Sex workers rights in India: Is prostitution legal?

Despite the hush-hush around this topic, sex work has never been illegal in India. Yes, some related activities are prohibited, like running and managing a brothel. Still, the practice of engaging in sexual activity in return for payment, per se, is not a crime. If you have watched the movie Gangubai Kathiawadi, you might be aware of the struggles of sex workers in India, especially regarding their human rights.   

Recently, the Supreme Court of India asked the Central Government to give updates on proposed legislation dealing with the trafficking and rehabilitation of sex workers. The year 2022 also saw some major developments when the Apex Court issued certain directives for rehabilitating sex workers.

In this article, we will go through the historical background of prostitution in India, and our journey will end with the status of sex workers in 21st-century India.

Sex work: Understanding the term

The word prostitute is common yet derogatory. The word sex work was first used in the 1980s by Carol Leigh, a sex worker turned activist, to mark the beginning of a movement of sex workers' rights. The term shows a level of professionalism which is missing from the word ‘prostitution’ and means engaging in sexual activity with someone in exchange of payment.

Sex workers or Prostitutes: Which terminology is preferred?

History of Prostitution in India

Prostitution has not always been a stigmatised and unacceptable profession. In the early times, people involved in sexual activities in return for payment, be it in any form, was common and decent work. Over a period of time, the sex workers stopped getting respect and were sidelined from the community. It gradually became a work with a lot of stigma around it, and to date, sex workers have to fight for their basic human rights. Let's go back in time and discuss the history:

• Rigveda: mention of Jara and Jatini, male and female lovers of married couples who received payments for their services

• Tawaif: the sophisticated courtesan during the Mughal period who excelled in music, dance and attended to the nobility

• Devdasis: also referred to as servants of gods. The system where young females were made to dance before the kings, upper-class people and Britishers and were often sexually exploited. It is a prohibited practice now

Sex workers can be-

• Men

• Women

• Transgenders

Laws governing human trafficking in India

Article 23 of the Constitution prohibits human trafficking and forced labour. The Immoral Traffic Act is one of the Acts which, in a way, deals with prostitution in India. Let’s see which type of activities relating to prostitution  invites punishment under the Act:

Then there is The Immoral Traffic (Prevention) Act, 1956:

Section 3: Managing a brothel/ allowing premises to be used as a brothel

Section 4: Living on the earnings of prostitution 

Section 5: Procuring, inducing or taking someone for prostitution

Section 6: Detaining a person in premises where prostitution is carried on

Section 7: Prostitution in public places

Section 8: Seducing or soliciting for prostitution 

Courts on the Rights of sex workers

• Sex workers are entitled to live with dignity under Article 21 of the Constitution

(Supreme Court in Budhadev Karmaskar v. State of West Bengal, 2011)

Through its judgement and multiple orders, the Supreme Court of India directed the governments at the Central and State levels to ensure that there are schemes for rehabilitating sex workers. The schemes should provide technical/ vocational training to help them get employment.

In May 2022, the Supreme Court issued directions on the rights of sex workers, like the behaviour of police with them, issuing of Aadhar cards, and educating sex workers about their rights, among others. 

• Sex workers cannot be unnecessarily detained if they choose their occupation.

(Bombay High Court in Kajal Mukesh Singh v. State of Maharashtra, 2020)

In this case, the High Court of Bombay held that if it is the choice of the persons to work as sex workers, the police cannot detain them in corrective homes against their wish. The court further observed that no legal provision makes prostitution a crime.

Laws relating to Prostitution in India

We know that prostitution is not illegal in India. We also know that running brothels or prostitution in public places and similar acts are criminalised activities. So when the topic of the legalisation of prostitution arises, the opinions are divided.

Arguments for & against prostitution in India

Conclusion

Whether prostitution in India is legal or not, it cannot be denied that the living conditions of people involved in this profession are less than the bare minimum. Throughout the years, the Supreme Court of India has given a wide interpretation to Article 21 of the Constitution to India. Right to life and personal liberty is now multidimensional, and one of those dimensions is the right to live with dignity. Every person, irrespective of the kind of work they are involved in, deserves to be treated respectfully; sex workers also have that right. Whether they enjoy that right or not is a question we will leave you with!

FAQs on Prostitution in India

1. Is prostitution a crime in India?

Ans.: No, but while prostitution is not a crime, some related activities are criminalised in India.

2. In which case did the Supreme Court hold that sex workers have the right to live with dignity under Article 21 of India?

Ans.: Budhadev Karmaskar v. State of West Bengal.

3. Is running brothels a crime in India?

Ans.: Yes, under the Immoral Traffic (Prevention) Act, 1956.

4. Are only females involved in sex work?

Ans.: No. Males, females and transgenders all are involved in sex work