Sex work laws
The laws regarding sex work come under the ambit of the Immoral Traffic
(Prevention) Act 1956. This act was made in the spirit of the 1950 New York
Convention against the trafficking of people. As to the status of the legality
of sex work in India, sex work or prostitution itself is legal however certain
activities around the same, such as pimping are not. An interesting point to
note here is that this act defines prostitution as the sexual exploitation of a
person done for monetary and commercial purposes.
The legislation serves the purpose of tackling issues by codifying laws on the
matter in a written manner. The effect of the legislation so created could
either solve the problem or may itself become its source, which is why it
becomes very important to have a proper understanding of the same. Thus, in this
section of the paper, we explain in a simplified manner the provisions laid out
in the Act mentioned above, which shall be referred to as the Act here on.
Punitive measures for acts surrounding sex work were first laid out in Section
3 of the act where it is laid out that either keeping a brothel or allowing a
place to be used as a brothel shall be a punishable offense with a prison
sentence of two to three years along with a fine amounting to ten thousand
The sentence shall become more rigorous upon successive conviction. It
should be noted here that section 2 (a) of the act defines a brothel as a place
Inclusive of any house, conveyance, room or place which is used for
the sexual exploitation or abuse for a gain of another person or for the mutual
gain of two prostitutes.
Thus, in order to convict one of the offenses of
keeping or maintaining a brothel, it has to be proved that the place in question
was being used for the purposes of sexual exploitation and not merely sex work
itself. The subsequent clauses of this section prohibit the use and allowing use
of any place or a section of any place as a brothel by any landlord, tenant, or
lessee. Upon conviction, any lease agreement which happened to exist before it
shall be rendered void.
Section 4 of the act makes it illegal to live on the earnings of prostitution
made by another person. A peculiar feature of this section is that it includes
people who are found to be habitually in the company of prostitutes to be living
on their earnings. Other people considered to be living on the earnings of
prostitution include people aiding the movements of another in such a way that
they abet their prostitution or a person acting as a pimp on behalf of the
Section 5 and 6 basically prescribe punishments for forcing a person into
prostitution by coercive means and detaining a prostitute in a brothel
respectively. Another notable provision of section 6 alludes to the protection
of children from sexual abuse wherein it is specified that if a person is found
with a child in a brothel, it shall be assumed that they are detaining the child
there for the purposes of sexual exploitation. Section 7 prohibits carrying out
prostitution in a public place or in the vicinity of a public place. For
instance, carrying out prostitution within 200 meters of a place of religious
worship, a hotel, or an educational institution is illegal.
There are also provisions for the establishment of corrective institutes in this
act which serve the purpose of rehabilitation of prostitutes to enable them to
lead a normal life if a woman is found guilty under section 7 of this act.
These are the provisions regarding India's legal stance on sex work.
Judgments regarding sex work
Judges play a very important role in deciding how wide the scope of a piece of
legislation shall be. This is a very important role since it has the potential
to clear out loopholes that may be present in the legislation. We shall name
some prominent ones below in order to further acquaint ourselves with the rights
of sex workers and the limitations placed on them.
The State of Uttar Pradesh v. Kaushalya 1963.
This case dealt primarily with the scope of section 20 of the act which deals
with the powers of the magistrate to remove a prostitute from certain localities
and whether this power contravenes the fundamental rights enshrined under
Article 14 and Article 19 of the Constitution which grant the right to equality
and the freedom to move and reside in any part of the country respectively.
respondent alleged that the powers of the magistrate under this section were
arbitrary and uncanonized in nature and also questioned the maintainability of
the suit since the information received by the magistrate did not come from a
special police officer appointed for investigating prostitutes.
The apex court
decided against the respondents by holding that since the magistrate under
section 20 had to:
- Serve a notice to the accused to show why they should not be removed or
deported from the locality
- Had to keep a copy of the record and thirdly had to allow the prostitute
to represent herself and her situation appropriately and had to conduct
proper inquiries so as to arrive at his decision.
Given these provisions, one could not hold that the magistrate
would make arbitrary decisions by holding even respectable women to be
prostitutes since his decision has to be accompanied by ample evidence.
As to this provision violating the fundamental rights enshrined under Articles
14 and 19, the court held there to be a rational difference between a woman who
engaged in prostitution and one who didn't and also between a prostitute who
served as a public nuisance and one who didn't, establishing an intelligible
differentia in relation to the object sought to be achieved by law. Prostitution
in this case was established to be a moral abomination that needed to be curbed
in order to ensure moral decorum within a locality. Thus, if a prostitute were
carrying on her trade in a public space, removing her from it would not be a
contravention to fundamental rights as such activity could corrode the moral
fabric of society.
Budhadev v. State of West Bengal 
This case dealt with the brutal murder of Chayay Rani Pal, a sex worker living
in the red-light area on 17th September 1999. The appellant, Budhadev grabbed
her by her hair and repeatedly banged her head against the floor and wall which
led to her sustaining injuries on her head, nose, and ears, bleeding profusely.
She was murdered in this brutal manner only because she refused to have sex with
The court held the appellant guilty and also opined those prostitutes were human
beings who deserved the right to a dignified life under Article 21. It also
directed the government to come up with rehabilitation schemes for sex workers
with the inclusion of vocational training for them so that they may have means
other than selling their bodies to earn their bread. It was further opined that
people should not look down upon prostitutes as lesser beings but sympathize
with their condition since most women entered this profession not by choice but
due to poverty.
Manoj Shaw and Manoj Kumar Shaw v. State of West Bengal 
This case dealt with the treatment of prostitutes during the course of
investigation by investigating officers. The facts of the case are as follows. A
person was running a brothel under the guise of a health spa and was guilty of
forcing women into sex work, one of whom was a minor. Interestingly, the
investigating officer proceeded to arrest the sex worker but merely served a
notice to the owner of the health spa under section 41A of CrPC This was a gross
error on the part of the investigating officer since the object of the ITPA 1956
was to help the victims of sexual exploitation for commercial means.
thus established certain guidelines when dealing with offenses under ITPA 1956
which were as follows:
- The investigating officer should consider that grave offenses involving
sexual exploitation may have been committed and should avoid mechanically
resorting to section 41 of CRPC.
- Use of section 41A stands prohibited if the victim in question is a
- A sex worker should not be treated as an accused but a victim unless she is
proven to be a co-conspirator in the crime as well.
- Sex workers should not be arrested during the course of the investigation but
shall be treated as victims and not criminals. They should also be given the
opportunity to avail the rehabilitation programs granted to them under the act.
- The court recommended the establishment of sensitization programs for
investigating officers to the plight of sex workers since this was a case
involving immense insensitivity on the part of the investigating officer.
Gaurav Jain v. Union of India
An advocate filed a PIL in the Supreme Court for the children born to
prostitutes. It is a well-established fact that prostitution is not the safest
profession since it is the sex workers who face a higher risk of sexual abuse.
Most people who enter this profession do so on account of abject poverty and
ignorance. The advocate thus contended that the children born to prostitutes do
not have access to the healthiest environment and since children are regarded as
the future of this nation, rehabilitation provisions be made for them in the
form of separate educational institutes for them.
The court in its decision
rejected the plea to establish separate educational institutes for children
since it believed that it would further isolate them from the masses. However,
the court did issue directions to rehabilitate prostitutes and their children
and to establish juvenile homes for the children born in the confines of this
trade. It is interesting to note that Justice Wadhwa conferred a dissenting
opinion in this case, opining that the contention of this PIL was not
elimination and rehabilitation of prostitutes but rehabilitation of children
born to them.
Loopholes in The Immoral Traffic (prevention) act, 1956
There are various loopholes in existing laws that deal with sex workers in
India. Let us first discuss some of the loopholes which exist in "The Immoral
Traffic (Prevention) act, 1956".
Firstly, Section 2(a) of the 1956 Act defines brothel
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
Section 3 of the 1956 act provides for punishment for keeping, running, and
managing a brothel
. The term "for the mutual gain of two or more prostitutes"
renders premises shared by prostitutes as illegal, even if it is for residential
purposes only. Due to such laws, it becomes very difficult for sex workers to
lead a normal life as many times their homes are dismantled as they are labeled
as brothels even if they use such property for residential purposes only.
According to Section 4 of the 1956 Act, anybody above the age of 18 who
knowingly lives off the proceeds of a prostitute is liable to a penalty. The
language of this section is very inclusive as old family members and guardians
of sex workers who are unable to earn due to valid reasons also come under the
ambit of this section which should not be the case as in many cases many sex
workers enter in this industry in order to support their family.
Section 8 holds liable prostitutes if they seduce or solicit any person in any
public place words or even by gestures. The language used in this section is
very vague as it can be interpreted by police or any person to exploit the
already marginalized section of our society. This provision is supposed to be
deleted in the immoral traffic (prevention) amendment bill,2006.
Medical examinations of persons taken from brothels are required under Section
15(5A) of the 1956 Act, among other things for the identification of sexually
transmitted illnesses. sex workers are frequently forced to get tested for
sexually transmitted illnesses, and the results of such tests are made public as
they are disclosed in open hearings. This is in violation of national policy,
which requires informed permission, as well as privacy and consultation for HIV
testing. This section is also proposed to be amended and all the crimes under
the new bill will be tried in camera and not in open courts.
Despite the fact that prostitution is not per se illegal, sex workers are
exploited every day by the system and society as well. even though many
nongovernmental organizations are working towards the betterment of sex workers,
there is still much to be done, particularly with regard to the harassment and
stigmatization that sex workers face. prostitutes should be regarded as equal to
any other citizen of this country and their rights must not be compromised
because of the work they do to earn their livelihood.
2006 Amendment Bill
Sex work is an ancient profession. Although currently seen as evil towards
society, it continues to exist primarily on account of the prevalence of poverty
in India. As stated, multiple times in the previous sections of this paper and
re-iterated by the learned judges deciding various cases examined above, sex
workers are people belonging to the poor and marginalized sections of society.
Thus, laws governing them should be protective and not punitive in nature.
While some sections of the Immoral Traffic (Prevention) Act do have protective
measures in the form of prescribing rigorous punishments for sexual exploitation
and the provision of corrective institutions for prostitutes wishing to quit
this dangerous line of work, it is a dated act in some of its aspects as having
been examined previously in the loopholes given in the previous section of this
Keeping this very thing in mind, the learned legislators of our country proposed
some amendments to be added to this act, which shall be discussed in detail
The first suggested amendment to this bill was to change the definition of a
child. In the act, a child is anyone who has not attained the age of sixteen
years, as specified in clause 2aa of this act. However, this bill seeks to
increase the required age to eighteen. It should be noted though, that the act
differentiates between a child and a minor, which has been defined as a person
who has not attained the age of eighteen years. Thus, the bill basically seeks
to remove this differentiation. This bill also widens the definition of
prostitution and trafficking in persons.
The term prostitution is made wider in scope by adding that an offense of
prostitution can be constituted not only for the exploitation of one for
commercial purposes but for consideration in terms of money or kind for that
matter. Coming to the definition of trafficking in persons, it is defined as an
act of coercion or threatening or abusing one's power in order to recruit or
transfer one for the purposes of prostitution, which had not been defined in the
There are various amendments suggested regarding the penal provisions of the act
as well. For instance, the fine to be given along with the prison term of one to
three years has been increased from 2000 to 10000 rupees in the said amendments.
On subsequent conviction, the prison sentence has been increased from three to
seven years instead of two to five years with a fine up to 2 lakhs instead of
2000. Also, the offense of trafficking in persons has been given a harsher
punishment with a minimum sentence of seven years on the first offense and life
imprisonment upon a subsequent conviction.
Other notable provisions include the introduction of trials done on camera so
that the sex workers are not subjected to public scrutiny and the suggested
removal of section 8 of the act which makes soliciting or seducing by words or
gestures illegal. The harmful impacts of this section have been examined in the
loophole section of this paper.
These amendments aim to correct those provisions of the act which instead of
seeking to reform the practice of prostitution attempted to eliminate it
instead. They also keep in mind better the stigmatization and scrutiny
prostitutes may be subject to.
After analyzing the Immoral Traffic Act (Prevention) 1956 and studying the
various case laws pertaining to sex workers in India, it is very much clear that
instead of becoming the solution of the problem, laws are becoming its source.
Sex workers are not considered to be a part of civil society and that is the
reason why the government doesn't focus much on their issue as other than some
Non-Governmental Organizations, no other parties have any issues with the status
It can be inference that complete prohibition of sex work is not the solution
of this social evil by considering the examples of many other Nations and
regulation is in the interest of the general public, sex workers, and the
government. Therefore, it is high time for the government to treat sex workers
as part of our society and introduce the necessary amendments in law and
government must also work towards spreading awareness regarding sex education
and should work towards the upliftment of sex workers as they are one of the
most secluded and marginalized section of the society.
- 1964 AIR 416, 1964 SCR (4)1002
- (2011) 10 SCC 277
- Criminal Miscellaneous Case No. 5927 of 2019, High Court of Judicature
- 1990 AIR 292
- Manya Manish and
- Utkarsh Sharma