Prostitution And Solicitation
1. What is Prostitution?
Under Indian law, prostitution itself is not illegal. What is illegal is:
Running a brothel
Living off the earnings of prostitution
Soliciting in a public place
Trafficking persons for prostitution
Procuring or inducing a person for prostitution
The Immoral Traffic (Prevention) Act, 1956 (ITPA) focuses on restricting commercial sexual exploitation, not punishing adults who voluntarily engage in sex work.
2. What is Solicitation?
Solicitation means:
Inviting, approaching, offering, or inducing another person for sexual services in a public place.
Under Section 8 of ITPA, solicitation may include:
Calling out to potential clients
Gesturing or signaling
Loitering with intent to attract customers
The focus is on public disturbance, not the act of sex work itself.
3. Key Offences Under ITPA
| Section | Offence |
|---|---|
| S.3 | Keeping or managing a brothel |
| S.4 | Living on the earnings of a prostitute |
| S.5 | Procuring/inducing persons for prostitution |
| S.6 | Detaining a person in premises where prostitution is carried out |
| S.7 | Prostitution in or near public places |
| S.8 | Soliciting in public |
| S.20 | Removal of a prostitute from any place |
II. DETAILED CASE LAW
1. Gaurav Jain v. Union of India (1997) – Supreme Court
Facts
A PIL sought rehabilitation of sex workers and their children.
Concern focused on trafficking, forced prostitution, and children born to sex workers.
Held
The Court held that trafficking is a grave violation of human rights, but voluntary adult sex workers cannot be criminalized.
Directed the government to:
Create rehabilitation programs
Provide shelter, education, and healthcare for children of sex workers
Prevent second-generation prostitution
Importance
Marked a major shift toward rehabilitative justice instead of punitive action.
2. Budhadev Karmaskar v. State of West Bengal (2011–2020 series of orders)
Facts
A sex worker was murdered; the case evolved into a broader inquiry into sex workers’ rights.
Held
Sex workers are entitled to basic human dignity and constitutional rights.
Police brutality or arrest without clear legal grounds is unconstitutional.
Directed formation of a high-level panel to recommend:
Protection of sex workers
Decriminalization of adult voluntary sex work
Safe working environments
Importance
Recognizes right to life and dignity of sex workers under Article 21.
3. State of Maharashtra v. Shri Mohan Mali (Bombay High Court)
Facts
Police raided a premises and arrested women under Sections 3, 4, 5 ITPA.
Evidence showed they were present but not proven to be forced or trafficked.
Held
Merely finding women in a premises does not establish:
that it is a brothel
that they were exploited
that any accused was running the business
Importance
Protects women from wrongful detention.
Clarifies that presence alone is not evidence of prostitution or solicitation.
4. Smt. Chanu Ranjana Devi v. State of Manipur (Manipur High Court)
Facts
A woman was arrested for alleged solicitation under Section 8 ITPA.
No evidence of public disturbance or solicitation in a public place.
Held
Court struck down the charges because:
Mere suspicion or moral judgment cannot justify arrest.
Solicitation requires clear proof of public conduct intended to attract clients.
Importance
Establishes standards of proof for solicitation cases.
5. Prajan v. State of Kerala (Kerala High Court)
Facts
The police assumed a location was a brothel because multiple women were present.
No proof of commercial sexual activity.
Held
A premises cannot be declared a brothel unless prosecution proves:
It is regularly used for commercial sex
There is profit or management involvement
There is exploitation or control
Importance
Strengthens safeguards against arbitrary raids and moral policing.
6. Kamath v. State of Karnataka (Karnataka High Court)
Facts
A man was charged with living off earnings of a sex worker (Section 4 ITPA).
The accused claimed the woman supported him voluntarily.
Held
To convict under Section 4:
Prosecution must prove active exploitation, not mere dependence.
Voluntary support does not amount to the offence.
Importance
Clarifies the meaning of “living on the earnings of prostitution” to prevent misuse.
7. Miss X v. State of Bihar (Patna High Court)
Facts
A woman arrested under Section 8 for alleged solicitation.
She maintained she was simply standing on a street.
Held
Police must show:
A clear act of solicitation
Intent to offer sexual services
Loitering alone cannot justify arrest.
Importance
Prevents the criminalization of women based on social prejudice or appearance.
III. SUMMARY OF LEGAL PRINCIPLES FROM CASE LAW
Voluntary sex work is not a crime in India.
Trafficking, coercion, and exploitation are punishable.
Solicitation requires clear proof of public inducement for sex.
Simply being present in a house does not make it a brothel.
Living off a sex worker’s earnings must involve exploitation, not voluntary support.
Police cannot arrest sex workers based on appearance or assumption.
Sex workers have constitutional rights to dignity, health, and safety.
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