Sex Work Is Legal As Well As Illegal In India, Thanks To These Confusing Laws

Posted by Anamika Jha in Sex Work
July 19, 2017

During a casual conversation with my friend, we ended on an intriguing question, “Is sex work illegal in India?”

Various images pop up in our minds, like those of hotel raids we’ve seen on television, women who were standing in dark wearing glittery clothes and jewelry as they waited for clients or the horrifying images of brothels that we’ve seen in movies and documentaries.

The legality of sex work in India is complex so I decided to do some research on it.

I began with a simple Google search, “Call girl for one night” and then I found the uncountable number of escort service websites loaded with advertisements which consist of various photos, contact numbers, email addresses of both female and male escorts.

Here are examples of the kind of advertisements I saw online:

We Provide In Delhi High Profile Models Offer Hot Call Girls Are You Looking Delhi VIP Personal Satisfaction Girls Friends Hot Experiences With Sex Beautiful College Girls Hot Girls Booking Any Time 24×7 All Type Beautiful Younger Girls In Delhi.

We Provide Selected and New Females, College Girls, Housewife, PG Girls, Office Girls, Foreigner Female, Models In Delhi NCR 24Hrs 3*/5*/7* Hotels, Guest House, Homes Door Step Service High-Class Beautiful Model Escorts in Delhi; service call all type of Delhi local Punjabi college girl in Delhi.

These websites also provided a sex menu under the title “Our Service”. These included ‘services’ like oral sex without a condom, anal sex, group sex, various postures, sex anywhere etc.

India has a strange legal stance when it comes to sex work. We don’t have a progressive system like New Zealand, Austria, Denmark, Ecuador, Germany etc. where sex work is legal. These places have legal brothels and in most of these countries, the workers are provided with health insurance, they have to pay taxes and even receive social benefits. But in India, there is also no blanket ban on sex work like Iran, Afghanistan, Norway, Iceland and Northern Ireland etc.

Then, where do we stand? Unfortunately, we stand in a gray area where being a sex worker is legal but all activities related to sex work are illegal. To understand the dangerous consequences, let us first understand the laws around sex work in India.

When we look into the provisions of Indian Penal code, we find specific Sections related to the prohibition of sex work. For example, Section 370 deals with trafficking of a person. This Section makes any act of recruitment, transportation, harboring, transfer and receiving of a person for exploitation by several means including inducement, illegal. Inducement includes the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harbored, transferred or received, commits the offense of trafficking. It is given in the first explanation that the expression “exploitation” shall include any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs. Also, the Section further explains that the consent of the victim is immaterial in the determination of the offense of trafficking.

Section 2 of the Immoral Traffic (Prevention) Act (104 of 1956) defines sex work as “an act of sexual exploitation or abuse of persons for commercial purposes or for consideration in money or in any other kind.” Thus, going through this section and the provisions of Indian Penal Code we find that indulging in a sexual act for money is not illegal or punishable but abuse or exploitation of a person for any commercial purpose including sexual exploitation is punishable.

So, can we conclude that if an adult person independently indulged in a consensual sexual activity in exchange for money, they wouldn’t have done something illegal?

The answer is not that easy.

India has ratified the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others in 1951. When Article 1 and Article 2 are read together, this means that the parties of the present convention agree to punish any person who, to gratify the passions of another exploits the sex worker or procures, entices or leads away, for purposes of prostitution, another person, even with the consent of that person.

Also, the act of keeping or managing, or knowingly financing or taking part in the financing of a brothel or knowingly letting or renting a building or other place or any part thereof for the purpose of sex work is illegal and punishable.

Thus, even this international convention does not punish one for being a sex worker, but all other activities of third parties promoting sex work can be punished.

Now, the next question is whether a group of consenting adults can form a sexual service agency and advertise it. Such actions will come under an act of gratifying the sexual passion of others by the means of prostitution and since the consent of the sex worker is immaterial, these acts are not permissible under this convention.

The objective of Immoral Traffic (Prevention) Act, 1956 is to punish traffickers and to promote welfare measures directed towards rehabilitation of sex workers. When we go through the various provisions of the Act, we find that all the acts of keeping a brothel or allowing premises to be used as a brothel, etc are illegal.

Thus, we can say that sex work is legal as well as illegal in India.

However, India has been suffering from an ever-growing human trafficking issue because these ambiguous laws have encouraged underground crime. As per the data from National Crime Records Bureau (NCRB), human trafficking in India has increased by 25% in 2015 compared to the previous year, with more than 40 percent of cases involving children being bought, sold and exploited as modern-day slaves.

In India legalizing sex work is a big social as well as a cultural taboo, but it is this approach that has resulted in a huge underground flesh trade. Sex workers are exploited by everyone including brothel owners, pimps, police, and clients. ‘Security’ is just a luxury term when they don’t even have basic human rights. Also, there is a huge amount of money in this profession that is never taxed.

It is essential to improve the laws as well as the execution of laws dealing with sex work. There can be the various ways of dealing with this like improving execution or legalizing sex work and spreading awareness in the society regarding human rights for sex workers.