Prostitution per se is not a criminal offence even though seducing a person for prostitution or running a brothel is illegal.
Going a step further the Mumbai High Court opined that adult woman had the right to choose their vocation, and hence ordered the immediate release of three women sex workers detained in a remand home in Mumbai.
Delivering the order the bench comprising Justice Prithviraj Chavan held that prostitution has not been defined as a criminal offence under the Immoral Traffic (Prevention) Act, 1956.
In the present case, three women in their twenties were picked up by the police in a raid at a guest house from Chincholi Binder area in Malad last year. They were booked under the immoral trafficking laws and sent to the correctional facility. Their legal guardians approached for their release; however, the magistrate declined to give their custody to their guardians and instead sent them to the correctional facility (Nari Niketan) as there was a possibility of them indulging in similar activities in future.
Justice Chavan, however, set aside the magistrate’s order and observed that the women were “adults,” and “entitled to their fundamental right to move freely and choose their own vocation.”
The High Court held that since the women were not being prosecuted under the law, there was no question of continuing their detention at the correctional home. “Even otherwise, the Immoral Traffic (Prevention) Act, 1956 does not empower the Magistrate to hold the custody of the victims beyond the period of three weeks without there being any final order to that effect after following due process of law,” the HC said.
It further said 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 he indulges in prostitution,” Justice Chavan said.
“What is punishable under the Act is sexual exploitation or abuse of a person for commercial purpose and to earn the bread thereby. And where a person is carrying on prostitution in a public place or when a person is found soliciting or seducing another person as defined under the Act,” the court said.
Clarifying that what is punishable under the law is exploitation or abuse of a person for commercial purposes and soliciting in public places, the judge set free the three women aged 20, 22 and 23, respectively.