Jus Corpus Law Journal

Open Access Law Journal – Copyright © 2021 – ISSN 2582-7820

Editor-in-Chief – Prof. (Dr.) Rhishikesh Dave; Publisher – Ayush Pandey

This is an Open Access article distributed under the terms of the Creative Commons Attribution-
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Socio-legal Analysis of Prostitution in India

Reetika Raj Tiwaria

a
IGNOU, Delhi, India

Received 11 June 2021; Accepted 23 June 2021; Published 25 June 2021

__________________________________

Prostitution is an occupation in which individuals participate in sexual activity for business reasons. Prostitution has a long
history in India perfect from This paper critically analyses and evaluates the laws related to prostitution and human trafficking
along with its latest amendments. The researcher through this also highlights the living condition and hardships faced by the
prostitutes, along with the societal boycott and the label of being accused instead of the victim. The main theme of this paper is
that its highlights the role of the judiciary in terms of access to justice for the prostitutes with equal emphasis on the policy failure
by the government for the prostitutes. Finally, this paper gives different therapeutic measures including lawful to adjustment in
mentality and frame of mind through which a change can be acquired in the lives of ladies occupied with prostitution and they
additionally get appropriate access to justice and honourable lives.

Keywords: prostitution in India, constitution, human trafficking, access to justice.

INTRODUCTION

Prostitution and Human Trafficking, although are different from each other but have got an
internal proportion between them. In legal terms, they may differ with the aspect of definition
and procedure but in the background, they should be taken into the same consideration.

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Prostitution, according to legal definition12 means “the practice or occupation of engaging in

sexual activity with someone for payment.” It is the oldest occupation3. It is seen as a crime, a
taboo. The prostitutes are boycotted and live as an outcast. They have practically no legal
rights available to them directly in modern times and can often be termed as modern slaves.

Human Trafficking suggests the development or routine concerning improperly transporting

people beginning with one country or domain then onto the following, generally for the
explanations behind compelled work or business sexual abuse. 'Prostitution' according to the
Immoral Traffic (Prevention) Act, 1956, suggests the sexual abuse or abuse of individuals for
business purposes, and the explanation "prostitute" will be deciphered in like manner; It can
be summarized as; a female offers herself for sexual activity for exchange of money or goods
as consideration; It can be summarized as; a female offers herself for sexual activity for
exchange of money or goods as consideration4.

'Brothel' as indicated by the Immoral Traffic (Prevention) Act 1956, incorporates any house,
room, or place, which is utilized for purposes for having sex in exchange. One needs to
comprehend that there exists an immediate proportionality between these two inhumane
wrongdoings as the two offers ascend to each other5. The new Human Trafficking Bill passed
in 2018 has various strict provisions of punishment from 10 years imprisonment to life term for
the crimes of trafficking of human for commercial activity, for bonded labour, bearing a child,
etc. This is regarded as a borderless crime with issues of jurisdiction coming up at the time of
the investigation.

CAUSES

1. Poverty and Unemployment:

2. Government policies and Practises

1 ‘Definition of Prostitution’ (Oxford dictionary) <https://en.oxforddictionaries.com/definition/prostitution>

accessed 23 March 2021
2 Immoral Traffic (Prevention) Act 1956, s 2(10)
3 Rescue Foundation v SSP & Others (2018) SCC 6753
4 Traffic Act (n 2)
5 Immoral Traffic (Prevention) Act 1956, s 2A

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3. Ignorance

FORMS

1. Sexual Exploitation
2. Forced labour
3. Domestic Servitude
4. Organ harvesting
5. Child Soldier

CONSEQUENCES

1. Physical and Health Problems:

2. Legal Consequences
3. Psychological Disorder
4. Social Stigma and Sociological Problems
5. Global Consequences

LAWS FOR PROSTITUTION: A SOCIO-ECONOMIC-LEGAL ANALYSIS

As there is a large number of Prostitutes in India the Apex Court suggested and also proposed
the legalization of prostitution6. Section 372 and 373 of Indian Penal Code7 also deals with the
act of prostitution where buying and selling minor is made punishable.

Article 14 in Indian Constitution8 - Equality before law - The privilege of the prostitutes are
not perceived and they are not treated as equivalent in the general public might be a result of
the work or calling they are into, yet shouldn't something be said about those ladies who have
gone into this calling because of powerlessness and neediness.

Article 15 and Prostitution:

6 PTI, ‘Supreme Court proposes legalising prostitution’ (LiveMint, 10 Dec 2009)

< https://www.livemint.com/Politics/1F4DWYUTdopzL2pwV8IhoK/Supreme-Court-proposes-legalising-
prostitution.html> accessed 24 May 2021
7 SN Mishra, Indian Penal Code (21st edn, Central Law Publications, 1 August 2018)
8 DD Basu, Introduction To The Constitution Of India (21st edn, Lexis Nexis 2013)

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In spite of the fact that prostitutes don't approach open space and are segregates all over the
place however by law, they also have appropriate to get to them. Article 15 (3) likewise
expresses that the state can make unique arrangement for lady and kids

Article 16(1) and Prostitution:

This privilege is likewise accessible to the lady occupied with substance exchange. Their past
dependably frequents them and consequently denied them the equivalent chance. Ladies
occupied with prostitution are caught socially and financially. The social shame doesn't let so
that they will be unfit to leave this.

Article 19(1) (g) and Prostitution:

A lady can be in substance exchange (which is because of monetary condition), in the same
way, others take part in any calling by utilizing their own insight, scholarly limit, and
individual physical body through securing moral qualities which have been told in the laws 9.

Article 21 and Prostitution:

Prostitutes also hold rights to privacy. Any person who will curtail privacy rights and without
her permission if does any videographers or photograph of such act which he is not supposed
to do then he is punishable under law.

Right to dignity: dignity has always been the dream of every prostitute that is because of the
nature of the work they do, the society like India where sex is the word of four walls has never
accepted this profession, and will never do. The women who are sex workers also have dignity
and they have a right to live with dignity, like any other person of any profession.

Right against exploitation: No person can force a woman to enter this profession against her
will. If a woman of such profession is touched or forced to do any act for which she has not
agreed or any person who runs the brothel illegally if exploit such women for the purpose of
commercial benefit then it is against article 21.

9 Ibid
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Article 23 and Prostitution

Article 23 prohibits all forms of human trafficking and forced labour. But this right is not
enjoyed by many vulnerable groups of societies. Every year millions of women are pushed
into human trafficking and are later exploited as prostitutes, organ trade, forced bonded
labour, and others.

Article 38 states that the state should promote harmony among its people10.

Article 39 (a) talks about legal aid11. It is to provide creation of free legal aid service at
national, state and district and This led to the creation of Legal Service Authorities act 1987.12

A consequential approach to access to justice

“Access to justice” is a principle of justice that is seen as universal and it demands preferential
treatment for the people coming from the underprivileged sections in order to check the
imbalance in the society. The true motive of justice will only be achieved only when people of
all the section will have the equal access to the justice and in this regard role of society and
judiciary is equally important as the legislature1314.

ROLE OF JUDICIARY IN HUMAN TRAFFICKING OF WOMAN

The Judiciary has always played a big role in providing justice to the victims of human
trafficking. The apex court recommended various measures to eliminate victims of
prostitution and the introduction of various welfare programs for proper care, protection,
development, and rehabilitation of young girls working in brothels or who have fallen into the
trap of prostitution. Also, the apex court issued major directives that the rehabilitation homes

10 Ibid
11 Suchitra Yadav, ‘Issues in implementation of free legal aid schemes – Critical Analysis of Article 39A of the
Constitution of India’ (Ipleaders Blogs, 9 August 2018) <https://blog.ipleaders.in/article-39a/> accessed 25 May
2021
12 Legal Service Authorities Act 1987
13 Y Srinivasa Rao, ‘Law and Social Change In India’ (Legal Service India.com)

<http://www.legalservicesindia.com/article/1592/Law-and-Social-Change-in-India.html> accessed 26 May

2021
14 Arindam Dutta, ‘Legal Aid In India’ (Legal Service India.com) <http://www.legalserviceindia.com/article/l206-

Legal-Aid.html> accessed 26 May 2021

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need to be managed by trained and qualified workers, doctors, and psychiatrists and gave
instructions to state these trafficking victims for rehabilitation 15. The Apex Court went on to
set up a panel in 2011 and also directed the police authorities that they must not interfere,
arrested, penalised, or take up criminal action against adult sex workers voluntarily
participating in sexual activities with “Consent” 1617. The judiciary has also recognised the
fundamental rights of sex workers and held that even a prostitute has the fundamental right as
well as moral and social rights and she is at her liberty to permit a person for sexual
intercourse18.

The Supreme Court has issued directions to the state government for the establishment of
rehabilitation homes for children found begging in the streets, as well as for the minor girls
forced into' flesh trade' into protective homes. Quick examination and extreme discipline for
every one of those profiting by the prostitution of others should be the top needs of the state,
and particularly of the legal executive, for accomplishing the long haul objective of the
destruction of prostitution 19. This judgment is only one of numerous that strengthen the reality
of the Supreme Court's inability to address the brutality intrinsic in prostitution in India, in
opposition to its notoriety for being an extremist legal executive. The Supreme Court has to a
great extent overlooked the violations submitted against the casualties of dealing, in this
manner remains an observer of the administration's accentuation on rebuffing exploited
people, sex labourers, for their work, without researching the conditions under which they
have been compelled to embrace that calling. The profound preference and oppressive frame
of mind of the judges against casualties of prostitution have incited them to assume an aloof
job. 20SC Cancels Bail Granted To Woman Accused Of Forcing Girls Into Prostitution 21.

15 Vishal Jeet v Union Of India (1990) SCR (2) 861

16 Sushil v State of UP WP No 25292 of 1997
17 A Mandhani, ‘Adult sex workers “participating with consent” should not be arrested: SC panel’ (Livelaw, 16

February 2016) <https://www.livelaw.in/adult-sex-workers-participating-with-consent-should-not-be-arrested-

sc-panel/> accessed 27 May 2021
18 Ram prakash v State of UP Criminal Miscellaneous Application No 3725 Of 2003
19 Mandhani (n 17)
20 Gaurav Jain v Union (1997) SCC 745

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POLICY FAILURE

1. Government inaction and absence of thought to the issue may encourage trafficking; few
dishonest government authorities may enjoy trafficking which is extremely dishonourable
for their benefit by the means of corruption. Existing guidelines are obsolete and
henceforth are incapable of taking care of the issue, battling this wrongdoing needs a
guideline, checking, examination, and indictment with steady participation with partners
in different nations. Numerous administrations have not executed national arrangements
that facilitate crafted by different branches that manage to deal, including law
authorization offices.
2. Nonetheless, human trafficking keeps on infesting the world because of the continuous
capacity of exploiters to produce significant benefits at no genuine risk through the misuse
of a worldwide sub-class of devastated and helpless individuals. To start with, the issue
stays buried in definitional disarray regarding whether human dealing is bondage or the
way toward entering a person into a state of servitude. The term indicates development
and was arranged in a trans-national composed wrongdoing instrument. Nonetheless,
strategy pioneers place that the development of the injured individual isn't applicable to
the offense, simply the slave-like abuse. Obviously, on the off chance that one can't be sure
about what the offense is, it tends to challenge address it.
3. One can find this in the latest bill regarding human trafficking22. It utilizes obscure
language, leaving space for abuse and misuse. Another worry is that while the Bill gives
insusceptibility or immunity to exploited people to wrongdoings perpetrated under
pressure or risk of death by the hands of the trafficker, but this invulnerability reaches out
to just those violations that are culpable with imprisonment of 10 years or more, or death
sentence. Hence, immunity can't be asserted for insignificant offenses despite the fact that
submitted under compulsion by the dealer. Further, the burden of proof that the offense
was submitted under pressure or any sort of risk is on the victim rather than the accused.

21 Ashoke KM, ‘SC Cancels Bail Granted to Woman Accused of Forcing Girls into Prostitution’ (Livelaw, 18
December 2017) <https://www.livelaw.in/sc-cancels-bail-granted-woman-accused-forcing-girls-prostitution-
read-order/> accessed 28 May 2021
22 PTI (n 6)

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These two things defeat the basic purpose of the bill. Moreover, although the Bill has the
provision of strict laws and punishment it does have few legal terms such as ‘aggravated’
which invites ambiguity. If the woman is trafficked for the purpose of bonded labour,
forced marriage, begging, bearing a child, then it is categorised under this said term, but at
the same time, its literal meaning also suggests that this term includes other forms of
offences related to trafficking, but here it leaves out trafficking for sexual slavery,
exploitation, and others outside its ambit. The last types of dealing are similarly
indefensible, and this partition may prompt increasingly remiss arraignment with regards
to these offenses. Thus this loophole gives rise to further protection of the accused due to
ambiguity of the law2324.
4. National Human Rights Commission, a constitutional body just has a recommendatory role
while dealing with such matters. Its independence in the working is not properly utilised
and their investigation is not taken into proper cognizance due to various reasons such as
corruption, improper administration, clashes of ego between NHRC with other
investigation agencies.
5. Absence of authentic data – In the past, the anti-trafficking movements have suffered a loss
due to the absence of proper authentic and reliable data. This has prompted to lost
believability and credibility and trustworthiness with policy makers and people making a
donation in terms of authorisation required resources and funds.
6. Lacks of assets, resources spend on these issues – This is also another big reason why these
activities do not come down. In February 2018, the Union Cabinet, led by the head
administrator, affirmed the Trafficking in Persons (Prevention, Protection, and
Rehabilitation) Bill for presentation in the Parliament. The bill will make a national enemy
of dealing department conform to a December 2015 Supreme Court order to set up an
investigative agency for the crimes related to human trafficking. The production of such an
office was pending the entry of the counter dealing bill, in spite of the fact that the Ministry

23Admin, ‘The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018’ (PRS Legislative
Research) <https://www.prsindia.org/billtrack/trafficking-persons-prevention-protection-and-rehabilitation-bill-
2018> accessed 29 May 2021
24Siddharth Kara, ‘3 Ways Our Anti-Trafficking Efforts Fail’ (Impacting Our Future)

<http://www.impactingourfuture.com/advocacy/3-ways-our-anti-trafficking-efforts-fail> accessed 29 May 2021

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of Women and Child Development (MWCD) had distributed 832 million Indian rupees
(INR) ($13.1 million) to the Ministry of Home Affairs (MHA) for the organization, however,
did allot Rs 4, 04,365 crores (US $62.8 billion) for the Ministry of Defence (MoD). This
reflects the attention of the States and the government in dealing with serious
matters25. Undoubtedly, no wrongdoing is more disagreeable than depriving of human
respect for benefit. This is the quintessence of human dealing, and its destruction is long
late.
7. Lack of legal protection to the victims, low conviction and high acquittal rates is also a
reason why the polices of government fail to achieve its truest purpose. The 2016 report
likewise included IPC section 367 in its amassed trafficking information in spite of this
section covering wrongdoings more extensive than dealing; the government did not report
on the off chance that it had dis-aggregated non-trafficking violations from the
information. In 2016, police researched 5,217 dealing cases and the legislature finished the
prosecution of 587 cases. Courts convicted traffickers in 163 cases and absolved people in
424 cases. The vindication rate for trafficking cases expanded from 65 percent in 2015 to 72
percent in 2016. The NCRB too excluded the bonded labour work from overall trafficking
cases. In spite of the general increment in trafficking cases announced by the NCRB, NGOs
kept on remarking the figures did not mirror the huge size of human trafficking violations
in India, the same number of cases were not enlisted by police or were settled outside the
court.

RECOMMENDATION

1. Rehabilitation, compensation, and Means of Survival

 Once “rescued”, the victims are to be produced before the magistrate and thereafter
sent to Protection Homes or Rehabilitation Homes. If the victim cannot be repatriated,
the rehabilitation process provided for in the Bill comes to an end at this point.
However, unless there is targeted economic empowerment and skill building of rescued

25Laxman K Behera, ‘Defence Budget 2018-19: The Imperative of Controlling Manpower Cost’ (IDSA
Network, 2 February 2018) <https://idsa.in/issuebrief/defence-budget-2018-19-controlling-manpower-cost-
lkbehera-020218> accessed 30 May 2021
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victims, victims will be forced to go back into their previous profession. In India, under
their anti-trafficking laws, various NGOs have taken initiative to rehabilitee the victims
of human trafficking.

 Rehabilitating doesn’t mean providing them protection home to the victim but also
providing them livelihood, compensation, and free service to health care facilities
through which they can cure their sexually transmitted diseases. In India, most of the
state's government has started compensation policies but lack of proper administration
has led to failure. A proper political will is required as India is the home of one of the
biggest populations of total Human trafficking victims.26

2. Change in the mindset of the people.

 As stated by many jurists that no law can ever succeed if it doesn’t enjoy the popular
support of the people. To provide actual justice to the victim the society needs to change
its mindset first.

 Due to social stigma and non-acceptance, most of the victims tend to return back to
prostitution so not only the government but the society too need to broaden their
horizon and accept them as vulnerable victims rather than criminals27.

3. Legalization of prostitution: legal and Economic Benefits

 This step will reduce human trafficking by a big margin and will also control the sex
industry. The biggest change will be that the entire regulatory machinery will come
under the control of the government and the woman engaged will receive the direct
benefits of the entire government scheme related to healthcare, Labour laws, working
condition, monetary compensation.

26 Teresa Cantero, ‘India has a Trafficking problem and it is worse than you think’ (All That Interesting, 17
September 2015) <https://allthatsinteresting.com/human-trafficking-india> accessed 01 June 2021
27 Shraddha Chaudhary, ‘Band-Aid On A Septic Wound: The Anti -Trafficking Bill’ (Law School Policy

Review, February 2018) <https://lawschoolpolicyreview.com/2018/08/10/band -aid-on-a-septic-

wound-a-comment-on-the-anti-trafficking-bill-2018/> accessed 01 June 2021

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 Health care is a big issue and due to social stigma, the prostitutes do not have access to
better healthcare facilities, which at present is absent due to lack of political will, policy
failure of the legislature, and unacceptability of society.

 Recognizing prostitution as a financial action, therefore empowering ladies in India to

acquire working licenses as "sex laborers". This will go under the arrangement of the
lowest pay permitted by law and will have better access to protection and laws.

 Our nation will be enormously profited by authorizing the act of prostitution in India.
Above all else, it will help in diminishing human dealing. Thousands of Nepalese
young ladies are being dealt with in India and sold into the states of implied bondage28.
So as to comprehend that how human dealing could be decreased by sanctioning
prostitution, we should take the case of Germany. In Germany, the instances of human
dealing fundamentally decreased by 10% amid the time of 2001 to 2011, after they have
authorized prostitution.

 Legitimization of prostitution will likewise help in bringing the sex business leveled
out. It will help in offering poise to the ladies occupied with this calling and will spare
them from living as second-grade natives with illness and no entrance to open areas. It
will likewise guarantee security conditions for their kin since sex specialists will be
required to experience therapeutic tests and get sufficient medicinal consideration.2930

CONCLUSION

Law is a tool of social change. Law will never be successful until it is accepted by the public at
large. Not only the legislature but the people also need welcome acceptance. Without creating
financially backed policy for the social upliftment of the castes and communities vulnerable to
trafficking, without generating economic opportunities to address large-scale poverty that

28 ‘Rape for Profit: Trafficking of Nepali Girls and Women to India’s brothels’ (1995) 12(5A) Human Rights Watch
Report
29 Abdullah, ‘Should we legalise Prostitution’ (Livelaw, 21 December 2016) <https://www.livelaw.in/sex-

workers-legalise/> accessed 03 June 2021

30 Kristie Trifiolis, ‘Legalizing Prostitution: An Introduction’ [2014] Seaton Hall Review

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drives the supply for trafficking, and without a comprehensive approach to the connected
issues of pornography, prostitution, bonded labour, and trafficking, this “law to prevent the
trafficking of persons” can be little more than a band-aid on a septic wound.

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