Is prostitution legal in India? Kajal Mukesh Singh and Ors v State of Maharashtra 2021

A significant step was the Supreme Court’s directive to police not to interfere with or prosecute consensual sex workers. It was said that sex workers have a right to dignity and equal legal protection and that prostitution is a “profession.”

Six orders were issued by the three-judge panel, which was presided over by Justice L. Nageswara Rao, to defend the rights of sex workers. “Sex workers are entitled to equal protection of the law,” the court said. In all circumstances, regardless of age or permission, the criminal law must be applied equally. The police shall not interfere or engage in any criminal activity when it is obvious that the sex worker is an adult and taking part with consent. There is no need to argue against  the profession, every individual in this country has the right to a dignified life under Article 21 of the Constitution.”The court stated that since volunteer sex work is not illegal and only running a brothel is, sex workers shouldn’t be detained, punished, harassed, or victimised during brothel searches. The court also advised law enforcement officials to treat sex workers fairly when they report offences that they believe to be sexually motivated. Workers in the sex business who have been sexually assaulted should be given access to all resources, including timely medical and legal support.

THE LEGALITY OF SEX WORK

In India, prostitution is not against the law. However, some prostitution-related activities, such as soliciting clients in public, engaging in prostitution in hotels, owning a brothel, pimping, engaging in prostitution by hiring a sex worker, and arranging a sexual act with a client, are prohibited under certain laws. The Immoral Traffic(Prevention) Act of 1956, generally referred to as the SITA, forbids prostitutes from opening shop in public. 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. The Act’s goals were to uphold social decorum and protect young girls and women from unlawful trafficking.

The Bombay High Court in the case of Kajal Mukesh Singh and Ors v State of Maharashtra 2021 ordered that prostitution was not regarded as a criminal offence under the Immoral Traffic (Prevention) Act 1956.

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, specificallySection 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.

OTHER LANDMARK JUDGMENTS RELATED TO RIGHTS OF PROSTITUTES IN INDIA

Budhade v Karmaskar case The Supreme Court of India declared with certainty in the Budhade v Karmaskar case that sex workers are human beings with a right to life under Article 21 of the Indian constitution, and that no one has the right to harm or murder them. The verdict also attracted attention to the plight of sex workers, underlining that many women are forced to engage in prostitution due to their financial and economic burdens, rather than for pleasure.

Gaurav Jain v Union of India , in this case, the Court issued broad guidelines for the rescue and reintegration of prostitutes and their children into society. It claimed that prostitution related women should not be considered perpetrators, but rather victims of their adverse socioeconomic circumstances. It placed a strong emphasis on empowering women economically through self-employment and vocational training. The court ordered that juvenile homes should be established for the youngsters in order to assure their rehabilitation and protection.

Adv. Khanak Sharma (D/1710/2023)