The Bombay High Court recently in the case of Kajal and others v. State of Maharashtra [1] held that prostitution per se is not a crime as per the provisions of The Immoral Traffic (Prevention) Act, 1956.[2]

The court while ordering the release of three young women sex workers detained at a corrective home for almost a year now, observed that prostitution is not a criminal offence and women have a right to choose their vocation. Justice Prithviraj Chavan further added that a woman cannot be detailed without her consent and will.

The court observed that the 1956 Act doesn't abolish prostitution. The exploitation or abuse of a person for commercial purposes and soliciting in public places is considered punishable under the law, the court said.

Brief Facts
A social service branch of the Mumbai police in September last year rescued three women from Chincholi Binder area in Malad through a trap using a decoy customer, as reported by the Times of India. Their case was presented before a metropolitan magistrate who ordered the women sex workers to stay at a women's hostel and asked for a report from the probation officer.

Next month, the magistrate reportedly refused to hand over the custody of the women to their respective mothers, saying that it wasn't in their best interests. Rather, the magistrate said that they shall be kept at a women's hostel in UP.

On November 22nd, after the magistrate's order was upheld by Dindoshi sessions court, the three women moved the Bombay High Court.

The Bombay HC later found several discrepancies in the raid report and noted the failure of the magistrate in inquiring whether the alleged solicitor was running a brothel or procuring women. Further, the HC criticised the Metropolitan Magistrate for not handing over the women to their respective parents and ordering their detention in a corrective home.

The HC also criticised the Dindoshi sessions court for upholding the detention of the three women against their consent.

The HC observed that the 1956 Act doesn't empower the Magistrate to hold the custody of the victims beyond the period of three weeks without their being any final order to that effect after following due process of law.

In paragraph 27 of the judgment, the HC observed that the provisions of the 1956 Act clearly indicate that the purpose of the Act is not to abolish prostitution or the prostitute. There is no provision under the law which makes prostitution per se a criminal offence or punishes a person because he or she indulges in prostitution.

What is punishable under the Act is sexual exploitation or abuse of a person for commercial purpose and to earn from it, except where a person is carrying on prostitution in a public place as provided in Section 7 or when a person is found soliciting or seducing another person as per Section 8 of the 1956 Act.

Quoting fundamental rights of a citizen under Article 19(1) of the Constitution and while observing that the State government within its power under the Act, can seek appropriate directions from Court to send the victim to corrective institution, the Court held that the fundamental rights of the citizens enshrined in part III of the Constitution stand on the higher pedestal vis-a-vis statutory right or any other right conferred by the general law.

Thus, the Court held that the victims being major cannot be detained at a place and have a right to move freely and chose their vocation.

Importance of this judgment
Consensual sexual relations are not punishable under any law in the country. So much so that even the law of adultery[3] was struck down by the Honourable Apex court in Joseph Shine v. Union of India[4].

Thus it makes absolutely no sense why prostitution need to be considered a crime and made punishable. It may fall in the category of disqualification under various personal laws in the country but it is certainly not an offence considering that the person enters into such sexual relations with consent. Hence, this judgement upholding the rights of the three women against any sort of detention is correct in law.

End-Notes:

1. W.P. (C) No. 6065 of 2020.
2. Act 104 of 1956.
3. The Indian Penal Code, 1860, s. 497.
4. AIR 2018 SC 1676.