Judicial
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This article is written by Rida Zaidi, a law student from the Faculty of Law, Aligarh Muslim University. The author tries to deal with some of the judgments regarding the rights of sex workers.

Introduction

Prostitution is an age-old practice or occupation carried out to earn financial benefits by trading sexual intercourse. Societal stigma and prejudice is attached to the business of prostitution and is looked upon as immoral employment. The majority view is that women are trapped and forcefully made to work in this industry contrary to their free will. Though certain women become prostitutes wilfully out of economic, social, psychological causes. Under the Indian Constitution prostitution is not illegal but it is legal with certain limitations and restrictions.

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 the Immoral Traffic (Prevention) Act, 1956. Section 2(f) of The Immoral Trafficking Act (1956) gives the definition of “prostitution” as sexual exploitation or misuse of any persons for any business purpose. Though Sections 366A, 366B, 370A of the Indian Penal Code deals with punishing for offences of procuration of a minor girl, importation of girl from foreign for sex and exploitation of a trafficked person respectively. Thus, under the Indian Penal Code laws related to prostitution are quite limited. The existing laws for sex workers need amendments as the lives of the prostitutes is not similar to an ordinary worker’s life that is a sex worker is constantly exploited by the customers, low wages are paid for their services, they are considered as an outcast by the society and their profession is regarded as derogatory. Sex workers are also equal citizens of the country and are entitled to the fundamental rights guaranteed to them under the Constitution of India. The Courts have passed a threshold of judgments regarding the rights of sex workers that goes in their favour and is an attempt by the judges to bring the sex workers on par with the workers of the rest of the industries and to disregard the societal stigma and disgrace encountered by them.

Case laws on rights of sex workers

Kajal Mukesh Singh & Ors v. State of Maharashtra (2021)

Prostitution is not an offence, a woman has a right to choose her vocation’

Petitioners- A, B and C

Respondent- the State of Maharashtra

The petitioners were victims of a crime that is pimping under the Immoral Trafficking (Prevention) Act,1956. To conceal their identity, they are named A, B and C in the records.

The petition is filed by 3 sex workers challenging the order passed by the Metropolitan Magistrate Mazgaon and the order passed by Additional Sessions Court Dindoshi which upheld the earlier mentioned order.

Facts of the Case

  1. A pitfall was laid by the Complainant Rupesh Ramchandra More and one police constable who secretly received some information regarding a pimp named Mr Nizamuddin Khan who organizes customers for prostitutes at a guest house in Malad Mumbai.
  2. Two persons were summoned to act as a decoy to the pimp and to act as they were one of his customers who wish to avail of his services.
  3. The trap was executed in such a way that the police raided the guest house where the accused had arranged the prostitute for the decoy.
  4. The police arrested the accused and the victims were taken into custody.

Observation of the Bombay High Court

  • The Magistrate ordered an inquiry regarding the age of the victims and for conducting a medical examination to investigate the health status of the victims.
  • Intermediate custody of the victims was given to an NGO for providing them with primary education and for their counselling to restrain them from prostitution. 
  • It was revealed by the reports submitted by the probation officer as well as the Magistrate that they belong to the ‘bediya’ community where girls after attaining the age of puberty are sent into the business of prostitution. 
  • Their parents consented to them being prostitutes so the magistrate did not give the victim’s custody to their mothers. 
  • The appeal was laid down challenging the said order in the Court of the Session at Dindoshi which was dismissed. 
  • The victims were detained under an institution of government ‘Nava Jeevan Mahila Vastigruha’ for their care, protection and shelter for one year. 
  • The Court was of the view that the victims who were detained for one year without being prosecuted are declared accused in the matter or other words without any final order.
  • It was held that both the subordinate courts have taken the matter involved in the case in a very casual manner ignoring the factual matrix of the case, specifically Section 17 of the Immoral Trafficking (Prevention) Act. 
  • The Court observed that the Act does not empower the Magistrate to hold the victims under custody for more than 3 weeks without a final order from the Court. The Court also observed that under Section 17(4) if the magistrate is satisfied with the inquiry under sub-section(5) of Section 17 of the Act, he shall direct the custody of the victims to a protective home. 
  • The inquiry under sub-section(5) is to be conducted by a panel of persons having some social work background of which if practically possible 3 should be women. 
  • The Court also pointed out the use of the word ‘may’ ought to be interchangeable with the word ‘shall’ as held in the case of Kumari Sangeeta & Anr v State & Ors (1995) that because the word ‘may’ is used it does not specify discretion of the Court but one should look at the intention of the legislature which it intends to convey through an enactment.
  • The Court highlighted the point that the purpose of the act is not to abolish prostitutes or prostitution but what is punishable is sexual exploitation, commercial sex and where a person is running a brothel or is seducing another person. 
  • After considering all the facts and circumstances of the case the Court was of the view that there is nothing on record to show that they were seducing someone or that they were running a brothel. 
  • They too have a right to reside freely at any place of their choice and to carry out the vocation as they like as their fundamental rights are guaranteed under part III of the Constitution. 
  • The consent of the victims should have been taken before putting them under a corrective home as they are major and hold every fundamental right as an ordinary citizen does. 
  • Both the orders of the metropolitan magistrate and Court of the session was quashed and the victims were released.

Manoj Shaw  and Majoj Kumar Shaw v. State of West Bengal (2013)

Sex workers should be treated as victims of crime rather than the accused’

Petitioner- Manoj Kumar

Respondent- State of West Bengal

Calcutta High Court’s analysis

The chief judge of Calcutta High Court ordered the investigating officer to issue notice against the owner of the health spa under Section 41A of the Code of Criminal Procedure who had employed minor girls in the business of prostitution in his spa. According to the reports of the judicial officer, it was stated that the investigating officer was present during the hearing but on the other hand it was contended that he was not present. The Court observed that in cases where the offence is punishable for 7 years or more the investigating officer should consider all the facts that whether it is in the interest of justice to issue the notice under Section 41A of the Code of Criminal Procedure. The Court held such grave offences that come under Section 5 of the Act that is carrying out prostitution under lawful businesses like health spa etc requires sensitivity and attention and should be dealt with a serious approach. On the contrary, only notice was issued against the spa owner and the victims were put in jail who were already exploited hailing from a background that is financially not well off and is illiterate. The victims were minors and forcing minors into the business of prostitution leads to punishment for more than 7 years under the Immoral Trafficking (Prevention) Act. 

The entire case reflects the glaring defects in the justice mechanism as the minor girls who were victims were made more vulnerable for threats, intimidation, etc by putting them in jail as if they were the accused themselves. The anticipatory bail of the petitioner was rejected as the Court held that interrogation is needed from the petitioner. The Court ordered a show-cause notice against the investigating officer and the victims to be released and their statements recorded under Section 164 of the Code of Criminal Procedure. The victims were directed to be granted interim compensation under the state victim compensation scheme and to accord rehabilitation in accordance with the law.

Budhadev Karmaskar v. State of West Bengal (2011)

Sex workers are also be entitled to live a dignified life as guaranteed under Article 21 of the Constitution’

Appellant- Budhadev Karmaskar

Respondent- State of West Bengal

Observations of the Court

The appeal of the appellant was dismissed where he was convicted for the murder of a sex worker by battering her head repeatedly against the wall and the floor of the room. The Court suo moto filed a PIL for addressing the problems of the sex workers. A panel was constituted headed by an advocate and experts from social work backgrounds and resource persons. The Central and state government was directed to initiate schemes and policies for the vocational and skill training and the rehabilitation of the sex workers with the assistance of a constituted panel instituted for the purpose. The Court held that sex workers are like ordinary human beings and have an equal right to live a dignified life as guaranteed under Article 21 of the Constitution. The major concerns that the Court pointed out were-

  1. To prevent sex trafficking 
  2. To rehabilitate those sex workers who wish to withdraw themselves from the sex trade
  3. To provide dignified life and dignified conditions for those sex workers who wish to continue in this industry. 

The Court observed that until and unless the nexus between the traffickers, the sex workers and the family members is not broken the rescue mission is bound to fail. The Court also directed the NGOs and different state governments to provide a helpline number to redress their issues and to seek legal advice whenever required.

Gaurav Jain v. Union of India (1997)

Children of prostitutes have an equal right to opportunity, care and protection’

Petitioner- Gaurav Jain

Respondent- Union of India

Observations of the Court

The Court observed in this particular case where an advocate filed a PIL after reading the ‘red light trap’ in the India Today magazine. He prayed for separate inns and schools of vocational training for the offspring of the prostitutes as the environment they live in is not healthy for children and by residing separately they would be able to be somewhat a part of the mainstream public. The Court also emphasised the elimination of prostitution. It also directed the establishment of juvenile homes for their vocational training and separate hostels for these children. A review petition was filed before the Court by the Supreme Court Bar Association with the assistance of the original petitioner Gaurav Jain for reflecting the nature and scope of Articles 32, Article 142 and Article 145 (1) of the Constitution and for directions formulated for the eradication of prostitution. The Court overruled the directions for eradication of poverty but it upheld the directions for the constitution of juvenile homes for the children of these sex workers.

Delhi v. Pankaj Chaudhry & Ors(2009)

‘No means no even if a woman is of an easy virtue’

Appellant- Delhi

Respondent- Pankaj Chaudhry & Ors

Observations of court

The Court reversed the decision of the Delhi High Court of acquitting 4 accused of gang rape and upheld the conviction of the trial Court. The Delhi High Court dismissed the conviction of the accused because the women were in the custody of the police when the alleged rape is supposed to have been occurred. Though the Court held that even if the woman is immoral no one is permitted to rape her. She is as equally protected from being harassed as any ordinary citizen would be. The Court asserted that the High Court has committed an error while relying on the respondent’s contentions and ignored the complaints of the women. The police officers were also not permitted to be heard. The Court quashed the grounds which were established against the police officials for perjury. The Court emphasised that even if it is proved through material evidence that a woman is habitual of sexual intercourse, no one can take advantage of her and can raise the issue regarding her character or by contenting that she is a woman of ‘easy virtue’. The Court observed that such women have the right to refuse to submit themselves for sexual intercourse. The Court imposed a 10 years sentence for the accused as was held by the trial court earlier.

Conclusion

Prostitution is the act of sexual pleasure in return for some monetary benefits. Most of the women enter this industry out of abject poverty and illiteracy. Though some pursue it out of their own choice. Prostitutes have also been treated as an outcast for society and their profession is looked upon as derogatory. Though the Courts have passed several judgments withholding the rights of the sex workers as they are entitled to equal rights in comparison to an ordinary citizen to live a dignified life, right to reside at the place of their choice, right to choose their vocation and to refuse to give her services as and when she desires. The Courts have been asserting the fact that it is high time that society accepts sex workers the way they are and respect their profession.

References


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