Slavery still exists, but now it applies to women and its name is
In literal meaning, the word prostitution means the practice or business of
engaging in sexual activity in lieu of money, and a prostitute is someone who
works in this field. Prostitution is not a new profession in India. It has been
in practice for time immemorial. In India, prostitution is not considered
illegal in and of itself, but the activities that lead to the profession of
prostitution are intimated as illegal. Since, India is a major transit country
for men, women, and children been trafficked into forced labour and commercial
sexual exploitation. Women and children who are trafficked for the purpose of
forced prostitution are among the most vulnerable.
Prostitution occurs in a variety of structures, and its legal status varies from
country to country and also from region to region within a country, ranging from
being a sanctioned or unenforced wrongdoing to being unregulated to a directed
profession. As seen in earlier times, only females were seen as prostitutes and
males as their clients, but in recent times, males, females, and transgender
people all are seen working in this profession. According to a BBC report1, the
number of male prostitutes in India is rapidly increasing. It also states that
when there are no female customers, they sell sex to male customers. Male
prostitutes are referred to as gigolos.
There are numerous reasons that compel a woman to engage in commercial sex, with
poverty and unemployment being two of the most influential. It has been observed
that women from remote areas fall victim to dishonest middlemen who promise them
a job opportunities and thereafter sell them as sex workers. Poverty is
considered a primary motivator that forces vulnerable and helpless women into
prostitution. It is widely accepted that, of all the factors responsible for
prostitution, poverty is thought to be the most important reason that leads
people into prostitution.
Legal Framework for Prostitution In India:
The legal framework in India do not forbid the act of prostitution in itself,
but it does forbid the sexual exploitation of human beings involved in the
business. All available legislation on the subject discusses prostitution and
its related activity, i.e. trafficking, but no legislation provides for the
legalisation of prostitution, which would allow those involved to exercise their
rights. Since Indian Constitution under Article 23(1)2 prohibits any kind of
trafficking of a human being thus it will also include trafficking of women and
children for the commercial sexual exploitation.
In specific, special legislation is present on this issue i.e Immoral
Trafficking (Prevention) Act, 19563 (PITA), which specifically provides for the
prohibition and punishment of sexual exploitation for the purpose of
prostitution. The summary of this legislation shown that India does not per se
prohibit prostitution as an activity but it prohibits inter-related activities.
Apart from special legislation on the subject, the Indian legal framework also
includes general legislation on the subject, i.e the India Penal Code, 1860. The
Indian Penal Code (IPC), 1860, contains some provisions that criminalise
prostitution and related activities.
The specified sections include Section 370 and Section 370A of IPC that states
penalties ranging from seven years to life imprisonment for crimes relating to
slavery, servitude and any forms of sex trafficking. In addition, Section 372
and 373 of the Indian Penal Code 1860 also deals with prostitution but it is
restricted to child prostitution only. Thus under IPC laws related to
prostitution is very limited.
Recognition & Regulation of Prostitution in India:
Many research reports discuss the plight of sex workers engaged in prostitution,
as well as the availability of legal framework on the subject; however, the
conditions of those engaged in the profession remain the same. Despite all of
the harsh penalty provisions in the laws, the situation is deteriorating, and
women and children are constantly trafficked for the purpose of sexual
exploitation in prostitution.
Nowhere in Indian legislation, there is a mention of the legalisation of
prostitution, where sex workers who engage in the profession of their own
volition can freely practise it. The Immoral Traffic (Prevention) Act of 1956
only prohibits prostitution-related activities such as trafficking,
exploitation, pimping, and the operation of brothels, but it makes no mention of
the prohibition of prostitution as a sexual act.
The absence of such a mention
in the Act allows for the legalisation of prostitution as a profession because,
under these laws, prostitution is not criminalised and can be considered a legal
activity, if it does not include sexual exploitation.
Indian legislation takes a neoconservative approach to prostitution. It only
prohibits acts that sexually exploit sex workers for the purposes of commercial
sexual exploitation. Prohibition of these acts is a good thing, but there should
also be a system in place to legalise and regularise prostitution as a
profession, so that sex workers have access to regular medical check-ups and
birth control etc.
The law should provide security to consensual adults involved in sex work,
allowing them to live with dignity and practise their profession with safety and
security, rather than relying on intermediaries who can exploit them for the
purpose of prostitution. These human beings who wish to engage in the profession
should have their profession recognised as a respectable profession. Article
19(1) (g)4 of the Constitution guarantees freedom of profession and the right of
every individual to choose his or her own occupation or trade. It can be said
that the lack of legislation to legalise prostitution is a clear violation of
their fundamental rights under Article 19(1)(g) of the Indian Constitution.
Though the ITPA of 1956 does not criminalise prostitution, there is a need for a
law to legalise and regularise prostitution in order to provide security to
these sex workers. The right to life under Article 215 of the Constitution has
many aspects, including the right to reputation, the right to health, and the
right to live with dignity, and the current legislation on the subject violates
the right under Article 21 of the Constitution.
In the case of Budhadev Karmaskar v. State of West Bengal
6, the Supreme Court
observed that �the prostitutes also have a right to live with dignity under
Article 21 of the Constitution of India since they are also human beings and
their problems also need to be addressed�. SC also observed that �a woman is
compelled to indulge in prostitution not for pleasure but because of abject
poverty. If such a woman is granted the opportunity to avail some technical or
vocational training, she would be able to earn her livelihood by such vocational
training and skill instead of by selling her body.� Further, the Supreme Court
directed �the Central Government and all the State Governments to prepare
schemes for giving technical/vocational training to sex workers in all cities in
These law needs to be amended in the current situation where a lot of people are
taking up prostitution as a profession. ITPA, 1956 is the relevant law, but it
contains some loopholes that obstruct legislation implementation and further
victimisation. There is a need to differentiate between sex works and
commercial sexual exploitation as a result of trafficking. In order to do so
there is a need to be a clear definition of �commercial sexual exploitation�
and �trafficked victim
If prostitution is not a criminal offence, then why the women who work in it
lack legal identification? The debate on the subject has never come to an end,
and it is in the best interests of the country to recognise this profession as a
legal profession, allowing these women to live lives of dignity with the bare
necessities they deserve.
India should be inspired by Germany, New Zealand, and
China, where the profession is legalised and women in the profession live a
dignified life. The government should take steps to educate these women and
provide them with skill development training so that they can work in other
fields and earn a living.
The need of the hour is to ensure these women's right to life by granting them
the right to live in dignity, as well as to put a stop to human trafficking.
Every person has the right to live a dignified life, which is only possible if
prostitution is legalised and recognised as a profession. There is no need for
any specific cure for a problem like prostitution, such as criminalising,
decriminalising, or approving it.
Simply legalising prostitution will not
suffice to solve the problem; rather, a uniform law must be enacted to govern
its administration in our country. Prostitution regulation will help to protect
sex workers and their children from being exploited. Not only will it protect
the health of sex workers and society as a whole, but it will also protect the
environment. In order to regulate this profession in the country, a set of rules
and regulations should be established.
- Gigolos speak out in Conservative India, Published at- BBC News.
Available at: http://news.bbc.co.uk/2/hi/south_asia/7159759.stm
- Article 23(1), The Constitution of India: : prohibits any kind of
trafficking of human being which will also include trafficking of women and
children for the commercial sexual exploitation
- Immoral Trafficking (Prevention) Act, 1956, Act No. 104 of 1956.
- Article 19(1)(g), The Constitution of India: to practise any profession,
or to carry on any occupation, trade or business.
- Article 21, The Constitution of India: Protection of life and personal
liberty No person shall be deprived of his life or personal liberty except
according to procedure established by law.
- Budhadev Karmaskar v. State of West Bengal, (2011) 10 SCC 283