting sex work as a legal industry. Making news on May 19, 2022 the Supreme Court of India affirmed prostitution as a legitimate profession, asserting that sex workers are entitled to fundamental rights and dignity like any other professionals.
Conclusion
The issue of prostitution is multifaceted, encompassing legal, social, and cultural dimensions. Because of prevailing moral, religious, and public health concerns, societies have historically condoned or regulated prostitution. The main law governing prostitution in India is the Immoral Traffic (Prevention) Act, 1956. This law does not criminalize prostitution per such; rather, it attempts to limit actions associated with it. It is essential to ensure that these women have the right to live with dignity and to put an end to human trafficking. Everyone deserves to live a dignified life. Rather than criminalizing, decriminalizing, or legalizing prostitution, the focus should be on upholding this fundamental rights.
https://indianexpress.com/article/opinion/columns/supreme-court-acknowledgement-sex-work-profession-7944151/
In India, discussions are still continuing on over the regulation and legalization of prostitutes. Decriminalization proponents contend that it would lessen stigma and give sex workers greater safeguards. However, some who support strict restrictions contend that they are required to stop human trafficking and exploitation.
Eventually, any changes to the law or regulations pertaining to prostitution must take into account the social forces that initially compelled people to become prostitutes. Alongside addressing more general problems of poverty, gender inequity, and social marginalization, they ought also strive to uphold the rights and dignity of sex workers.
FAQS
Q1: Is sex work permitted under Indian law?
A: Engaging in sex work is not illegal in India. However, actions like operating brothels, managing others in the trade, or openly seeking clients in public are criminal offenses under the Immoral Traffic (Prevention) Act, 1956.
Q2: Do sex workers have legal rights in India?
A: Yes, sex workers are entitled to basic rights under the Indian Constitution, including the right to live with dignity under Article 21, as recognized in the Budhadev Karmaskar case.
Q3: How do legalization and decriminalization differ?
A: Legalization allows sex work under specific rules and government oversight. Decriminalization, on the other hand, removes all criminal penalties without necessarily regulating the work.
Q4: What has the Supreme Court of India said about prostitution recently?
A: In a 2022 ruling, the Supreme Court acknowledged sex work as a valid profession and instructed authorities to protect sex workers’ rights and ensure they are not harassed.
Q5: Does Indian law treat voluntary sex work and trafficking differently?
A: Yes. Indian laws, including the IPC and ITPA, focus on punishing trafficking and child exploitation. However, there is still a need for clearer legal definitions to separate consensual sex work from forced exploitation.
