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Kaustubh Nandan Sinha, Legal Service India

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.

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]

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.

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

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

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.