Prostitution and the law: India
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The debate
The Economist, Nov 1st 2014 started the debate with these words, ‘Sumana [an Indian sex-worker] knows soliciting is illegal—though the law is vague on prostitution itself.’
The Economist’s economic philosophy is debatable (and the left ridicules it all the time), but the almost 200-year-old ‘newspaper’ (estd. 1843) has built an aura of never being wrong on facts. Therefore, how could it get itself to say that the Indian ‘law is vague on prostitution itself’?
The debate on Quora, though energised by non-experts, was much better informed. Here are some excerpts from this debate (and all of them make much the same point):
Jai Parimi, ‘Prostitution (exchange of money for sex) is legal but, organised prostitution is illegal. This basically means that a sex worker cannot publicize and organize her profession. The law also prohibits using the services of a sex worker below 18 years of age. Trafficking was announced as a penal offense in April 2013.’
Akhim Lyngdoh, ‘Prostitution (having sex in exchange for money) is not per se declared illegal by any of the existing laws in India. However, pretty much everything that facilitates prostitution, such as soliciting, pimping, keeping brothels or even being with a prostitute in a hotel room is made illegal. As a result, the law effectively makes prostitution illegal in most situations, by confining it to very narrow scope of legality.’
Sunitha Krishnan, ‘…nowhere it is said prostitution is illegal. But every act of prostitution such as keeping a brothel, living on the earnings of a prostitute, soliciting is a criminal offence.’
Chintan Vyas, ‘The Immoral Trafficking Prevention Act, 1956 (ITPA): the main statute dealing with sex-work in India, does not criminalize prostitution or prostitutes per se, but mostly punishes acts by third parties facilitating prostitution like brothel keeping, living off earnings and procuring, even where sex-work is not coerced. So, it is legal if non-organized but illegal if organized. This is done to discourage the business of prostitution and trafficking. Thus, a sex-worker can voluntarily use her body to earn money but pimping, brothel-keeping etc. is illegal. As I understand, it is not illegal when done in private. A big NO for running brothels...’
Abishake Koul, ‘The Immoral Trafficking Prevention Act, 1956 (ITPA), the main statute dealing with sex-work in India, does not criminalize prostitution or prostitutes per se, but mostly punishes acts by third parties facilitating prostitution like brothel keeping, living off earnings and procuring, even where sex-work is not coerced.’
Rahul Saxena, ‘It is legal to have sex with an Escort who works individually..but contacting a dealer kinda person to find an Escort is not legal’
Haresh Raichura, who said that he was a lawyer in the Supreme Court of India, added, ‘The exchange of money for sex isn't illegal, but organised activities such as soliciting and organised prostitution are and are punishable under the law.’
Though all the quotes above make the same point, Indpaedia’s volunteers decided to extract what they considered the most relevant excerpts from the law itself about the aspects of prostitution that are illegal.
The Devadasis are illegal
A Devadasi is a servant (dasi, feminine) of one or more deity (dev). Goddess Yellamma is the best-known of these deities. She is worshipped mainly in ten districts of north Karnataka, 14 districts of Andhra Pradesh and the adjacent districts of Maharashtra, Odisha and Kerala.
By the early 20th century—indeed, much before it—the Devadasi system had degraded into prostitution with a veneer of religious sanction. The Bombay Devadasi Protection Act, 1934, banned this practice. This law was followed by the Madras Devadasis (Prevention of Dedication) Act (later, the Tamil Nadu Devadasis (Prevention of Dedication) Act), the Bombay Protection (Extension) Act, 1957, and the Andhra Pradesh Devadasi (Prohibition of Dedication) Act, 1988. The Government of Karnataka declared the system illegal in 1982.
Is prostitution legal or illegal?
Lawyer Kaustubh Nandan Sinha writes: The Immoral Trafficking Prevention Act, 1956 ("ITPA"), the main statute dealing with sex work in India, does not criminalise prostitution or prostitutes per se, but mostly punishes acts by third parties facilitating prostitution like brothel keeping, living off earnings and procuring, even where sex work is not coerced.
The Immoral Traffic (Prevention) Act, 1956 [1] (excerpts)
The following are selected excerpts from the The Immoral Traffic (Prevention) Act, 1956 rewritten by laymen in simple language for laymen. They are NOT a substitute for the Act itself, which may kindly be read at [2]. The interpretations of Indpaedia's volunteers could be totally incorrect.
Definitions
Brothel
According to the Act, a Brothel includes any house, room, conveyance or place, or any portion of any house, room, conveyance or place, which is used for purposes of sexual exploitation or abuse for the gain of another person or for the mutual gain of two or more prostitutes;
Prostitution
According to the Act, prostitution means the sexual exploitation or abuse of persons for commercial purposes or for consideration in money or in any other kind, and the expression prostitute shall be construed accordingly. (Readers may want to see the definition in Prostitution and the law: Bangladesh because Bangladesh's S.I.T.A. is very close to the British Raj's S.I.T.A.)
Public place
“Public place“ means any place intended for use by, or accessible to, the pub lic and includes any public conveyance.
What is punishable under law?
Brothel
Sec. 3. [It is illegal to] keep a brothel or allow premises to be used as a brothel.
(1) Any person who keeps or manages, or acts or assists in the keeping or management of, a brothel shall be punishable on first conviction with rigorous imprisonment for a term of not less than two years and which may extend to three years and also with fine and in th e event of a second or subsequent conviction, with rigorous imprisonment for a term which shall not be less than three years and which may extend to seven years and shall also be liable to fine
Allowing brothel on premises
Sub-section [(2) a] any person who,—
(a) being the tenant, lessee, occupier or person in ch arge of any premises, uses, or knowingly allows any other person to use, such premises or any part thereof as a brothel, or
(b) being the owner, lessor or landlord of any premises or the agent of such owner, lessor or landlord, lets the same or any part thereof with the knowledge that the same or any part thereof is intended to be used as a brothel, or is wilfully a party to the use of such premises or any part thereof as a brothel, shall be punishable on first conviction with imprisonment for a term which may extend to two years and with fine and in the event of a second or subsequent conviction, with rigorous imprisonment for a term wh ich may extend to five years and also with fine.
You knew it was a brothel because…
It shall be presumed, until the contrary is proved, that any person referred to [in the preceding paragraph], is knowingly allowing the premises or any part thereof to be used as a brothel or, as the case may be, has knowledge that the prem ises or any part thereof are being used as a brothel, if,—
(a) a report is published in a newspaper having circulation in the area in which such person resides to the effect that the premises or any part thereof have b een found to be used for prostitution as a result of a search made under this Act; or
(b) a copy of the list of all things found during the search referred to in clause (a) is given to such person.
Lease of brothel becomes inoperative
Sub section (3) Any lease or agreement un der which such premises have been leased out or held or occupied at the time of the commission of the offence, shall become void and inoperative with effect from the date of the said conviction.
Living on the earnings of prostitution
Sec. 4 (1) Any person over the age of eighteen years who knowingly lives, wholly or in part, on the earnings of the prostitution of any other person shall be punishable with imprisonment for a term which may extend to two years, or with fine , or with both, and where such earnings relate to the prostitution of a child, shall be punishable with imprisonment for a term of not less than seven years and not more than ten years.
(2) Where any person over the age of eighteen years is proved,—
(a) to be living with, or to be habitually in the company of, a prostitute; or
(b) to have exercised control, direction or influence over the movements of a prostitute in such a manner as to show that such person is aiding abetting or compelling her prostitution; or
(c)to be acting as a tout or pimp on behalf of a prostitute,
it shall be presumed, until the contrary is proved, that such person is knowingly living on the earnings of prostitution of another person.
Procuring, pimping
Sec 5. Procuring, inducing or taking person for the sake of prostitution .—
(1) Any person who—
(a) procures or attempts to procure a person whether with or without his/her consent, for the purpose of prostitution; or
(b) induces a person to go from an y place, with the intent that he/she may for the purp ose of prostitution become the inmate of, or frequent, a brothel; or
(c) takes or attempts to take a person or causes a pers on to be taken, from one place to another with a view to his/her carrying on, or being brought up to carry on prostitution ; or
(d) causes or induces a person to carry on prostitution; shall be punishable on conviction with rigorous imprisonment for a term of not less than three years and not more than seven years and also with fine, and if any offence under this sub-section is committed against the will of any person, the punishment of imprisonment for a term of seven years shall extend to imprisonment for a term of fourteen years:
Provided that if the person in resp ect of whom an offence committed under this subsection, is a child, the punishment provided under this sub-section shall extend to rigorous imprisonment for a term of not less than seven years but may extend to life.
(Lawyer Sinha adds that if the said person (ii) Is a minor; the punishment provided under this sub-section shall extend to rigorous imprisonment for a term of not less than seven years and not more than fourteen years.)
Trafficking: Recruiting, transporting, transferring, harbouring, receiving a prostitute
Sec. 5A. Whoever recruits, transports, tran sfers, harbours, or receives a pers on for the purpose of prostitution by means of,—
( a ) threat or use of force or coercion, abduction, fraud, deception; or
( b ) abuse of power or a pos ition of vulnerability; or
( c ) giving or receiving of payments or benefits to achieve the consent of such person having control over another person, commits the offence of trafficking in persons.
5B. ( 1 ) Any person who commits trafficking in persons shall be punishable on first conviction with rigorous imprisonment for a term which shall not be le ss than seven years and in the event of a second or subsequent conviction with imprisonment for life.
Visiting a brothel for sexual exploitation of victim of trafficking
Section 5C. Any person who visits or is found in a brothel for the purpose of sexual exploitation of any victim of trafficking in persons shall on first conviction be punishable with imprisonment for a term which may extend to three months or with fine or with both and in the event of a second or subsequent conviction with impr isonment for a term which may extend to six months and shall also be liable to fine.
Detaining a person in a brothel etc.
6. Detaining a person in premises where prostitution is carried on.—
Sub sec. (1) Any person who detains any other person, whether with or without his consent,—
(a) in any brothel, or
(b) in or upon any premises with intent that such pe rson may have sexual intercourse with a person who is not the spouse of such person, shall be punishable on conviction, with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to a fine:
Child found in brothel; being found with such child
Sub sec. (2) Where any person is found with a child in a brothel, it shall be presumed, unless the contrary is proved, that he has committed an offence under sub-section (1).
(2-A) Where a child found in a brothel, is, on medical examination, detect ed to have been sexually abused, it shall be presumed unless the contrary is proved, that the child has been detained for purposes of prostitution or, as the case may be, has been sexually exploited for commercial purposes.
Sub sec. (3) A person shall be presumed to detain a person in a brothel or in upon any premises for the purpose of sexual intercourse with a man other than her lawful husband, if such person, with intent to compel or induce her to remain there,—
(a) withholds from her any jewellery, wearing apparel, money or other property belonging to her, or
(b) threatens her with legal proceedin gs if she takes away with her any jewellery, wearing apparel, money or other property lent or supplied to her by or by the direction of such person.
Prostitution in or near public place
Sec. 7. Prostitution in or in the vicin ity of public place .—
Sub sec (1) Any person who carries on prostitution and the person with whom such prostitution is carried on, in any premises:
(a) which are within a notified area or area s, or
(b) which are within a distance of two hundred metres of any place of public relig ious worship, educational institution, hotel, hosp ital, nursing home or such other public place of any kind as may be notified in this behalf by the Commissioner of Police or Magistrate in the manner prescribed, shall be punishable with imprisonment for a term which may extend to three months.
(1-A) Where an offence committed under sub-section (1) is in respect of a child, the person committing the offence shall be punishable with imprisonment of either description for a term which not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine:
Keepers of public places who allow prostitution
Sub sec (2) Any person who:
(a) being the keeper of any public place knowingly permits prostitutes for pu rposes of their trade to resort to or remain in such place; or
(b) being the tenant, lessee, occupier or person in charge of any premises referred to in sub-section (1) knowingly permits the same or any part thereof to be used for prostitution; or
(c) being the owner, lessor or landlord of any premises referred to in sub-section (1), or the agent of such owner, lessor or landlord, lets the same or any part thereof with the knowledge that the same or any part thereof may be used for prostitution, or is wilfully a party to such use. shall be punishable on first conviction with imprisonment for a term which may extend to three months, or with fine which may extend to two hundred rupees, or w ith both, and in the event of a second or subsequent conviction with imprisonment for a term which may exte nd to six months and also with fine, which may extend to two hundred rupees, and if the public place or premises happen to be a hotel, the licence for carrying on the business of such hotel under any law for the time being in force shall also be liable to be suspended for a period of not less than three months but which may extend to one year:
Provided that if an offence committed under this sub-s ection is in respect of a child in a hotel, such licence shall also be liable to be cancelled.
Areas where prostitution shall not be carried on
Sub sec. (3) The State Government may, having regard to the kinds of persons frequenting any area or areas in the State, the nature and the density of population therein and other relevant considerations, by notification in the official Gazette, direct that the prostitution shall not be carried on in such area or areas as may be specified in the notification.
(4) Where the notification is issued under Sub-sec tion (3) in respect of any area or areas, the State Government shall define the limits of such area or areas in the notification w ith reasonable certainty.
Seduction of a person in custody
Sec 9. Seduction of a person in custody .—
Any person who having the custody, charge or care of or in a position of authority over any person causes or aids or abets the seduction for prostitution of that shall be punishable on conviction with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine
These are cognizable offences
Sec. 14. Offences to be cognizable .—Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence punishable under this Act shall be deemed to be a cognizable offence within the meaning of that Code:
Arrest without warrant: only under certain conditions
Provided that, notwithstanding anything contained in that Code,—
(i) arrest without warrant may be made only by the special police officer or under his direction or guidance, or subject to his prior approval;
(ii) when the special police officer requires any offi cer subordinate to him to arrest without warrant otherwise than in his presence any person for an offence under this Act, he shall give that subordinate officer an order in writing, specifying the person to be arrested and the offence for which the arrest is being made; and the latter officer before arresting the person shall inform him of the substance of the order and, on being required by such person, show him the order;
(iii) any police officer not below the rank of sub-inspect or specially authorised by the special police officer may, if he has reason to believe that on account of delay involved in obtaining the order of the special police officer, any valuable evidence relating to any o ffence under this Act is likely to be destroyed or concealed, or the person who has co mmitted or is suspected to have committed the offence is likely to escape, or if the name and address of such a person is unknown or there is reason to suspect that a false name or address has been given, arrest the person concerned without such order, but in such a case he shall report, as soon as may be, to the special police officer the arrest and the circumstances in which the arrest was made.
Search without warrant: only under certain conditions
Sec. 15. Search without warrant.—
(1) Notwithstanding anything contained in any other law for the time being in force, whenever the special po lice officer or the trafficking poli ce officer as the case may be, has reasonable grounds for believing that an offence punishable under this Act has been or is being committed in respect of a person living in any premises, and that search of the premises with warrant cannot be made without undue delay, such officer may, after recording the grounds of his belief, enter and search such premises without a warrant.
Witnessing such searches
Sub sec. (2) Before making a search under sub-section (1), the sp ecial police officer or the trafficking police officer, as the case may be shall call upon two or more respect able inhabitants (at least one of whom shall be a woman) of the locality in which the place to be search ed is situate, to attend and witness the search and may issue an order in writing to them or any of them so to do:
Provided that the requirement as to the respectable in habitants being from the locality in which the place to be searched is situate shall not apply to a woman required to attend and witness the search.
(3) Any person who, without reasonable cause, refuses or neglects, to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under Section 187 of the Indian Penal Code (45 of 1860).
(6) The special police officer or the trafficking police officer, as the case may be, and other persons taking part in, or attending, and witnessing a search shall not be liable to any civil or criminal proceeding against them in respect of anything lawfully done in connection with, or for the purpose of, the search.
(6-A) The special police officer or th e trafficking police officer, as the case may be, making a search under this section shall be accompanied by at least two women police officers, and where any woman or girl removed under sub-section (4) is required to be interrogated it shall be done by woman police officer and if no woman police officer is available, the interrogation shall be done only in the presence of a lady member of a recognised welfare institution or organization.
Summary
After going through the Act, Indpaedia’s lay volunteers concluded that the Act is not vague at all.
The following are illegal and punishable: Brothels; living on the earnings of prostitution; procuring, pimping; trafficking (recruiting, transporting, transferring, harbouring, receiving a prostitute); visiting a brothel for the sexual exploitation of a victim of trafficking; detaining a person in a brothel or similar place; prostitution in or near a public place; prostitution within areas where prostitution shall not be carried on; and the seduction of a person in custody.
And prostitution itself? The law does not say that prostitution is legal, but it has NO punishments for the act of prostitution itself either. This is NOT vagueness at all. It means that while the law does not encourage or condone prostitution itself, it does not make prostitution illegal as long as it is carried out within the restrictions spelt out above.
The sources of this page include…
Kaustubh Nandan Sinha, Legal Service India
See also
Prostitution and the law: Bangladesh, because Bangladesh's S.I.T.A. is very close to the British Raj's S.I.T.A., and has more or less the same intentions as its Indian counterpart.
