“Prostitution is not an offence, Woman has the right to choose her vocation”: Bombay High Court

The detention of three women sex workers for their vocation which was challenged in the court came out with the clarification by Bombay High Court that prostitution was not an offence. A single-judge bench of Justice Prithviraj K. Chavan clarified that prostitution was not an offence under the Immoral Traffic (Prevention) Act, 1956. Women had the right to choose her vocation and cannot be detained without her consent.

The plea before the High Court had challenged an order passed by the Metropolitan Magistrate (MM), Mazgaon in October last year under section 17( 2) of the Act. The order of MM was upheld by the Additional Sessions Judge, Dindoshi a month later. The complainant Police Constable Rupesh Ramachandra More had a laid a trap to nab the women sex workers after he received secret information that a person named Nijamuddin Khan, who was a pimp, offered these women for prostitution at a guest house in Malad. The women along with the pimp were taken into custody from the guest house named Yatri Guest House.

The women were produced before the MM, who on the report of the Probation Officer, granted their intermediate custody to Navjeevan Mahila Vasti Grih at Deonar in Mumbai. The MM also directed an NGO called Justice and Care to provide primary education to these women during their stay in Navjeevan Mahila Vasti Grih. The women reportedly belonged to the Bediya community wherein there was a custom of sending girls for prostitution after they attain puberty. Considering this custom, the women were not handed over to their family because of the apprehension that their families might again send them for prostitution. The MM further directed the women to be sent to Nari Niketan Prayag Vastigruh, Fultabad, Allahabad or to any other state-run institution of Uttar Pradesh for one year for their care and protection and they could also undergo vocational training in the subject of their choice.

The decision of the MM was challenged in appeal before the Additional Sessions Judge, Dindoshi but the appeal was dismissed.

Considering the relevant provisions of the Immoral Traffic (Prevention) Act, 1956, the Court observed that the victims were not being prosecuted in the case and therefore there was no question of detaining them in custody in Navjeevan Mahila Vasti Grih or in any other institution. The court further observed that under the provisions of the Act, the MM is not empowered to hold the custody of the victims for more than 3 weeks in the absence of a final order to that effect passed after following the due process of law.

The court noted that the provisions of the Act (under section 17) empowered the Magistrate to detain the victims for a period of one to three years in a protective home after passing an order in writing but there were some pre-requisites for that. The pre-requisites are that such an order can be passed only after completion of an inquiry conducted by a panel of five members summoned by the Magistrate. Three members of this panel should be women wherever practicable. In this case, no such panel, as required by the law, was conducted.

The High Court observed that no provision under the law makes prostitution per se a criminal offence or penalises a person indulging in it. It further clarified that the law punishes sexual exploitation or abuse of a person for commercial purpose. However, carrying on prostitution in a public place or soliciting or seducing another person is a punishable offence. The court said there was nothing on record to show that the women were seducing for prostitution.

The court further observed that Magistrate might have been swayed away because the victims belonged to a particular caste but the victims were major and they had a right to reside at the place of their choice, to move freely throughout the territory of India and to choose their own vocation under the Part III of the Constitution. The court said that the Magistrate should have considered the consent of the victims before ordering their detention in the protective home.

The law as clarified the Bombay High Court does not criminalise sex workers and instead, it seeks to protect them. What is prohibited under the law is sexual exploitation for commercial purposes like pimping and also soliciting or seducing in public places. Running brothels or allowing one’s place to run prostitution is also illegal. The law assumes that the persons offering their bodies in exchange for money are victims and not perpetrators. The Immoral Traffic (Prevention) Act, 1956 does not criminalise the act of prostitution itself, but criminalises the support system that enables and promotes it.

Prostitution is said to be the oldest ‘profession’ and time and again the demands to legalise it have been raised. However, one thing is perhaps undeniable that the primary reason behind persons indulging in prostitution is either poverty or some other compelling situation. When demanding legalisation of this ‘profession’, the question to be asked is whether we are actually willing, as a society, to give prostitution the status of a profession like doctor, engineer or lawyer and that whether we are willing to allow our children to take it up as ‘career choice’.