A PROJECT REPORT ON

LEGALISATION OF PROSTITUTION

SUBMITTED TO:

MS. MADHURIMA DE SARKAR

(FACULTY, WOMEN AND LAW)

SUBMITTED BY

AMAN TIGGA

SEMESTER-X

ROLL NO.16

DATE OF SUBMISSION- 06/04/2017

HIDAYATULLAH NATIONAL LAW UNIVERSITY

RAIPUR (C.G.)

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 TABLE OF CONTENT

1. ACKNOWLEDGEMNTS…………………………………………........3
2. LIST OF CASES…………………………………………………....…...4
3. INTRODUCTION………………………………………………….....…5
4. OBJECTIVE OF PROJECT……………………………………….......6
5. RESEARCH METHODOLOGY…………………………………....…6
6. CHAPTER – 1- INTRODUCTION……………………………..……..5
7. CHAPTER – 2 – PROSTITUTION – MEANING................................8
8. CHAPTER – 3 - INTERNTIONAL LEGAL FRAMEWORK……..11
9. CHAPTER – 4 – ASPECT OF LEGALIZATION…………...……...15
10. CONCLUSION………………………………………..………….....…22
11. BIBLIOGRAPHY……………………………………..…….…....…....23

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 ACKNOWLEDGEMENTS

The successful completion of any task would be, but incomplete, without the mention of
people who made it possible and whose constant guidance and encouragement crowned my
effort with success.

I would like to thank my course teacher Ms. Madhurima De Sarkar for providing me the
topic of my interest.

Secondly, I would like to thank our Vice Chancellor for providing the best possible
facilities of I.T and library in the university.

I would also like to extend my warm and sincere thanks to all my colleagues, who
contributed in numerable ways in the accomplishment of this project.

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 LIST OF CASES

 Bai Shanta v. State of Gujarat AIR 1967 Gujarat 211.

 Budhadev Karmaskar v. State of West Bengal (2011) 10 SCR 577
 Carpenter v. People 8 Barb., N.Y., 610
 Com. v. Cook, 12 Metc., Mass., 97;
 Gaurav Jain v. Union of India 1990 Supp SCC 709: 1991 SCC (Cri) 140
 Gaurav Jain v. Union of India AIR 1997 SC 3021.
 In re: Deva Kumar 1972 MLJ (Cr.) 150
 In re: John AIR 1966 Mad 167
 In Re: Ratnamala and Another v. Respondent AIR 1962 Madras 31
 In Re: Ratnamala and Another v. Respondent AIR 1962 Madras 31 ¶ 5
 Krishnamurthy v. Public Prosecutor 1967 Cri LJ 544 (SC)
 Mitter v. Curran, C.C.A.N.Y., 18 F. 2d 355, 356
 P.N.Swamy, Labour Liberation Front, Mahaboobnagar v. Station House Officer,
Hyderabad 1998 (1) ALD 755.
 People v. Rice 277 Ill. 521, 115 N.E. 631, 632
 Queen-Empress v. Basava, (1891) 15 Mad 75;
 Queen-Empress v. Tippa, (1892) 16 Bom 737
 Reg. v. Jaili Bhavin, (1869) 6 BHC (Cr C) 60;
 Sahyog Mahila Mandal v. State of Gujarat (2004) 2 GLR 1764.
 State of Rajasthan v. Mst. Wahida 1981 RCC 42
 State v. Anderson, 284 Mo. 657, 225 S.W. 896, 897; U.S. ex rel.
 Sushila v. State of Tamil Nadu 1982 Cr LJ 702 (Mad)

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 CHAPTER -1- INTRODUCTION

Prostitution has existed in our country since ages. Prostitute and prostitution mention even in
early Indian literature, they have been addressed by different names in the Sanskrit literature.
They have been refereed in Vedas, Puranas, Mahabharata and Ramayana. The Puranas state
that the very sight of prostitutes brings good luck. The women prostitutes in those times were
classified into three categories, namely, Kumbhadasis, Rupajivas, and Ganikas. Prostitution as
a profession has a long history in India. The Vedic word sadbarani refers to a woman who
offers sex for payment. In Vedic times, most prostitutes seem to have dressed in red, even their
gold jewellery was reddened as this hue was assumed to scare away demons and give protection
to those who chose to live in a moral grey zone. Devadasi (handmaiden of god) system of
dedicating unmarried young girls to gods in Hindu temples, which often made them objects of
sexual pleasure to temple priests and pilgrims, was an established custom in India by 300 AD.
There are reasonably good records of prostitution in large Indian cities during the 18th and the
first-half of the 19th centuries of British rule; prostitution was not considered as a degrading
profession in that period as it was from the second-half of the 19thcentury. Indian Prostitution
was completely independent of the British and other foreigners. Temple dancers, aristocratic
courtesans, independent village girls and big brothels could be found in every corner of Indian
subcontinent. Thus, prostitution has existed in the society since ages and is still prevalent in
modern society.

Prostitution is the crudest manifestation of societies where women have been driven to sell
their bodies as means of survival. Such women are expected to satisfy the uncontainable vice
of male sexuality. Prostitution has been a part of our society since time immemorial. The article
goes back into history of prostitution in India. The paper further examines the meaning of the
term ‘prostitution’’ and the laws that define and deal with prostitution in India.

The IPC lends a helping hand to the special laws enacted to curb prostitution by attacking the
source of this evil. The paper examines those special laws and digs out the reason for their
failure to curb this menace.

At present, India has no stand as to legality of prostitution. Recently in the year 2012, Supreme
Court while hearing a case suggested that the government should regulate and channelize the
trade. The article further brings into light the debate on whether prostitution should be legalized
or not and the pros and cons of legalizing and not legalizing.

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The article further examines the scenario of different countries status as to legality of
prostitution. The article further dwells into examining the countries where prostitution is
legalized and the scenario in those counties.

PROBLEM

 What is the legal framework to control prostitution and weather prostitution should be
legalised in India or not?

OBJECTIVES

1. To examines the meaning of the term ‘prostitution’’ and the laws that define and deal
with prostitution in India.
2. Elaborate those special laws and digs out the reason for their failure to curb this menace.
3. To brings into light the debate on whether prostitution should be legalized or not and
the pros and cons of legalizing and not legalizing.
4. To examine the countries where prostitution is legalized and the scenario in those
counties.

RESEARCH METHODOLOGY

This is a descriptive & analytical research paper. My research paper is largely based on the
critical review of secondary and electronic sources of information. References used as guided
by the faculty of women and law were of great use in completing this project.

LIMITATION

Although the research paper has reached its aims, but for the sake of convenience and for detail
study, the researcher has limited the present topic to the nature and scope as mentioned within
the Constitution and Supersession Of Immoral Trafficking Act 1956 and has tried to re-
examine its scope with the available case laws and judgements given by the Supreme Court
from time to time.

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 CHAPTER – 2 – PROSTITUTION - MEANING

Prostitution is often thought of as a threat to the marriage-family institution; law-makers are often
afraid that, the delicate threads which binds the society together will be broken if people are free to
engage in coitus for pleasure; laws, it is stated, are often not enforced adequately because the police
have too many other things to do; judges also know that incarceration will not rehabilitate a
prostitute, nevertheless, laws exist to emphasise that prostitution is not a socially acceptable form of
behaviour1.
- Law Commission of India: Sixty Fourth Report
Prostitution in most general sense may be defined as common lewdness of a woman for gain;
whoredom; the act or practice of a woman who permits any man who will pay her price to have
sexual intercourse with her2. In the case of People v. Rice3, prostitution was defined as, the act
or practice of a female of prostituting or offering her body to an indiscriminate intercourse with
men for money or its equivalent. In the case of, Carpenter v. People4, it was held that, the word
“prostitute” in its most general sense means the act of setting one’s self to sale, or of devoting
to infamous purposes; it also means, what is in one’s ower that is: the prostitution of talents or
abilities; the prostitution of the press.

According to Section 2 (f) of the Immoral Traffic (Prevention) Act (104 of 1956) read with
Section 372 of the Indian Penal Code (45 of 1860), prostitution is the act of a female offering
her body for promiscuous sexual intercourse for hire, whether in money or in kind. In the case
of In re: Deva Kumar5, it was held that, prostitution involves indiscriminate employment of
a woman’s body for hire.

The Common Law defines “brothel” as a place where people of opposite sexes are allowed to
resort for illicit intercourse, whether the women are common prostitutes or not; keeping a
bawdy house is a nuisance at common law. As per Section 2(a) of the Immoral Traffic
(Prevention) Act, 1956, “brothel” includes 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 of more prostitutes.it is worthy to note that ,in the case of Sushila v. State

1 Law Commission of India: Sixty Fourth Report, The Suppression of Immoral Traffic in Women and Girls
Act, 1956, Chapter I: Introduction, March 1975
2 See: Com. v. Cook, 12 Metc., Mass., 97; State v. Anderson, 284 Mo. 657, 225 S.W. 896, 897; U.S. ex rel. Mitter v.

Curran, C.C.A.N.Y., 18 F. 2d 355, 356

3 277 Ill. 521, 115 N.E. 631, 632
4 8 Barb., N.Y., 610
5 1972 MLJ (Cr.) 150

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of Tamil Nadu6 it was held that, a solitary instance of prostitution in a place does not make
the place a “brothel”; a similar view was reiterated in the case of, In re: John7, in this case,
it was held that, prostitution of a woman should be for the gain of another person, as to the
premises to be called as “brothel”. Later, in the case of Krishnamurthy v. Public Prosecutor8,
the Supreme Court held that, a place used once for the purposes of prostitution may not be a
“brothel”. In the case of, State of Rajasthan v. Mst. Wahida9, it was held that, any person who
keeps or maintains or acts or assists in the keeping and management of a brothel in India, is
liable to be punished under the provisions of the Immoral Traffic (Prevention) Act, 1956.

According to P. Ramanatha Aiyar’s Law Dictionary (Fifth Edition), prostitution means the
sexual exploitation or abuse of individuals for commercial purposes. Also, a public prostitute
is a woman who is a prostitute by profession and whose trade is to let-out her body on hire to
all visitors or to all visitors of a specified class. When a woman rests content with one lover
for years though she may have changed her lovers at intervals of some years, she is not a public
prostitute.

A woman is not a prostitute who indulges in illicit sexual intercourse with only one man; thus,
a man cannot be guilty of enticing a female away from her home for the purpose of prostitution,
where the proof shows that he enticed her away for the purpose of having coitus with her and
not to induce her to have coitus indiscriminately with other men. The most usual motive for
indiscriminate sexual intercourse is the money paid there for; hence, prostitution is sometimes
defined as “indiscriminate sexual commerce for gain”.

The word ‘prostitution’ is not confined to acts of natural sexual intercourse, but includes
any act of lewdness. It means surrender of a girl’s chastity for money10. There is no specific
law to regulate the so-called immoral practice of prostitution in India; no doubt the Immoral
Traffic (Prevention) Act, 1956 read with the Indian Penal Code, 1860 tries to tackle the
problem of prostitution, but it does so, indirectly. Although much is known about prostitution
and sex-trade in India, but almost all research apropos it, has been confined to the female sex-
workers and their clients. Studies albeit men, who sell sex, either to women or to other men in

6 1982 Cr LJ 702 (Mad)

7 AIR 1966 Mad 167
8 1967 Cri LJ 544 (SC)
9 1981 RCC 42
10 Ratanlal & Dhirajlal, The Indian Penal Code, Chapter XVI: Criminal Force & Assault, Wadhwa & Company (Nagpur),

30th Edition (2006), p. 675

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India has hardly been undertaken11. There is a growing need to study this niche area of research
in India.

Data Analysing the Indian Experience: Prostitution in India is estimated to be an $8.4 billion
industry12. The largest red-light areas across India are: Sonagachi (Kolkata), inhabiting more
than 11,000 sex-workers; Kamathipura (Mumbai); Budhwar Peth (Pune), inhabiting around
5,000 commercial sex-workers; Meergunj (Allahabad); G.B. Road (Delhi); Chaturbhujasthan
(Muzaffarpur); Itwari (Nagpur); and Shivdaspur (Varanasi). As per the National Crime
Records Bureau (NCBR), the number of registered cases albeit human-trafficking in India has
increased by 38.3% in last five years, that is, from 2848 in 2009 to 3940 in 2013. A further
analysis of the NCBR data reveals that in 2013, maximum crimes (around 65.5%) were
registered under the Immoral Traffic Prevention Act, 1956; whereas procuring of minor girls
(Section 366-A of the Indian Penal Code, 1860) accounted for 31.1% of the crimes. The State
of West Bengal is the hub of human trafficking in India, with a registered human trafficking
cases of 669 in the year 2013, followed by Tamil Nadu (549 cases), Andhra Pradesh (531
cases), Karnataka (412 cases) and Maharashtra (345 cases)13.

11 Gagandeep Kaur, Law and Changing Private Morality in India, Journal of Law Teachers of India, Volume II, Issue 1-2,
2011, p. 126
12 Palash Krishna Mehrotra, Legalisation of prostitution will help protect vulnerable women in India, Daily Mail, accessed

on 26 March 2017 at 20:21

13 Supra Note 17

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 CHAPTER – 3 - INTERNTIONAL LEGAL FRAMEWORK

There are numerous international treaties and conventions that protect the interests and human
rights of sex workers. Among them, the primary international treaty dealing with sex workers
is the 1949 UN Convention for the Suppression of the Traffic in Persons and of the
Exploitation of the Prostitution of Others14. This Convention reflects the Abolitionist15 view
to the point that it has failed adequately to recognize the human rights of sex workers and that
it is based on the promise that sex work should end and that all sex workers should be regarded
as victims who must be saved from themselves and be rehabilitated. Under this Convention, it
is an offence to procure or entice another person even with their consent into prostitution16, to
exploit the prostitution of that person even with their consent17, state parties shall agree to
punish any person who keeps or manages of finances a brothel 18 or knowingly rents or lets a
building or other place for purpose of prostitution19.

The most recent international instrument on the issue is the Protocol to Prevent, Suppress and
Punish Trafficking in Persons Especially Women and Children, supplementing the United
Nations Convention against Transnational Organized Crime20 but this has not yet been ratified
by India and not in force so far. This Protocol criminalizes acts of receipt, transportation,
harbour, recruitment, and transfer of persons; by means of use of force, abduction, threat of
use of force, frauds, deception, and abuse of position of vulnerability; for purposes of
prostitution, forced labour or other forms of sexual exploitation.20 It fails to draw a line between
trafficking and forced prostitution on one hand and unforced prostitution on the other --
providing justification for criminalization and denial of basic rights of these workers 21. The
fundamental international framework on human rights22 protection is the Universal Declaration

14 96 U.N.T.S. 271 (1949) [hereinafter 1949 Trafficking Convention].

15 The Abolitionist approach declares that the institution of prostitution itself constitutes a violation of human rights, akin to the
institution of slavery. The Abolitionist approach requires governments to abolish prostitution through the penalisation of this 'third
party', which profits from the transaction between prostitute and client. The prostitute cannot be punished, as she is the victim of a
process she does not control. See Jo Bindman & J Doezema, Redefining Prostitution as Sex Work on the International Agenda,
http://www.walnet.org/csis/papers/redefining.html. As accessed on 26.03.2017 at 20:37
16 Article 1 (1), 1949 Trafficking Convention.
17 Article 1 (2), Id.
18 Article 2 (1), Id.
19 Article 2 (2), Id.
20 G.A. Res. 55/25, U.N. G.A.O.R, 55th Session, U.N. Doc. A/RES/55/25, (2000) (hereinafter Trafficking Protocol).
21 Id Article 3 (a), Trafficking Protocol
22 Laura Reanda, Prostitution as a Human Rights Question: Problems and Prospects of United Nations Action, 13(2) HUMAN

RIGHTS QUARTERLY 202 (1991). Accessed on 26.03.2017 at 21:15

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of Human Rights23 (UDHR) and the International Covenant on Civil and Political Rights24
(ICCPR) and the Convention on the Elimination of all forms of Discrimination against
Women25 (CEDAW) which is perhaps the best basis for the protection of sex workers. The
preamble of the UDHR affirms equal rights and dignities of men and women, right to life
and liberty26, equal protection before law and right against all forms of slavery and
servitude27, protection against arbitrary interference with privacy, family, home, or
correspondence28 and of particular importance to sex workers is right to work, to free choice
of employment and to just and favourable working conditions29. ICCPR also reflects the
similar rights with emphasis on right to freedom of association that needs to be in the interests
of national security, public safety, the protection of public health and morals, or the protection
of rights of others30 and effective protection against discrimination to be granted31.The
International Labour Organization has addressed the issues of discrimination in employment
and occupation32, forced labour33, occupational safety and health34 and protection of workers’
health35.

United Nations has come out with a handbook of guidelines to provide examples of best
practices doe legislation in relation to prostitution and it contains many progressive provisions
of relevance to the issue of sex work and also HIV 36. It recommends that an alternative
approach of treating sex work as a personal service industry, which is neither condemned nor
condoned and also removal of a range of offences in fear of prosecution and harassment by the
police. Regionally, India has ratified the SAARC Convention on Preventing and Combating
Trafficking in Women and Children for Prostitution37 which acts as a combatant in prevention
of trafficking and sexual exploitation but this has also been criticized38.

23 G.A. Res 217 A (III), U.N. G.O.A.R, U.N. Doc A/810, 171 (December 10, 1948).
24 999 U.N.T.S 171, 6 I.L.M. 368 (December 16, 1967).
25 1249 U.N.T.S 13, 19 I.L.M. 33 (December 18, 1979).
26 Article 3, UDHR.
27 Article 4, UDHR.
28 Article 12, UDHR.
29 Article 23, UDHR.
30 Article 22 (2), ICCPR.
31 Article 26, ICCPR.
32 Discrimination (Occupation and Employment) Convention, No. 111 (1958) http://www.ilo.org/ilolex/english/convdisp1.htm.
33 Forced Labour Convention, No. 29 (1930) http://www.ilo.org/ilolex/english/convdisp1.htm
34 Occupational Safety and Health Convention, C155 (1981) http://www.ilo.org/ilolex/english/convdisp1.htm
35 Protection of Workers’ Health Recommendation, R97 (1953)http://www.ilo.org/ilolex/english/recdisp1.htm.
36 Handbook for Legislators on HIV/AIDS, Law and Human Right: Action to combat HIV/AIDS in view of its devastating Human,

Economic and Social Impact, UNAIDS Best Practice Collection, UNAIDS/99.48E (November 1999)
http://www.ipu.org/PDF/publications/aids_en.pdf.
37 SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution, 2002,

http://www.humantrafficking.org/uploads/publications/SAARC_Convention_on_Trafficking___Prostitution.pdf
38 The main criticism levied against the SAARC Convention is its narrow definition of trafficking, which is limited to prostitution;

also that it makes no distinction between women and children. Trafficking has been defined to include the moving, selling or

11
 Legal Framework of Other Countries

1. Netherlands:
The current law regarding prostitution in Netherlands39 legalizes brothels as long as they do
not disrupt the public life and they will operate like any other commercial establishment. The
law aims to legalize the organization of voluntary prostitution and penalize involuntary
prostitution characterized by coercion, exploitation and fraud for which imprisonment is
guaranteed. Powers are vested with local authorities to control and regulate the conditions
under which prostitution is permitted40. Sex work is organized in a variety of ways in
Netherlands, for e.g. window prostitution, street sex work both of which work independently.
The tolerant nature of Netherlands portrays that sex workers have good working conditions
which are similar to other industries – but reality is far from it. Even though public policy has
taken a pragmatic approach towards sex work, they are victims of stigma, marginalization and
bereft of human rights protection41.

2. Sweden:
The new legislation in Sweden criminalizes buying of sexual services. Its main aim is to reduce
the numbers of sex workers and encourages them to retrain42. It targets men as clients, that the
sex workers and penalizes them with imprisonment. This approach has led to collaboration of
social services and law enforcement officials in sensitive treatment of the sex workers. The
aim is to contain socially unacceptable behaviour and to encourage the sex workers back into
the mainstream of the society.

buying of a person, but does not include recruitment, labour, transfer or receipt that does not essentially constitute buying or
selling, See NHRC-UNIFEM-ISS Project, A Report on Trafficking in Women and Children in India 2002-2003, Volume 1, 248,
http://nhrc.nic.in/Documents/ReportonTrafficking.pdf.
39 Jo Visser, The Dutch Law Proposal on Prostitution: Text and Explanation, http://www.mrgraaf.nl/2_ef.htm; Ministry of

Justice, Press Release: Heavier Penalties for Abuse of Prostitution, http://www.minjust.nl/8080 /c_actual/persber/pb0121.htm.
Accessed on 26.03.2017 at 20:47
40 Supra Note 47.
41 Jo Visser, The Dutch Law Proposal on Prostitution: Text and Explanation, http://www.mrgraaf.nl/2_ef.htm; Ministry of

Justice, Press Release: Heavier Penalties for Abuse of Prostitution, http://www.minjust.nl/8080 /c_actual/persber/pb0121.htm.
Accessed on 26.03.2017 at 20:47
42 Judith Kilvington et al, Prostitution Policy in Europe: A Time for Change, 67 FEMINIST REVIEW 78, 83 (2001). Accessed on

26.03.2017 at 21:48

12
3. Victoria, Australia:
The Victorian government has continued to criminalize all forms of prostitution except for
prostitution through escort services or licensed brothels (zoning and licensing requirements for
brothels to be determined by the proper municipal authorities)43. The Victoria experiment has
failed for two reasons: firstly, because municipal authorities have control over issuance and
revocation of licenses and due to community pressure legal brothels have existed in very small
numbers44. This results in an increase in illegal prostitution as there is a limited opportunity to
work at the legal brothels. Secondly, because legal brothels are so limited, the brothel owners
have substantial power in their hands to exploit sex workers who want to work legally (there
is a huge employment demand by such sex workers) and this has led to nefarious and
horrible working conditions for these sex workers45.

43 Martha Shaffer & Sylvia Davis, Prostitution in Canada: The Invisible Menace or the Menace of Invisibility?,
http://www.walnet.org/csis/papers/sdavis.html. Accessed on 26.03.2017 at 22:00
44 M. Neave, The Failure of Prostitution Law Reform, 21 AUSTRALIAN AND NEW ZEALAND JOURNAL OF

CRIMINOLOGY 202, 203 (1988) c.f. Martha Shaffer and Sylvia Davis, Prostitution in Canada: The Invisible Menace or the
Menace of Invisibility? http://www.walnet.org/csis/papers/sdavis.html. Accessed on 26.03.2017 at 22:00.
45 Mary Sullivan, What Happens When Prostitution Becomes Work? An Update on Legalization of Prostitution in Australia,

http://action.web.ca/home/catw/readingroom.shtml?x=84641. Accessed on 26.03.2017 at 22:00

13
 CHAPTER – 4 - INDIAN LEGAL FRAMEWORK

The laws governing sex work in India are entailed in the Constitution of India, 1950; the Indian
Penal Code, 1860 and the Immoral Traffic (Prevention) Act, 1956. The Constitution apart from
the equality provisions46 and provisions of freedom of association47, right to life and personal
liberty48, guarantees prohibition of trafficking of human beings and forced labour49. Under Part
IV of Directive Principles of State Policy: the State is required to direct its policies towards
securing, inter alia, that both men and women have an equal right to an adequate means of
livelihood50, that health and strength of workers not be abused, and that citizens are not forced
by necessity to enter avocations unsuited for their age and strength51, promotion of the
educational and economic interests of weaker sections of the society, ensuring their protection
from social injustice and exploitation(emphasis supplied)52, requirement of fostering respect
for international law and treaty obligations53, obligation on the state to raise the levels of
standard of living54 and the renunciation of practices by citizens that are derogatory to the
dignity of women55. The Andhra Pradesh High Court has also affirmed that these combined
duties are placed on the state and a corresponding right is placed on citizens including sex
workers56.
The Indian Penal Code has at least 20 provisions57 that make trafficking punishable. Most of
them deal with abduction for illicit intercourse58, wrongful confinement after abduction59 inter
alia.
The primary piece of legislation dealing with sex work is the Immoral Traffic (Prevention)
Act, 1956 (hereinafter ITPA). The Act mainly makes pimping and other activities punishable,
which gives a commercial aspect to prostitution that is likely to exploit the person of the

46 The equality provisions are Articles 14 and 15 in Part III dealing with Fundamental Rights of the Constitution of India,
1950. Article 14 provides for equality before the law and equal protection of the laws; Article 15 prohibits the state from
discriminating on the grounds of religion, race, caste, sex or place of birth, though it can make special provisions for women,
children, “socially and educationally backward” classes, scheduled castes and scheduled tribes.
47 Article 19(1), Constitution of India, 1950.
48 Article 21, Constitution of India, 1950.
49 Article 23, Constitution of India, 1950.
50 Article 39 (a), Constitution of India, 1950.
51 Article 39 (e), Constitution of India, 1950.
52 Article 46, Constitution of India, 1950.
53 Article 51, Constitution of India, 1950.
54 Article 47, Constitution of India, 1950.
55 Article 51 A (e), Constitution of India, 1950.
56 P.N.Swamy, Labour Liberation Front, Mahaboobnagar v. Station House Officer, Hyderabad 1998 (1) ALD 755.
57 SECTIONS 293, 294, 317, 339, 340, 341, 342, 354, 359, 361, 362, 363, 365, and 366, 370, 371, 372, 373, 375, 376, 496,

498, 506, 509, 511, Indian Penal Code, 1860.

58 SECTION 366B, Indian Penal Code, 1860.
59 SECTION 368, Indian Penal Code, 1860.

14
prostitute. The Act does not prohibit prostitution per se but it does prohibit commercial
activities of the flesh trade. It has been held that all that is necessary to in order to prove
prostitution is that a woman or girl has offered her body for promiscuous sexual intercourse
for hire, and that sexual intercourse is not an essential ingredient. Section 3 of the ITPA
provides for the punishment of any person in charge of the premises who uses or knowingly
allows someone else to use it as a brothel. From case law, it seems that even a single incident
of prostitution, with surrounding circumstances, is sufficient to prove the offence of keeping a
brothel. Offences under the ITPA are under Sections 3 to 960. It has been held in a couple of
judgments that the ITPA did not aim to abolish prostitutes and prostitution as such, and did
not make it per se a criminal offence for a woman to prostitute herself, but was rather
intended to inhibit or abolish the commercialized vice of trafficking in women61. The Gujarat
High Court in another case refused to recognize prostitution as a legitimate means of
livelihood, as that would give an open invitation for women to be trafficked and also that the
right to prostitution in not a fundamental right of women or girls62. Under the ITPA, a
Magistrate, if he deems it to be necessary, can order the removal of a prostitute from any place
in the interest of the general public63.
It is interesting to note that the client faces no punishment whatsoever64.
The 2006 Bill65 omits S.8 of the original Act, thus removing the offence of soliciting or
seducing for the purpose of prostitution, it also omits S.20 of the Act regarding the removal of
the prostitute from any place. However, the responsibility, on the flipside, and severity of
punishment of traffickers and clients is increased. The newly proposed S.5(c) provides for
punishment of any person visiting a brothel for the purpose of sexual exploitation of any
person. These proposals have been criticized as the livelihoods of the workers would be stifled
by the increased punishments of the clients66.

60 §3 provides for punishment for keeping a brothel or allowing premises to be used as a brothel, §4 provides for punishment
for living on the earnings of prostitution, §5 provides for offences in procuring, inducing or taking persons for the sake of
prostitution,§6 provides for detaining a person in premises where prostitution is carried on, §7 provides for offences
regarding prostitution in or the vicinity of public places, §8 provides for seducing or soliciting for the purpose of prostitution,
§9 provides for seduction of a person in custody: Immoral Traffic (Prevention) Act, 1956.
61 In Re: Ratnamala and Another v. Respondent AIR 1962 Madras 31 ¶ 5; Bai Shanta v. State of Gujarat AIR 1967

Gujarat 211 ¶ 8.
62 Sahyog Mahila Mandal v. State of Gujarat (2004) 2 GLR 1764.
63 Section 20, ITPA, 1956
64 Prabha Kotishwaran, Preparing for Civil Disobedience: Indian Sex Workers and the Law, 21(2) BOSTON COLLEGE

THIRD WORLD JOURNAL 161, 170 (2001). As accessed on 27.03.2017 at 09:44 AM

65 The Immoral Traffic (Prevention) Bill, 2006.
66 Laya Medhini et al,, Indian Sex Workers rally over law, BBC News, March 8, 2006,

http://news.bbc.co.uk/2/hi/south_asia/4787580.stm. As accessed on 27.03.2017 at 09:44 AM

15
Rehabilitation of Prostitutes and their Children: Section 16 of the Immoral Traffic
(Prevention) Act, 1956, provides for the rescue of persons living or carrying on, or made to
carry on prostitution, in a brothel. Section 16 provides that, a Magistrate (that is, Metropolitan
Magistrate, Judicial Magistrate of First Class, District Magistrate or Sub-Divisional
Magistrate) may direct a police officer not below the rank of a sub-inspector to enter any
brothel and remove any person there from; after removing the person, the police officer must
forthwith produce him before the Magistrate.
Rehabilitation of sex-workers has been an issue of considerable importance qua which
substantial amount of time and efforts have been invested by the Apex Court since the very
commencement of the Immoral Traffic (Prevention) Act, 1956. Not very long ago, in the case
of Budhadev Karmaskar v. State of West Bengal67, the Apex Court reiterating its observations,
as made vide order dated 02.08.2011, held as follows:
“We are fully conscious of the fact that simply by our orders the sex workers in our
country will not be rehabilitated immediately. It will take a long time, but we have
to work patiently in this direction. It is ultimately the people of the country,
particularly the young people, who by their idealism and patriotism can solve the
massive problems of sex workers. We, therefore, particularly appeal to the youth of
the country to contact the members of the panel and to offer their services in a
manner which the panel may require so that the sex-workers can be uplifted from
their present degraded condition.”

Women found in flesh trade should be viewed more as victims of adverse socio-economic
circumstances rather than as offenders in our society. The commercial exploitation of sex is
to be regarded as crime, but those trapped in custom-oriented prostitution and gender-oriented
prostitution should be viewed as victims of gender oriented vulnerability. It is pertinent to
mention that, the customary initiation of women in the practice of Devadasi, Jogins and
Venkatasins is still prevalent in not just Andhra Pradesh, but also Karnataka and Maharashtra.
This in fact is affront to human dignity and self-respect but pursuit of customary beliefs traps
the fair sex into this glorified unworthy self-sacrifice, which ultimately leads to prostitution
in temples and other charitable institutions, this in turn is a crime against humanity and
violation of human rights. Devadasi, Jogins and Venkatasins, in catena of judgments it has
been held that, dedication of minors to the service of a temple as dasis (servants) amounts to

67 (2011) 10 SCR 577

16
a disposal of such minors, knowing it to be likely that they will be used for purpose of
prostitution68.

In the case of Gaurav Jain v. Union of India69, the issue that came up before the Supreme
Court was the rehabilitation of the children of the prostitutes. The Apex Court observed that,
segregating children of prostitutes by locating separate schools, and providing separate
hostels, would not be in the best interest of the children and the society at large. The
Honourable Court directed that, these children should be segregated from their mothers and
should be allowed to mingle with others and become a part of the society. The Court further
contemplated that, the children of prostitutes should, however, not be permitted to live in the
inferno and other undesirable surroundings of prostitute homes.

In another case, Gaurav Jain v. Union of India70, the moot question that came up before the
Supreme Court for adjudication was this: What are the rights of the children of fallen women,
the modules to segregate them from their respective mothers and others, so as to give them
protection, care and rehabilitation to bring them back to the mainstream of national life? And
as a facet of it, what should be the scheme to be evolved to eradicate prostitution at the source
itself? The Court in this case, through K. Ramaswamy, J., observed that, prostitutes are victims
of circumstances and hence, should be treated as human beings like others, so as to bring them
back into the mainstream of the social order without any stigma attached to them. The
prostitutes and their children need to be treated with humanity and compassion so that their
integration into the social mainstream is plain-sailing. Victims of flesh trade need care and
consideration of the society.

68 (1881) 1 Weir 359 (FB); Queen-Empress v. Basava, (1891) 15 Mad 75; Reg. v. Jaili Bhavin, (1869) 6 BHC (Cr C) 60;
Queen-Empress v. Tippa, (1892) 16 Bom 737
69 1990 Supp SCC 709: 1991 SCC (Cri) 140
70 (1997) 8 SCC 114

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 CHAPTER – 4 – ASPECT OF LEGALIZATION

The Immoral Traffic (Prevention) Act, 1956, does not criminalize prostitution or prostitutes
per se; but it does punish acts of third-party facilitation of prostitution, like brothel-keeping,
living on the earnings of prostitutes or procuring a person for the sake of prostitution. The
two-fold argument in favour of legalising prostitution is that, firstly, to criminalize prostitution
and expect that an $8.4 billion industry will evaporate from India is a far-fetched thought;
secondly, legalising prostitution would mean that, brothel-owners would be held
accountable/responsible for the treatment of “fallen women”, and that, the abused/ill-treated
sex-workers will have an option of turning to the law for their protection.
Prostitution has been legalised in: Netherlands, New Zealand, Germany, Iceland, Switzerland,
Austria, Denmark, Greece, Turkey, Senegal, Venezuela, the State of Nevada in the United
States, and among the Australian States- in- Victoria, Queensland .In Netherland, like ordinary
citizens, prostitutes have been brought under the tax net; whereas prostitution in India is an
$8.4 billion underground industry, if prostitution in India is legalised then it can result in better
economic growth of the country and at the same time it can result in increased protection,
health and safety benefits qua the prostitutes.
Under Decriminalization or Tolerationist system, prostitution is not regarded as either a crime
or a licensable activity; it is based on voluntariness and considered an act between two
consenting adults where the role of the State is limited to eradicate coercive prostitution. The
state can only bring in certain measures to curb excessive exploitation and preserve public
health. This system does not seek to abolish prostitution per se but is only targeted at
trafficking in women and girls for prostitution, brothel-keeping, pimping, procuring and
renting premises for prostitution; here prostitutes are not criminalized for their work and they
have more or less the same rights as other citizens in the society. Decriminalization will enable
sex workers to practice their work without police harassment. It is at least a partial solution to
some of the problems suffered by men and women within prostitution. Decriminalization is a
way to protect workers’ rights and to make the brothel owners responsible criminally. This
approach of penalizing everyone involved in prostitution except for the sex worker works
against her interest. Along with changes in maintenance of rehabilitative homes, the corrupt
police and judicial authorities who demand sexual favours from sex workers have to be dealt
with severely punished heavily. Finally coming to Legalization or regulation as it is sometimes

18
called, attempts are made to license or register prostitutes and brothels and to require that
prostitutes be monitored and checked for venereal diseases.
But at the same time there exists views contrary too, according to Janice G. Raymond of the
Convention Against Trafficking in Women (CATW), in her article71, there are ten reasons for
not legalizing prostitution have been mentioned. These ten reasons are:
1. Legalization of prostitution is a gift to pimps, traffickers and the sex industry because
it will give legitimacy to the consumers (including third-party businessmen, brothel
owners and pimps) of sex who would buy sex and would not be beneficial to the sex
worker herself. Legalization will dignify only the industry but not the sex worker.
2. Legalization of prostitution and the sex industry promotes sex trafficking as there
would be no method to ensure that immigrant sex-workers from other countries would
voluntarily consent to their being a part of the sex industry.
3. Legalization of prostitution does not control the sex industry. It expands it. Prostitution
as an industry would flourish with private entrants coming into the business.
4. Legalization of prostitution increases clandestine, illegal and street prostitution
because many sex workers would not be eligible to register with the local authorities.
Some could be minors, some could be illegal migrants, and some could have diseases
such as HIV or other venereal diseases which would lead them to stay away from
legalization.
5. Legalization of prostitution increases child prostitution as research shows that after sex
work was legalized in Netherlands and Victoria, Australia, child prostitution has
grown exorbitantly and this leads to various forms of commercial sexual exploitation
of children.
6. Legalization of prostitution does not protect the women in prostitution as there would
be no safeguards against abuse during sexual contact. Legalization would instead
benefit the client rather than the sex worker herself.
7. Legalization of prostitution increases the demand for prostitution. It encourages men
to buy women for sex in a wider and more permissible range of socially acceptable
settings. When such legal barriers disappear, the men forget their social and ethical
barriers and view women as just sexual merchandise and this leads to commoditisation
of women.

71Janice G. Raymond, 10 Reasons for Not Legalizing Prostitution, http://action.web.ca/home/catw/attach/10_Reasons_9-15-

03_FINAL_[1].doc; See also Janice G. Raymond, Prostitution, Trafficking and Traumatic Stress (Mellissa Farley ed., Binghamton:
Haworth Press, 2003). Accessed on 26.03.2017 at 22:00

19
8. Legalization of prostitution does not promote women’s health as it is necessary that
the clients also need to be monitored for Sexually Transmitted Diseases such as
HIV/AIDS. With such mandatory health check-ups in place only for the sex workers.
The enforcement of a condom policy has also failed as it is left to the sex worker
herself to decide whether she wants to practice safe-sex or not.
9. Legalization of prostitution does not enhance women’s choice in terms of wages
earned for their sex work. Many are victims of trafficking and illegal pathways and
land up in prostitution beyond their will. So, legalization would in turn deny them their
freedom.
10. Women in systems of prostitution do not want the sex industry legalized as this would
increase the risks and humiliation that is faced by the sex workers. They are definite
that this would increase violence against them and they do not consider this to be their
rightful profession as it destroys their life and health.

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 CONCLUSION

Legalization of Prostitution is not the best way to go forward in tackling the problem of human
trafficking and the necessary social evil of prostitution. In India, with such diverse societal
ingredients, sex work has survived in parallel with the society where it is looked down upon due
to the degrading aspects of the profession. Sex Workers across the country, especially in major
cities, have been largely limited to a particular area where thousands of sex workers live as a
community72. Provisions such as licensing, registration with local police and local municipal
bodies will not be possible until the stigma attached with sex work is done away with. For this, the
police need to be further sensitized to the field of sex work and they need to respect the human
rights of such sex workers. The legislature first needs to provide all the basic human rights of these
sex workers that are guaranteed under international law and municipal law. Their social conditions
need to be uplifted; they have to be rehabilitated and trained to transfer to better paying jobs where
they are given dignity and reasonable support. With legalization, the sex workers’ problems will
just worsen and prostitution will be further entrenched into our society without a way of getting
out of it. A distinction needs to be made between sex workers who have taken up the profession
voluntarily and sex workers who have been or are being forced into this profession. Both sections
are to be looked after with the latter requiring immediate proactive support. They need to be given
life insurance73 and voter’s rights74. Only when the complicity of the policemen and the brothel
owners is broken off and the nexus between them is annihilated, will the sex workers have a say
in their own matters. The best way to go ahead for India will be decriminalization of prostitutes
and criminalization of brothel-owners along with penalizing demand in form of the consumer of
sexual services. The sex worker needs to be rehabilitated with State protection and care and has to
be relocated to another sector of the industry with proper training.

72 Dharmendra Chatur,Legalization of Prostitution in India, Available at: http://works.bepress.com/dchatur/1, Available at:

http://works.bepress.com/dchatur/1, Accessed on 27.03.2017 at 10:10
73 India Sex Workers get life cover, BBC News, May 1, 2008, http://news.bbc.co.uk/2/hi/south_asia/7376762.stm. Available at:

http://works.bepress.com/dchatur/1, Accessed on 27.03.2017 at 10:15

74 National Commission for Women has suggested that sex workers in red-light areas should be included in the voter’s list as a

proposal to amend the Immoral Traffic (Prevention) Act, 1956. http://ncw.nic.in/page3.htm. Accessed on 27.03.2017 at 10:35

21
 BIBLIOGRAPHY

Legislation:
India:
1. The Constitution of India, 1950.
2. Immoral Traffic (Prevention) Act, 1956.
3. Indian Penal Code, 1860.

International:
1. Convention on Elimination of all forms of Discrimination against Women, 1979.
2. International Convention to Suppress the Slave Trade and Slavery, 1926.
3. International Covenant on Civil and Political Rights, 1967.
4. Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women
and Children, supplementing the United Nations Convention against Transnational
Organized Crime, 2000.
5. SAARC Convention on Preventing and Combating Trafficking in Women and
Children for Prostitution, 2002.
6. Supplementary Convention on the Abolition of Slavery, Slave Trade, and
Institutions and Practices Similar to Slavery, 1956.
7. Universal Declaration of Human Rights, 1948.
8. UN Convention for the Suppression of the Traffic in Persons and of the Exploitation
of the Prostitution of Others, 1949.

Case law:
 Bai Shanta v. State of Gujarat AIR 1967 Gujarat 211.
 Budhadev Karmaskar v. State of West Bengal (2011) 10 SCR 577
 Carpenter v. People 8 Barb., N.Y., 610
 Com. v. Cook, 12 Metc., Mass., 97;
 Gaurav Jain v. Union of India 1990 Supp SCC 709: 1991 SCC (Cri) 140
 Gaurav Jain v. Union of India AIR 1997 SC 3021.
 In re: Deva Kumar 1972 MLJ (Cr.) 150
 In re: John AIR 1966 Mad 167
 In Re: Ratnamala and Another v. Respondent AIR 1962 Madras 31

22
  In Re: Ratnamala and Another v. Respondent AIR 1962 Madras 31 ¶ 5
 Krishnamurthy v. Public Prosecutor 1967 Cri LJ 544 (SC)
 Mitter v. Curran, C.C.A.N.Y., 18 F. 2d 355, 356
 P.N.Swamy, Labour Liberation Front, Mahaboobnagar v. Station House Officer,
Hyderabad 1998 (1) ALD 755.
 People v. Rice 277 Ill. 521, 115 N.E. 631, 632
 Queen-Empress v. Basava, (1891) 15 Mad 75;
 Queen-Empress v. Tippa, (1892) 16 Bom 737
 Reg. v. Jaili Bhavin, (1869) 6 BHC (Cr C) 60;
 Sahyog Mahila Mandal v. State of Gujarat (2004) 2 GLR 1764.
 State of Rajasthan v. Mst. Wahida 1981 RCC 42
 State v. Anderson, 284 Mo. 657, 225 S.W. 896, 897; U.S. ex rel.
 Sushila v. State of Tamil Nadu 1982 Cr LJ 702 (Mad)

Articles:
1. B. J. George, Jr., Legal, Medical and Psychiatric Considerations in the Control.
2. Dharmendra Chatur,Legalization of Prostitution in India, Available at:
http://works.bepress.com/dchatur/1,
3. India Sex Workers get life cover, BBC News, May 1, 2008,
http://news.bbc.co.uk/2/hi/south_asia/7376762.stm.
4. Janice G. Raymond, 10 Reasons for Not Legalizing Prostitution,
http://action.web.ca/home/catw/attach/10_Reasons_9-15-03_FINAL_[1].doc
5. Janice G. Raymond, Prostitution, Trafficking and Traumatic Stress (Mellissa Farley
ed., Binghamton: Haworth Press, 2003)
6. Jo Visser, The Dutch Law Proposal on Prostitution: Text and Explanation,
http://www.mrgraaf.nl/2_ef.htm; Ministry of Justice, Press Release: Heavier
Penalties for Abuse of Prostitution,
7. Judith Kilvington et al, Prostitution Policy in Europe: A Time for Change, 67
FEMINIST REVIEW 78, 83 (2001).
8. Laura Reanda, Prostitution as a Human Rights Question: Problems and Prospects of
United Nations Action, 13(2) HUMAN RIGHTS QUARTERLY 202 (1991).
9. Law Commission of India: Sixty Fourth Report, The Suppression of Immoral
Traffic in Women and Girls Act, 1956, Chapter I: Introduction, March 1975.

23
 10. Laya Medhini et al, Indian Sex Workers rally over law, BBC News, March 8, 2006,
http://news.bbc.co.uk/2/hi/south_asia/4787580.stm
11. M. Neave, The Failure of Prostitution Law Reform, 21 AUSTRALIAN AND NEW
ZEALAND JOURNAL OF CRIMINOLOGY 202, 203 (1988) c.f. Martha Shaffer
and Sylvia Davis, Prostitution in Canada: The Invisible Menace or the Menace of
Invisibility
12. Martha Shaffer & Sylvia Davis, Prostitution in Canada: The Invisible Menace or the
Menace of Invisibility?, http://www.walnet.org/csis/papers/sdavis.html
13. Mary Sullivan, What Happens When Prostitution Becomes Work? An Update on
Legalization of Prostitution in Australia.
14. National Commission for Women has suggested that sex workers in red-light areas
should be included in the voter’s list as a proposal to amend the Immoral Traffic
(Prevention) Act, 1956.
15. Palash Krishna Mehrotra, Legalisation of prostitution will help protect vulnerable
women in India, Daily Mail
16. Prabha Kotishwaran, Preparing for Civil Disobedience: Indian Sex Workers and the
Law, 21(2) BOSTON COLLEGE THIRD WORLD JOURNAL 161, 170 (2001)

Books:
1. Janice G. Raymond, Prostitution, Trafficking and Traumatic Stress (Mellissa Farley
ed., Binghamton: Haworth Press, 2003).
2. Ratanlal & Dhirajlal, The Indian Penal Code, Chapter XVI: Criminal Force &
Assault, Wadhwa & Company (Nagpur), 30th Edition (2006), p. 675
3. Gagandeep Kaur, Law and Changing Private Morality in India, Journal of Law
Teachers of India, Volume II, Issue 1-2, 2011, p. 126
4. Handbook for Legislators on HIV/AIDS, Law and Human Right: Action to combat
HIV/AIDS in view of its devastating Human, Economic and Social Impact,
UNAIDS Best Practice Collection, UNAIDS/99.48E (November 1999)

Websites:
1. http://www.catwinternational.org.
2. http://www.walnet.org.
3. http://ncw.nic.in.
4. http://nhrc.nic.in.

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