SEX WORK AND THE LAW - HIV/AIDS Data Hub

State laws relating to public order are also used as a basis for arrests of sex workers e.g.,
Bombay Police Act 1951 107 and the Gujarat Prevention of Anti-Social Activities Act, 1985. The
Railways Act, 1989 is enforced against sex workers who work at railway stations. 108
Kotiswaran has described the vast range of laws and practices that affect sex workers in
India’s red light districts, in addition to the criminal law e.g., laws relating to associations
that directly affect prospects for sex workers’ collective organization, laws relating to
elections, marriage, narcotic drugs, tenancy and to service providers operating in red-light
areas, such as moneylenders, insurance agents, banks, vendors, food and liquor shops,
community-based dispute resolution mechanisms, social practices and market structures,
of which legal rules are only small part. 109
Indian Penal Code 1890
Sex workers may be charged with creating a ‘public nuisance’ under Sections 268 and
290 Indian Penal Code or obscene conduct under Section 294 of the Indian Penal Code.
Police may perceive charges under the Indian Penal Code to be an easier option than a
charge under the ITPA.110 The Indian Penal Code also contains provisions dealing with
the procuring of minors from within the country or importing minors for sex work and
punishes the selling, buying or hiring of minors for sex work. 111
Immoral Traffic (Prevention) Act 1956
Sex work in private is not illegal, but the Immoral Traffic (Prevention) Act 1956 (‘ITPA’) creates
a range of offences affecting people involved in the sex industry. Offences include brothel
keeping, living on the earnings of sex work, procuring, inducing or detaining persons for
the purpose of sex work with or without consent. The Act provides a framework for police
to conduct ‘raid and rescue’ operations. Records indicate that nationally police rely on ITPA
to prosecute sex workers more frequently than the sex work offences of the Indian Penal
Code, although prosecution patterns vary by state. Police in West Bengal do not follow this
national pattern and more frequently rely on the Indian Penal Code than ITPA. 112
Historically, the ITPA has often been used to arrest sex workers, regardless of whether they
have been coerced or ‘trafficked’ by others. Instead of punishing traffickers, the majority
of ITPA convictions have been of adult sex workers for soliciting. A study commissioned
by the National Human Rights Commission found that many women are charged
with soliciting. The report concluded: ‘it is disturbing to note that out of almost 14,000
persons arrested every year under ITPA, approximately 90 percent are women.’ 113 A study
conducted in red-light areas in 2003 found that 66 percent of cases registered against sex
workers in a district in Mumbai and 56 percent in a district in Delhi were lodged under the
ITPA soliciting offence. 114 The Lawyers Collective observes:
107 See e.g., Santacruz police arrest 17 bar girls, Daily News and Analysis, 11 March 2007.
108 Kotiswaran P. (2011), Dangerous Sex, Invisible Labor: Sex Work and the Law in India, Princeton: Princeton
University Press, p.125.
109 Ibid, pp.125, 178.
110 Biradavolu M., et al (2009), Can sex workers regulate police? Learning from an HIV prevention project for
sex workers in southern India. Social Science & Medicine 68:1541.
111 Sections 366A, 366B, 372, 373.
112 Kotiswaran P. (2011), op cit., p.176.
113 Nair P. (2004), A report on trafficking in women and children in India, 2002-2003, New Delhi: NHRC, UNIFEM,
ISS, p.363.
114 Grover A., Kukke S., Bhardwaj K. eds. (2003), Legislating an Epidemic, Delhi: Lawyers Collective, p.125.
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