Akshara Nookala
IIM Indore
Introduction: Sex Work and the Law
“Sex work”, defined as the exchange of various sexual services, is an umbrella term. This includes forms like prostitution, pornography, and dancing etc. All of us might have come across these terms at least once in our lives. Why Not? They are prevalent in our mass media. But, Can we really say that we know about sex work, the laws and ethics surrounding it? Technically, Sex work refers to voluntary engagement in sexual activities in return for Goods and services, But the meaning gets diluted as it’s often linked to various other illegal activities like human trafficking, forced prostitution or child prostitution. That’s why I would like to refer to the laws around this topic as a big grey area in Indian Law.
Sex Laws in India are a bit tricky. Why, you ask. Because, while the Immoral Traffic (Prevention) Act, 1956 (ITPA) criminalizes prostitution, the act of selling sex itself is not illegal. Confused? Let’s get into it deeper.
Deconstructing the Meaning
In theory, what these laws mean is that an adult woman may legally choose to engage in sex work, but in practice, nearly every activity surrounding it is illegal! If a group of sex workers gather, it can be labeled as a “Brothel”; if they advertise or offer services in public, it is called “Soliciting”; If a family’s living depends on the sex worker, it is liable under “living off immoral earnings”. All these are punishable offenses under the Indian Penal Code,1860 and The Immoral Traffic (Prevention) Act 1956. This irony of the situation forces the idea of “sex work” to exist as an isolated concept. But in reality, it rarely is the case. The contradiction is ironic, the state recognizes sex work’s existence but denies it legitimacy. Instead of clarity, these laws create a minefield of loopholes, double standards and misuse of power.
History of Prostitution and the Evolution of Law
Prostitution is regarded as one of the world’s oldest professions, if we can even call it one. In the Indian context, it has been endorsed by several religious practices. The Devadasi system, where young girls were married to a deity and dedicated to temples, later forces them into sexual servitude to be exploited by priests and other local elites. This practice still persists in some rural parts of India, despite being outlawed (Devadasis (Prohibition of Dedication) Act, 1982). Historical texts even romanticized courtesans. During the Delhi Sultanate period, courtesans(Tawaifs) were trained in various art forms and also provided sexual services. They were integrated into the social and cultural dynamic of those times. Even the colonial laws sought to regulate such practices rather than abolishing.
After independence, India passed the Suppression of Immoral Traffic in Women and Girls Act, 1956, which was amended as ITPA later. This act criminalises various activities as mentioned previously and recognises prostitution as a social evil. In Budhadev Karmaskar v. State of West Bengal case, 2011, where a sex worker was murdered in the redlight area of Kolkata, the Supreme Court recognized the inhumane conditions of sex workers and called for rehabilitation measures, reinstating that Sex workers are entitled to a life of dignity under Article 21 of the Constitution. Hence, prostitution may not be legitimate, but the prostitutes are still owed dignity from society.
The Law’s Loophole for customers
Another legal grey area is that paying for sex with a consenting adult is not a crime. A recent ruling of Allahabad high court, says that the customers or patrons are not liable under the sections 3 to 9 of the ITPA as long as they are gaining no commercial profits from the act. In this way, the ITPA targets brothel owners and pimps but rarely prosecutes men who purchase sex. However, if the act involves a brothel or public solicitation, customers can be penalized (ITPA, §5–7)
This partiality in law enforcement protects the market demand while illegalizing the supply. In Delhi’s GB Road or Mumbai’s Kamathipura, police raids usually target and evict women but allow men to walk free. This reflects society’s double standards for the two sexes- punishing the exploited while excusing the exploiters. Unless the law sees these “customers” as equal partakers in the crime, prostitution will continue to exist, despite bans.
Hotspots of Activity
When we think of sex work in India, certain places cross our mind, Sonagachi in Kolkata, Asia’s largest red-light district, housing nearly 10,000 women; Kamathipura in Mumbai, once Asia’s largest brothel hub, still having hundreds of women trapped; G.B. Road in Delhi, Budhwar Peth in Pune, etc. These places, called the “red light districts” are controlled zones where sex work is tolerated, if not regulated.
Some viewpoints argue that such containment reduces sex-related crimes outside these areas, a perspective borrowed from Amsterdam’s “red-light tolerance.” But India tells a different story. Unlike the regulated models that are enforced abroad, India’s red-light areas operate in a state of legal “sleeping beauty trance”. Brothels are still illegal under the ITPA, but everyone appeals to ignorance.
Some perspectives argue that instead of reducing exploitation, these areas concentrate and amplify it. Women are trafficked from various places in and around India and are often sold into these areas. In Gaurav Jain v. Union of India (1997) 8 SCC 114, the Supreme Court observed that the children of sex workers were condemned to a similar fate that their mothers were trapped in, making child prostitution rampant. Taking the example of Budhadev Karmaskar v. The state of West Bengal again, helps highlight how these “controlled zones” function as hotspots for organized crime, a far cry from regulated safety. While we convince ourselves that the problem is contained within these areas, they act like breeding grounds for further abuse and injustice.
The living conditions
These women often live in tiny, overcrowded rooms, often sharing beds with others. Health conditions are poor, with high rates of sexually transmitted diseases like HIV, not to mention the routine violence from pimps, clients, and police. Even more disturbing reality is that their workplace is their home, erasing any boundary between private life and “professional” exploitation. Women eat, sleep, and raise their children in the very rooms where they are forced to sell their bodies. Growing up in these environments, these children are exposed to the harsh realities of their living and lose their innocence at a tender age, affecting their mental health and their understanding of the normal world.
Why the Blind Eye?
Coming to the most outrageous contradictions. Is the law really enforced? Despite making laws, and giving strict public statements, prostitution still manages to thrive openly. Why? Because the system itself profits from it.
Police often extort money from the brothel owners and sex workers, collecting bribes or commissions to overlook their illicit activities. Police raids are staged for the sake of spectacle, but rarely aimed at actually taking down these networks. In reality, the daily-functioning of red-light areas or a local illegal network completely relies on the blind eye of the authorities and a silent rapport from political networks. As a result, law in theory is not always applied to law in practice, taking us to a new scene where law enforcers themselves turn into partners of exploitation.
Why the Laws Are Not Working
The fundamental flaw is that India’s Sex Work Laws criminalize the outcome while doing nothing to curb the environment that produced it. By targeting brothels and sex workers, our law is attacking the symptoms rather than the disease.
The weight of stigma alone, prevents rescued women from leading dignified lives. These women struggle to reintegrate into societies, as some of them have no other skills, having grown up knowing to do only one thing for survival. The ones with skills are rejected by employers as they fear they might pollute the environment. Their families reject them and society brands them as characterless. Rehabilitation programs exist, but are often poorly funded and taken care of. And without any other alternatives, many return to the underworld of prostitution out of desperation and survival. Additionally, this underground economy adapted faster than the law- brothels now pose as lodges or spas, and digital platforms have become the new marketplace.
Meanwhile, the cases under ITPA rarely lead to conviction as victims are too scared to testify, evidence is weak (or should we say, conveniently dissolved, given enough bribe) as awareness campaigns remain limited, and society continues to remain a silent spectator, until there is another crime that shakes the country.
The conclusion: Towards Progress
If India wants to see actual progress, our laws must rise beyond these contradictions. First of all, the clauses in laws must clearly distinguish the two concepts of adult sex work from prostitution. In India, these terms are often used interchangeably, however these two terms are conceptually different in today’s era. Sex work is regarded as voluntary while prostitution involves elements of force and exploitation. It’s high time, our society acknowledges this difference. At the same time, we should remember that our fight is against the work, not its victims. That said, customers, who, in my opinion, are the root cause of perpetuation, should face stronger accountability and harsher consequences. The state should focus more on rehabilitation and providing vocational training, mental health services, educational opportunities and special projects exclusive to the victims.
However, as easy as it is to speak about reforms sitting in the comforts of our dwellings, it is not when it comes to implementing new laws and reforms quickly. So, what can we, as a society, do? I say we must kill the seed of hypocrisy that we all foster, to some extent, in ourselves, the one that is aware of all the oppression, but is averting its gaze; the one that is tolerating the environment, but hating on its victims. Without each individual taking the step forward, to broaden our perspectives and show some humanly compassion, this cycle of injustice goes on. We shouldn’t let our silence be a tacit accomplice to this crime. We must ask questions, demand answers, and hold authorities accountable. Because, as citizens of this nation, we have our rights as well as duties.
India’s Sex Laws oscillate between legality and illegality and it is upon us to bring a movement that can save countless lives and dictate the course of our country.
References
The Immoral Traffic (Prevention) Act, No. 104 of 1956, §3–7 (India).
Indian Penal Code, No. 45 of 1860, §370 (India).
Budhadev Karmaskar v. State of West Bengal, (2011) 10 SCC 283 (India).
Devadasis (Prohibition of Dedication) Act, No. 1 of 1982 (Karnataka, India).
Human Rights Watch, Rape for Profit: Trafficking of Nepali Girls and Women to India’s Brothels (1995).
Supreme Court of India, Order on Recognition of Sex Workers’ Rights, (May 2022).
UNAIDS, Guidance Note on HIV and Sex Work (2012).
Gaurav Jain v. Union of India (1997) 8 SCC 114 (India).
Prostitution or Sex Work? Language Matters, ON THE WOMAN QUESTION (Aug. 12, 2020)
THE INTERACTION OF SEX WORK AND LEGAL FRAMEWORKS IN INDIA: ANALYZING MORALITY AND LEGAL IMPLICATIONS – Khushi Sharma – ijalr, Ijalr.
Rajesh Baldwan, Banned in 1988, this ‘religious’ practice still forces Telangana’s Dalit women into sex slavery, (Nov. 22, 2020).
Monalisha Sethi, Allahabad High Court: Brothel Customers Not Liable Under Immo
ral Traffic Prevention Act, (Feb. 24, 2024).
About the Author
