Research Project

Submitted by: Nivruti Tagotra

1400961
HansRaj College

Topic: Regulation of Prostitution in India, its drawbacks and the language of

morality that surrounds it, in the contemporary period.
Prostitution in India has a long history right from the ancient times till the contemporary
period. In 2007, The Ministry of Women and Child Development reported the presence
of over 3 million female sex workers in India, with 35.47 percent of them entering the
trade before the age of 18 years1. In the following paper, we shall look into the laws that
regulate prostitution in the country, its drawbacks and the different reasons cited to
implement the same, with the language of morality that surrounds the entire discourse.
For the detailed discussion of the moral basis of regulation, I shall be looking at the Lok
Sabha debates of 1986 which serves as a primary source for the paper.
In the Colonial India, prostitution was considered as a necessary evil2. The main
concern was to keep the women involved in the sex trade clean and free from the
sexually transmitted diseases, as the fear was that they would infect the single men, and
later their families. Hence, it was then that a system of licensing was evolved and the
1864, 1866 and 1869 Contagious Disease Acts were passed. These laws mandated
registration, periodical medical examination and treatment. Women found suffering
from the sexually transmitted diseases (STDs) were confined to lock hospitals until
they were cured. These acts were repealed in 1871 after the womens movement in
Britain agitated against them. The licensing system, was however, not formally
abolished in India until 19293. With this background, we shall now look at the laws that
were formulated in the independent India to curb this evil of prostitution.

Around 3mm prostitutes in India.UNODC. May 8, 2007

Geetanjal Gangoli,International Approaches to Prostitution: Law and policy in Europe and Asia,(Policy Press),117

Geetanjal Gangoli,International Approaches to Prostitution: Law and policy in Europe and Asia,(Policy Press),118

After Independence, India adopted the toleration system under the 1956 Suppression of
Immoral Traffic Act (SITA), later amended to 1986 Immoral Traffic in Women and
Girls (Prevention) Act (ITPA). The SITA came into force after India ratied the
International Convention on Suppression of Immoral Traffic in persons and
Exploitation for Prostitution. Article 23 of the Convention prohibits any form of
trafficking in human beings and further contravention of this provision has been made
punishable under the law. Thus, to implement the ratication under the domestic law,
the Parliament enacted the Suppression of Immoral Traffic (in Women and Girls) Act
(SITA) under the power conferred upon it under Article 35 of the Constitution of India4.
However, many drawbacks of this act came to light and hence the same was substituted
with the Immoral Traffic (Prevention) Act, 1956 in 1986. The drawbacks of this Act
have been discussed below.
First, this Act brought under its purview only women and girls and in the process
omitted a large section being exploited under the guise of prostitution, which included
male prostitutes, hijaras and koti workers. Prostitution under this Act was dened as
followsProstitution means the act of a female offering her body for promiscuous
sexual intercourse for hire, whether in money or in kind and whether offered
immediately or otherwise and the expression prostitute will be construed accordingly5.
According to this denition females were the only ones who were engaging in
prostitution as an organized means of living6.
Secondly, the use of the term offering her body symbolized the voluntary act of a
female. Thus, the denition only covered the voluntary form as being prostitution and
excluded the forced form from the denition of prostitution.
Another drawback which came to light after the coming into force of this Act was that
persons involved in prostitution, other than prostitutes, to be tried under the provisions
of this Act, had to have knowingly and willingly engaged women in prostitution. For
this reason pimps, brothel owners etc would pretend to be ignorant about the same and
thereby escape liability.
Therefore, in order to improve upon the defects of SITA, the Immoral Trafc
(Prevention) Act, 1956 was enacted in the year 1986, thereby substituting SITA. One of
the most important changes brought about by Immoral Trafc (Prevention) Act is the
denition of the term prostitution. This term has been dened under Section 2(f) of the
4

Rohini Sahni, Prostitution and beyond: An Analysis of Sex Work in India,(Sage Publications), 213
2(f), Immoral Traffic (Prevention) Act, 1956
6
Rohini Sahni, Prostitution and beyond: An Analysis of Sex Work in India,(Sage Publications), 213
5

Immoral Trafc (Prevention) Act as Prostitution means the sexual exploitation or abuse
of persons for commercial purposes and the expression prostitute shall be construed
accordingly. Therefore, now prostitution is no more restricted to women and girls only
and a wider term, namely persons has been used instead, thereby widening the scope
of the terms and getting within its purview men, boys, hijaras, koti workers etc. Thus,
this was seen as a paradigm shift in the social structure wherein the existence of male
prostitutes, hijaras, koti workers etc was not acknowledged and their exploitation was
not taken into consideration by SITA, thereby making their condition appalling. The
change shows that the law makers realize the diverse forms of prostitution existing in
the society.
However, at the same time, the debates in Lok Sabha around the amendment of SITA
point towards a different mental framework of the MPs. It depicts how, morality was
another issue, which was considered necessary for the regulation of Prostitution in the
country. In one such example, Mr Shantaram Naik, in 1986, debates in the Lok Sabha in
the following manner:
Another feature of the Bill is that the nomenclature which was very ridiculous has
been changed. The Immoral Traffic (Suppression) Act, which was primarily known as
SITA, has been changed. I remember in courts of law, so many hundreds of Sitas used
to stand and we used to refer them as Sita Number 1, 2, 3. It is very rightful that this
name has been changed.7
We, therefore, see how for this MP, calling a prostitute by the name of SITA, the consort
of Lord Rama, and the icon of virtuous wifehood and womanhood was irreligious and
degrading. Hence, the amendments in the law and the change of name, was not only
because of the improvements it led to but, also, because Sita was the name of a
respected Hindu Goddess, respected within the mainstream Hindu Tradition as the ideal
wife. Thus, the use of such a term for a law relating to prostitutes was seen as morally
sinful.
The moral paradigm of the argument is also explicitly noted in the method of
rehabilitation that is recommended by Margaret Alva in Lok Sabha. She clearly depicts
how the most favored method of rehab is not to introduce new skills and resources to
women within prostitution, but to marry them off. She states how there are various
difficulties faced while marrying off prostitutes...8

7
8

Mr Naik, Lok Sabha Debates,1986,P158.

Mrs Alva, Lok Sabha Debates, 1986,P174

ITPA (1986) criminalizes soliciting, seducing, activity in the vicinity of public spaces,
renting premises for the purpose of prostitutions and living off the earnings of a
prostitute9. This law against the publically visible prostitution also reveals a deep
discomfort with uncontrolled sexuality- sexuality that is not confined to the private and
controllable domain. An adult woman, found guilty of prostitution can, therefore, be
arrested for indecent exposure or soliciting under three different laws- ITPA, IPC and
the relevant police acts.
We clearly notice, how state has time and again interfered in the question of control
over a womens sexuality. It wont be wrong to cite Tanika Sarkar in The Hindu Wife
and Hindu Nation, where she clearly demonstrates how womens sexuality has often
been linked to the notion of woman as bearers of children; hence, focusing significantly
on the reproductive functions of a woman.
Alva, in the parliament states that The exploitation of women and girls for the
purposes of prostitution is an obnoxious feature of crime against themthough
prostitution has persisted since time immemorial, it has been considered an evil that
wrecks the foundation of family and the community, as the basic units of human
society10 Therefore, we see how Alva speaks, with remarkable ease, of prostitution
as violence against women in the same breadth as she considers it to be an evil against
the family, romanticized as the basic unit of society. Hence, the laws regulating sex for
the purposes other than procreation exhibit similar notions and see women in sex work
as transgressing parameters of acceptable gender behavior and normative domestic
setups.
Under ITPA, the powers of police to prevent trafficking were expanded11. While SITA
empowered a special police officer to conduct a search of any premises without a
warrant, ITPA extends these powers to the other police officers accompanying the
special police officer as well. With this, it allowed the detention of women on mere
suspicion for twenty-one days.
The above two provisions have been abused by police in innumerable ways in several
instances. An important incident, to talk of here, would be the one where two sisters in
Bombay, were detained on suspicion of being involved in prostitution12. They moved a
defamation case against the state in the Bombay High Court, claiming that they had
been wrongly implicated. It sparked a row where legal experts working on womens
issues feel that there is a serious need to review this aspect of the act.
While the maximum period of police custody under the IPC is 14 days, ITPA is the only
9

3-A,4(1) Immoral Traffic(Prevention)Act, 1986

Margaret Alva, Lok Sabha Debates, 1986, P175
11
13(2-A), Immoral Traffic (Prevention) Act, 1986
12
Indian Express, June 20,2012
10

legislation across the country that gives a magistrate discretionary powers to detain a
women for three weeks.
The people defending the 21 day limit argue that there is no other way to determine
the involvement of the accused. According to senior criminal lawyer Satish Borulkar,
even 21 days can prove too less a time. Suppose the victim rescued happens to be a
foreigner, then it takes time for the police to contact her family and get her background
check done. He further argued that 21 days is the maximum; the magistrate has the
power to release the women once the enquiry is over. However, V.B Jaiswal, senior
advocate, argues that the release of women before 21 days rarely happen and in most
cases in which women are rescued, the magistrate ends up utilizing full 21 days. (Indian
Express, June 2012)
In another bizarre incident of the abuse of police powers and moral policing, on August
8th, 2015 around 40 couples were dragged out of their hotel rooms and arrested by
Mumbai Police for indecent behavior as they were unmarried. They were held for
several hours and some were even made to call their parents. Also, despite being in
private hotel rooms, the police charged them with Indecent behavior in Public and
were made to pay a fine of Rs, 1200. Three cases were also registered under the
Prevention of Immoral Traffic act. Not only this, there were instances where the women
arrested were slapped by female constables when they tried to reason their act13. This
incident kicked up a storm. People took to social media to mock this kind of moral
policing, and warnings of the government on such issues of privacy and morality. By
facing such kind of social media censure the state Chief Minister Devendra Fadnavis
ordered a probe into the matter.
We, therefore, notice how the state assumes the role of a custodian of a womans
morality and feels to need to suppress her sexuality by all means. The ITPA extends not
only to public soliciting or indecency, but has provided a room for interference in
personal lives of people. From Pubs, parks to celebration of Valentines Day, and now
the hotel rooms all have come under a major scrutiny.
An interesting thing to notice on the debates around trafficking for sex work was how
they construct sex workers as being primarily and conceptually outsiders and non
Indians and therefore, outside the realm of citizenship debates. This also has another
face to it. While the anti trafficking laws constructed sex trade and by extension sex
work as immoral, the construction of sex worker as foreign is another way in which
the national discourse on sex work avoids the reality of Indian women as sex workers.
Not only this, in the sanctification of working spaces and trivialization of her work as
13

Deccan Herald, 10th August ,2015

an indispensible evil, in the demarcation of living spaces and lewd references to the red
light area, we can consistently find her existence as a woman becoming secondary to
her profession. Attitudes that demean a sex workers work and character marginalize her
at every level of existence. According to Rohini Sahni, such notions are clearly visible
in the sheer neglect in sanitizing a street in the red light area by the government14.
A major discourse also takes place simultaneously on the decriminalization of sex work
in India. Feminists argue that for someone who derives her livelihood through the
exhibition of her sexuality, regulating it, is like denying the very reason for her
existence.
However, Geetanjali Gangoly has pointed out that there is a certain kind of dichotomy
amongst the feminists and sex workers themselves as far as their profession is
concerned15. While on the one hand, there are sex workers and activists who draw on
the experiences of hurt, anguish, and violence that form a part of their lives, to support
the criminalization of the act; there are others, who suggest that prostitution be legalized
or decriminalized and it be treated as a work.
The first set of people, with their focus on legal rights and violence against women have
attained a view of sexuality that is somewhat narrow and rigid. Activists in the womens
movement have sometimes accepted marital monogamy as not only acceptable but as
desirable. Following quote from an activist in India brings out the opposition to
legalization of prostitution based on simultaneous rejection of non monogamy as a
possibility for both men and women, and a celebration of marriage as the only route for
sexual satisfaction:
From a feminist point of view, the proposal to legalize prostitution is untenable- why
should it be assumed that men have certain urges, which need an outlet urgently. The
socialization route is the route to take, so that young men are socialized to monogamy
and young women are socialized to view sex as a beautiful, natural activity and not the
legalization route.16
The view expressed above is problematic on two grounds. One, it legitimizes
patriarchal notions of the family and monogamy by using quasi-feminist arguments.
Secondly, it appropriates feminism, by speaking on the behalf of all feminists. It also
restricts sexuality to marital sexuality, allowing no space for women and men outside it
to articulate their understanding of sexuality.
14

Rohini Sahni, Prostitution and beyond: An Analysis of Sex Work in India,(Sage Publications)

15

Geetanjali Gangoli,International Approaches to Prostitution: Law and policy in Europe and Asia,(Policy Press),

16

Sanlaap, 1998: 53-54

Geetanjali Gangoly argues that it can be presumed that prostitution has elements of and
scope for violence against women on the basis of which certain feminists critique it as a
profession. However, at the same time, we need to understand that women in
prostitution can be empowered without abolishing prostitution17. Decriminalization
would help those in the sex trade organize for better working conditions and reduce the
hold of brothel keepers18. However, a failure to do so has only led to the cooption of this
feminist intervention by the state and official policy in strange and misogynistic ways.
Ashwin Tambe states that when the state criminalizes prostitution, it abuses its power
by targeting already vulnerable population. As infact, those who bear the brunt of the
criminalization of prostitution are not clients but sex workers. He further argues that
any welfare-conscious state should protect its population from ill health and hence
oversee the sex industry inorder to keep epidemics of venereal diseases in check.
Regardless of their status before the law, sex workers are citizens and bearers of basic
human rights, such as the right to life19. But in the process of regulating prostitution in
order to check the spread of HIV/AIDS, the state is more committed to protect the
clients than, the sex workers, who are often seen as carriers of such diseases. Hence, the
entire motive of the process of regulation on these grounds, then, seems to be lost.
It is, therefore, important for us to understand that regulating prostitution and labeling
it as morally degrading would not serve the problem, rather it is important to first
realize the drive behind acts of prostitution. As Ashwin Tambe argues that when
tracking is cast as a law-and order problem, the conditions that drive family members
to sell daughters or that make brothel life appealing to women are left ignored.
Increasing levels of poverty and the promise of a better life in cities drives countless
children and women to eagerly trust those termed trackers. Sexual commerce can
potentially oer money, escape, and forms of relative agency absent in other kinds of
work. The law does not, and cannot, address such dimensions of the sex trade. Projects
that expand alternative occupations for women are one useful solution encouraged by
states and NGOs, but a more long-term approach would reverse urban-centered
development priorities and challenge the orthodoxy of market fundamentalism20.
CONCLUSION:
To conclude my above paper, I would like to argue that the state discourse around
17

Geetanjali Gangoly, Indian Feminisms: Law, patriarchies and violence in India,(Ashgate Publications)
Ashwin Tambe, Codes of Misconduct: Regulating Prostitution in late colonial Bombay, (University Of
Minnesota Press)
19
Ashwin Tambe, Codes of Misconduct: Regulating Prostitution in late colonial Bombay, (University Of
Minnesota Press), xvi
18

20

Ashwin Tambe, Codes of Misconduct: Regulating Prostitution in late colonial Bombay, (University Of
Minnesota Press),129

prostitution has stated the implications of sex work on the law, order and health of the
nation and hence the need to regulate it. The legal reforms prohibit public indecency but
allow consensual sex between adults in private spaces. But, in reality, the provisions are
often more on paper than in practical terms. The cases of moral policing and the
arguments provided for the criminalization and rehabilitation of sex workers point
towards strong moral contours of the discourse, therefore, detracking from the
important issues concerning sex work. Hence, there is a strong need to keep aside such
moral concerns and focus more on the social implications that prostitution has as a
profession and organizing and empowering the sex workers to liberate them from the
violence that they are often subjected to.