INTRODUCTION
Recently Bombay High Court held that prostitution is not an criminal offence under the immoral traffic (prevention) Act,1956 and every adult woman has the fundamental right to choose their vocation. The Justice Prithvi Chavan of Bombay High Court ordered to release three sex worker immediately who has been detained in a corrective home for almost one year and said prostitution by itself was not an offence and did not entail a punishment, instead its public solicitation was the offence defined under the Act . The court ordered to release them immediately.
FACTS
- The plea was filed by the three women challenging an order passed by the metropolitan magistrate, Mazgaon, that had upheld their detention at a local correctional facility against her will.
- The mothers and other legal guardians of the three women approached the magistrate’s order.
- The petition was filed under Section of CRPC in order to quash the entire proceedings in crime registered under section 370 of IPC and section 3,4,5 and 7 of the Immoral traffic (prevention) Act.
- The petitioner who approached the Karnataka high court was a customer in a brothel in Bengaluru, the petitioner was arrested but later was released.
- The Durbar Mahila Samanwaya committee, a collective of 65,000 sex workers believes that arrest of customers happen regularly and they often get off the hook after paying some money.
The petitioners counsel submitted that the lower court committed gross error of law in framing charge against accused/petitioner.
KEY HIGHLIGHTS
- The High court ordered release of three women sex workers detained at a corrective centre for almost one year.
- Justice Prithvi Chavan said the immoral traffic (prevention) Act does not abolish prostitution.
- Only sexual exploitation of a person for commercial purposes is a criminal offence under the act.
COURT’S DECISION
The Bombay High Court contended that as the victims are not being prosecuted there is no question of continuing their detention in the custody of Navjeevan Mahila Vastigruha or with any other institution and hence Bombay High Court ordered to release all three sex workers who was detained earlier. The court also said that the women were adults and entitled to their fundamental right to move freely and choose their own vocation. It further stated that there was nothing on record to show that the petitioners were seducing any person for the purpose of prostitution or that they were running a brothel. There is no provision under the law which makes prostitution per se a criminal offence or punishes a person because she indulges in prostitution. But this entire verdict also lies the aspect of physical exploitation.
The order also stated that section 370(that deals with physical exploitation) and its amendment following the December 16, 2012, gang rape will not be applicable if sex workers are engaged in prostitution of their own volition. The law was amended in 2013 and Section 370A was introduced and as per the amendment a person can be held liable within the mischief of this offence if he either recruits, transports, harbours , transfers or receives a person or persons. The decision came after Delhi gang rape case.
The judge while quashing the case said – “ it is felt by this court that the customer virtually encourages prostitution, and exploit the victim for money, but in the absence of any specific penal provision, it cannot be said that he is liable for any prosecution for the above said offences”.