Can the customers of sex workers be prosecuted?

In India, sex work or prostitution is not illegal, but it has been continuing in India since time immemorial. Despite the social stigma, a huge number of women in India are currently engaged in sex work. The legal definition of “prostitution” is an act of sexual exploitation, which is treated differently from voluntary sex work. People, however, often think of them as the same thing. Police often harass both sex workers as well as their customers. 

In a recent judgement, the Orissa High Court clarified that customers cannot be held liable for sexual exploitation, unless there is evidence that they are responsible for trafficking of the sex workers or know about such trafficking. 

In this Weekly, let us look at the law around sex work in India and clarify some myths around it. 

What is the difference between voluntary sex work, prostitution and trafficking?

“Sex work” connotes voluntarily engaging in consensual sexual activities by adults, in exchange of monetary favours or favours in kind. 

On the other hand, “prostitution” is defined as the exploitation or abuse of a person through sexual activities for commercial purposes. 

“Trafficking” broadly includes forcing or transporting or inducing an individual into any act that involves sexual exploitation, slavery, forced labour or organ removal. So, prostitution is a form of human trafficking. 

In India under the laws discussed below, trafficking is considered a punishable offence while voluntary sex work is not. 

 What are the laws governing prostitution in India?

In India, prostitution is addressed under the Indian Constitution, the Indian Penal Code (“IPC”) and the Immoral Trafficking (Prevention) of Persons Act, 1956 (“ITPA”). 

According to Article 23 (1) of the Indian Constitution, human trafficking for forced labour, slavery or sexual exploitation is prohibited. Any contravention of this Article is a punishable offence. 

Section(s) 370 and 370A of the IPC state that courts can penalise  human trafficking for prostitution with rigorous imprisonment of at least seven years. If the offence involves trafficking of more than one person or a minor, the court can extend the punishment to jail time of at least ten years. It can give a life sentence. 

The ITPA was enacted to prevent and prohibit any acts of commercial sexual exploitation. According to this Act, the following acts are considered illegal:

• Soliciting customers for prostitution publicly
• Engaging in prostitution in hotels
• Maintaining brothels, i.e., places which are designated for prostitution
• Arranging of prostitution for a customer

Under the ITPA, individuals engaging in prostitution are not legally allowed to own property or run businesses. It also criminalises anyone who knowingly lives on the earnings of prostitution. 

The Juvenile Justice Act , 2015 provides for protection and rehabilitation of children engaged in prostitution and exonerates them from any criminal liability. 

How do courts treat sex work in India?

In the 1997 case of Gaurav Jain v. Union of India, the Supreme Court recognised “sex work” as a profession for the first time. It held that sex workers have the constitutional right of freedom to practise any profession under Article 19(1)(g) and are entitled to protections guaranteed by the fundamental rights. 

In Buddhadeb Karmaskar v. State of West Bengal (2011), the Supreme Court upheld that the right to life and personal liberty guaranteed under Article 21 of the Indian Constitution was applicable to sex workers. 

In an appeal in this case, the Supreme Court in 2022 referred to the right to dignity and consent of sex workers. It reiterated that voluntary sex work is legal in India. It will only attract criminal liability if it becomes one of the offences under the existing laws. This judgement also outlined certain guidelines regarding police action on prostitution. 

It specified that while conducting sex work out of a brothel is illegal, the mere presence of a sex worker in a brothel is not an offence. 

It upheld the rights of sex workers to seek legal protection from sexual assault and violence at par with any other survivor of violence. All support systems, including free and immediate medical facilities are guaranteed to any sex worker who complains of sexual violence. 

It also laid down provisions related to the rehabilitation of the children of the sex workers and protection from forced separation of children from sex workers. 

What is the significance of the recent judgement?

The recent judgement is an important reminder that offences made out of prostitution are related to forced sexual exploitation and for running brothels. Voluntary sex work carried out by consenting adults in private places is not an offence. It also limits police action against customers of sex workers. 

Anyone seeking the services of a voluntary sex worker cannot be prosecuted, unless there is evidence that the customer engaged the services of the sex worker with the knowledge that she has been trafficked. 

The court said that: 

“The act of sexual intercourse for consideration is not illegal per se under the Immoral Trafficking (Prevention) Act,1956. But the intent of legislation is only to ensure that women/girls are not illegally trafficked for the purpose of prostitution, and they are exploited.”

So, in the absence of evidence of abetting or indulging in trafficking, merely using the services of sex workers cannot be considered a criminal offence.