Decriminalizing Prostitution in India

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Ill-Conceived Laws and Exploitative State: Toward

Decriminalizing Prostitution in India
Yugank Goyal
Padmanabha Ramanujam
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Goyal, Yugank and Ramanujam, Padmanabha (2014) "Ill-Conceived Laws and Exploitative State: Toward
Decriminalizing Prostitution in India," Akron Law Review: Vol. 47 : Iss. 4 , Article 7.
Available at: http://ideaexchange.uakron.edu/akronlawreview/vol47/iss4/7
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Goyal and Ramanujam: Decriminalizing Prostitution in India
ILL-CONCEIVED LAWS AND EXPLOITATIVE STATE:

TOWARD DECRIMINALIZING PROSTITUTION IN INDIA
Yugank Goyal and Padmanabha Ramanujam∗
I. Introduction ..................................................................... 1072

II. Historical Antecedents of Prostitution in India ............... 1077
III. Indian Legal Landscape on Prostitution .......................... 1081
IV. Violence Against Sex Workers in India .......................... 1084
V. Why Decriminalize Prostitution? .................................... 1091
A. Feminist Theory Perspective..................................... 1091
B. View from Contract Theory ...................................... 1095
C. The Social Norms Perspective .................................. 1100
1. Stereotypes as Bodies of Social Norms ............... 1100
2. Diluting Stereotypes Through Law ..................... 1102
3. Bridging the Gap Between New Law and Old
Norms .................................................................. 1104
D. Public Health Concerns............................................. 1108
E. The Game Theory Framework .................................. 1112
1. Demand-Side Dynamics ...................................... 1112
2. Interaction Between the Sex Worker and Her
Client ................................................................... 1114
VI. De-Institutionalizing Prostitution .................................... 1115
VII. Conclusion ....................................................................... 1120
∗ Yugank Goyal is Ph.D. Candidate at University of Hamburg (along with University of Bologna
and Erasmus University Rotterdam) and Honorary Research Fellow at O.P. Jindal Global
University. Padmanabha Ramanujam is an Associate Dean and Associate Professor at Jindal Global
Law School of O.P. Jindal Global University, India. Authors would like to thank Hans-Bernd
Schäfer, Ratna Kapur and P.G. Babu for valuable guidance. Discussions with Pramod Pathak, V.
Kalyan Shankar, Prashant Iyenger, Faiz Ur Rehman, Oishik Sircar, Lakshmi Arya, Aseem Prakash
and Upasana Mahanta were insightful. Titiksha Mohanty, Ramya Hari, Samudyata Sreenath, Durga
Agarwal, Nisha Raman and Jishnu Dhar offered excellent research assistance. All errors and
omissions remain authors’ alone.
1071
Published by IdeaExchange@UAkron, 2014 1

Akron Law Review, Vol. 47 [2014], Iss. 4, Art. 7
1072 AKRON LAW REVIEW [47:1071
I. INTRODUCTION
The following is an excerpt from the debates in the Constituent
Assembly of India in 1949. 1 The Assembly was vested with the task of
creating the Constitution of India 2 and this debate discussed prostitution
at length:
Shri Brajeshwar Prasad: Mr. President, Sir, I feel that the gravity of
the situation has not been realized . . . My Friend Shri Deshmukh
spoke in the vein that probably it can be abolished or abrogated alto-
gether. I do not agree with him on that point. Prostitution is a very old
institution – as old as the hills and it cannot be abolished. The roots of
this institution lie deep in our human nature. The only thing that we
can do is to regulate it . . .
Shri R.K. Sidhva: Mr. President, I was rather surprised at the attitude
of Shri Brajeshwar Prasad. He says this institution is centuries old and
it cannot be abolished. Prostitution in India is a disgrace and shame to
us and it is regrettable that Shri Brajeshwar Prasad should advocate
its continuance . . . It is a disgrace and shame to society that this kind
of thing should be allowed to continue . . .
Shri Brajeshwar Prasad: If you abolish, the whole thing will go under-
ground.3
Sixty-four years after this discussion, the same questions regarding
prostitution remain unanswered. Studies by the Ministry of Women and
Child Development in the government of India estimate that there are
about three million prostitutes (of which 40 percent are estimated to be
children), 4 and the increasing number of prostitutes in the country in the
1. The Constituent Assembly was a body of elected representatives whose purpose was to
draft the Constitution of India. The Assembly spent three years, beginning in December 1946, to
draft the Constitution. See AUSTIN GRANVILLE, THE INDIAN CONSTITUTION, CORNERSTONE OF A
NATION (1999).
2. The debate can be found at Constitutional Debates, INDIAN KANOON,
http://www.indiankanoon.org/doc/63062/.
3. See, GRANVILLE, supra note 1.
4. Ministry of Women and Child Development, Indian Country Report: To Prevent and
Combat Trafficking and Commercial Sexual Exploitation of Children and Women, 4 (2008),
available at http://www.unodc.org/pdf/india/publications/India%20Country%20Report.pdf. This
figure has sometimes been inflated by other organizations and correct estimates are difficult. For
instance, Human Rights Watch estimates the figure to reach around 15 million, as cited in Sudha
Rani, Prostitution: A Burning Issue in India Today, MERINEWS (Apr. 7, 2012),
http://www.merinews.com/article/prostitution-a-burning-issue-in-india-today/131963.shtml. Other
reviewers have cited a smaller number of prostitutes in India – ranging between 300,000 to 700,000:
see David Gisselquist & Mariette Correa, How Much Does Heterosexual Commercial Sex
Contribute to India’s HIV Epidemic?, 17 INT’L J. OF STD & AIDS 736 (2006).
http://ideaexchange.uakron.edu/akronlawreview/vol47/iss4/7 2
2015 DECRIMINALIZING PROSTITUTION IN INDIA 1073
last decade 5 shows a correlation between economic growth and

prostitution. 6 Sex workers 7 have been subject to disempowering laws
and coercive state institutions throughout post-independent India. 8
Issues related to gender, health, rights, and livelihood are at the heart of
debates surrounding sex work in India. It is, therefore, no wonder that
“emotive issues about which much has been written with more passion
than objectivity because they touch the core of our beliefs about
morality, justice, gender and human rights” 9 require a careful review.
At the global level, prostitution10 – labeled “the oldest profession in
the world” – is fraught with a tumultuous history. 11 Whether “actively
prohibited, tacitly condoned, formally regulated, or a combination of
these,” 12 prostitution remains a thriving industry regardless of its legal
status. Some estimates suggest that global trade in prostitution earns
revenue of $186 billion annually 13 with prostitution in India comprising
more than 8 percent of this figure. 14 Currently, many countries are
considering amending their legal approaches toward prostitution, not
only for the health and safety of the prostitutes and those who utilize
their services, but also to profit from the revenue generated by the
profession. 15
The different legal approaches to prostitution can be broadly
categorized into legalization, prohibition, and toleration. More than 100
countries have explicitly criminalized only some aspects of sex work. 16
5. Upasana Bhat, Prostitution ‘Increases’ in India, BBC NEWS DELHI (July 3, 2006 11:57
GMT), http://news.bbc.co.uk/2/hi/south_asia/5140526.stm.
6. As countries become increasingly industrialized, many women are pushed toward
prostitution. See, e.g., RUTH ROSEN, THE LOST SISTERHOOD, PROSTITUTION IN AMERICA, 1900-
1918 1 (1982).
7. Throughout the article, “prostitute” and “sex worker” are used interchangeably.
8. RAJESWARI SUNDER RAJAN, THE SCANDAL OF THE STATE: WOMEN, LAW AND
CITIZENSHIP IN POSTCOLONIAL INDIA 336 (Duke University Press 2003).
9. A. George, U. Vindhya & S. Ray, Sex Trafficking and Sex Work: Definitions, Debates
and Dynamics—A Review of Literature, 65 ECONOMIC AND POLITICAL WEEKLY 64 (2010).
10. Prostitution is generally defined as the exchange of money for sex. Eleanor M. Miller et
al., The United States, In Prostitution 300, 303 (Nanette J. Davis ed., 1993). See subsequent
paragraphs.
11. Jessica N. Drexler, Governments’ Role in Turning Tricks: The World’s Oldest Profession
in The Netherlands and the United States, 15 DICK. J. INT’L L. 201, 201 (1996).
12. INE VANWESENBEECK, PROSTITUTES’ WELL-BEING AND RISK 2 (1994).
13. See Sex Trade: Prostitution Facts and Prostitution Statistics, HAVOCSCOPE DATABASE,
available at http://www.havocscope.com/tag/prostitution/.
14. Sankar Sen & P.M. Nair, A Report on Trafficking in Women and Children in India 2002-
2003, NHRC-UNIFEM-ISS Project, Vol. 1, available at http://nhrc.nic.in/Documents/
ReportonTrafficking.pdf (2004).
15. Drexler supra note 11, at 201.
16. 2010 Global Report, Report on the Global AIDS Epidemic, 120-43, UNAIDS (2010),

Other countries, like the United States (except the state of Nevada), Iran,
China, Cuba, Vietnam, and South Africa, have outlawed it completely. 17
Legalization accepts the institution of prostitution and gives full legal
rights to sex workers, often accompanied by registration, licensing, and
compulsory medical check-ups. This is practiced in West Germany and
the state of Nevada in the United States.
An interesting legal approach to regulating the sex trade, practiced
in most Scandinavian countries, comes in the form of criminalizing the
purchase of sex but not the sale of it (hence clients are prosecuted and
not prostitutes). 18 This is popularly known as the “Swedish” model. 19
This approach has seen grave consequences for sex workers when
applied in other countries. 20 Other common legal responses cast the net
on anti-trafficking laws so wide that they capture elements of consensual
sex for money within their purview. 21 Many municipalities attempt to
thrust commercial sex into statutory categories of “public decency,”
“morality,” zoning/health regulations, and “nuisance” laws, thereby
http://www.unaids.org/documents/20101123_GlobalReport_Chap5_em.pdf; United Nations

General Assembly, Report of the Secretary-General – United to End AIDS: Achieving the Targets of
the 2011 Political Declaration, A/66/757, available at http://www.unaids.org/en/media/unaids/
contentassets/documents/document/2012/20120402_UNGA_A-66-757_en.pdf.
17. ProCon.org, 100 Countries and Their Prostitution Policies, (2009), available at
http://prostitution.procon.org/view.resource.php?resourceID=000772; For Vietnam see Asian
Pacific Resource and Research Centre for Women (ARROW), MGD 3 in Vietnam, available at
http://www.mdg5watch.org/index.php?option=com_content&view=article&id=96&Itemid=164
(201).
18. A. Gould, The Criminalisation of Buying Sex: The Politics of Prostitution in Sweden,
JOURNAL OF SOCIAL POLICY, Aug. 6, 2001, 30 & 437-57; Gunilla Ekberg, The Swedish Law That
Prohibits the Purchase of Sexual Services: Best Practices for Prevention of Prostitution and
Trafficking in Human Beings, VIOLENCE AGAINST WOMEN 1187, 1188 (Oct. 2004).
19. Gould, supra note 18, at 30 & 437-57.
20. See Don Kulick, Sex in the New Europe: The Criminalization of Clients and Swedish
Fear of Penetration, in ANTHROPOLOGICAL THEORY 199–218 (2003); see also Jay Levy, Impacts of
the Swedish Criminalisation of the Purchase of Sex on Sex Workers, Presentation at the British
Society of Criminology Annual Conference, Northumbria University (July 4, 2011), available at
http://cybersolidaires.typepad.com/files/jaylevy-impacts-of-swedish-criminalisation-on-
sexworkers.pdf; Susanne Dodillet & Petra Östergren, The Swedish Sex Purchase Act: Claimed
Success and Documented Effect, Presentation at Decriminalizing Prostitution and Beyond: Practical
Experiences and Challenges, The Hague (2011), available at http://www.plri.org/
sites/plri.org/files/Impact%20of%20Swedish%20law_0.pdf. Ann Jordan, The Swedish Law to
Criminalize Clients: A Failed Experiment in Social Engineering, Issue Paper 4 at Program on
Human Trafficking and Forced Labor, Center for Human Rights & Humanitarian Law, American
University, Washington College of Law (April 2004), http://rightswork.org/wp-
content/uploads/2012/04/Issue-Paper-4.pdf.
21. Lisa Diane Schreter, Mariellen Malloy Jewers & Stephan Sastrawidjaja, The Danger of
Conflating Trafficking and Sex Work, URBAN JUSTICE CENTER,
http://www.sexworkersproject.org/media-toolkit/downloads/20070330-
BriefingPaperOnConflationOfTraffickingAndSexWork.pdf.
giving wide latitude to policemen to coerce and harass sex workers in

the name of the law. 22 The United Nations Convention in 1949, to
which India is a signatory, condemned all forms of prostitution. 23
Around the world, the laws governing prostitution have been
drafted so that the institution of prostitution is de facto criminalized in
most countries. 24 Over the years, these laws have gained colossal
support from nineteenth century and subsequent feminist debates, which
have extensively argued that prostitution is morally undesirable and have
defined this profession as the most striking example of male dominance
over women. 25 More recently, this common understanding of
prostitution has been increasingly challenged, giving rise to both
national and international debates. 26 The feminist school of thought has
received severe criticism from the liberal contractarians, who have
argued for decriminalization and for prostitutes to be given same rights
as anyone engaged in any other work. 27 Some have also argued that
22. See Scott Burris, Cheryl Overs & Matthew Weait, Laws and Practices that Effectively
Criminalise People Living with HIV and Vulnerable to HIV (First Meeting of the Global
Commission on HIV and the Law, Working Paper, 2010).
23. As of 2009, ninety-five countries have ratified the Convention but ninety-seven have not.
24. The Washington Times reports that prostitution is legal in fifty percent of countries,
illegal in thirty-nine percent, and ‘limited legal’ in eleven percent (which includes India).
Worldwide Diversity, WASH. TIMES, http://www.washingtontimes.com/multimedia/
image/prostitutionjpg/.
25. Feminist views see prostitution as the quintessential form of male domination over
women. It is also referred to as essentialist perspective and in this perspective prostitution involves
not only specific acts of violence but is a form of violence by definition. Furthermore the following
studies have perceived “prostitution as violence against women.” KATHLEEN BARRY, THE
PROSTITUTION OF SEXUALITY (New York University Press 1995); KATHLEEN BARRY, FEMALE
SEXUAL SLAVERY (New York University Press 1979); ANDREA DWORKIN, LIFE AND DEATH (New
York Free Press 1991).
26. American laws define prostitution as an illegal activity, and it is pertinent to note that
there is no such state where prostitution is allowed as intended by liberal contractarians.
Decriminalization policies have just started entering the policy debates and call for
decriminalization to allow prostitutes to operate as any other independently licensed business.
These policies have acquired little public support across the globe. However, there exists some
legalized prostitution with government regulation. Germany has legalized prostitution with
mandatory health checks. Turkey licenses brothels but with huge restrictions. See A. SION
ABRAHAM, PROSTITUTION AND THE LAW (Faber and Faber Publications 1977); see also Yondorf
Barbara, Prostitution as a Legal Activity: The West German Experience, 5 POLICY ANALYSIS 427
(The Regents of the University of California 1979). (In 1999, the Netherlands legalized brothels
and further aims to control child prostitution and also guarantees cleaner and safe working
conditions for its thirty thousand prostitutes. In the Netherlands, the “vast majority” of workers in
brothels, clubs, and window units report that they “often or always feel safe.” It could be said that
the Netherlands is one of the countries that has come close to a decriminalized or quasi-
decriminalized form of prostitution.); see, A.L. Daalder, Lifting the Ban on Brothels, THE HAGUE:
NETHERLANDS MINISTRY OF JUSTICE (2004).
27. See Prabha Kotiswaran, Preparing for Civil Disobedience: Indian Sex-Workers and the

there is something “right” about prostitution, which the law violates by

criminalizing this activity. 28 The feminist school supporting
criminalization and the liberal contractarians seeking decriminalization
form the two extremes for the ongoing debate on the institution of
prostitution.
The remainder of this paper is divided into six parts. Part II
describes the history of prostitution in India and shows how the
skeletons of morality were reconstructed during colonial rule. It also
discusses the lack of strong evidence that prostitute women were treated
in the same deplorable way in ancient India as they are today. In Part
III, we explore the legal landscape in India concerning prostitution and
describe how, even though prostitution is not illegal per se, the
associated legislative and enforcement apparatus in India has, in effect,
rendered it criminal activity in the eyes of the law. Part IV discusses the
forms and players involved in exploitation, violence, and harassment
directed at sex workers. This behavior is the very tendency that our
proposal seeks to suppress. Part V forms the main body of the paper
where we systematically argue in favor of decriminalizing prostitution,
drawing our responses from (a) feminist theories, (b) contract theory and
economic rationales, (c) social norms perspective, (d) public health
view, and (e) game theoretic analysis. The discussion in Part VI helps
identify the mistaken importance given to viewing prostitution as an
institution. We contend that one of the reasons why prostitution is
criminalized, and, therefore, why it is viewed in such an unfavorable
light, is because of an illogical obsession with institutionalizing the
practice of prostitution, which, in reality, is an extremely heterogeneous
practice. Shedding the institutional view of prostitution is important to
appreciate the value of freedom and agency that decriminalization of
prostitution is expected to bring. Part VII offers our conclusions. 29
Law, 21 BOSTON COLLEGE THIRD WORLD L.J. 161, 163 (2001).

28. See LAURIE SHRAGE, MORAL DILEMMAS OF FEMINISM: PROSTITUTION, ADULTERY AND
ABORTION (New York Routledge Publications 1994); see also Martha C. Nussbaum, Whether from
Reason or Prejudice: Taking Money for Bodily Services, 27 J. LEGAL STUDIES 693, 702 (1998).
29. Three quick notes on the cosmetics of the paper. First, throughout the text, we use the
term prostitutes and sex workers interchangeably. This follows from our preference of recognizing
the agency of sex workers. Second, without diluting the importance of heterogeneity of sexuality
(male or transgender prostitutes), we will use the references of a “female sex worker” and a “male
client.” This is not only statistically more pronounced, but also helps lend an easier tone to the
argument, without risking the generality of our conclusions. Third, and perhaps most importantly,
we do not dwell on trafficking in this paper – a major oversight as some would say. This is not to
deny the associative tendency the two markets have, nor to ignore the implications of such
association, but this restricted view is taken for two reasons. Number one, an unalloyed view of
prostitution helps us analyze it in its insulated form, which could aid to a simplistic understanding of
II. HISTORICAL ANTECEDENTS OF PROSTITUTION IN INDIA

To locate the debate in contemporary context before considering
historical antecedents yields a foundationless narrative. The strength of
studying the historic roots of an activity lies in its power to deconstruct
the prevailing notions of moral perceptions regarding the activity
embedded in society. It dissolves the crystallized mode of thinking
about an event, person, or activity and supports alternative viewpoints
through a process of emotionless contextualization.
Even though a detailed formal account is difficult to lay hands on, 30
there is considerable evidence that sex workers in ancient India enjoyed
a high degree of agency – as evinced by significant efforts in the
direction of rediscovering the past from the narratives of colonial and
nationalist authors. 31 In fact, S.M. Edward’s writings on crime in India
show how surprisingly tolerant Indian society was toward prostitution. 32
In one of the passages, he says, “[I]t is hardly an exaggeration to say that
the great majority of India’s inhabitants, representing orthodox and
conservative opinion, still regard the profession, and those who follow it,
with tolerance, and sometimes even with respect and approval. . . . [It]
result[s] in social anachronisms, which strangers view with amazement
and are unable to understand.” 33 Indeed, ancient Indian epics like
Ramayana and Mahabharata (and even Buddhist scriptures like
Jatakas 34) contain several references to existing prostitutes who formed
guilds and had recourse to civil and domestic rights. 35
a complex practice and paves the way for further study in this area by adding layers that are more
complicated. We hope to see such an effort. Number two, there is no reason to believe that all sex
workers in India are trafficked. Indeed, we despise trafficking in all forms and recognize that there
are legislative tools in place to tackle it which need strengthening, but incorporating trafficking in
this detailed inquiry will make the project too ambitious.
30. Disparate sources include reports on crime in British India, travelogues of western
travelers and British feminists who had argued for abolishing prostitution, nationalists who sourced
‘commercial sex’ in India in British rule, or British officials who viewed prostitution as a result of
intense demand for a male progeny amongst Indian families. See S.N. SINHA & N.K. BASU, THE
HISTORY OF MARRIAGE AND PROSTITUTION 22 (Rita D. Sil ed., 1992).
31. For excellent post-colonial works in this regard, see Sumanta Banerjee, Marginalization
of Women’s Popular Culture in Nineteenth Century Bengal, in RECASTING WOMEN: ESSAYS IN
COLONIAL HISTORY 127 (Kumkum Sangari & Sudesh Vaid eds., 1989); Janaki Nair, From
Devadasi Reform to SITA: Reforming Sex Work in Mysore State, 1892–1937, 5 N.L.S.J. 82 (1993).
32. S.M. EDWARDES, CRIME IN INDIA: A BRIEF REVIEW OF THE MORE IMPORTANT
OFFENCES INCLUDED IN THE ANNUAL CRIMINAL RETURNS WITH CHAPTERS ON PROSTITUTION &
MISCELLANEOUS MATTERS 71 (1924).
33. Id.
34. SINHA & BASU, supra note 30, at 171-72.
35. Several authors have noticed this. See, e.g., Kotiswaran supra note 27, at 161. This
section is based on Kotiswaran’s work.

Gradually, prostitution came to be regulated, and prostitutes were

categorized into Kumbhadasi (a lower class of prostitute women who
would be housemaids and would sexually please the houselord),
Rupajiva (higher in the hierarchy, ranging from head housemaid to
professional dancers), and Ganikas (a high seat of honor attained
through beauty and intellectual attainment. Ganikas were versed in
several arts, educated, and held in high esteem by the King and other
‘appreciate people’). 36 References to Ganika help us understand the
legal and social position of prostitute women in ancient India: she was
treated like a government servant, was free to form associations,
received a fixed salary from the King, which was considerable (she,
therefore, transferred her proceeds from customers to the treasury), 37
was under charge of a Minister, and was provided for by the state in old
age, since she would not marry, even though her property would be
inherited by daughters or sisters. 38 There were rules for clients as well,
who were not allowed to ill-treat prostitute women and could not renege
on their payment. 39 Even though there were some rules that acted
against prostitute women (for instance, Ganikas could not purchase their
freedom from the profession because the price of doing so was too high)
and it is difficult to draw wide-ranging conclusions about their social
position, there is little doubt that their conditions were better than those
for sex workers now. 40
Social perception of prostitution, morality, and the conditions of the
trade shifted during the colonial period, as colonial discourse on
subalterns amply demonstrates this. 41 The British amazement regarding
the toleration of prostitution in India (which was considered an
36. SINHA & BASU, supra note 30, at 196-97. Note that in South India, a different institution
of prostitution was in place, with prostitute women called devadasis. The tradition was to dedicate
many beautiful young girls to the deity who were considered to be married to Gods. They would do
temple chores, perform rituals, and dance and sing every day to please Gods. Several accounts also
suggest that their appeasement to Gods was a proxy for pleasing temple priests, even sexually. This
system exists even today and many girls from villages labeled such are trafficked to red-light
districts as well. For a historical overview, see K.C. TARACHAND, DEVADASI CUSTOM (1991). For
an earlier study, see generally S. Anandhi, Representing Delladasis :’Dasigal Mosallalai’ as a
Radical Text, 26 ECONOMIC AND POLITICAL WEEKLY 739 (1991) (reviewing MOOVALUR R.
AMMAIYAR, DASIGAL MASAVALAI ALLATHU MATHI PETRA MINOR: THE TREACHEROUS NET OF
DEVADASIS OR THE MINOR BROWN WISE (1936)).
37. SINHA & BASU, supra note 30, at 207 (mentioning this in Kautilya’s Arthashastra,).
38. Id. at 200 (citing in Prabha Kotiswaran).
39. Id.
40. Id.
41. One can infer subalterns to be oppositely situated against elites or dominants. See Edward
W. Said, Foreword to SELECTED SUBALTERN STUDIES v–vi (Ranajit Guha & Gayatri Chakravorty
Spivak eds., 1988).
occupation just like blacksmithing and carpentry) 42 emerged from their

own conception of how appallingly prostitute women lived and how
degrading their profession was considered to be in Britain. 43 Instead of
attempting to understand the structure of prostitution in India, the British
exploited prostitute women to satisfy the “natural sexual desires” of the
British troops. 44 In order to gain access to women’s bodies, however,
they had to push forth the colonial project of superiority of their race,
made possible by denigration of Indian prostitutes. 45 This required
institutionalization of prostitution through the machinery of the state,
and it was achieved by sponsoring and opening several state-run
brothels, particularly in the Cantonment areas where they were called
chaklas. 46 In the chaklas, prostitute women were treated as though
incarcerated; they were physically and sexually abused by soldiers,
fined, imprisoned, and starved. 47 Public perception is usually
determined by what one experiences or observes. Once the risks
(physical and mental) associated with prostitution as a profession
increased, society developed an aversion to it.
Denigrating prostitutes through the Contagious Disease Act in
1868, gave the British sweeping control of Indian minds to invoke
morality with respect to women’s sexuality. 48 The legislation gave
powers to the state to identify and register prostitutes in the region and
examine them for venereal diseases. 49 It led to arrests, compulsory and
42. SINHA & BASU, supra note 30, at 203.

43. Id.
44. Id.
45. Id. at 204 (citing M. Jacqui Alexander from Redrafting Morality: The Postcolonial State
and the Sexual Offenses Bill of Trinidad and Tobago, to emphasize that attempts to moralize
sexuality were offshoots of colonial and authoritative projects that the British engaged in, in several
countries).
46. ELIZABETH W. ANDREW, THE QUEEN’S DAUGHTERS IN INDIA 15 (1899). There were
also many government orders that reflected state-sponsored trafficking in India during the time. For
instance, an 1886 order of the Commander-in-Chief of British Army stated, “in the regimental
bazaars it is necessary to have a sufficient number of women, to take care that they are sufficiently
attractive, to provide them with proper houses, and, above all, to insist upon means of ablution
being always available.” Id. at 42; see also Mridula Ramanna, Control and Resistance: The
Working of the Contagious Diseases Acts in Bombay City, ECONOMIC AND POLITICAL WEEKLY
1470, 1475 (2000).
47. ANDREW, supra note 46, at 34-42.
48. One of the most illustrative accounts of prostitution in India and regulations thereof
(including the Contagious Diseases Act, 1864), narrated through personal visits and interviews in
India during late nineteenth century across ten cities of British India is recorded in The Queens
Daughter in India. ANDREW, supra note 46.
49. The Contagious Diseases Act was a controversial enactment of Victorian England, both
at home and overseas. It met with great resistance even in England and was also one of the first
legislative acts to attract open confrontation of women and men at a political level, where women

humiliating checks, and forced confinement of “native” prostitutes until

“cured” in locked hospitals for months in a row. 50 Even though the Act
was repealed in 1888 in India due to increasing resistance to it in many
English colonies, 51 it left two indelible impressions that scar the face of
women’s rights in India even today. Firstly, it created and reinforced the
consciousness of prostitution as an abhorrent profession in the Indian
social and political fabric through sustained identification and portraying
practices as degraded against Indian prostitute women. 52 Secondly, it
left executive remnants on the Indian Penal Code and local police
legislation. 53 Both lay the foundation for criminality of prostitution that
was seeded in both social psychology and legal instruments. By treating
certain acts of prostitute women as criminal, the Contagious Disease Act
was a precursor to the collective conscious that marked everything to do
with prostitution – except the act of sex – as criminal. 54 It was then that
the urban legal space began to distinguish between cantonment areas and
non-cantonment areas, and red light districts, which never existed before
colonization, developed in Indian cities. 55 Interestingly, the nationalists
– in their eagerness to resist the British – wrongly developed the same
British sense of moral superiority, and many of them – educated in
Victorian England – colluded with the British in degrading their own
women. 56 Colonial experience, therefore, gradually subverted the old
social designs of prostitution in India and replaced them with different
informal and formal regimes that were reinforced even after the
independence of India from Britain. 57
actively campaigned for their rights in the West. See JUDITH R. WALKOWITZ, PROSTITUTION AND
VICTORIAN SOCIETY: WOMEN, CLASS, AND THE STATE (Cambridge University Press 1982).
51. For an analysis of gender relevant legislative changes in Muslim and non-Muslim
countries, see Varsha Chitnis & Danaya Wright, Gender Relevant Legislative Changes In Muslim
and Non-Muslim Countries: The Legacy of Colonialism: Law and Women’s Rights In India, 64
WASH & LEE L. REV. 1315 (2007).
52. Ramanna, supra note 46, at 1470-76.
54. Id. at 216.
55. Id.
56. SINHA & BASU, supra note 30, at 201. Kotiswaran cites Chatterjee to mention that this
anxiety compelled nationalists to find spheres where Indians could show their superiority over
British generally. Since material and public spheres displayed greatness of British culture and
civilization, the only recourse they thought they had was in the realm of private and spiritual.
English-educated Indian men carved out a binary role for women, inspired by Victorian England,
where the ‘new woman’ would exhibit manners of the private sphere and ‘bad woman’ would be
devoid of moral superior sense, coarse, vulgar sexually promiscuous and expressive of their
sexuality. Id. at 215-16.
III. INDIAN LEGAL LANDSCAPE ON PROSTITUTION

Inspired by the colonial institutions, it was natural for the Indian
state to have a deprecatory view of prostitution as a starting point.58
However, the debates in the Constituent Assembly invoked at the
beginning of the article reflect the understanding of the practical
situation of prostitution in India. 59 Nevertheless, the general distaste for
the profession resulted in classifying the ancient, legalized institution as
criminal activity. Soon after independence, India became a signatory to
the UN International Convention for the Suppression of Traffic in
Persons and of the Exploitation of Women, New York, 1950.60 This led
to the enactment of the Suppression of Immoral Traffic in Women and
Girls Act, 1956 (SITA). 61 The Act had a tolerant approach toward
prostitution 62 yet clearly showed signs of lawmakers grudgingly
accepting prostitution as a necessary social evil. The Act underwent an
amendment in 1978 and then, due to changing scenarios and debates in
the international context, was further amended in 1986, entitled to the
Immoral Traffic in Persons Prevention Act, 1986 (“ITPA”). 63
The ITPA is only a cosmetic surgery over SITA. The change in the
58. However, compare the debates in the Constituent Assembly of India, which discussed the
possibility of leaving the subject to the provincial level. Regardless, the prevailing perception at the
principle level was that of contempt towards the profession of sex work.
59. See GRANVILLE, supra note 1.
60. Ministry of Women and Child Development, Government of India and UN Office on
Drugs and Crime, India Country Report, 4, (2007), available at http://www.unodc.org/pdf/i
ndia/publications/India%20Country%20Report.pdf.
61. See the Law Commission of India’s Sixty-Fourth Report on the Suppression of Immoral
Traffic in Women and Girls, 1856, 1975, available at http://lawcommissionofindia.nic.in/51-
100/Report64.pdf. The Report maps a historical background and describes the scope of the Act in
detail.
62. In State v. Gaya, AIR 1960 BOM 289, the Bombay High Court examined the provisions
of SITA. The High Court laid down that the object of enacting SITA was the suppression of
immoral traffic in women and girls. Furthermore the court also observed that the Act was passed in
pursuance of the International Convention signed at New York and was never intended that the
women or girls used for such traffic should be liable to punishment. See RE RATNAMALA AND
ANOTHER, AIR 1962 MAD 31, in this case the Madras High Court held that the purpose of the
SITA was to abolish commercialized vice, namely, the traffic in women and girls for the purpose of
prostitution as an organized means of living. The idea was not to render prostitution per se a
criminal offence or to punish a woman merely because she prostitutes herself. The court further
examined the last part of the definition of “brothel” in Section 2(a) of the Act, to demonstrate that
prostitution per se was legal. Accordingly, a single woman who practices prostitution for her own
livelihood, without another prostitute, or some other person being involved in the maintenance of
such premises, her residence will not amount to “brothel”; See also Gaurav Jain vs. Union of India,
AIR 1997 SC 3021, Justice K. Ramaswamy held that the “women found in the flesh trade, should
be viewed more as victims of adverse socio-economic conditions rather than as offenders in our
society.”
63. Ministry of Women and Child Development, supra note 60.

title and scope signifies two important aspects, namely (a) the drive to
‘suppress’ traffic has been replaced by the need to “prevent” it and (b)
the words “Women and Girls” have been replaced by the term
“Persons,” recognizing that individuals of both sexes, including eunuchs,
are trafficked in for prostitution. 64 Nonetheless, the substantial aspect of
the Act, the criminalized view of prostitution, remains. While the act of
prostitution per se is not criminal, 65 every other act associated with
prostitution is criminal. Specifically, it prohibits anyone from
maintaining a brothel 66 and living off the earnings of a prostitute. 67
Procuring or inducing 68 and detaining 69 a woman for prostitution are
criminal activities, as well. There is a geographical restriction, as the
activity cannot take place in a public place or a notified area, 70 in
addition a ban on soliciting or seduction for prostitution. 71 In fact,
Section 8, which deals with soliciting, is hugely criticized by activists. 72
Like its previous avatar, SITA, there is no punishment for the client of
the prostitute. 73 A contentious clause, which violates the fundamental
right to privacy, 74 vests power in the Magistrate to order removal of a
prostitute from any place within his jurisdiction if s/he deems it
necessary. 75
64. JEAN D’CUNHA, LEGALIZATION OF PROSTITUTION: A SOCIOLOGICAL INQUIRY INTO THE

LAWS RELATING TO PROSTITUTION IN INDIA AND THE WEST (Workmakers 1991).
65. Section 2 (f) of the Immoral Traffic (Prevention) Act defines the term “prostitution” as
“the sexual exploitation or abuse of persons for commercial purposes and the expression ‘Prostitute’
shall be construed accordingly.” Thus, the definition itself makes prostitution illegal as any kind of
exploitation or abuse of any persons for a commercial purpose. THE IMMORAL TRAFFIC
(PREVENTION) ACT, 1986. available at http://www.childlineindia.org.in/CP-CR-
Downloads/Immoral%20Traffic%20Prevention%20act%201956.pdf.
66. Id. at § 3.
67. Id. at § 4.
68. Id.
69. Id. at § 6.
70. Id. at § 7.
71. Id. at § 8. In the judgment of Kerala High Court in T. Jacob v. State of Kerala, AIR 1971
KER 166, the court held that the prostitution in itself was no offence except in the manner covered
under Sections 7 and 8. Section 8 of the act makes outward manifestation of women in sex work
such as ‘soliciting and seducing for the purpose of prostitution’ illegal.
72. Rohini Sahni, V. Kalyan Shankar & Hemant Apte, Prostitution and Beyond, An Analysis
of Sex Work in India, SAGE PUBLICATIONS: NEW DELHI 90 (2008) (citing Harshad Barde,
(Mis)reading through the lines).
74. In Maharashtra v. Madhukar Narain Mardikar, AIR 1991 SC 207, the Court held that
right to privacy is paramount and Section 20 cannot be misused against women of easy virtue. But
in practice, private residences of sex workers are frequently raided by corrupt police officers. See
Sahni et al., supra note 72, at 90.
75. THE IMMORAL TRAFFIC (PREVENTION) ACT, supra note 65, at § 20.
Therefore, even though a strictly legal understanding of the relevant

statutes leads us to believe that prostitution in India is legal per se, this is
a misleading thought. While a consensual exchange of sex for money is
not criminal, everything associated with the activity is illegal. Since the
activity itself cannot be insulated from other transactions that will come
along with it, it is impossible to engage consensual sex for money
without attracting criminality. The travesty of the written law in India in
general, and of ITPA in particular, is that it has resulted in wide disparity
between how law is crafted and how it is followed in practice. In effect,
prostitution attracts the same treatment of sex workers as it would if it
were deemed illegal. The state’s entire enforcement apparatus exploits
sex workers, pushing them underground just as any other illegal activity.
This generates middlemen who negotiate the trade with state agencies
and, in turn, feed on sex workers’ earnings. 76
A close reading of the ITPA enables us to observe how the law has
effectively rendered prostitution a criminal activity. The ITPA defines
prostitution as “the sexual exploitation or abuse of persons for
commercial purposes . . .” 77 Hence, by its very definition, since any
kind of exploitation or abuse is illegal, prostitution becomes illegal.78
More importantly, restricting prostitution to sexual exploitation and
abuse keeps “prostitution by choice” and “forced prostitution” outside
the criminal space. 79 Since anti-trafficking laws handle “forced
prostitution,” the law remains silent on “prostitution by choice.” Public
perception and popular imagination fill the vacuum of indeterminacy in
this regard, which only reinforces the unfavorable mental constructs of
prostitution in India.
At statutory levels, this is captured through local legislation and
discretionary arrests premised on public morality and criminality drawn
from other associative acts, rendering “prostitution by choice” a legally
infeasible alternative. 80 The ITPA is only one of the legislative tools
invoked in cases of prostitution by enforcement officials, and a range of
vaguely worded laws is more frequently used in convicting sex workers.
76. We discuss this in detail in sections that follow.

77. THE IMMORAL TRAFFIC (PREVENTION) ACT, supra note 65, at § 2(f).
78. Indian Constitution, Article 23, offers a right against exploitation.
79. Id.
80. For laws against trafficking, see THE INDIAN PENAL CODE, 1860,
http://mha.nic.in/sites/upload_files/mha/files/pdf/IPC1860.pdf. Laws against trafficking include
section 365, 366A, 366B, 367, 370-374; see also ITPA; see also D’cunha, Too Much Heat, Not
Enough Light-Our Experiences with Sex Workers in Karnataka, 87 MEMORANDUM FROM THE
NATIONAL LAW SCHOOL OF INDIA UNIVERSITY TO THE SECOND ALL-INDIA COMMUNITY-BASED
LAW REFORM COMPETITION 62-65 (1993).

The Indian Penal Code 1860 itself has provisions for trafficking and
slavery of women and children. 81 It also has several clauses that deal
with offenses that restrict sex workers. 82 For instance, Section 268
(Chapter XIV) deals with offenses related to public health, safety,
convenience, decency, morals, and public nuisance. 83 These are
vaguely designed laws that empower police against sex workers when
the former want to exploit or extort money from the sex workers. 84
Sections 269 and 270 deal with spreading of infectious disease, which
brings a sex worker under its purview if she could have transferred a
sexually transmitted disease. 85 In addition, there are many state-level
police laws and municipal laws and statutes related to beggary, railways,
public decency, health, and nuisance that are used more often than the
ITPA to harass the sex workers. 86 Therefore, without any deliberation or
strategic operation, the legal enforcement apparatus has discovered
many ways in which it is able to exercise discretion in methods of
policing sex workers.
IV. VIOLENCE AGAINST SEX WORKERS IN INDIA

This section shows that the ill-conceived legal framework described
above has given rise to (a) the middlemen and brothel owners in this
trade, called pimps (we will use the term “pimp” to denote brothel
owners as well) and (b) corrupt police officers. Both of these players
impose heavy violence on sex workers, and we contend that, by
decriminalizing prostitution, we would essentially eliminate these two
players from the market. At multiple levels, this is exactly what is
needed.
The above section demonstrates that, although prostitution is not
81. See THE INDIAN PENAL CODE, 1860, supra note 80.
82. See Sahni, supra note 72 (citing Manoj Wad and Sharayu Jadhav from The Legal
Framework of Prostitution in India).
83. See THE INDIAN PENAL CODE, 1860, supra note 80.
84. See Sahni, supra note 72 (citing Puja Yadav from Ground Realities of the Legal
Framework). The author shows how police uses its discretionary powers to incarcerate sex
workers, even without invoking ITPA. In our own interviews with NGOs that work in the area, we
realize that police does not necessarily need specific provisions of ITPA to indict sex workers. The
vague provisions of TPA grant sufficient leeway to the state enforcement authority to exercise their
extortion.
85. Id. Note that this resonates with the Contagious Disease Act 1868 and has colonial
imprint in practice.
86. See D’cunha, supra note 80. The study noted that in Mumbai (then Bombay), the police
prefer to use local legislations like Bombay Act 1951 (one of the sections penalizes indecent
behavior in public), under which rate of conviction is much higher. In Bangalore, police tend to act
upon Railway Act or Police Act, rather than ITPA.
illegal per se, evidence shows that sex workers are highly vulnerable due
to the existing legal framework and that they face unbearable levels of
harassment by state (police) and private individuals (clients and
pimps). 87 There is little doubt that clients of sex workers repeatedly
abuse them during, and even outside of, their sexual engagements. 88
Street-level prostitution particularly attracts high risk of violence. 89
Police extortion is an equal threat and sometimes a worse one. 90 The
number of prostitute women arrested is disproportionately greater than
the number of pimps, procurers, and brothel keepers arrested under the
same laws, while the penalties imposed on prostitutes were far greater
than those imposed on brothel keepers or pimps. 91 This discriminatory
treatment of those whom the law seeks to “rehabilitate” stems from
collusion between police and pimps who use the law’s design to brutally
exploit sex workers.
Unlike the ITPA, municipal laws and provisions in the Indian Penal
Code are institutionally thin: they give discretion to the police to adopt a
detailed procedure for conviction, obviating the need for stringently and
scrupulously following ITPA trial procedure and resulting in violent
police action. This is also the reason why the number of convictions of
street prostitutes is perceived as higher than those of brothel keepers,
pimps, and traffickers. 92 Even when the police want to use the ITPA,
usually lack of proof and existing loopholes make it difficult to convict
the pimps. 93 Over time, it makes more sense for police to collude with
the brothel owners. This collusion is only part of the nexus of brothel
keepers, politicians, and police who protect brothel keepers from the
clutches of the law. Police corruption is common, but an interesting
political factor is that the red light areas are considered important vote
banks by politicians, who receive many favors from brothels during
87. Id.
88. M. Barnard, Violence and Vulnerability: Conditions of Work for Street Working
Prostitutes, 15 SOCIOLOGY OF HEALTH AND ILLNESS 683-705 (1993). See J. Miller & M. D.
Schwartz, Rape Myths and Violence Against Street Prostitutes, DEVIANT BEHAVIOR 16 (1995); see
also Indian Sex Workers Learn Karate, BBC NEWS (June 9, 2009),
http://news.bbc.co.uk/2/hi/8093946.stm.
89. Barnard, supra note 88.
90. See D’Cunha, supra note 80; see also See Human Rights Watch, Epidemic Of Abuse:
Police Harassment of HIV/AIDS Outreach Workers in India (2002), available at
http://www.refworld.org/docid/3d4fc51f4.html; see also Jean D’Cunha, The Legalization of
Prostitution: A Sociological Inquiry into the Laws Relating to Prostitution in India and the West 43,
55 (1991), (hereinafter D’Cunha, The Legalization of Prostitution).
91. D’Cunha, The Legalization of Prostitution, supra note 90.
92. Id. at 123.
93. D’Cunha, supra note 80, at 60.

political campaigns. 94 When elected, the politician has incentive to

ensure that brothel keepers are given sufficient latitude in running their
shows, and that, when it comes to prosecution, only the sex workers are
caught. They are released upon payment of hefty bribe by pimps and
brothel owners who need the prostitutes back. This payment is recovered
from the sex workers, exacerbating their financial burden. Sex worker
vulnerability is also high because they lack a voice in the cacophony of
socially degrading perceptions that they have acquired in the
contemporary context. They are forced to give favors to police and also
to bribe them. Section 15 of the ITPA allows the police to conduct raids
on brothels without a warrant based on the mere belief that an offense
under the ITPA is being committed on the premises. 95 This primarily
harasses the sex workers, since brothel keepers are usually not in the
brothels. 96 Overall, police harassment exacerbates the poor working
environment of prostitutes. 97
Some studies have attempted to map the exploitation of sex workers
by police in India empirically. Puja Yadav, based on her research
fieldwork with sex workers in Pune, notes that police visit the red light
area of the town three times each day and take ten to twelve sex workers
to the police station every day, 98 misusing the powers vested in them
(whether a girl is soliciting or not could hardly be ascertained by an
objective eye, and police use their naked discretion in this regard).99
The brothel manager begins negotiations when police can agree to free
the girls if paid, where “the sum could begin at Rs. 300 and go up to Rs.
2000.” 100 101 In real, terms, adjusted for inflation, this range is
approximately equivalent to nine to sixty-two U.S. dollars. If freed, this
amount is recovered from sex workers’ earnings. If negotiations fail, the
girls are taken by the police and produced in court the next day, where
they are fined Rs. 50-100 ($1.50-$3.00) per person and released, having
an additional lawyer’s fee of Rs. 100. All this is usually paid by the sex
94. D’Cunha, supra note 80, at 197 (citing Kotiswaran).

95. The Suppression of Immoral Traffic In Women and Girls Act, 1956, reprinted in B.R.
BEOTRA, THE SUPPRESSION OF IMMORAL TRAFFIC IN WOMEN AND GIRLS ACT 1956, 101-10
(Devinder Singh ed., 1981).
96. D’Cunha, supra note 80.
97. See R. Debabrata, When Police Act as Pimps: Glimpses into Child Prostitution in India,
105 MANUSHI 27-31 (1998).
98. They usually catch good-looking girls whose demand in the market would be higher and
hence they would be able to extort more money for her release. See Sahni, supra note 72, at 84
(citing Puja Yadav).
99. Sahni, supra note 72, at 229.
100. Id.
101. Id.
workers themselves. 102 In addition, every brothel pays a monthly fee to

the police station under the jurisdiction of which the brothel falls. 103 In
Pune, this ranges from Rs. 2000 to Rs. 5000 ($62.00-$155.00), and the
amount is again extracted from the sex workers as monthly payment. 104
Due to multiple layers of law enforcement agencies with
confusingly overlapping roles, the story does not end here. The raids in
Pune by the Commissioner’s Office, Social Security Section, and Crime
Branch appropriate around Rs. 30,000 to Rs. 50,000 ($620-$1550) to
dilute the seriousness of the crime, which is usually keeping minors.
Although these minors are rescued and sent to remand homes, they
return to brothels eventually, but that is a separate inquiry. 105 In Surat’s
red light area, over a period of three months in 2003, police arrested 547
women and extorted Rs. 1000 to Rs. 1500 per sex worker by threatening
imprisonment, without informing them of the relevant laws under which
they were being convicted. 106 The court also showed disturbing signs of
insensitivity when it upheld the corrupt actions of police. 107 One’s
morality disapproval of prostitution is shaken when such incidences of
police brutality are seen, and it is hard not to feel compassion for
prostitutes. The state cannot provide them with adequate living
conditions and livelihood opportunities, and, when they resort to sex
work, the state penalizes them, further adding to their woes. State
agencies have an attitude that is despicable to say the least. An
investigation of police complicity, ordered in 1997 by the National
Commission for Women revealed that the number of cases against police
complicity coming to the courts was very low, even when empirical
studies showed the opposite. 108 Perhaps the low record of cases against
police is itself an indicator of complicity. 109 Little doubt remains then
102. Id.
103. It has been noted that police officers pay a handsome bribe to be transferred to the police
station that covers a red light district since it becomes a significant source of earnings for the
policemen. Id. at 230.
104. Id.
105. Id.
106. Id. at 225-26 (citing Harshad Barde).
107. Sahyog Mahila Mandal & Another v. State of Gujarat & Others, Special Civil
Application No. 15195 and No. 4594 (Gujarat H.C.) (2003).
108. Sahni, supra note 72, at 223 (citing Zara Kaushik from Legal Interpretations of
Prostitution).
109. Nirmala Rani v. State of Tamil Nadu, 2003 Cri. LJ. 3108, was one of the cases filed
against police complicity with a brothel-owner, in forcing two girls into prostitution. Soon after
filing the case, a false case was registered against the petitioner by the police. The petitioner
suffered serious mental agony by constant threat calls from the police. See Sahni, supra note 72, at
92 (citing Zara Kaushik).

that police extortion depraves sex work.

A player studied less often is the pimp, whose violent means of
subduing a sex worker have only recently begun to attract the attention
of scholars in the area. 110 Hence, to understand another layer of the
pervasive negative impact of criminalizing prostitution on sex workers,
it is important to examine the institution of procurers (as they are
formally called ) or pimps (as they are informally called, usually males –
females are called madams). 111 Pimps are the agents for street
prostitutes or brothel keepers/owners. Even though there is a rise in
independent prostitution around the world in the age of
telecommunication, 112 research indicates that pimps’ services are
frequently utilized by prostitutes, usually out of necessity. 113 It has been
estimated that ninety percent of global prostitution is pimp controlled. 114
Pimps are the villainous entrepreneurs of the sex trade, who are involved
in trafficking as well. They are the link between the client and the sex
worker. They solicit clients, and they ensure payment. They are
necessary middlemen who run the affairs of the sex worker, who (a) is
disenfranchised both economically and socially, (b) runs the risk of
getting clients who are violent or may not pay after the services, and (c)
is politically weak in cases of prosecution and abuse.
For their own service of facilitating the trade, pimps take part of
prostitutes’ earnings. Pimps use threats, intimidation, and violent tactics
to control prostitutes.115 In fact, pimps’ behavior, in the form of
enforced social isolation, threats, intimidation, ownership attitudes, and
110. See, e.g., D’Cunha The Legalization of Prostitution, supra note 90 (citing Giobbe); C.
Williamson, Entrance, Maintenance, and Exit: The Socio-Economic Influences and Cumulative
Burdens of Female Street Prostitution, Dissertation Abstracts International 61(02), UMI No.
9962789, (2000).
111. A pimp is someone who manages street-level prostitutes, and here, they also mean
brothel-keepers. Pimps are actively involved in promoting the prostitution of others and benefiting
materially from that association. See Ronald Weitzer, New Directions in Research on Prostitution,
43 CRIME, LAW & SOCIAL CHANGE 22 (2005).
112. See, e.g., Gardiner Harris, Cellphone Reshape Prostitution in India, and Complicate
Efforts to Prevent AIDS, N.Y. TIMES (Nov. 24, 2012), http://www.nytimes.com/2012/
11/25/world/asia/indian-prostitutes-new-autonomy-imperils-aids-fight.html?pagewanted=all&_r=0.
113. Williamson, supra note 111. Giobbe notes in a study that 53 percent of prostitutes started
with a pimp and 80 percent admit to have become involved with pimps over time. See D’Cunha,
The Legalization of Prostitution, supra note 90 (citing Giobbe).
114. See BARRY, THE PROSTITUTION OF SEXUALITY supra note 5; see also D’Cunha, The
Legalization of Prostitution, supra note 90 (citing Giobbe).
115. See A. BROMFIELD & D. JUAN, FROM PIMP STICK TO PULPIT (New York Vantage 1994);
see also, I. SLIM, PIMP: THE STORY OF MY LIFE (Holloway House 1969). For a study that touches
the subject, see Female Juvenile Prostitution: Problem and Response, National Center for Missing
and Exploited Children, Arlington, VA (1992).
physical violence, is extremely similar to that of the common batterer.116

Outlawing prostitution discourages sex workers from reporting abuse by
clients to the police, for fear of self-incrimination. This increases their
motivation to seek protection from a pimp, who has muscle power
against abusive clients and influential connections in the police stations
to protect sex workers.
A study by Eileen Mcleod reveals that a complex relationship exists
between a prostitute and her pimp. 117 While literature does mention the
ability of pimps to satisfy the emotional and psychological “wants” of
sex workers, 118 pimps are able to maintain their supremacy largely
through physical violence and financial control. 119 For young and
juvenile prostitutes, pimps have been known to extort most of their
earnings with the constant threat of violence against their prostitutes. 120
They create a system whereby prostitutes’ sustenance relies entirely on
obeying the pimp who provides them with everything and abuses them
for disobeying. 121
Pimps, therefore, emerge in the market because the law facilitates a
disproportionately disenfranchising status for prostitutes. In the absence
of state protection, and, in fact, in the presence of state coercion, the
market provides alternative mechanisms for protection of its players.
Pimps emerge in the market for sex. Yet, even though pimps supposedly
offer protection, empirical studies have shown that pimp-controlled
prostitutes are more likely to be victims of client violence and have extra
pressure to make money, thereby increasing their health risk. 122 Clients
who have special relationships with pimps (politicians, policemen, or
116. E. Giobbe, A Comparison of Pimps and Batterers, 1(1) MICHIGAN JOURNAL OF GENDER
AND LAW 33-57 (1993).
117. Prostitutes often relate to their pounces as boyfriends, cohabitees, or husbands, ‘simply
sharing the proceeds of prostitution on egalitarian basis.’ EILEEN MCLEOD, WOMEN WORKING:
PROSTITUTION NOW 177 (Croom & Helm 1982).
118. BROMFIELD & JUAN, supra note 115. Also, read how the bond between sex workers and
their pimps could be emotionally exploited by pimps in Nicholas Kristof’s The Pimps’ Slaves, N.Y.
TIMES (Mar. 16, 2008), http://www.nytimes.com/2008/03/16/opinion/16kristof.html.
Williamson, supra note 110, mentions, “Women take abuses from pimps in stride. They learn to
cope with this relationship by not focusing on the abusive aspects for what they are but by instead
encapsulating those aspects of their pimp that serve their needs for security and protection.
Therefore, a pimp-prostitute relationship often lacks cognitive and behavioral consistency.”
119. Celia Williamson & Terry Cluse-Tolar, Pimp-Controlled Prostitution Still an Integral
Part of Street Life, VIOLENCE AGAINST WOMEN 1074-92 (Sep. 8, 2002); see also United States v.
Pipkins, 378 F.3d 1281 (11th Cir. 2004).
120. Williamson & Cluse-Tolar, supra note 1119, at 29.
121. Williamson & Cluse-Tolar, supra note 1119, at 4.
122. Maureen Norton-Hawk, A Comparison of Pimp-and Non-Pimp-Controlled Women,
VIOLENCE AGAINST WOMEN 189-94 (Feb. 10, 2004).

frequent visitors) may abuse sex workers without fear of reprisal. Pimps
treat sex workers as their property, which is temporarily offered to
pimps’ customers, who may treat the object any way they like and who,
with sufficient payment, will never be checked for violent tendencies.
Escaping a pimp’s control is extremely difficult both physically and
mentally. 123 Not only there is tight control over the physical movement
of prostitutes whose whereabouts are known, a psychological barrier
blocks a woman’s escape: she has been indoctrinated with a belief that
she is acceptable only in this profession, resulting in mental resignation
to her ill-fate. Once escaped, it will be difficult for her to find another
living in a society where stigmas of history, caste, and professions are
starkly posed.
Even though the preceding description is general, this situation is
no less dismal in the Indian context. Empirical studies have insightful
descriptions to offer. A general estimate in Pune’s red light district is
that a sex worker gets only fifty percent of her total earnings and the
remainder goes to the brothel keeper. 124 Other studies have shown that a
sex worker is able to retain an even smaller portion of her earnings.
Gangoli estimates (through an assumption of 20,000 sex workers in
Kolkata charging Rs. 100 on an average in 2001) a daily turnover of Rs.
2 million ($86,000), of which only a small part goes to sex workers
themselves, while most goes to recruiters, middlemen, agents, pimps,
brothel keepers, live-in partners, liquor sellers, and the police. 125 Sex
workers are also dependent on the brothel owner/keeper and/or pimp
because they owe them a debt (prostitutes often take loans from pimps
and brothel owners). 126 In fact, criminalizing prostitution has pushed sex
workers outside the reach of the formal market of credit and bank loans,
forcing them to approach the pimps to secure their expenses. 127 The
pimps charge exorbitant interest rates, thus depleting their income
further. Prostitutes, therefore, in a way, sell their future off to the pimps.
We build our analysis in the light of the exploitation that sex
123. For an extensive review and conceptual frameworks, see Lynda M. Baker, Rochelle L.
Dalla & Celia Williamson, Exiting Prostitution: An Integrated Model, 16 VIOLENCE AGAINST
WOMEN 579 (2010).
124. Rohini Sahni & Shankar V. Kalyan, Markets, Histories and Grass-Root Evidences:
Economics of Sex Work in India, in PROSTITUTION AND BEYOND, AN ANALYSIS OF SEX WORK IN
INDIA 187 (2008) [hereinafter Sahni & Kalyan, Economics of Sex Work].
125. Geetanjali Gangoli, Prostitution as Livelihood: Work or Crime (2001), available at
http://www.anthrobase.com/Txt/G/Gangoli_G_01.htm.
126. Sahni & Kalyan, Economics of Sex Work, supra note 124, at 189.
127. But see, India Sex Workers Get Life Cover, BBC NEWS (May 1, 2008),
http://news.bbc.co.uk/2/hi/south_asia/7376762.stm. These instances are few, and, mostly, the
financial matters of sex workers are handled by cooperatives that their collectives build in time.
workers face. In the remainder of this article, we will show how

decriminalizing prostitution in India will knock out violence against sex
workers by clients, police, and pimps. Exploring diverse perspectives,
we build our arguments in favor of decriminalizing prostitution by
proceeding through contract theory, feminist theory, the social norms
perspective, the public health view, and the game theory framework. In
all these discursive discourses, we arrive at the same conclusion:
decriminalizing prostitution helps sex workers by enhancing their rights
and allowing them to live without fear of violence.
V. WHY DECRIMINALIZE PROSTITUTION?
A. Feminist Theory Perspective

Two self-proclaimed feminist groups dominate the debates on
prostitution: the radical and the liberal.128 The radical, anti-
prostitution 129 feminists (also called neo-abolitionists) derive their logic
from (a) the poverty-driven forced nature of the occupation that leads to
exploitation and (b) prostitution’s characteristic of reinforcing male
dominance over women. 130 The logic is indeed compelling. If we
assume that there is violence and exploitation in prostitution, then even
the consent of a prostitute should not matter because it defies the basic
human rights principle that violation of one’s rights cannot be consented
to, and therefore, the consent is not free. 131 Indeed, women with the
fewest choices available resort to prostitution, 132 and there is no doubt
that prostitution is characterized by violence against sex workers. 133 As
128. There are many forms of feminism, but five in particular have especially opined on the
issues of prostitution: In The Sexual Contract, Marxism, which recognizes prostitution as a form of
wage labor, is therefore a specific expression of prostitution of labor. The thoughts of Simone de
Beauvoir and encapsulated most illustratively in the words of Pateman, “The man may think he
‘has’ her, but his sexual possession is an illusion; it is she who has him . . . she will not be ‘taken,’
since she is being paid.” See ALISON M. JAGGAR, APPLICATIONS OF FEMINIST LEGAL THEORY TO
WOMEN’S LIVES 191 (1983). Also, socialists, who view prostitution more rooted in sociological
and psychological designs rather than economic ones like Marxists’, are considered radical and
liberal.
129. Scholarly literature that supports abolishing prostitution can be extensively explored in
several seminal works of Kathleen Barry, Julie Bindel, Catherine MacKinnon, Laura Lederer,
Melissa Farley, and Sheila Jeffreys.
130. Id.
131. See BARRY, THE PROSTITUTION OF SEXUALITY, supra note 5.
132. Catherine Mackinnon, Prostitution and Civil Rights, 1 MICHIGAN JOURNAL OF GENDER
AND LAW 13 (1993).
133. In an extensive survey conducted in 2003, Farley et al. found that almost three-quarters of
prostitutes have been physically assaulted, two-thirds have been raped, and around ninety percent of
them wished to leave the trade but could not due to lack of adequate financial means. See Melissa

a “harmful cultural practice,” 134 prostitution has been rightly considered

an activity that involves significant exploitation, both psychological and
physical. 135 The exercise is also a symbol of males’ dominance over
women in our patriarchal system. The sex worker, whose sexual
pleasures are irrelevant, is reduced to a mere instrument to fulfill the
sexual desires of her client, at great psychological effort on her part. In a
way, one can view prostitution as slavery – perhaps given the extent to
which prostitution attracts trafficking – this is an apt description. 136
Liberal feminist groups (sometimes called neo-regulationists)
challenge such views and argue that women may make the independent
decision to engage in prostitution and that their choice must be
respected. 137 According to their scholarship, there is a need to recognize
that engaging in sex for money may not necessarily be repressive and
efforts to abolish this trade only worsen the exploitative tendency of the
market. 138 The notions of sexuality, they say, are outdated and hinge on
a construction of sexuality that is a product of patriarchy, 139 and there is
a need to remove the parallax from the view that prostitution is a large
monolith of women’s exploitation. Rather, an alternative understanding
looks at elements that make sex for money abusive to women.
Prostitution, therefore, liberal groups maintain, is consensual sex for
money, and anything non-consensual should be deemed criminal. One
must focus not on prostitution as an institution in itself but observe it
under the bigger lens of sociological practices, which emanate from
existing laws and manifestations of misogyny. Therefore, for them, the
Farley, Ann Cotton, Jacqueline Lynne, Sybille Zumbeck, Frida Spiwak, Maria E. Reyes, Dinorah
Alvarez & Ufuk Sezgin, Prostitution and Trafficking in Nine Countries: Update on Violence and
Post-Traumatic Stress Disorder, 2 JOURNAL OF TRAUMA PRACTICE 33 (2003); see also Melissa
Farley, Jacqueline Lynne & Ann Cotton, Prostitution in Vancouver: Violence and Colonization of
First Nations Women, TRANSCULTURAL PSYCHIATRY 242 (2005) (authors show striking
resemblance between prostitution and battery).
134. Sheila Jeffreys, Prostitution as a Harmful Cultural Practice, in NOT FOR SALE:
FEMINISTS RESISTING PROSTITUTION AND PORNOGRAPHY 386 (2004).
135. Id.
136. Laura Lederer ,Human Trafficking and the Law, Speech at the Library of Congress
(May1, 2001) (discussing the speech at http://www.loc.gov/loc/lcib/0106/legal_eagles.html).
137. Many times, radical feminists fail to acknowledge experiences of women who are
themselves engaged in sex work, for it is highly possible that it was their own choice. See, e.g. JILL
NAGLE, WHORES AND OTHER FEMINISTS 21 (Routledge New York 2001).
138. The liberal feminists contend that trafficking is different from prostitution, where the
former is coerced (and therefore need to be criminally dealt with) but the latter may not necessarily
be forced and based on women’s use of their bodies as labour. See Penelope Saunders, Traffic
Violations: Determining the Meaning of Violence in Sexual Trafficking Versus Sex Work, 20
JOURNAL OF INTERPERSONAL VIOLENCE 343, 346 (2005).
139. See, e.g., JULIA O’CONNELL DAVIDSON, PROSTITUTION, POWER AND FREEDOM 127
(Polity Press Cambridge 1998).
right approach is the rights-based approach. If self-determination is a

pivot of feminist politics, then decriminalization will enable sex workers
to engage in their work, just like any other employment. Instead of
abolishing sex work, society needs to check the unsafe working
environment for sex workers. Criminalizing prostitution does more harm
because it increases their chances of being exploited. 140
There is value in the view of neo-abolitionists, but the incomplete
picture painted by their viewpoints will lead us to overlook how over
verbalized and overemphasized their arguments are, which are suggested
to have been informed by misguiding statistics. 141 The problem, as we
have indicated above, is that radical feminists assume that prostitution is
an institution in itself and each constitutive element of the institution
reflects the moral stature that they themselves construct from
androcentric notions. Sweeping and simplistic statements used to define
sex workers’ oppressed lives are insensitive to the ‘agency’ of the
women. 142 Social and legal dynamics that include a myriad of
connotations (like economically disenfranchised women performing an
activity for their livelihood, termed illegal by the state thereby attracting
violence against them by men who have been raised in patriarchal set
ups) cannot be reduced to sexual oppression alone. In fact, the problem
is not prostitution as an institution, but as several institutions that have
mushroomed around women who engage in sex for money, due to the
social and legal status of their work. Shaping our abstract understanding
of prostitution as a singular institution with consistent structures and
regimes tends to knock out differentiable, varied experiences and a
heterogeneous view of sex work. Such sweeping generalizations run the
risk of suggesting experiences that may not exist or corrupting those that
do. Prostitution, in fact, should be viewed in a larger sociological and
economic context. The attempt, therefore, should not be to look at
prostitution but to observe what kind of institutions create an unsafe
working environment for the prostitutes and complicate their choice to
earn a livelihood with psychological and physical coercion.
Both camps agree that the women involved in sex work need rights
and that the exploitative conditions prevalent in the trade should cease,
140. See, e.g., NORMA JEAN ALMODOVAR, FROM COP TO CALL GIRL (Simon & Schuster
1993) (which poignantly mentions, how she turned into a call girl after serving the Los Angeles
Police Department because she wanted to make a statement about the moral hypocrisy of our
society, which included police officers extorting money from sex workers.)
141. See, e.g., GAIL PHETERSON, THE PROSTITUTION PRISM 30-36 (Amsterdam University
Press 1996).
142. Several scholarly works have noted the absence of agency in radicals’ viewpoints. For a
literature survey, see George et al., supra note 9, at 67.

yet neo-abolitionists may be too hasty in supporting the criminalization

of prostitution. If we assume that women can have agency and choice
(certainly a valid assumption), we know that what remains is to ensure
that the agency is respected. Jayasree’s extensive reports on the
experiences of sex workers in India suggest that sex workers do not
accept victimization or criminalization as an option and indeed have
agency. 143 It is important for sex workers to be viewed as active human
agents, who are fighting to gain control of their lives, 144 while the
illegality of their profession threatens such control. Radicals worry
about compelled choice and male domination resulting in exploitation of
sex workers. Alternatively, if institutions are developed that safeguard
women’s agency, then both radical and liberal feminists may come
together to construct a better environment for all types of work,
including sex work.
Decriminalization of sex work will help rationalize the
apprehensions of radical feminists. Let us shed the normative attire for a
moment and look at the two strongest arguments of radicals from a
positive standpoint. Firstly, the choice to engage in prostitution is
always a forced one because of economically disenfranchised women.
Assuming that this is true, this is also the case for the majority of
developing countries’ workers who toil in hazardous industries or for
child laborers and beggars. They would not do it if they had a choice,
but, given the state of the world, society is unable to provide them with
alternative choices. We know that hunger is the strongest economic
impetus. Prohibiting an act of livelihood without making alternative
choices available will simply push the act underground, 145 where legal
recourse for those who want to exit or exercise alternative choices later
in time will be absent (not to mention the adverse consequences of
hunger and depravation). There will be an information asymmetry, and
a whole apparatus of informal economy will begin operating, luring
associated illegal activity, including trafficking. 146 Instead of offering
more choices, prohibition of an activity that has substantial demand and
supply due to financial compulsions will introduce difficulties for
established workers and increase the likelihood of exploitation. 147 Note
143. A K Jayasree, Searching for Justice for Body and Self in a Coercive Environment: Sex
Work in Kerala, India, REPRODUCTIVE HEALTH MATTERS 58 (Dec. 23, 2004).
144. Smarajit Jana, Nandinee Bandyopadhyay, Mrinal Kanti Dutta & Amitrajit Saha, Gender,
Trafficking, and Slavery: A Tale of Two Cities: Shifting the Paradigm of Anti-Trafficking
Programmes, GENDER AND DEVELOPMENT 69-79 (Oct. 1, 2002).
145. This argument was made during the Constituent Assembly debates as well. Supra note 1.
146. Weitzer supra note 111, at 27.
147. Neil Howard & Mumtaz Lalani, Editorial Introduction: The Politics of Human
that no legitimate exit is possible without first facing the penalty for
exercising that choice; therefore, sex workers who want to break free are
deterred from exiting. Hence, until society finds “acceptable”
alternatives, it is more heinous to prohibit people from exercising
“unacceptable” alternatives that help them live.
The second argument of radicals rests on the brutal exploitation of
women involved in prostitution. Let us deconstruct the exploiters here.
When an activity heavily driven by economics is prohibited, it gives rise
to informal institutional responses. In the case of prostitution, an entire
body of pimps, corrupt police officers, and abusive clients emerges.
Legal prohibition generates a wide range of illegal entrepreneurs. As
shown above, studies have noted that violence against prostitutes is
committed not only by clients, but also by pimps and police officers. 148
Note that pimps and police officers can exploit sex workers only when
their profession is banned by the law. In fact, going a step further, in a
legal environment, the oppressed have a louder voice than in an illegal
environment. A sex worker can invoke her legal rights if her clients are
abusive, while, if her act is itself illegal, she will have to resort to other
players in the market, who contribute to her further exploitation. Hence,
if gender-based violence and women’s human rights are in question,
then, even if decriminalization lacks potential to marry both radicals’
and liberals’ views, it will definitely bring them together in securing
rights for sex workers.
B. View from Contract Theory

Prostitution must be understood within a complex context, which
has two important dimensions: (a) structural aspects rooted in gender
relations that cause prostitution in most societies and (b) institutional
aspects resulting from certain state policies, adopted at particular
historical junctures, that exacerbate the phenomenon. Therefore,
prostitution and its various forms cannot be understood as originating
solely from the contradictions of a moral system. 149 It has a definitive
economic base, which interacts with and is intrinsically related to the
rest of the economic system, making it a crucial part of the labor
transformation process. The degree of interaction between prostitution
and the economy determines the extent to which vested interests become
Trafficking, ST. ANTONY’S INTERNATIONAL REVIEW 5-15 (Apr. 1, 2008).

148. BARRY, THE PROSTITUTION OF SEXUALITY, supra note 5.
149. Martha C. Nussbaum, Whether from Reason Or Prejudice: Taking Money for Bodily
Services, 27 J. LEGAL STUD. 693 (Jan. 1998).

entrenched and consolidated within the system. 150 It also determines the
extent of challenge facing policy makers who intend to address the
problems within, 151 whether or not institutionalized. In this context,
policies aimed at transforming the situation must be primarily geared
towards restructuring socio-economic conditions – work conditions of
women and men in general and prostitutes in particular – tackling vested
interest in the sex industry and rethinking our patriarchal value
system. 152 In a commodity-oriented social system, prostitution is
considered very lucrative; the “merchandise” involved is physical
intimacy with women. 153
Contracts against the law are void. 154 The Indian Contract Act of
1872 prohibits agreements to offer sexual services, and hence the
corresponding sales contract entered into by the prostitute is void by law.
The court will, therefore, reject any claim brought by the prostitute and
also report the illegal deal to the police. The prostitutes, therefore, have
a twofold incentive refrain from suing a client who is violent or has
reneged on his promise to pay. They have no chance to recover any loss
from breach of contract; in fact, they might be punished under criminal
law in the first place. Therefore, in India, prostitutes have no recourse
under the law.
If prostitution is decriminalized, it is likely that sex workers and
their collectives will effectuate self-governance of their profession, thus
pushing pimps outside the market. Prostitutes could implicitly contract,
and, if enforced, prostitutes who were tortured by pimps or forced into
acts by their clients or pimps would have the same legal recourse as any
individual whose rights have been violated. Unionization of prostitutes
against police harassment and provisions of welfare measures for
prostitutes and their children would become possible. 155
Contract theory sheds light on how the previously unseen sexual
transaction suddenly become visible, eschewing the possibility of
violence, which occurs when the transaction is held underground. The
intellectual inauguration of twentieth century contract doctrine is
150. D’Cunha Legalization of Prostitution, supra note 90, at 13.

151. Truong Than-Dam, The Dynamics Of Sex Tourism: The Case Of South East Asia 14
DEVELOPMENT AND CHANGE (1985).
153. Kathleen Barry, Charlotte Bunch & Shirley Castle, eds., International Feminism;
Networking Against Female Sexual Slavery, REPORT OF THE GLOBAL FEMINIST WORKSHOP TO
ORGANIZE AGAINST TRAFFIC IN WOMEN (Apr. 6-15, 1932).
154. For instance, an agreement to offer sexual services will violate section 23 of the Indian
Contract Act, 1872, which renders agreements against public policy void.
sometimes credited to Fuller’s 1936 article, ‘The Reliance Interest in

Contract Damages,’ 156 which awards contract damages for expectation,
reliance, and restitution and explains why damages bring corrective and
distributive justice. This view, echoed in many scholarly writings, 157
allows parties to understand that reliance and restitution are the
normative goals of damages. Hence, even informal transactions invoke
the moral sense of distributive justice. When an activity is
decriminalized, it can embrace these conceptions even if there is no need
of a third party (court) to enforce it. Sex workers can themselves claim
reliance damages when the implicit contract of safe sex for money is
breached. Even the economic theory of contract 158 that focuses on
efficiency provides similar results as contract law’s goal of efficiency
dispels fear that sex workers’ rights will be subjugated. The theory’s
unflinching faith that voluntary transactions move resources to their
most valuable uses develops a social structure, which gives ample
importance to freedom of contract. 159 This freedom is badly needed by
sex workers, and it is in realizing this freedom that the need for pimps
(and police) is eliminated. This necessarily requires state agencies to
move in their support, something achieved through first decriminalizing
their profession.
The centrality of reliance and restitution encourages the normative
foundation for contractual liability to lie in a sense of obligation. This
has been theoretically developed in the rich work of Patrick Atiyah. 160
Obligation invokes a sense of performance in both sex workers and their
clients. As a corollary, it also invokes the sense of not performing
activities not covered in the contract, thereby restricting clients’ use of
violence. If contractual obligations are justiciable, sex workers can
156. LL Fuller & William R Perdue, The Reliance Interest in Contract Damages, 46 YALE
L.J. 52 (1936). Of course there were previous telling works on contracts in common law,
particularly by Pollock, Holmes, Langdell, Willistone, Ames, Holdsworth, Salmond, and Leake,
illustrated in Samuel Williston’s Selected Readings on the Law of Contracts (Macmillan 1931). But
most of the works of these authors were not theoretically sound unlike Fuller’s. Also, even though
Fuller’s article was co-authored by his research assistant, William Perdue, Jr., scholars take Fuller to
be the writer of its theoretical parts.
157. See Anthony Kronman, Contract Law and Distributive Justice, 89 YALE L.J. 472 (1980).
158. The inception of economic approach could be credited to publication of A. Kronman &
R. Posner, The Economics of Contract Law, 80 COLUMBIA L. REV. 867-77 (May 1980).
159. See, e.g., F.H. BUCKLEY, THE FALL AND RISE OF FREEDOM OF CONTRACT (Duke
University Press 1999).
160. See Patrick Atiyah, Contracts, Promises, and the Law of Obligations, 94 LAW Q.R. 193
(1978), reprinted with revisions and additions in P. ATIYAH, ESSAYS ON CONTRACT 10-56 (Oxford
Clarendon Press 1986) & P. ATIYAH, PROMISES, MORALS, AND LAW (Oxford Clarendon Press
1981).

move the court to demand that their contractual partners not harass their
rights. Alternatively, they may demand recognition of their rights to
claim contractual obligations, which would specify that trade be
conducted without harassment. Decriminalization enables sex workers
to move the court when a harmful action that is not criminal is
committed in breach of a contract. Because there is an element of
morality in such cases, Charles Fried’s celebrated “contract as promise”
approach, 161 further supports the idea of decriminalizing prostitution by
enabling contracts, which are normally seen as promises. Fried’s work
employs Kantian moral autonomy principles and solidifies the contract
as promissory obligation. In relationship contracts, this theory assumes
special importance and, therefore, is apt for prostitutes’ repeat clientele.
However, a close reading of Fried’s work calls for rejection of the
doctrine of consideration, which is central to common law jurisdiction.
This gap (and others) can be filled by adopting tenets of Craswell’s
influential work, 162 which emphasizes the importance of incorporating
into contract law the substantive values of distributive justice and
efficiency and those of Barnett’s work, 163 who opined that an autonomy-
based approach links contractual obligation with a rights-based analysis
of contracts as the voluntary transfer of entitlements (rather than with
moral duty to keep one’s promises). The latter study builds a strong case
for developing a rights-based contract framework in prostitution. Its
decriminalizing will aid the development of such informed judgment.
Even the prevailing dichotomy between major strands of contract theory
– autonomy and economic approach – could be married using a
pluralistic conception of contracts, as espoused by Gordley 164 (and to
some extent by Trebilcock 165), who plants the theoretical roots of
contract theory in an Aristotelian soil of liberality, commutative justice,
and distributive justice. Such a conception helps carve out a social order
that is more respectful of contract rights for any activity that is not
criminal in nature, since illegal activity is nonjusticiable. Note that there
is no specific need to draft an explicitly written contract, but the fact that
the activity is not illegal will notify players in the trade that any
transaction will adhere to the same principles as any written contract.
161. C. FRIED, CONTRACT AS PROMISE: A THEORY OF CONTRACTUAL OBLIGATION (1981).

162. Richard Craswell, Contract Law, Default Rules, and the Philosophy of Promising, 88
MICH. L. REV. 489 (1989).
163. Randy Barnett, A Consent Theory of Contract, 86 COL. L. REV. 269, 285-86 (1986).
164. JAMES GORDLEY, THE PHILOSOPHICAL ORIGINS OF MODERN CONTRACT DOCTRINE
(Oxford Clarendon Press 1991).
165. MICHAEL J. TREBILCOCK, THE LIMITS OF FREEDOM OF CONTRACT (Harvard University
Press 1993).
The state may not necessarily provide enforcement, but the action of sex
workers in case of non-performance (or violence during the contractual
performance) could be easily ascertained ex ante. To avoid the
repercussions of not paying sex workers’ fees, committing violence, or
forcing them to provide unprotected sex, the client is expected to respect
the rights of the sex worker.
The ability to bind clients in contract also disposes of the need for
pimps in the transaction. Once the basic tenets of contract theory are
realized in practice, the sex worker will be able to transact with clients
on her own. Decriminalization will realize this possibility, and clients
will be deterred from committing violence because they are bound by
contractual duty to practice safe sex with the sex worker. Finally, the
police will stop harassing sex workers because they are not engaging in a
criminal activity. This will not happen at once. It is not our aim to
compel such a notion. Gradual change, however, will be triggered by
changing the law. The first step to realize this social order is to
decriminalize prostitution.
One theoretical construction of a “prostitution contract” is found in
Carole Pateman’s celebrated work, Sexual Contract. 166 Pateman opines
that the sexual contract is constructed from the mastery subjection dyad
manifesting in dominance and subordination, thus establishing
patriarchy and the male sex-right, the right of individual men to
command individual women, both in labor and sex. This expansive idea
is reflected in Pateman’s unified view of modern society as contractual
patriarchies. In our view, however, such blanket universalization
actually weakens her argument, for painting all late-capitalist contractual
relationships as master-subject relationships would be myopic,
particularly when cultural contest and historical change are powerful
forces that define the inherent complexity of the terms. 167 Nevertheless,
prostitution, when criminalized, takes on Pateman’s particular
formulation. In a world where prostitution is criminal, the contract itself
is invalid, and the gaps between dominance and subordination become
visible. The law does not come to the rescue but rather leaves the social
order (or rather, disorder) to prevail unabated, exacerbating the gender
divide and master-slave dynamics between men who buy services of the
sex workers not through contract but through their superior bargaining
power in the social order. The decriminalization of prostitution could
166. CAROLE PATEMAN, THE SEXUAL CONTRACT (Stanford University Press 1990).
167. See, e.g., Nancy Fraser, Beyond the Master/Subject Model: Reflections on Carole
Pateman’s Sexual Contract, 37 SOCIAL TEXT 173-81 (1993).

usher in this much generalized state of sexual contract decriminalization.

When contractualized, prostitution, as a transaction of simultaneous
exchange (unlike marriage or employment contracts which have some
elements of master/subject dyad but happen over time), need not pivot
on the sex worker’s dependence on the client. In fact, this transaction
will be governed by prior negotiations over specific “services,” 168 giving
sufficient power to sex workers to bargain over the scope of their
services. Like a dancer at a party or in a movie, specifying what bodily
services are offered becomes feasible when such offers are not criminal.
These contracts will implicitly foreclose on the possibility of violence or
explicitly forbid it. Once such contracts assume a standard form or
template, the harassment of sex workers will decline significantly.
From an economic perspective, such a move makes perfect sense
because it enables sex workers to keep their earnings. They may still
require pimps’ services for securing a place to offer their services and
perhaps for soliciting clients, but they will not be forced to tie
themselves to the same pimp. Decriminalization will create the
framework for an exit procedure. The contract between pimp and
prostitute will be like any other wage contract, stipulating financial and
other conditions. Prostitutes will be able to sue pimps if the latter renege
on their contractual obligations and will also have freedom to request a
different pimp’s services at any point. While this may generate
competition for pimps, sex workers’ share of the revenues will increase.
In addition, harassment from police officers and law enforcement
agencies will quickly subside. Realizing cultural change requires time
(see section below), but police actions currently authorized by law will
cease. A solidarity movement of sex workers’ collectives will be able to
reclaim their rights, only this time, backed by law. This will increase sex
workers’ earnings, and they could hope to exit the profession entirely at
a later point, sending their children to better schools and generally
increasing quality of life.
C. The Social Norms Perspective
1. Stereotypes as Bodies of Social Norms

Prostitution as a transaction involves at least two people. In the
most basic sense, one is the service provider, the female, who charges a
fee to the other, who is male. However, unlike most other transactions
168. Id.
in the service industry, prostitution is characterized by the manner in

which the two parties are differentiated not only by society but also by
the parties themselves. 169 Society has many names for women who
engage in prostitution – whores, sluts, disposable trash – and these
names invite us to single out these individuals for ridicule and scorn. 170
These norms have been crystallized in regulations that declare
prostitution illegal. These regulations outlaw such transactions, and,
when the transactions occur outside the purview of the law, the
difference between the players’ bargaining power is exacerbated.
Tong maintains that the “law’s desire to punish bad girls has often
been moderated by its wish to save nice boys from harm, inconvenience,
or embarrassment.” 171 This stereotype prevails not only among
particular classes, but also among the judicial elements of society, which
we believe to be imparting judgment with the utmost rectitude and
evenness. Even transmission of sexual diseases is attributed largely to
prostitutes. 172 Most importantly, even judges are not immune to failure
of perception. For instance, Kandel shows that, in the Boston Municipal
Court, criminal sentences imposed on prostitutes were based mainly on
the defendant’s sexual history rather than the crime. 173 The male clients,
however, were released without even proper interrogation; in fact,
sometimes they would not even appear in the courtroom. 174
India presents an even worse picture. India, unlike England and the
United States, does not have sentencing guidelines, which gives huge
discretion to judges, thereby making sentencing a judge-centric
approach. This is glaringly visible in rape sentencing. Mrinal Satish’s
research demonstrates that, in instances where a rape victim is a sex
worker, the defendant usually receives a far lesser sentence than if the
raped woman was “modest.” 175 Even though the Indian Evidence Act
was amended in 2003 to prohibit impeachment of the rape victim’s
testimony based on her sexual history, the infamous “two finger test,”
which acts as proxy for assessing the sexual history of the victim,
169. Julie Lefler, Shining the Spotlight on Johns: Moving Toward Equal Treatment of Male
Customers and Female Prostitutes, 10 HASTINGS WOMEN’S L.J. 11 (1999).
171. ROSE MARIE TONG, WOMEN, SEX AND THE LAW 39 (1984).
172. See Ann M. Lucas, Race, Class, Gender and Deviancy: The Criminalization of
Prostitution, 10 BERKELEY WOMEN’S L.J. 47, 59 (1995); see also Minouche Kandel, Whores in
Court: Judicial Processing of Prostitutes in Boston Municipal Court in 1990, 4 YALE JOURNAL OF
LAW AND FEMINISM 329, 342 (1992).
173. Kandel, supra note 172, at 330.
174. Kandel, supra note 172, at 333.
175. Mrinal Satish, The Role of the Victim in the Indian Criminal, in SUPPORT FOR VICTIMS OF
CRIME IN ASIA (Chan Wing Cheong ed., 2007).

permits stereotypes to continue and focuses on the marital status of the

victim and the presence of bodily injuries.176 In all these cases, courts
reinforce existing stereotypes and disempower sex workers at multiple
levels. These antiquated stereotypes fossilized in social norms emerged
from several baseless sources, like the widely held belief that
prostitution is a deviant sexual act, symbolizing a female’s criminal
potential, 177 the traditional (Victorian) myth that male sexuality is a
natural drive but female sexuality hardly exists and thus is against the
laws of nature, 178 or the fact that prostitution, interpreted as
independence, symbolizes a threat to existing structures of patriarchy. 179
The illogical nature of these stereotype sources leads us to believe that
the crooked system has assumed its shape in favor of males. Social
norms dictate the attitude society assumes towards an activity, and it is
necessary to recognize the importance of these norms in forming the
normative judgments of a society.
2. Diluting Stereotypes Through Law

The question that emerges is, if the social norm of treating sex
workers as “fallen” women is deeply ingrained in society, how can
decriminalizing prostitution change people’s attitudes towards sex
workers. This needs detailed analysis, which mainly hinges on an
expressive theory of law. Many theorists have claimed that law has an
expressive function in addition to a sanctioning function. 180 The
expressive theory argues that courts play an important role in expression
of social values. 181 Social values, as manifested in social norms, 182 arise
176. , Dignity on Trial: India’s Need for Sound Standards of Conducting and Interpreting
Examinations of Rape Survivors, HUMAN RIGHTS WATCH (2010), http:// www.hrw.org.
177. Lucas, supra at 172.
178. ROSEN, supra note 6.
179. Lucas, supra note 172.
180. See, e.g., Cass R. Sunstein, On the Expressive Function of Law, 144 U. PA. L. REV. 2021,
2022 (1996); Lawrence Lessig, Social Meaning and Social Norms, 144 U. PA. L. REV. 2181, 2183
(1996); see also Jason Mazzone, When Courts Speak: Social Capital and Law’s Expressive
Function, 49 SYRACUSE L. REV. 1039 (1999).
181. H. L. A. Hart, in Punishment and Responsibility (Oxford University Press 1968), argues
that altering behavior is one of the uses of criminal law. See also H.L.A. HART, THE CONCEPT OF
LAW 38-39 (Oxford 1961), where he says, “There are many techniques by which society may be
controlled, but the characteristic technique of the criminal law is to designate by rules certain types
of behavior as standards for the guidance either of the members of society as a whole or of special
classes within it False Only when the law is broken, and this primary function of the law fails, are
officials concerned to identify the fact of breach and impose the threatened sanctions.” See also
DAVID GARLAND, PUNISHMENT IN MODERN SOCIETY: A STUDY IN SOCIAL THEORY (1993), where
the author suggests that Durkheim believed expression of social values is the most important
function of law.
from in multiple sources. 183 Law functions to coordinate these sources

by creating a focal point and discovering a new equilibrium. 184
Sometimes, instead of merely discovering the equilibrium, law can
create it. In doing so, law attempts to change social norms without
changing social values, making focal point creation the first expressive
use of law. 185 Law can also change individual preferences by expressing
new values for rational people to adopt, if such an adoption conveys an
advantage to them, thus making alteration of individual values the
second expressive use of the law. 186
Legal entrepreneurship 187 creates internal, as well as external,
motivation to follow the law. The internal element emerges from
individual enforcement, where people simply choose to follow the law,
as social psychology literature indicates. 188 Moralists themselves have
long noted that sanctions for wrongdoing create incentives for self-
improvement. 189 By corollary, law’s expressive function incentivizes
people to internalize the dictated norm. Once the law creates a focal
point of coordination for various confused subjects, secondary
enforcement becomes possible. Parties can attempt reprisals and provide
legitimacy for self-help mechanisms earned through solidarity. If, as a
doctor, I know that the law punishes honking a car horn near a hospital, I
will be able to put up a sign outside my clinic asking people not to honk,
lest they invite prosecution. The final level of enforcement comes from
182. Social norms, as generally understood by social scientists, mean ‘average behavior’.
Norm lends a sense of regularity, defined by philosophers as what people ought to do. In this sense,
norm could be understood as obligation. See GEORG HENRIK VON WRIGHT, NORM AND ACTION
(1963).
183. See JACK HIRSHLEIFER, ECONOMIC BEHAVIOR IN ADVERSITY (1987); JACK
HIRSHLEIFER, EVOLUTIONARY MODELS IN ECONOMICS AND LAW: COOPERATION VERSUS
CONFLICT STRATEGIES (1980); see also Jack Hirshleifer & Juan Carlos Martinez Coll, What
Strategies Can Support the Evolutionary Emergence of Cooperation?, The Dark Side of the Force:
Economic Foundations of Conflict Theory 32 J. CONFLICT RESOL. 367 (2001).
184. See Richard H. McAdams, A Focal Point Theory of Expressive Law, 86 VA. L. REV. 1649
(2000); see also Richard McAdams, The Expressive Power of Adjudication, 5 U. ILL. L. REV. 1043,
1047 (2005); Richard McAdams, The Origin, Development and Regulation of Norms, 96 MICH. L.
REV. 338, 362 (1997).
185. Robert Cooter, Expressive Law and Economics, 27 JOURNAL OF LEGAL STUDIES 586
(1998); see also Robert Cooter, Do Good Laws Make Good Citizens? An Economic Analysis of
Internalized Norms, 86 VA. L. REV. 1577 (2000).
186. Cooter, Expressive Law and Economics, supra note 185.
187. Cass Sunstein defines norm entrepreneur as law maker, referred to here as a legal
entrepreneur. See Cass Sunstein, Social Norms and Social Roles, 96 COLUM. L. REV. 903, 909
(1996).
188. Tom R. Tyler, Why People Obey the Law, as cited in Cooter, Expressive Law and
Economics, supra note 185.
189. Cooter, Expressive Law and Economics, supra note 185.

enforcing the legal institution and sanctioning enforcement agencies that

fail to perform their duties. Hence, policemen who do not follow
requirements could be penalized upon complaint. Three levels of
enforcement, therefore, ensure compliance as long as at least one level is
working fine.
3. Bridging the Gap Between New Law and Old Norms

A challenging view comes from social response theories, which
contend that new law may meet with resistance if it departs too visibly
from established social values.190 Such reactions have the potential to
weaken the effect of legal intervention to the extent that it is inconsistent
with society’s moral, ethical, or cultural values. Legal innovation may
thus result in backlash if “sticky” social norms are eroded.191 Gradual
movement of legal institutions and piecemeal legal intervention,
however, could be the key 192 (hence our recommendation for
decriminalizing and not legalizing prostitution at this juncture).
In the context of Indian prostitution, however, the possibility of
social resistance may be overstated, perhaps for two reasons. Firstly,
relevant literature suggests that people may not necessarily reveal their
true preferences. 193 This means that, even though people may prefer a
certain design of a social function, they may not express it, fearing the
repercussions of nonconformity with the “perceived” social preference.
If the majority believes that its preferred design is inconsistent with
social preference, the perceived social preference will actually become
the real preference, a self-fulfilling prophecy. In a situation like this, the
law’s responsibility to create coordinating focal points assumes a far
greater importance. Prostitution is perceived to be inconsistent with the
social values that Indian society claims to cherish, yet, just between
190. Weber mentioned the normative basis of public reactions to authority (Max Weber,
ECONOMY AND SOCIETY: AN OUTLINE OF INTERPRETIVE SOCIOLOGY (G. Roth & C. Wittich eds.,
1978). For more formal treatment, see Jason Sunshine & Tom R. Tyler, The Role of Procedural
Justice and Legitimacy in Shaping Public Support for Policing, 37 LAW & SOC’Y REV. 513, 524
(2003) (an extension of the research from Tom Tyler, supra note 188). Also, in Tyler’s Why People
Obey the Law, he showed how the public’s perception of the illegitimacy of laws undermines
compliance with the law and police orders.
191. Dan Kahan, Gentle Nudges vs. Hard Shoves: Solving the Sticky Norms Problem, 67 U.
CHI. L. REV. 607 (2000).
192. See Emanuela Carbonara, Parisi Francesco & Georg Von Wangenheim, Lawmakers as
Norm Entrepreneurs, REV. OF LAW & ECON. 779 (2008).
193. See TIMUR KURAN, PRIVATE TRUTHS, PUBLIC LIES: THE SOCIAL CONSEQUENCES OF
PREFERENCE FALSIFICATION (Harvard University Press 1995).
1997 and 2004, the number of prostitutes increased by fifty percent.194

Calling for the abolition of an activity so actively utilized exhibits the
hypocrisy eroding the social sanction of sex work. More importantly,
the social sanction has evolved over time, and there is no reason to
believe that the perceived preference is unchangeable. The historical
account of prostitution in India clearly indicates the disparity between
the social functions pre-colonization and post-independence. The
religious and moral connotations suffer from distorted meanings, and it
has been shown how the British reconfigured the frameworks of thought
and experience in India. 195 There is no historical precedent indicating
that Indians need to subscribe to the issue of prostitution, nor is there one
in historical ethic.
The second argument comes in the form of an empirical
observation. The infamous Article 377 of the Indian Penal Code, 1860
prohibited “carnal intercourse against the order of nature” 196 and thereby
criminalized homosexuality, even in private. Responding to a writ
petition filed by the Naz Foundation (an NGO in India) in 2009, the
Delhi High Court, in a landmark judgment, 197 struck down Article 377
insofar as it criminalizes the consensual sexual acts of adults in private,
as it violated a number of fundamental rights guaranteed by the
Constitution. 198 Although the Supreme Court of India recently struck
down the High Court’s judgment, 199 it does not affect the central
argument here. Public sentiment against homosexuality in India has
always been strong. Even though India’s religious history portrays acts
of homosexuality and references suggest that homosexuality was
socially acceptable in pre-British India, the change in social values took
place over the last two-hundred years. 200 Until recently, homosexuals
194. Bhat, supra note 5.

195. See NEELADRI BHATTACHARYA, REMAKING CUSTOM: THE DISCOURSE AND PRACTICE
OF COLONIAL CODIFICATION (Oxford University Press 1996); see also Lati Mani, Contentious
Traditions: The Debate on Sati in Colonial India (Univ. of California Press, 1998).
196. Section 377 of the Indian Penal Code states, “Whoever voluntarily has carnal intercourse
against the order of nature with any man, woman or animal, shall be punished with imprisonment
for life, or with imprisonment of either description for a term which may extend to ten years, and
shall also be liable to fine.”
197. Naz Foundation v. Government of NCT and Ors., 160 DLT 277 (2009) [hereinafter Naz
Foundation case/judgment].
198. The Court opined that right to privacy and dignity (Article 21), right to equality (Article
14) and prohibition of discrimination on grounds of sex (Article 15). See id.
199. Koushal v. Naz Foundation, Civil Appeal No. 10972 (India 2013). The judgment
however, has been severely criticized even at doctrinal level. See Rehan Abeyratne & Nilesh Sinha,
Insular and Inconsistent: India’s Naz Foundation Judgment in Comparative Perspectives, YALE J.
INT’L L. (forthcoming 2014).
200. Pre-Colonial India Embraced Homosexuality – Govt. Tells SC, PNS NEW DELHI (2012),

led depressing and private lives out of fear of social ostracizing and
harassment by law enforcement officers.201 Even patriarchal filial
constructs discouraged homosexuals from leading a free life. 202 Explicit
references to homosexuality were brutally crushed, even in film. 203
Indian public perception of homosexuality was no better than that of
prostitution. It would be difficult to imagine that a legal innovation that
seemed to diverge from a perceived social value could create a new
social preference. 204 In fact, the evidence produced in courts showed
how homosexuals suffered violence and discrimination from “goondas,
blackmailers, the medical fraternity, parents and other parties . . . .” 205
Nevertheless, anecdotal evidence demonstrates how public perception of
homosexuality changed after the High Court ruling. Major companies
like Goldman Sachs, IBM, and Google developed a guide titled
“Creating Inclusive Workplaces for LGBT Employees in India,” which
encourages similar practices in other companies. 206 A local court
recognized a marriage between two lesbians even though same-sex
marriages were not legally recognizable. 207 Asia’s first Genderqueer
Parade and Alan Turing Rainbow Festival were organized in Madurai,
India, in 2012. 208 The Naz Foundation judgment was followed by
publication of the magazine “Pink Pages,” dedicated to the LGBT
community in 2009, 209 and the launch of India’s first queer radio station
http://www.dailypioneer.com/nation/51899-pre-colonial-india-embraced-homosexuality-govt-tells-
sc.html.
201. See Fear and Loathing in Gay India, BBC NEWS (May 17, 2005),
http://news.bbc.co.uk/2/hi/south_asia/4304081.stm.
202. Id.
203. The 1996 Bollywood film, Fire, attracted violent street protests around the country by
political and religious groups, inflating tensions around cinema halls that showed the movie. See
Madhu Jain & Sheela Raval, Ire Over Fire, INDIA TODAY, Dec. 21, 1998.
204. For earlier history of gay rights in India, see Vimal Banasubhramanyam, Gay Rights in
India, ECONOMIC AND POLITICAL WEEKLY (1996).
205. See Siddharth Narrain, Celebrating Naz: Reflections on a Verdict about All of Us, OS
Open Space, available at
http://openspaceindia.org/index.php?option=com_k2&view=item&id=680&itemid=149; see also
Siddharth Narrain, Crystallising Queer Politics: the Naz Foundation Case and Its Implications for
India’s Transgender Communities, 2 NUJS L. REV. 455 (2009).
206. Jayashree Nandi, Lesbian, Gay, Bisexual and Transgender Resource Guide for
Employers, TIMES OF INDIA (Oct. 9, 2012), http://articles.timesofindia.indiatimes.com/2012-10-
09/india/34342194_1_lgbt-employees-lgbt-community-lgbt-issues (last visited Sep. 18, 2013).
207. Dipak Kumar Dash & Sanjay Yadav, In a First, Gurgaon Court Recognizes Lesbian
Marriage, TIMES OF INDIA (July 29, 2011), http://articles.timesofindia.indiatimes.com/2011-07-
29/gurgaon/29828761_1_gurgaon-court-lesbian-marriage-legal-marriage.
208. D. Karthikeyan, Madurai Comes Out of the Closet, THE HINDU (July 30, 2012),
http://www.thehindu.com/news/cities/Madurai/article3702689.ece
209. Piyasree Dasgupta, Rainbow Chronicles, INDIAN EXPRESS (Aug. 31, 2009),
http://www.indianexpress.com/news/rainbow-chronicles/509187/0.
called “Qradio,” 210 which occurred days before this article was finished.
Scholarly work investigating the impact of the Naz Foundation case has
revealed that the lesbian, gay, bisexual, and transgendered community
experienced greater self-acceptance and confidence. 211 Although the
empirical study discovered mixed opinions, there was a noticeable
impression that the LGBT community experienced reduced police
harassment and improved societal acceptance after the judgment. 212
This has not been sudden a shift, but the Naz Foundation judgment
gave the movement a legitimacy that expedited social acceptance and
created a new focal point for the norm. Moreover, the judgment
reflected, at some levels, an intrinsic desire of a large section of the
population that was previously suppressed. Interestingly, the Naz
Foundation judgment heavily criticized communal policing, 213 when a
self-appointed group of patriarchs announce what “culture” is and set out
rules for how to entertain, what to eat, how to dress, and how to act. 214
These religious or political groups hijack cultural definitions to suit their
own conceptions and influence society to adopt the offered intrinsic
motivations. This group aims to attack any effort to decriminalize
prostitution despite the fact that it has little understanding of morality.
The judgment also disassociates constitutional morality from popular
morality, 215 invoking Ambedkar’s 216 speeches in the Constituent
Assembly. Constitutional morality stems from the Founding Fathers’
ideals of democracy, equality, inclusiveness, and secularism, thus
nudging social values to arrive at a liberal optimum. Given such a view
of judiciary and its assimilation in popular opinion in India, there is a
genuine hope that decriminalizing prostitution will also offer much
needed freedom to sex workers, help reclaim the social value system
from communal policing, and build an ethos of constitutional morality in
Indian society.
210. See Indian Queers Soon to Have Their Own Radio Channel, PINK PAGES (Sep. 6, 2013),
http://pink-pages.co.in/features/metro-life/indian-queers-soon-radio-channel/.
211. Jain Dipika, The Impact of Naz Foundation Judgment on the Gay, Bisexual and
Transgender People in Delhi: an Empirical Investigation, REPORT OF CENTRE FOR HEALTH LAW,
ETHICS AND TECHNOLOGY, JINDAL GLOBAL LAW SCHOOL (2012), available at
http://www.jgls.edu.in/UploadedDocuments/Report_ImpactoftheNazFoundationJudgment.pdf.
212. Id.
213. Narrain, Crystallising Queer Politics, supra note 205
214. Id.
215. Naz Foundation, supra note 197, at 79-82.
216. Dr. B.R. Ambedkar was the Chairman of the Constituent Assembly.

D. Public Health Concerns

Perhaps one of the strongest arguments in favor of the legalization,
let alone decriminalization, of prostitution comes from public health
concerns, because combating AIDS/HIV is easier if prevention and
treatment programs target female sex workers. 217 Statistics show that
female sex workers in developing nations are fourteen times more likely
to be infected with HIV than other women of reproductive age. 218 As a
result, prostitution in Asia in general,219 and in India in particular, 220 has
contributed significantly to the spread of sexually transmitted diseases,
including HIV/AIDS. 221 Indeed, India’s success in curbing the outbreak
of AIDS (which appeared in 1986 222 and, in 2002, was expected to rise
to 25 million cases by 2010 but only reached about 1.5 million) is
credited to awareness campaigns strategically focused near red light
districts in major cities. 223 In fact, sex worker collectives have been
instrumental in raising awareness regarding the use of condoms, with
positive result. 224 This is another sign to heed the collectives’ demands,
217. For extensive review and analysis from Indian standpoint, see Sahni & Kalyan,
Economics of Sex Work, supra note 124, at 239-60 (citing Vikrant Sahasrabuddhe & Sanjay
Mehendale’s 2008,article Female Sex Workers and the HIV/AIDS Epidemic in India).
218. S. Baral, C. Beyrer et al., Burden of HIV Among Female Sex Workers in Low-Income and
Middle-Income Countries: A Systematic Review and Meta-Analysis, THE LANCET (2012).
219. Wiwat Rojanapithayakorn, The 100% Condom Use Programme in Asia, 14
REPRODUCTIVE HEALTH MATTERS 41 (2006).
220. Gisselquist & Correa, supra note 4, at 738-39.
221. K. Ruxrungtham, T. Brown, P. Phanuphak, HIV/AIDS in Asia, 364, THE LANCET (2004)
(this paper shows specifically how spread of HIV in India depends on size of female sex worker and
client populations and rate of their unprotected sexual contact); see also C.B. Venkataramana &
P.V. Sarada, Extent and Speed of Spread of HIV Infection in India Through the Commercial Sex
Networks: A Perspective, TROP. MED. INT. HEALTH, June 12, 2001, 1040-61. For a specific client
group’s (long-distance truck drivers) contribution, see Devinder Mohan Thappa, Nidhi Singh &
Sowmya Kaimal, Prostitution in India and Its role in the Spread of HIV Infection, INDIAN J. OF
SEXUALLY TRANSMITTED DISEASES & AIDS 69-75 (2007).
222. AIDS was spotted first in India, in sex workers in Chennai in 1986. D’Cunha, supra note
80, at 174 (citing Kotiswaran).
223. Harris, supra note 112.
224. See, e.g., S. Jana, L. Khodakevich, C. Larivee, L. Bey & N. Sardar, Changes in Sexual
Behavior of Prostitutes in Calcutta, in PROCEEDINGS OF THE 10THINTERNATIONAL CONFERENCE ON
AIDS, YOKOHAMA, Abstract No. 364D (1994) presented in Global Challenge of AIDS: Ten years of
HIV/AIDS Research: Proceedings of the Tenth International Conference on AIDS/International
Conference on STD, Yokohama, Aug. 7-12, 1994.
For another study on collectives (SANGRAM and VAMPS) in Maharashtra’s red light area’s
progressive efforts is illustrated in Rohini Sahni, supra note 72, at 261-67 (citing Meena Shivdas’s
2008, In the Interest of Business and Health).
For an illustrative account of public health awareness efforts by Population Service International
(USA based NGO) in Kamathipura, Mumbai, see id. at 342-47 (citing Svati P. Shah’s 2008,
Producing the Spectacle of Kamathipura).
which include, inter alia, the decriminalization of prostitution.

The reason for the high occurrence of AIDS among sex workers is
that female prostitutes rarely use condoms, 225 increasing the
vulnerability of sex workers and, consequently, their clients to AIDS.
Why are clients adverse to using condoms, and why prostitutes do not
force their clients to use them? The answer to the first question lies in a
male tendency to believe that using condoms reduces penile sensation
and the feeling of manliness, that ejaculating inside a vagina is more
pleasurable, and that a request to use a condom indicates mistrust. 226
This unsurprising, given the patriarchal environment by which most of
the developing world is characterized. It is, however, more important to
investigate why sex workers do not insist that their clients wear a
condom. This is primarily due to prostitutes’ powerlessness. 227 This
powerlessness is largely a result of financial insecurity, because
customers threaten to leave if they are not provided with condom-free
sex. While their dire need for money may cause sex workers to agree,
more often they agree because the pimps and brothel owners do not want
their business to suffer because the worker refuses to have sex without a
condom. In a transaction where middlemen have taken charge of the
market, the bargaining power of the service provider is low. Owing to
her legal, financial, and social weakness, a sex worker is forced into
having sex without a condom.
With little doubt that sex work encourages incidences of HIV/AIDS
and that unsafe prostitution will not decline even if criminalized, social
policy needs to create safe conditions for commercial sexual pleasure.
The first step is to remove the criminal label from prostitution. The
UN’s Global Commission on HIV and the Law released a report last
year that vehemently called for decriminalization of sex work (and also
adult homosexual activity and individual drug use) as a means to combat
the HIV epidemic. 228 The report was the result of extensive efforts to
interview sex workers, public health advocates, and activists in 140
countries. It states,
225. M. Nag, Sexual Behavior in India with Risk of HIV/AIDS Transmission, 5 HEALTH
TRANSITION REV. 293-305 (1995).
226. See Reynaldo Pareja, Why Clients of Sex Workers Don’t Use Condoms, AIDSCOM
PROJECT (1991), available at http://pdf.usaid.gov/pdf_docs/PNABL865.pdf; see also Trevor
Solomon Baleke, Sex Workers: Clients Reject Condom Use, THE OBSERVER (Apr. 19, 2013),
http://observer.ug/index.php?option=com_content&view=article&id=24831:feature-sex-workers-
clients-reject-condom-use.
227. Thappa, supra note 221.
228. Risks, Rights and Health, GLOBAL COMMISSION ON HIV AND THE LAW (2012) available
at http://www.hivlawcommission.org/resources/report/FinalReport-Risks,Rights&Health-EN.pdf.

In many countries, the law (either on the books or on the streets) de-
humanizes many of those at highest risk for HIV: sex workers,
transgender people, men who have sex with men (MSM), people who
use drugs, prisoners and migrants. Rather than providing protection,
the law renders these “key populations” all the more vulnerable to
HIV. The criminalization of sex work, drug use and harm reduction
measures creates climates in which civilian and police violence is rife
and legal redress for victims impossible. Fear of arrest drives key
populations underground, away from HIV and harm reduction pro-
229
grams.
The report criticized “punitive” laws that stifle efforts to prevent HIV
transmission. 230 There are indications that Australia’s successful efforts
to combat AIDS in the 1980s resulted from legalizing sex work to
combat HIV prevalence. 231
Criminalizing prostitution exacerbates discrimination against sex
workers, who already face social stigma, and forces them to live with a
higher risk of contracting HIV. 232 Criminal laws push workers
underground, where they are then not in a position to negotiate better
working conditions, 233 use of condoms, 234 or access to state assistance
(for instance, access to programs for HIV prevention 235). Sexual
violence, which goes unchecked in a world where prostitution is
criminalized, increases exposure to HIV. 236 The law has empowered
police to detain sex workers, which deters the latter from approaching
police to report sexual abuse. Effectively treated as criminals, sex
workers do not qualify for government programs aimed at the general
population and organized sector. 237 Also, the clandestine nature of the
229. Id. at 8.
230. Id. at 7.
231. Michael Kirby & Michael Wong, Decriminalisation Integral to Fight Against HIV,
DRUM TV (2012), http://www.abc.net.au/unleashed/4128420.html.
232. World Health Organization, Violence Against Women and HIV/AIDS: Critical
Intersections, Violence Against Sex Workers and HIV Prevention, INFORMATION BULLETIN SERIES,
NO 3., 2005 at 3, available at http://www.who.int/gender/documents/sexworkers.pdf; see J. Csete &
J. Cohen, Health Benefits of Legal Services for Criminalized Populations: The Case of People Who
Use Drugs, Sex Workers and Sexual and Gender Minorities, 38 J.L. MED. & ETHICS 816 (2010).
233. John O’Neil et al., Dhanda, Dharma and Disease: Traditional Sex Work and HIV/AIDS
in Rural India, 59 SOC. SCI. & MED. 851, 851-60 (2004).
234. J. Csete & K. Shannon, Violence, Condom Negotiation, and HIV/STI Risk Among Sex
Workers, 304 J. AM. MED. ASS’N 573-74 (2010).
235. A. Sukthankar, Sex Work, HIV and the Law 12 (Third Meeting of the Technical Advisory
Group of the Global Commission on HIV and the Law, Working Paper, 2011).
236. Id. at 11.
237. Sahni & Kalyan, Economics of Sex Work, supra note 124, at 198 (citing Vikrant
Sahasrabuddhe and Sanjay Mehendale’s 2008 article Female Sex Workers and the HIV/AIDS
work discourages sex workers from approaching health care

providers. 238 Incidences of HIV amongst sex workers could be reduced
significantly by changing police attitude: police could work alongside
sex workers to encourage widespread use of safe-sex practices. In India,
HIV prevalence in the community fell from 11 percent in 2001 to 4
percent by 2004 after condom use among sex workers rose to 85
percent. 239 Nevertheless, such instances have been far too low to make a
significant impact.
The idea that the criminalizing sex work discourages use of both
preventive care and treatment services and exacerbates the spread of
disease is not new and has been corroborated by the United Nations
Office on Drugs and Crime’s voluminous research. 240 In fact, in 2009,
the Secretary General of the UN, Ban Ki-moon emphasized, “In addition
to criminalizing HIV transmission, many countries impose criminal
sanctions for same-sex sex, commercial sex, and drug injection. Such
laws constitute major barriers to reaching key populations with HIV
services. Those behaviors should be decriminalized, and people
addicted to drugs should receive health services for the treatment of their
addiction.” 241
Even the International Labor Office (“ILO”) has indicated that sex
work should be recognized as an occupation, 242 for instance, when it
adopted labor standards on HIV/AIDS in 2010, which included
occupational safety for sex workers. 243 In addition, studies have shown
that decriminalizing prostitution in the Netherlands helped lower the
rates of crime and sexually transmitted disease. 244 Further, the
decriminalization of prostitution has provided prostitutes with
guaranteed labor and social benefits such as adequate working
Epidemic in India).
238. Id.
239. UNAIDS, AIDS Epidemic Update, Dec. 2005 at 34; see also I. Basu et al., HIV
Prevention Among Sex Workers in India, 36 J. ACQUIRED IMMUNE DEFICIENCY SYNDROMES 845-
52 (2004).
240. Kirby & Wong, supra note 231, at 211.
241. Id.
242. International Labour Office, Recommendation Concerning HIV and AIDS and the World
of Work (No. 200) (2010), available at http://www.ilo.org/aids/lang—en/docName—
WCMS_142706/index.htm.
243. This also includes empowerment to insist on safe and protected paid sex in their
workplaces. See id.
244. See Fred Haesker, Tolerance and Pragmatism Constant Themes, CALGARY HERALD, July
26, 1995, at B7 (reviewing Jonathan Blank’s movie, Sex, Drugs And Democracy); Renee Ordway,
Councilors Appear Set to Give Spas Cold Shower, BANGOR DAILY NEWS, Sep. 8, 1995; Linda M.
Rio, Psychological and Sociological Research and the Decriminalization or Legalization Of
Prostitution, 20 ARCHIVES SEXUAL BEHAV. 205, 207-08 (1991).

conditions, a safer work environment, and medical care. 245 Countries

such as Australia and the Netherlands 246 have moved away from
criminalizing the selling and purchase of sex. Many countries have
adopted “tolerance zones” for sex workers to market their services. 247
The governments argue that legalized brothels would provide safe
working conditions. 248 Furthermore, mandatory health checks protect all
parties involved. 249
E. The Game Theory Framework

Game theory helps us model the strategic behavior of entities when
their decisions depend on their expectation of how other players in the
game will behave. 250 It is a powerful analytical tool for decision
sciences and makes a grounded case that certain behavioral patterns can
be expected in a rational player. Here, we make simple models and
show how we arrive at the same results even through game theoretic
approach: decriminalizing will empower prostitutes, increase their
residual incomes, and reduce their harassment.
1. Demand-Side Dynamics
Consider two clients, A and B, who are on the demand side of
prostitution. In this basic model, assume that clients have an option of
paying or not paying the sex worker after using her services. The
concept of not paying primarily symbolizes harassment or physical
violence but can also represent actually refusing to pay. The clients can
consider not paying because prostitution is criminal and, therefore, the
supplier (sex worker) is unable to seek third-party (government)
enforcement. Players (clients) have two options: to pay (behave and be
kind) or not to pay (be violent and/or avoid promised payment). Further,
245. Claire Sterk-Elifson & Carole A. Campbell, The Netherlands, in PROSTITUTION: AN

INTERNATIONAL HANDBOOK ON TRENDS, PROBLEMS, AND POLICIES 191 (Nanette J. Davis ed.,
1993).
246. Julie Bindel & Liz Kelly, A Critical Examination of Responses to Prostitution in Four
Countries: Victoria, Australia; Ireland; the Netherlands; and Sweden, for the Routes Out
Partnership Board, Child and Woman Abuse Studies Unit, 12-13 (London Metropolitan University
2003) available at
http://www.popcenter.org/problems/street_prostitution/PDFs/Bindel&Kelly_2003.pdf.
247. Dominic Casciani, Prostitution: International Answers, BBC NEWS (July 16, 2004),
http://news.bbc.co.uk/2/hi/uk_news/3900361.stm.
248. Id.
249. Id.
250. PRAJIT K. DUTTA, STRATEGIES AND GAMES – THEORY AND PRACTICE 4 (Cambridge MIT
Press1999).
to generate competitive behavior, we assume that a player believes that

his utility increases if the other player pays but he does not.
Consequently, his utility decreases if he pays but the other does not.
This is reasonable given that relative payoffs of two players are reflected
in the fact that they perceive others’ profits as their losses and are thus
encouraged to change their strategies to appropriate that profit. The
game under the given situation imitates a prisoner’s dilemma, 251 which
is a one shot symmetric 252 and a non-zero game. 253 The game theoretic
matrix is shown in Figure 1.
Pays Doesn’t pay

Pays -1, -1 -1, 1
A Doesn’t
1, -1 1, 1
pay
Fig 1: Payoffs of two clients when prostitution is criminalized
Figure 1 demonstrates that players’ payoffs are lower when they

pay and higher when they do not pay. The cost of payment is reflected
by “-1,” and gains of not paying are captured by “1.” The table shows
that the dominant strategy of clients will be to not pay. This bears a
close resemblance to reality. Consequently, prostitutes, fearing non-
payment and abuse by customers, depend on pimps to provide protection
from abusive and defaulting clients. Given the legal system, the
prostitutes tend to avoid civil courts, because their contracts will be
declared void and they can actually expect state prosecution instead of
conflict resolution.
This problem is also intensified by the number of customers who
deliberately seek out prostitutes to victimize due to reduced likelihood of
251. WILLIAM POUNDSTONE, PRISONER’S DILEMMA: JOHN VON NEUMANN, GAME THEORY,
AND THE PUZZLE OF THE BOMB (Doubleday 1992).
252. A symmetric game is a game where the payoffs for playing a particular strategy depend
only on the other strategies employed, not on who is playing them. If the identities of the players
can be changed without changing the payoff to the strategies, then a game is symmetric. See
AVINASH DIXIT & SUSAN SKEATH, GAMES OF STRATEGY (Norton 1999).
253. Non-zero-games are situations where participants can all gain or suffer together. Non-
zero-sum is an important part of economic activity due to production, marginal utility and value-
subjectivity. Most economic solutions are non-zero-sum, since valuable goods and services can be
created, destroyed or badly allocated and any of these will create a net gain or loss. See JAMES W.
FRIEDMAN, GAME THEORY WITH APPLICATION TO ECONOMICS (Oxford University Press 1990).

arrest or legal action. 254 Imagine now, however, that prostitution has
been decriminalized. This enables prostitutes not only to enter into a
contractual relationship with the client but also to drag the client to the
court if he reneges on his obligation or – in our terminology – does not
pay. The new game is shown in Figure 2.
Pays Doesn’t pay

Pays -1, -1 -1, -2
A Doesn’t
-2, -1 -2, -2
pay
Fig 2: Payoffs of two clients when prostitution is decriminalized
Figure 2 first shows that the cost of not paying will exceed the cost
of paying, because restitution damages will be more costly. This is
because there is an additional cost if a third party resolution is invoked.
Second, clients will suffer a loss of reputation in the sex worker
community, which will not entertain the client in future. Third, the
client could experience reprisal from a sex worker’s collective on
account of non-payment. Suddenly we see that the dominant strategy is
to pay. Decriminalization helps achieve this behavioral change.
2. Interaction Between the Sex Worker and Her Client

Let us consider a simple model to illustrate how decriminalization
changes the relative payoffs of the players in a game. The transaction
involves a prostitute providing services at a charge, which we assume
she is free to offer or refuse to offer. The client enters into the deal, and,
while the transaction is taking place, he may choose to behave properly
or violently. Here, a client is conceptually synonymous with any actor
who may have violent tendencies towards a prostitute, while violence
could be physical or monetary. For instance, consider a client who
refuses to wear a condom, pays less than promised, or physically abuses
the sex worker. The game is constructed in two states: state one, where
prostitution is criminalized, and state two, where it is not.
254. See S.R. Maxwell & C.D. Maxwell, Examining the Criminal Careers of Prostitutes
Within the Nexus of Drug Use, Drug Selling and Other Illicit Activities, 38 CRIMINOLOGY 787-809
(2000).
Client
Non-violent Violent
Deal 3, 2 1, 4
Prostitute
Refuse 0, 0 0, 0
Figure 3: Payoffs of sex worker and the client, when prostitution is
criminalized.
Figure 3 is illustrative. The payoffs are nil when the prostitute

refuses to deal. She gets a higher payoff when client is not violent than
when he is. The client, however, earns higher utility when he is violent
(the whole point of being violent is that it affords higher utility to the
client), for instance, when he reneges on his promised payment. Having
no legal recourse, the prostitute cannot stop his violent tendencies and
engages into the trade with a decreased payoff.
However, notice that the payoffs change when prostitution is
decriminalized. In this case, the violent client will face reprisals from
the sex worker because the latter is not engaging into a criminal activity.
The contract, in theory, will be enforced. This will significantly reduce
the client’s payoffs, thereby altering his incentives. The dominant
strategy is for the client to be non-violent and to engage in the trade with
the sex worker.
Client
Non-violent Violent
Deal 3, 2 1, -2
Prostitute
Refuse 0, 0 0, 0
Figure 4: Payoffs of sex worker and the client, when prostitution is
decriminalized.
Therefore, one can observe how decriminalizing prostitution

changes relative economic payoffs of clients and sex worker,
transferring power from clients to sex workers.
VI. DE-INSTITUTIONALIZING PROSTITUTION

Feminist groups in India have rested the issue of prostitution on
three pillars: (a) deliberate silence on the issue in a cultural context of

heterosexual monogamous marriage, (b) violent victimhood, depriving

the label of labor from sex-work, and (c) invocation of sex-work
collectives’ lens of choice and identity. 255 There is a massive solidarity
movement concerning sex work in India, 256 but many of the existing
efforts focus on reforming the trade and occupation rather than on
questioning the underlying structures that give rise to the trade.257 This
is not necessarily disappointing, given how badly the entire issue needs
positive solutions rather than normative conclusions. Reform cannot be
sought through vitally important questions but rather through specific
answers, given the plight facing voiceless sex workers, particularly in
India. Nonetheless, there is little substantial difference between
prostitution as it exists in India and prostitution as it exists throughout
the world. In fact, there is seldom a distinction between prostitutes and
the institution of prostitution. The individual woman has been perceived
as an institution and a commodity, while the pimps have been seen as the
market. The practices of procuring, “seasoning,” and prostituting have
thus become invisible. 258 With no distinction between the individual and
the institution, all prostitutes are seen as victims or criminals; the
hierarchy in the sex industry is blurred, and the heterogeneity within the
prostitute population is concealed.
Feminist theories, in addition to conceptualizing gender, should be
mindful of myriads of interconnected realities, governed by class, race,
ethnicity, economic and educational background, and physical and
mental health, inter alia. 259 Once scholarly discourses concerning
prostitution assimilate this view, it will be easy to disassociate
“prostitution as individual” from “prostitution as institution.” In India,
255. Geetanjali Gangoli, Immorality, Hurt or Choice: Indian Feminists and Prostitution, 9
INT’L FEMINIST J. POLITICS 1 (2007).
256. The real policy focus shifted towards sex workers due to spreading of HIV/AIDS in
India. Flora Cornish & Riddhi Ghosh, The Necessary Contradictions of ‘Community-Led’ Health
Promotion: A Case Study of HIV Prevention in an Indian Red Light District, 64 SOC. SCI. & MED.
496 (2007). This led to a heavier stand of the state to eliminate prostitution. Resistance to this
wave galvanized development of peer-education and outreach activities through organizing sex
workers into collectives, notably the DMSC in Kolkata, BIRDS in Karnataka and SANGRAM in
Maharashtra. See O’Neil et al., supra note 233, at 851.
257. C. Sathyamala & Ritu Priya, Sex as Work: A Changing Discourse, 1 J. CREATIVE
COMMUNICATIONS 203-08 (2006).
258. Kathleen Barry, Charlotte Bunch & Shirley Castley, eds., International Feminism;
Metworking Against Female Sexual Slavery, REPORT OF THE GLOBAL FEMINIST WORKSHOP TO
ORGANIZE AGAINST TRAFFIC IN WOMEN, ROTTERDAM, THE NETHERLANDS, Apr. 6-15, 1983.
259. This critique of gender essentialism has been criticized by Clare Dalton, Where We
Stand: Observations on the Situation of Feminist Legal Thought, in FEMINIST LEGAL THEORY:
FOUNDATIONS (2013); see also Angela Harris, Race and Essentialism, in FEMINIST LEGAL THEORY:
READINGS IN LAW AND GENDER 235 (1991).
the feminist movement (manifested in the National Commission for

Women for example) has echoed the gender essential voices, reinforcing
the idea that Indian prostitutes are “mere sex slaves who are invariably
trafficked into prostitution and who, as victims, do not have the ability to
speak for themselves or their communities.” 260 Such a view adds ill-
founded logic to the view that sex workers lack agency, which has been
central to the creation of criminalizing attitudes towards prostitution.261
In India, colonial heritage and caste systems add more layers to the so-
called institution of prostitution, lending even more complexity to the
heterogeneity. When stripped of its sweeping generalizations,
prostitution becomes a context specific activity, best understood through
a bottom-up approach. This further calls for decentralizing its
governance, best achieved by decriminalizing it.
The deinstitutionalized view of prostitution renders most of the
Indian government’s alternative policies redundant. The government
has initiated various programs to combat trafficking and prostitution, 262
beyond the statutory response (which we have criticized). 263 Emigration
rules in India prohibit women less than thirty years of age from
migrating to other countries for household services. 264 This, however,
helps little because much of India’s sex trafficking is internal 265 and
driven by large-scale rural displacement (of landless labor, small farmers
or people of a lower caste) as a result of globalization.266 Further, these
restrictive laws in societies where women begin working at early ages
increase women’s vulnerability to trafficking because women, lacking
260. Prabha Kotiswaran, Preparing for Civil Disobedience: Indian Sex-Workers and the Law,
BOSTON COLLEGE THIRD WORLD L.J. 163 (2001), available at http://
lawdigitalcommons.bc.edu/lwlj/vol21/iss2/1.
261. But see Janaki Nair & Mary E. John, Introduction to A QUESTION OF SILENCE? THE
SEXUAL ECONOMIES OF MODERN INDIA 1 (1998). The authors have attempted to imply that Indian
feminist movement has had progressive elements to it and has vigorously worked for rights of sex
workers. Many others disagree with this view. See D’Cunha, supra note 80, at 173-74 (citing
Kotiswaran).
262. India Country Report, supra note 60.
263. Even though the government claims to have invested resources in anti-trafficking
programmes, U.S. Office to Combat and Monitor Trafficking in Persons has placed India in a tier 2
watch list “for failure to provide evidence of increasing efforts to combat trafficking.” See George,
supra note 9, at 71.
264. Id. at 242.
265. Ratna Kapur, Tricks and the Law: Legal Regulation of Trafficking, Sex Work and
Migration, Technical Consultative Meeting on Anti- trafficking Programmes in South Asia, 45
(2001) (summarized in Anti-Trafficking Programs in South Asia: Appropriate Activities, Indicators
and Evaluation Methodologies: Summary Report of a Technical Consultative Meeting).
266. Svati P. Shah, Producing the Spectacle of Kamathipura: The Politics of Red Light
Visibility in Mumbai, 18 CULTURAL DYNAMICS 269-92 (2006).

legal recourse, depend on illicit options offered by traffickers. 267

The government runs “Swaadhar” homes and “short-stay” homes
for women in difficult circumstances. They, however, have been
criticized as centers of corruption and victimization where distraught
inmates are considered “impure” with little regard to their privacy or
bodily integrity. 268 In another program, called “Ujjwala,” the
government attempted to drive the anti-trafficking measure through
community vigilance in addition to rescue and rehabilitation.
Nevertheless, scholars have noted that most programs relating to rescue
and rehabilitation lead to further criminalization of prostitution and
victimization of sex workers. 269
The monolith of prostitution must be viewed in its micro-
constituents. Issues facing prostitution at the village level are different
from those at urban level. For instance, Kotiswaran’s survey of rural
Karnataka found that, because police stations are miles away, state
enforcement machinery rarely harasses sex workers.270 Sex workers in
rural areas have regular clients with whom they have children and who
give them a monthly allowance, and sexually abusive clients receive a
severe community response, unlike in more urban regions. 271 There are
numerous accounts of community and caste-based prostitution in
India. 272 Indian law provides a single response to these problems with
little thought given as to how it will produce different implications for
subjects who are not similarly situated. An approach that removes sex
work from the clutches of the law will go a long way to enable different
communities to develop their own practices. For this to happen,
prostitution cannot not viewed as an institution.
It should be noted, however, that even heterogeneous approaches
could have institutional responses, and decriminalization is one such
institutionalized solution. Such a response may be connected to
empowering frameworks, attracting institutional structures. But
decriminalization itself will strip prostitution of its institutional view,
which has already harmed sex workers. This view encouraged New
Zealand to successfully experiment with decriminalization in its
267. See Jana et al.,, supra note 224; see also Christine Joffres, Edward Mills, Michel Joffres,
Tinku Khanna, Harleen Walia & Darrin Grund, Sexual Slavery Without Borders: Trafficking for
Commercial Sexual Exploitation in India, 7 INT’L J. FOR EQUITY IN HEALTH 22 (2008).
268. See Mandeep Dhaliwal, Rescued” Sex Workers: From Here to Nowhere, THE LAWYERS
COLLECTIVE 12 (1997); George, supra note 10.
269. See, e.g., Jana et al., supra note 224; Jayasree, supra note 206.
270. D’Cunha, supra note 80, at 219 (citing Kotiswaran).
271. Id. at 220.
272. Id.
Prostitution Reform Act (2003). 273 New Zealand had previously

followed a model similar to that of India, where prostitution was not
illegal per se but activities surrounding it were. New Zealand policy
makers, however, noticed that criminalizing the activity was
undermining efforts to encourage a safe environment, while police
harassment on the rise. 274 The Act, in decriminalizing prostitution,
created a framework to safeguard sex workers’ human rights, protect
them from exploitation, and promote occupational health and safety.
This enabled sex workers to operate in safety, both for themselves and
for public health. The New Zealand Prostitutes’ Collective, brothel
operators, and the Labour Inspectorate collaborated to implement the
safety standards, while the Human Rights Commission and Mediation
Service on Employment adjudicate disputes.275 These are institutional
responses, and their success depends entirely on political will and
society’s judicial activism. For instance, in July 2005, a district court in
New Zealand fined a man for removing his condom during intercourse
without the sex worker’s knowledge. 276 Other institutional responses
could invoke participatory review. In New Zealand, the Prostitution
Law Review Committee was established to assess and review the new
Act, and three of the Committee’s eleven members come from the New
Zealand Prostitutes Collective. 277
273. New Zealand Prostitution Reform Act 2003, Part 2 Commercial Sexual Services,
Sections 8 and 9. See Section 8(1)(a): “(1)Every operator of a business of prostitution must – (a)
take all reasonable steps to ensure that no commercial sexual services are provided by a sex worker
unless a prophylactic sheath or other appropriate barrier is used if those services involve vaginal,
anal, or oral penetration or another activity with a similar or greater risk of acquiring or transmitting
sexually transmissible infections”; and see Section 9(1): “(1)A person must not provide or receive
commercial sexual services unless he or she has taken all reasonable steps to ensure a prophylactic
sheath or other appropriate barrier is used if those services involve vaginal, anal, or oral penetration
or another activity with a similar or greater risk of acquiring or transmitting sexually transmissible
infections,” available at http://www.legislation.govt.nz/act/public/2003/0028/latest/
DLM197815.html.
274. See Canadian HIV/AIDS Legal Network, New Zealand and Sweden: Two Models of
Reform, SEX, WORK, RIGHTS: REFORMING CANADIAN CRIMINAL LAW ON PROSTITUTION, available
at http://www.bayswan.org/swed/Canada_law_reform_models.pdf.
275. See Global Commission, supra note 228, at 40-41.
276. See Canadian HIV/AIDS Legal Network, supra note 274. Judiciary’s approach could be
very important in setting up of the political and public opinion in this regard. For instance, in
Bangladesh, a Court halted the forced eviction of sex workers from a brothel by policemen, arguing
that curtailment of their livelihood was violation of sex-workers’ right to life. See Bangladesh
Society for the Enforcement of Human Rights v. Government of Bangladesh and Ors, 53 D.L.R. 1
(2000). Similarly, the South African Labour Appeal Court held that regardless of the law on
prostitution, sex workers cannot be treated unfairly and discriminately by their employers. Kylie v.
Commission for Conciliation Mediation and Arbitration and Others, (CA10/08) [2010] ZALAC 8;
2010 (4) SA383 (LAC); 2010 (10) BCLR 1029 (LAC) (May 26, 2010).
277. Canadian HIV/AIDS Legal Network, supra note 274.

VII. CONCLUSION
According to the International Committee for Prostitutes’ Rights
(“ICPR”), some prostitutes report job satisfaction, others, job repulsion;
some consciously choose prostitution as the best option available; others
are compelled to enter prostitution by male force or deceit. Many
prostitutes abhor the conditions and the social stigma surrounding their
work but not the work itself. The ICPR, therefore, affirms the right of
women to a full range of education and employment opportunities and
due respect and compensation in every occupation, including
prostitution. 278 Indeed, a woman’s choice of livelihood should be
respected, and the goal need not be to eradicate her choice. A better goal
is protecting sex workers’ rights to “bodily integrity, pleasure,
livelihood, self-determination and a safe working environment.” 279 A
recent pan-India survey of sex workers conducted by the Centre for
Advocacy on Stigma and Marginalisation (“CASAM”) found that
poverty and limited education push women to enter into sex work. 280
Thus, an even worthier goal is to provide education and alternative
employment opportunities for women. Criminalizing an activity
impossible to eradicate only worsens the lives of the actors. Social
power should be transferred from the clients/pimps/police to sex
workers. With decriminalization, sex workers can aid the state in
checking criminal activities associated with prostitution, like trafficking.
The Darbar Mahila Samanwaya Committee (“DMSC”), based in
Kolkata, established a regional board for self-regulation 1998 to stop
trafficking women because sex workers were better suited to identify
outsiders who had been forced into sex work. 281 The real power needs to
flow from bottom to top. Decriminalizing prostitution is the first step
toward state solidarity with sex workers (and their collectives), who are
278. Draft statement on Prostitution and Feminism, ICPR (1986) (recorded in Vindication of
the Rights of Whores, edited by Gail Pheterson (1989), which features full transcripts of the First
and Second World Whores’ Congress.
279. Jayasree, supra note 206.
280. See Rohini Sahni & Shankar V. Kalyan Shankar, The first pan-India Survey of Sex
Workers (2011), available at http://www.sangram.org/resources/Pan_India_Survey
_of_Sex_workers.pdf.
281. George, supra note 9, at 72. However, there is a need to locate this in the politics of
‘NGOisation’ of sex work. Even the sex workers collectives depend upon development
professionals and funding agencies, making it hard to insulate their interests with non-sex workers’
interest groups. Cornish & Ghosh, supra note 256. More importantly, prevalent ideologies and
fears of domestic and international NGOs, which would go redundant if collectives develop
intervention strategies independently, is an important source of challenge. See Jana et al., supra
note 224; see also Nandinee Bandyopadhyay, Streetwalkers Show the Way: Reframing the Global
Debate on Trafficking (Institute of Development Studies, Working Paper No. 309, 2008).
citizens first and sex workers second. If environmental factors are

preventing a choice from being “free,” then the solution lies not in
erasing the choice but in changing the environmental factors so that the
choice becomes free. 282
Decriminalization leads to the decentralization of trade. It helps to
free prostitutes and sex workers from the ghettos and red light districts
where violations of rights, including physical abuse and psychological
torture, are rampant. 283 Technology has helped somewhat. Cellular
phones, for example, put sex workers directly in touch with their clients,
obviating the need for a pimp, if sex workers trust clients. The red light
districts of G.B. Road in Delhi and Kamathipura in Mumbai have shrunk
unimaginably since the cell phone boom in India: ninety percent of sex
workers who have moved out of Kamathipura since the 1990s. 284
Freedom has its own methods of management. It is freedom that
emancipates people from the shackles of power and hunger. It is the
desire for freedom that captures most of us, but policies are designed
without any thought regarding how they will affect the people’s basic
freedoms. 285
Sixty-six years after India’s independence, freedom still eludes sex
workers. The first Prime Minister of India, J.L. Nehru, gave the
Constituent Assembly of India, which debated prostitution (referred in
the introduction), its first task as a representative body “to free India
through a new constitution, to feed the starving people, and to cloth the
naked masses, and to give every Indian the fullest opportunity to develop
himself according to his capacity.” 286 For sex workers (and many
others), this task remains unfulfilled. Reclaiming the task requires
reclaiming the rights, which can be achieved by reclaiming freedom
from the state.
282. J.O. Davidson, The Anatomy of ‘Free Choice’ Prostitution, 2 GENDER, WORK &
ORGANIZATION 1 (1995).
283. Den Tek Kllaas, Crusading Against Amsterdam’s Red Lights, RADIO NETHERLANDS
WORLDWIDE, available at http://www.rnw.nl/english/article/crusading-against-amsterdams-red-
lights.
284. Gardiner, supra note 112.
285. Amartya Sen in the introduction of his celebrated work Development as Freedom
mentions, “Development can be seen . . . as a process of expanding the real freedoms that people
enjoy . . . Development requires the removal of major sources of unfreedom: poverty as well as
tyranny, poor economic opportunities as well as systematic social deprivation, neglect of public
facilities as well as intolerance or overactivity of repressive states.” See AMARTYA SEN,
DEVELOPMENT AS FREEDOM (Oxford University Press 1999).
286. See GRANVILLE, supra note 1.

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The University of Akron

Ill-Conceived Laws and Exploitative State: Toward

ILL-CONCEIVED LAWS AND EXPLOITATIVE STATE:

Yugank Goyal and Padmanabha Ramanujam∗

I. Introduction ..................................................................... 1072

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2015 DECRIMINALIZING PROSTITUTION IN INDIA 1073

last decade 5 shows a correlation between economic growth and

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http://www.unaids.org/documents/20101123_GlobalReport_Chap5_em.pdf; United Nations

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giving wide latitude to policemen to coerce and harass sex workers in

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there is something “right” about prostitution, which the law violates by

Law, 21 BOSTON COLLEGE THIRD WORLD L.J. 161, 163 (2001).

2015 DECRIMINALIZING PROSTITUTION IN INDIA 1077

II. HISTORICAL ANTECEDENTS OF PROSTITUTION IN INDIA

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Gradually, prostitution came to be regulated, and prostitutes were

2015 DECRIMINALIZING PROSTITUTION IN INDIA 1079

occupation just like blacksmithing and carpentry) 42 emerged from their

42. SINHA & BASU, supra note 30, at 203.

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humiliating checks, and forced confinement of “native” prostitutes until

2015 DECRIMINALIZING PROSTITUTION IN INDIA 1081

III. INDIAN LEGAL LANDSCAPE ON PROSTITUTION

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64. JEAN D’CUNHA, LEGALIZATION OF PROSTITUTION: A SOCIOLOGICAL INQUIRY INTO THE

2015 DECRIMINALIZING PROSTITUTION IN INDIA 1083

Therefore, even though a strictly legal understanding of the relevant

76. We discuss this in detail in sections that follow.

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IV. VIOLENCE AGAINST SEX WORKERS IN INDIA

2015 DECRIMINALIZING PROSTITUTION IN INDIA 1085

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political campaigns. 94 When elected, the politician has incentive to

94. D’Cunha, supra note 80, at 197 (citing Kotiswaran).

2015 DECRIMINALIZING PROSTITUTION IN INDIA 1087

workers themselves. 102 In addition, every brothel pays a monthly fee to

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that police extortion depraves sex work.

2015 DECRIMINALIZING PROSTITUTION IN INDIA 1089

physical violence, is extremely similar to that of the common batterer.116

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2015 DECRIMINALIZING PROSTITUTION IN INDIA 1091

workers face. In the remainder of this article, we will show how

V. WHY DECRIMINALIZE PROSTITUTION?

A. Feminist Theory Perspective

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