Haven’t you watched one of those movies or TV serials? The actor and/or actress are temporarily staying at a hotel or paid guest house and the police raids the place, since someone reported the prostitution carried out there. The actress is forced to line up along with the prostitutes. Such dramatic scenes often make us believe that prostitution is against morals as well as laws, and anyone involved can be jailed. But is that true or a myth? Is prostitution legal in India? If it is illegal, then what is the punishment for prostitution in India? Let’s take it slow and understand whether prostitution is illegal in India.
Prostitution Laws in India
The Immoral Traffic (Prevention) Act, 1956 does not per se criminalise prostitution. Hence, the answer to the initial question – “Is prostitution legal in India?” – the broader answer would be a YES. However, those assisting prostitution, are punishable under the Act. As per Section 2(f) of the Immoral Traffic (Prevention) Act, 1956, “prostitution” means the sexual exploitation or abuse of persons for commercial purposes. The acts which are declared as punishable under the 1956 Act have been pointed out below.
Punishment for Prostitution in India
The general understanding among people ignorant of law is that prostitution is immoral as well as illegal. While morality is not the question here, is prostitution legal in India? Can a sex worker be jailed? To have a better understanding, it is important to know which acts attract punishment for prostitution in India as per prostitution laws. The Immoral Traffic Prevention Act and the Bharatiya Nyaya Sanhita (Earlier, the Indian Penal Code) majorly cover the legal aspect, as discussed below.
Offences under Immoral Traffic (Prevention) Act, 1956
Keeping a Brothel
Section 2(a) of the 1956 Act defines brothel as “any house, room, conveyance, or place or any portion of any house, room, conveyance or place, which is used for purposes of sexual exploitation or abuse for the gain of another person or for the mutual gain of two or more prostitutes”. Section 3 of the Act lays the punishment for keeping a brothel or allowing premises to be used as a brothel. Management of a brothel attracts rigorous imprisonment for 1 to 3 years with fine up to Rs 2000. However, for repeated offenders, the imprisonment goes up to 2-5 years for subsequent conviction, along with fine.
The tenant, lessee, occupier or person in charge, owner, lessor or landlord having knowledge of use of the place as a brothel is also punishable. First conviction leads to imprisonment up to 2 years with 2k fine. Subsequent conviction stretches the imprisonment up to 5 years with fine. In fact, the lease or any agreement for such property may become void and inoperative on conviction under the Act.
Living on Earnings of Prostitution
A person, being over 18 years of age, who lives on the earnings of prostitution of another person shall be imprisoned for up to 2 years with fine up to Rs 1k. In case such earning comes from prostitution of a minor, the said person is punishable with imprisonment of 7 to 10 years. Any person living with/habitually accompanying a prostitute, having control or influence over the movements of a prostitute, or acting as a tout or pimp on behalf of the prostitute, are under the radar for the purpose of Section 4.
Procuring for Prostitution
The person who procures or attempts so, induces, takes or attempts to, cause the movement or carrying another person into prostitution, is punishable under Section 5 of the Immoral Traffic (Prevention) Act. The punishment includes rigorous imprisonment of 3 to 7 years with fine extending up to Rs 2k. In case the act is done without consent, that is, against the will of a person, the imprisonment goes up to 7 to 14 years. In fact, if it is a child (0 to 16 years) forced into prostitution, the punishment may become life imprisonment. And if it is a minor (16 to 18 years), its 7 to 14 years of rigorous imprisonment.
Detention in Brothel/Place of Prostitution
Section 6 punishes a person detains another in a brother or premises for having sexual intercourse with someone who is not a spouse. Whether it is consensual or without consent, the imprisonment extends from 7 to 10 years or life imprisonment with fine. The provision further clarifies about the burden of proof in such cases.
Prostitution in or near Public Places
Section 7 of the Act empowers the State Government to issue directions through a notification in the Official Gazette, for areas where prostitution may not be carried out. Carrying out prostitution in such areas is an offence as per Section 7. In fact, carrying out prostitution within 200 metres of any place of public religious worship, educational institution, hostel, hospital, nursing home or such other public place as notified is punishable with imprisonment up to 3 months. The same offence committed in respect of a child or minor extends the imprisonment from 7 to 10 years or even life imprisonment, with fine.
Soliciting for Prostitution
Attracting, soliciting or molesting anyone, basically any action tempting someone for the purpose of prostitution is an offence as per Section 8. First conviction in such a case attracts imprisonment for up to 6 months, with or without fine. However, subsequent conviction lands in jail for up to 1 year, fine extending up to Rs 500.
Seducing Person in Custody
A person having in custody, charge or care of, or a position of authority over another, aids or abets seduction for prostitution is punishable under Section 9. The imprisonment may be 7 to 10 years or life imprisonment, with fine.
Prostitution under BNS 2023
Coming to the Bharatiya Nyaya Sanhita, 2023, the following acts are punishable:
- Selling Child for Purposes of Prostitution, etc.
Section 98 of BNS 2023 makes selling, hiring and disposing of a child for prostitution or illicit intercourse a punishable offence. The imprisonment extends up to 10 years along with fine.
- Buying Child for Prostitution
While Section 98 punishes selling a child, Section 99 targets people buying a child for the purpose of dragging into prostitution. The punishment here goes from 7 to 14 years of imprisonment with fine.
- Organised Crime
Among other crimes, prostitution is also mentioned among organised crimes. It is considered an unlawful activity and prohibited by law. Thus, prostitution as an organised crime is punishable in different scenarios, depending upon whether it causes death, or otherwise. Members of organised crimes are punishable, those harbouring or concealing such members along with those deriving or concealing a property obtained through organised crimes are punishable under section 111 of BNS 2023.
Is Red-Light Area Legal in India?
Before exploring the legality of red-light area, it is important to understand what it is in the first place. A red light area or red light district can be understood as an area within a city known for concentration of prostitution and sex-oriented business. There are no designated red light areas in India, but they nevertheless persist. As reflected in the various provisions of the Immoral Traffic Prevention Act, prostitution per se is not illegal. Red light areas far away from public places are also not illegal. However, since owning or renting a place for carrying out prostitution is illegal, red light areas do face certain legal implications.
Prostitution is Legal in India: Supreme Court
Budhadev Karmaskar v. State of West Bengal, 2011
In this case of brutal murder of a sex worker, the Apex Court discussed their right to live with dignity as ensured under Article 21 of the Constitution. The Court expressed that “Sex workers are also human beings and no one has a right to assault or murder them. A person becomes a prostitute not because she enjoys it but because of poverty. Society must have sympathy towards the sex workers and must not look down upon them.” The Court batted for vocational training for sex workers so they could earn their livelihood through other means instead of selling their bodies.
In its order dated 19-05-2022, the Court recognized sex work as a profession, thereby recognizing the legality of prostitution. The Court even clarified that prostitution is legal in India and only running the brothel is unlawful, thereby restricting arrest of sex workers.
Gaurav Jain v Union of India (1997)
This case holds a significant stand on prostitution laws in India. The Supreme Court of India recognized prostitutes not as the perpetrators but the victims of their adverse socioeconomic circumstances.
Finding on Prostitution
What can be concluded through the prostitution laws in India is that prostitution per se is not illegal. However, forcing someone into prostitution is illegal, owning or renting a space while knowing that prostitution is being carried out there, is illegal. Soliciting someone for the purpose of prostitution is against the law. The punishment for prostitution in India definitely includes human and child trafficking.
