This article has been written by T. Vani Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution course from LawSikho and edited by Shashwat Kaushik.

This article has been published by Shashwat Kaushik.

Introduction

The right to profession is one of the fundamental rights of every citizen of India conferred under Article 19(1)(g) of the Constitution of India, which says that every Indian has a right to choose and exercise any kind of work, trade or business anywhere in India, but it should not be against the public at large or against the laws of India. Our Parliament has imposed reasonable restrictions in the interest of the general public while carrying out the work, trade or business under Article 19(6).

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Now the question arises here is prostitution also a profession or a business under this article 19(1)(g), or is it an offence because in brothel houses, a large number of women are inclined into this profession with or without their wishes or because of their customary procedures, which they have to follow irrespective of their wishes?

Legal point of view of prostitution 

Prostitution is not an offence per se under the Indian Penal Code but sexual exploitation, seducing someone, running brothels, pimping, soliciting, etc. are penalised under Section 2 (f) of the Immoral Traffic Prevention Act, 1956. And these acts of prostitution shall attract punishment under Sections 366A, 366B, and 370A of the Indian Penal Code, 1860.

Basically, prostitution is a kind of work that cannot be done by everyone. Only some sects and communities are still considering it their profession and continuing their lives with it. They have been following it because the people belonging to those sects do not wish to change themselves according to the developments of the systems. They are blindly following these kinds of thoughts and also forcing their next generations to consider this as part of their customs/ traditions because it has been in existence for a long time and they are following it, and they do not have any option but to say no to these things.

Prostitution can also be considered business when it is done by people in a brothel. When it is considered a profession or business, the other question that arises out of this is, whether it is legal or illegal, is it confined to our country only or is it in other countries of the world?

The answer to this is that prostitution is not illegal in some countries. It is a legally recognised profession in the following countries:

  1. Finland
  2. Costa Rica (Central America)
  3. New Zealand
  4. Bangladesh
  5. Germany

In India, the scenario is different. Prostitution is neither completely illegal nor legal. In some circumstances, it is legal; in others, it is illegal. If a person he/she involved voluntarily as a profession, either because of the customs or because there is no other alternative way of living, it can be considered legal. But owning and managing a brothel is illegal. The persons who are involved in this and inclined poor and miserable women into this profession shall be liable for the punishments under the provisions of law.

Legal provisions for protection of sex workers

Provisions of law that are made for the protection of sex workers are as follows:

  • Under the Immoral Traffic Suspension Act 1956, “prostitution can be legally done, but soliciting people and luring them into sexual activities is illegal. And prohibited by law, if any person involved in this kind of work shall be penalised.”
  • The law does not make prostitution “per se illegal,” but at the same time, the use of brothels, living off the earnings of prostitution, pimping, soliciting, luring others into prostitution in prison or elsewhere, and prostitution in public places, etc. are the crimes that are  punishable by law.
  • From the above, we can consider that prostitution is not a crime if  it is done or practised voluntarily as a profession because the person involved in it believes that there is no other means of living for their livelihood, and also in cases where this prostitution is their tradition or custom.

Kajal Mukesh Singh & Ors. vs. State of Maharashtra (2020)

This was a criminal petition filed against the orders of the Learned Metropolitan Magistrate, Special Court for ITPA, Mumbai, which was confirmed by the Hon’ble Sessions Judge Dindosh. The Hon’ble Court quash the orders of the Hon’ble Sessions Judge Dindosh and also find lacunas in the judgement of the Learned Metropolitan Magistrate, Special Court for ITPA, Mumbai.

Facts of the case

It was the case of three major women, who are between the ages of 23- 25, who were caught by the police during a sting operation conducted to catch the persons who were supplying the women with prostitution work.

At the time of the raid on the said guest house, the police had only arrested these three women and failed to catch the main accused, Mr. Nijamuddin, who is behind the activity and for whom the sting operation was being conducted and produced these women before the Hon’ble Judge after one day.

The police failed to produce records of the details of the officers and panchas who were involved in that operation, along with the owner of the brothel house, Mr. Nijamuddin, the main accused, who was supplying the women for prostitution to the guest house. When the case was presented before the Metropolitan Magistrate, 54th Court, Mazfaon, Mumbai, the Hon’ble Judge did not go into the details about where the victim girls had been kept between September 28, 2023 and September 30, 2019. and further did not mention how long the victim girls should be kept in Navjeevan Mahila Vasatigruha and without giving any opportunity to the victim women, they gave their verdict.

Aggrieved by the order of the Court when the victim approached the Additional Sessions Judge, Dinoshi, the Court also confirmed the same judgement. Aggrieved by the orders of both courts, the appeal was preferred before the Hon’ble High Court of Mumbai, where the Hon’ble Bench of Hon’ble Justice P.K. Chavan allowed the petition and ordered in favour of the accused women .

Judgement of the Court

The Hon’ble Court, after considering all the facts and submissions made by both the counsels and after pursuing the produced records, quashed the impugned order passed by the Metropolitan Magistrate,  which was also confirmed by the Additional Sessions Judge, Dindoshi. And directed that the petitioners be enlarged at their liberty from Navjeevan Mahila Vastigruha, Mumbai. They can continue their stay if they wish. And also directed to petitioners to present before the trial court their evidence and provide their complete residential address along with their phone number to the investigation officer. The Hon’ble Court also directed the Special Magistrate to ensure that there would be no influence on the victims during the recording of their evidence.

Significance of the case law: After this judgement, prostitution cannot be considered an offence if it is done with consent and without any force and when it is the livelihood of the women and a traditional customary practise.

Changes that came in the legal system after this judgement

  • The Supreme Court order sets limits on police actions  while dealing with cases relating to  sex workers and puts sex workers and their children on  par with the rest of the people in society. There should not be any kind of harshness by considering them the offenders.
  • The police department is directed that when a sex worker comes forward with a complaint, it will be treated as any other complaint, and she will not be treated as an offender but as a complainant.
  • It is also directed to the Police and Health Department that any sex worker who is a victim of sexual assault should be provided with all facilities available to a survivor of sexual assault, including immediate medical assistance. This assistance must be in line with Section 357 of the Code of Criminal Procedure of 1973 and the guidelines and protocols for survivors and victims of sexual violence issued by the Union health ministry.
  • The Apex Court, after observing all the problems faced by the prostitutes, said as follows: “Needless to say, this basic protection of human decency and dignity extends to sex workers and their children, who, bearing the brunt of social injustice and stigma attached to their work, and are removed to the fringes of the society by depriving from their right to life and personal liberty which conferred by the Constitution of India , hence let live them with dignity and their children can lead a secure life in the society on par with the other citizens of the society”.
  • The SC order also prohibits forcible separation of children from their mothers, who are sex workers. The order stated, “Further, if a minor is found living in a brothel or with sex workers, it should not be presumed that he/she has been trafficked. In case the sex worker claims that he/she is her son/daughter, tests can be done to determine if the claim is correct and if so, the minor should not be forcibly separated.”

After this judgement, many other cases were also filed in which landmark judgements were delivered that were in favour of the rights of sex workers.

Other landmark judgements

Gaurav Jain vs. Union of India & Ors. (1997)

In this case, the Supreme Court ruled that sex-workers should be rehabilitated through self-employment schemes and invited the states to devolve procedures and principles to ensure that the sex-workers would also enjoy their fundamental and human rights.

Budhadev Karmaskar vs. State of West Bengal (2011)

In this landmark case, the Hon’ble Supreme Court held that “the right of the sex workers to live with dignity under Article 21 of the Constitution of India, the difficulty of the sex workers is that they are in that field not because they like it, but because poverty drives them to it. Due to the disgrace from society regarding their profession, this should not deprive their fundamental right to life and personal liberty.”

C.P Raju vs. State of Kerala (2014)

In this case, it was held that only authorised officers will be permitted to conduct the investigation and arrest and the power cannot be delegated to anyone. Magistrate an order for arrest and removal, direct custody of the rescued persons or close down the brothels and evict sex workers. The act also has provisions to make available institutional rehabilitation for rescued sex workers.

Conclusion

Sex workers are also people who should not be deprived of their fundamental and human rights for the work in which they are involved, either because of poverty, custom, tradition, force, or any other reason. However, they are still entitled to the same fundamental human rights as everyone else. These rights include the right to life, liberty, and security of person; the right to equality before the law; the right to freedom of expression; the right to freedom of association; and the right to work.

Sex workers may be drawn into the industry for a variety of reasons, including poverty, lack of education or job opportunities, or family or societal pressure. They may also be victims of trafficking or sexual exploitation. Regardless of the reasons why they enter the sex trade, sex workers are entitled to the same human rights as everyone else.

Some people argue that sex workers should not be entitled to the same human rights as other workers because they are engaging in illegal or immoral activities. However, the fact that sex work is illegal or considered immoral does not mean that sex workers should be deprived of their human rights. All people, regardless of their occupation, are entitled to the same fundamental rights and freedoms.

Sex work must not involve the trafficking of women and children. Sex-workers must be given proper awareness regarding alternative occupations by providing necessary training for those who wish to leave prostitution, as there is always a threat of ill treatment from society, insecurity for their children and diseases caused by the work. Proper guidance and encouragement must be provided to the sex-workers who wish to leave the work by providing education and vocational training to build confidence in them, which helps them to lead a dignified life on par with the other members of society.

References

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