Author’s note

Prostitution is not illegal. And, NO, they cannot arrest you for going to a brothel which in 200 meters away from a public place.

There are some laws which can be misused by people seeking revenge or wanting to extort money. Indian laws related to prostitution are one of those laws.

Read this blogpost to understand how these laws are twisted by people for ill gains. Go through the examples to understand the concepts better.

How much do you know about the legality of the world’s oldest profession?

This post discusses in detail about the laws around prostitution which are rarely discussed out in public.

Table of Contents

1. What is Prostitution? How is it not illegal in India?
2. Constitutionality
3. Protection of Sex Workers and their Rights
4. Offences related to Prostitution which are illegal?
5. Are men who visit prostitutes guilty?
6. Conclusion

What is Prostitution? How is it not illegal in India?

The Immoral Traffic Prevention Act, 1956 (hereinafter referred to as “ITPA”) defines prostitution in Section 2(f) as, sexual exploitation or abuse of a female for monetary purposes.

In India, prostitution is not illegal but pronounced as unethical by the courts.

There are certain acts such as – soliciting a person in prostitution, owning a brothel, illegal trafficking of women and children for the purpose of prostitution, etc that are made illegal by the ITPA.

Let’s understand this with an illustration –

Running a sex racquet is illegal for both a man and a woman, but offering consensual sexual acts or intercourse for money in a private setting is not illegal for the woman but punishable for a man to indulge in such an act.

Besides ITPA, the Indian Penal Code, 1860 also mentions prostitution but it is limited in nature.

Section 372 and 373 of IPC talks about only child prostitution and side by side it also focuses on the activities such as kidnapping for the purpose of sexual activities or importing a woman or a girl from overseas for the act of sex.

However, the word “prostitution” has been used and defined only in the Immoral Traffic Prevention Act, 1956.

Constitutionality

Article 23(1) of the Indian constitution prohibits the trafficking of humans and beggars and in Article 23(2) it’s said that anything in contravention of the above article shall be punishable under the law.

In the case of Raj Bahadur vs. Legal remembrancer^[1], it was held that

“Clause (2) of Article 17, however, permits the State to impose compulsory services for public purposes provided that in making so it shall not make any discrimination on grounds only of religion, race, caste or class or any of them. ‘Traffic in human beings’ means selling and buying men and women like goods and includes immoral traffic in women and children for immoral” or other purposes.”

The constitutionality of the ITPA was challenged in the case of The State Of UP vs. Kaushalya^[2], in this case, a number of prostitutes were required to be removed from a certain area to maintain the decorum of an area located in Kanpur. The High Court of Allahabad said that, Section 20 of the ITPA that talks about the removal of prostitutes from any place, diminished the fundamental rights of the respondents under Article 14 (d), 14 (e), which basically talks about equality before the law and equal protection of rights, and Article 19(1), which basically gives various rights to citizens such as freedom of speech and expression, right to move freely within India, right to practice any profession, etc, of the Indian Constitution.

The ITPA Act was held constitutionally valid. The act is also in consonance of maintaining the order and the decorum of the place.

Protection of Sex Workers and their Rights

The chief purpose of enacting the ITPA is twofold:

1. To prevent human trafficking; and
2. To rescue women from prostitution.

The right to life given under Article 21 of the Indian constitution is also applicable to prostitutes. They are humans and citizens of this country and have equal rights in every sense.

To understand this better let’s refer to a case Budhadev Karmaskar vs. state of West Bengal^[3], it was stated that the prostitutes are humans too and no one has the right to assault or murder them as they also have a right to live. The judgment also focused on the difficulties of the sex workers and empathized with them as they indulge in such sexual activies, not for the pleasure but because of the poverty they are facing and directed the Central and State Government to open the rehabilitation centers and vocational skills like sewing to meet their livelihood.

This was a very important judgment and following this judgment the ITPA incorporated new provisions in it as per the guidelines of the court in the said judgment.

Section 21 of the Act states the rules for the government to establish and maintain the protection homes And these homes should be regulated by the licenses issued by the government. The appropriate authority should be appointed to check on the license. These licenses are valid for a particular period of time and cannot be transferred to another person.

Offences related to Prostitution which are illegal?

As per the laws in India, prostitutes are seen as victims and men/women who exploit their sexuality for money are criminals.

There are certain activities which the Immoral Traffic Prevention Act declared as illegal in the eyes of law which includes – soliciting for prostitution^[4], managing or owning a brothel^[5], taking a girl or woman for prostitution^[6], detention of girls in a brothel^[7], carrying out prostitution within 200 meters of any public place like a hospital, school, park, temple etc^[8] and living on earnings of a prostitute.^[9]

All of the above-mentioned activities are criminal offences which are penalized under the ITPA as cognizable and non-bailable offences.

The Indian Penal Code, 1870 under Section 370A prescribes a punishment of 5 to 7-years for the exploitation of a trafficked minor.

How are the laws under ITPA misused?

Example #1 – A single lady who lives alone in an apartment and has a lot of male friends, gets blackmailed by a jealous lover? What did he do to put the poor lady in trouble? He merely called the police and complained that she is running a brothel. The police barge into the place when she is hosting a party at her apartment. You know the rest of the drill. The poor lady gets charged for running a brothel, solicitation and a number of things can happen here depending on the cops.

Example #2 – A couple is walking down a street at midnight. A beat officer comes up to them and throws a million questions at them. Threatens that he will take them to the Police Station because they are indulging in activities prohibited under the ITPA; he’d probably use very bitter words. They’ll ask for ID cards that you are bound to show. Then they will ask them to call their parents. What do you think the couple will do? Most of the people in this situation would end up in handing over some money to the officer. This can be due to a number of reasons ranging from the fact that the couple was afraid to go to the police station or calling their parents. Nobody wants to create a fuss, right?

Example #3 – A live-in couple gets into a minor argument with a neighbour. The neighbour ends up calling names to the couple and calls the police complaining that the man and woman are indulging in illegal activities of prostitution.

These are examples of harassment and abuse of law and power. These laws can be misused because people don’t know the law.

The acts punishable under the ITPA are cognizable and, thus, the arrest, search and seizure does not require a warrant. It means you can ask for a warrant even if they have a false complaint against you.

BUT, what you can make sure is explained in the below paragraphs.

The above examples clearly show the misuse of the law. In Example #1, an arrest can only be made by a Special Police Officer who is appointed by the State Government on its behalf, under Section 13 of ITPA for dealing with offences mentioned under this Act.

Under Section 14 of the ITPA lays down that if the Special Police Officer is not present to arrest, search or seize then he may authorize a Police Officer, not below the rank of a Sub-Inspector (SI) to search, seize and arrest.

Police can’t just barge into a place on account of an anonymous tip, it’s strictly the violation of Article 21 and 19 of the Indian Constitution.

Therefore, any Police Officer below the rank of an SI cannot just barge into a place to arrest, search or seize. Not an officer of the rank of SI can do this. The SI has to show an authorization letter signed by the Special Police Officer before the arrest, search and seizure.

And even if the rank of the officer is SI and he is duly authorized by the Special Police Office even then, he has to call upon two or more respected inhabitants of the society or the locality of the search as a witness to it under Section 15 of the ITPA act.

Even the provision in CrPC protects women from arrest like Section 46(4) which says that no women shall be arrested after sunset and before sunrise and the arrest should be made by a woman police officer.

In Example #2, asking the couple to come to the police station with him is totally is fine, the police have the power to do that and even he has the power to check their identity, but if he is accusing them under ITPA then he should be a special police officer or officer over SI rank having a prior order to arrest under section 14 of ITPA. Of course it is a cognizable offence and the police do not need any warrant but the authority is given to special police officers and officers over a rank of Sub-Inspector. If he accuses you of a non- cognizable offence then he needs a warrant for sure. Even if he takes you with him to the police station and puts you in the lockup he can be held for illegal detention of a person in police custody that amounts to wrongful confinement under Section 348 of IPC.

Speaking of Example #3, people are often uncomfortable with unmarried couples living in the neighborhood. Rumors are spread, bitter words are spoken and what not. In the Example #3, the couple had to convince the police officer that they are living in the live-in relationship and that is totally consensual on their part. But, they could fight it off if they knew the right law.

The police officer cannot enter the house or arrest you or search you or the house at all if he is below the Rank of a Sub-Inspector (SI). No, officer below the Rank of a Sub-Inspector can arrest, search and seize for offences mentioned in the ITPA.

Even if the SI comes to arrest, search and seize, he will have to show you an authorization letter issued to him by the Special Police Officer. Otherwise, only Special Police Officers (Section 13) appointed by the State Government can search, seize and arrest without warrant in cases of offences mentioned in ITPA.

If they don’t have the order or they want to search and seize the place a place without a warrant because he has a reasonable doubt, even then he has to appoint two respectable inhabitants, excluding the complainant, of the locality of search to witness the search and write them an order to do such (Section 15).

The police officer should be above the rank of sub-inspector or should himself be a special officer which is appointed by the government under Section 13 of ITPA, because the rank lower than that is not allowed to interfere in the matters of prostitution.

The police cannot enter their house without the above requirements and even if they do then they can be held for trespass under Section 441 and 442 of IPC.

This is total harassment and abuse of law and power moreover it violates the fundamental rights of the person.

Are men who visit prostitutes guilty?

There are many raids conducted by police day-to-day and every man found with a prostitute is arrested.

The question is if the man/woman found engaging in a sexual act with a prostitute an offender? The answer to this is no, such man/woman cannot be penalized for any offense.

In the case of Sarvan vs. State of Karnataka^[10]– an individual was a customer at the brothel house and used to indulge in a sexual act with a prostitute. The High Court ruled that since there is “no penal provision for punishing the customers of a brothel house, there is no case against him.

Section 3 of ITPA stated the punishment for running a brothel, Section 4 states the punishment for living on the earnings of prostitution, while Section 5 talks about procuring or inducing a person or taking a person for the sake of prostitution.

The court has consistently come up with the conclusion after analyzing Section 3,4 &5 that the constitution of the offences is not made out so far as the clients/customers are concerned and there are no penal provisions against them.

HOWEVER, the thing which you need to understand is that if a person takes any girl or a woman for the sake of prostitution with him is for sure punishable under Section 5 of ITP Act, and the above-mentioned judgment can be only applied to the client who comes to the prostitute on their own.

Conclusion

Prostitution is the oldest profession in the world, still, it is the topic of controversy.

There is no profound law India which speaks openly about prostitution.

As per statistical data, there are 2 million sex workers in India. Most of them indulge in such activities because of the need for money.

However, there are plenty of people who are forced into this business and for the protection of such people, the Immoral Trafficking Prevention Act, 1986 was formulated.

ITPA is no doubt an achievement over the immoral trafficking of women and children, but there is much more to achieve particularly in reference to the abuse and the social ostracism which female sex workers face despite the fact that prostitution per se is not illegal in India.

Many people misuse the law against the innocents.

The laws which are made about the activities related to prostitution are also being misused by the people.

To stop this every person should know the laws under ITPA and their personal rights. Laws are made to protect us and to be followed for the good of your own and others, not for their misuse against vulnerables.

Edited by Siddhant Pandey

1. AIR 1953 Cal. 522. ↑
2. 1964 AIR 416. ↑
3. 2011 (11) SCC 538. ↑
4. Section 8 of the Immoral Traffic (Prevention) Act, 1956. ↑
5. Section 3 of the Immoral Traffic (Prevention) Act, 1956. ↑
6. Section 5 of the Immoral Traffic (Prevention) Act, 1956. ↑
7. Section 6 of the Immoral Traffic (Prevention) Act, 1956. ↑
8. Section 7 of the Immoral Traffic (Prevention) Act, 1956. ↑
9. Section 4 of the Immoral Traffic (Prevention) Act, 1956. ↑
10. CRIMINAL PETITION NO.2187 OF 2018. ↑