Article 23 of the Indian Constitution prohibits in human-beings and forced labour. It says that traffic in human beings, and other similar forms of forced labour are prohibited and any contravention of this provision is offence punishable in accordance with law. However, this does not prohibit the State from imposing compulsory service for public purposes although in imposing such service, the State cannot make any discrimination on grounds only of religion, race, caste or class or any of them.

In Gaurav Jain v/s Union of India, 1997, the Supreme Court observed that ‘women found in the flesh trade should be viewed more as victims of adverse socio-economic circumstances than as offenders in our society. Prostitution in Five Star Hotels is a licence given to persons from the higher echelons. The commercial exploitation of sex may be regarded as a crime but those trapped in custom-oriented and gender-oriented prostitution should be viewed as victims of gender vulnerability’.

There are some provisions in the Indian Penal Code to try to curb trafficking and prostitution. They include Sections:

366: Kidnapping, abducting or inducing a woman to compel her marriage, or in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be so forced or inducing, by means of criminal intimidation or of abuse of authority or any other method of compulsion, any woman to go from any place for any of the purposes mentioned earlier

Whoever kidnaps or abducts any woman with intent that she may be compelled or knowing it to be likely that she will be compelled, to marry any person against her will or in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person shall be punishable as aforesaid.

366 A: Procuration of a minor girl

Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine.

366 B: Importation of a girl from foreign country

Whoever imports into India from any country outside India or from the State of Jammu and Kashmir any girl under the age of twenty-one years with intent that she may be or knowing it to be likely that she will be forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years and shall also be liable to fine.

367: Kidnapping or abducting in order to subject person to grievous hurt, slavery, or to the unnatural lust

Whoever kidnaps or abducts any person in order that such person may be subjected to or may be so disposed of as to be put in danger of being subject to grievous hurt or slavery or to the unnatural lust of any person or knowing it to be likely that such person will be so subjected or disposed of shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

372: Selling a minor for purposes of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose

Whoever sells, lets to hire or otherwise disposes of any person under the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose or knowing it to be likely that such person will at any age be employed or used for any such purpose shall be punished with imprisonment of either description for a term which may extend to ten years, and shall be liable to fine.

Explanations:

§ When a female under the age of eighteen years is sold, let for hire or otherwise disposed of to a prostitute or to any person who keeps or manages a brothel, the person so disposing of such female shall, until the contrary is proved, be presumed to have disposed of her with the intent that she shall be used for the purpose of prostitution.

§ ‘Illicit intercourse’ means sexual intercourse between persons not united by marriage or by any union or tie which, though not amounting to a marriage, is recognised by the Personal Laws or custom of the community to which they belong or, where they belong to different communities, of both such communities, as constituting between them a quasi-marital relation.

373: Buying a minor for purposes of prostitution, or illicit intercourse with any person or for any unlawful and immoral purpose

Whoever buys, hires or otherwise obtains possession of any person under the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, of knowing it to be likely that such person will at any age be employed or used for any purpose, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Explanations:

• Any prostitute or any person keeping or managing a brothel who buys, hires or otherwise obtains possession of a female under the age of eighteen years shall, until the contrary is proved, be presumed to have obtained possession of such female with the intent that she shall be used for the purpose of prostitution.
• ‘Illicit intercourse’ has the same meaning as in Section 372.

The punishment for each of these offences is imprisonment of either description – simple or rigorous – for a term which may extend to ten years and, possibly, a fine. Also, it is enough if the accused knows that the woman involved is likely to be subjected to any of these offences for him to be guilty of having committed the offence itself.

None of these provisions which deal with prostitution in Indian Law expressly make prostitution illegal though. The result is that the Indian Government has been scrambling to amend the Immoral Traffic Prevention Act.

Victor Malarek has pointed out that ‘what happens to most trafficked women whether they are tricked, abducted or willing is criminal. The level of physical violence and psychological intimidation used to control them is deliberate and extreme. It is meant to instil fear, destroy their will, and force them to comply.’

The Immoral Traffic Prevention Act, 1986 which now governs prostitution does not make prostitution itself illegal. It makes a lot of the allied activities – such as trafficking and pimping – illegal but commercial sex workers are often treated like criminals with no rights nonetheless. Even as it stands today, the Act has failed in its objective – it tends to create human rights abuses and does little to prevent them.

An order to a prostitute to remove herself from the limits of a busy city under the provisions of the Suppression of Immoral Traffic in Women and Girls Act, 1956, and the placing of restrictions on where she could live/move was held to be reasonable by the Supreme Court in the case of the State of Uttar Pradesh v/s Kaushalya, 1964.