| News Source: IE The Kerala High Court has widened the definition of the word ‘procure’ in Section 5 of the Immoral Traffic (Prevention) Act, 1956, to include customers or seeking the services of prostitutes. |
What is the Immoral Traffic (Prevention) Act of 1956?
- About:
- The Immoral Traffic (Prevention) Act was passed on December 30, 1956 to prevent ‘the commercialisation of vices’ and the ‘trafficking of females’
- It delineates the legal framework surrounding sex work. While the act itself does not declare sex work illegal, it prohibits running brothels. Engaging in prostitution is legally recognized, but soliciting people and luring them into sexual activities are considered illegal.
- Definition of Brothel:
- Section 2 defines a “brothel” to include “any house, room, or place, or any portion of any house, room or place, which is used for purposes [of sexual exploitation or abuse] for the gain of another person or for the mutual gain of two or more prostitutes.”
- Definition of Prostitution:
- Prostitution, as per the act, is the sexual exploitation or abuse of persons for commercial purposes.
- Offenses Under the Act:
- The section 5 of the act penalizes those who procure, induce, or take individuals for prostitution purposes. The punishment includes rigorous imprisonment for 3–7 years and a fine of Rs 2,000.
- For offenses against a person’s will or a child, the maximum sentence can extend to fourteen years or life.
- Child means a person who has not completed the age of sixteen years.
- For offenses against a person’s will or a child, the maximum sentence can extend to fourteen years or life.
- The section 5 of the act penalizes those who procure, induce, or take individuals for prostitution purposes. The punishment includes rigorous imprisonment for 3–7 years and a fine of Rs 2,000.
What did the Kerala High Court Rule?
- The current case:
- The petitioner was arrested for being a customer in a brothel. Accused of offenses under the ITP Act’s Sections 3 (keeping a brothel or allowing premises to be used as one), 4 (living on prostitution earnings), 5 (procuring, inducing, or taking persons for prostitution), 7 (punishing prostitution in or around public places),
- The accused filed a plea seeking discharge, arguing that as a customer, he should not be implicated under the ITP Act.
- The petitioner was arrested for being a customer in a brothel. Accused of offenses under the ITP Act’s Sections 3 (keeping a brothel or allowing premises to be used as one), 4 (living on prostitution earnings), 5 (procuring, inducing, or taking persons for prostitution), 7 (punishing prostitution in or around public places),
- Ruling:
- The Kerala High Court, while recognizing that the term “procure” in section 5 is not explicitly defined in the 1956 Act, interpreted it in the context of the act’s objective of suppressing immoral trafficking and preventing prostitution.
- The court ruled that the term includes customers, and therefore, a customer can be charged under Section 5.
- The Kerala High Court, while recognizing that the term “procure” in section 5 is not explicitly defined in the 1956 Act, interpreted it in the context of the act’s objective of suppressing immoral trafficking and preventing prostitution.
- Implications of the Ruling:
- The Kerala High Court ruling expands the meaning of “procure” in Section 5, asserting that customers, in addition to pimps and brothel-keepers, can be held liable for procuring persons for prostitution.
- The ruling does not declare the petitioner guilty under Section 5; rather, it allows charges to be filed, necessitating a trial.
- Notably, the petitioner was discharged of offences under Sections 3, 4, and 7 by the High Court.
- Differing High Court Opinions:
- Mathew vs the State of Kerala(2022):
- The Kerala HC ruled that a customer caught in a brothel can be prosecuted under the ITP Act. “Section 7(1) of the Act penalizes two types of persons for indulging in prostitution within the areas specified.
- Those persons are (i) the person who carries on prostitution and (ii) the person with whom such prostitution is carried on,” the HC said, adding that the act of immoral traffic cannot be perpetrated or carried on without a ‘customer’.
- The Kerala HC ruled that a customer caught in a brothel can be prosecuted under the ITP Act. “Section 7(1) of the Act penalizes two types of persons for indulging in prostitution within the areas specified.
- Goenka Sajan Kumar vs The State Of AP (2014) and Sri Sanaulla vs State Of Karnataka (2017):
- The Andhra Pradesh and Karnataka HCs ruled against prosecuting brothel customers under sections 3-7 of the ITP Act.
- Mathew vs the State of Kerala(2022):
What is the Legality of Sex Work?
- Sex Work as a Profession:
- The Supreme Court has recognised sex work as a “profession” and observed that its practitioners are entitled to equal protection of the law and criminal law must apply equally in all cases, on the basis of ‘age’ and ‘consent’.
- The Court held that Voluntary sex is not a crime.
- The Supreme Court has recognised sex work as a “profession” and observed that its practitioners are entitled to equal protection of the law and criminal law must apply equally in all cases, on the basis of ‘age’ and ‘consent’.
- Equality in Business:
- Courts have held that individuals, regardless of their chosen profession, have an equal right to carry on any business.
- The Supreme Court of India in Budhadev Karmaskar v. State of West Bengal (2011), secured the rights of sex workers and emphasized the protection afforded by Article 21.
- Fundamental and Human Rights:
- In the case of Gaurav Jain vs Union Of India And Ors(1989) the Supreme Court recognized the fundamental and human rights of sex workers, asserting their right to dignity and protection under the law.
- The Court found that the children of the sex workers have the right to equality of opportunity, dignity, care, protection and rehabilitation and to be part of the “mainstream of social life” without any attached “pre-stigma”.
- In the case of Gaurav Jain vs Union Of India And Ors(1989) the Supreme Court recognized the fundamental and human rights of sex workers, asserting their right to dignity and protection under the law.
What Initiatives Have Been Taken to Address Sex Workers?
- Ujjawala:
- The Ministry of Women and Child Development is implementing “Ujjawala” – a Comprehensive Scheme for the Prevention of Trafficking and Rescue, Rehabilitation, Re-integration and Repatriation of Victims of Trafficking for Commercial Sexual Exploitation.
- National Commission for Women:
- The establishment of the National Commission for Women reflects the government’s commitment to ensuring the rights of women and girls involved in prostitution are protected.
- National Human Rights Commission:
- NHRC recognised sex workers as informal workers.
- Awareness Campaigns:
- In 2018, the Supreme Court recommended the government to address the mistreatment of women in the sex business and explore legalization in certain areas under strict regulation.
- The government launched extensive public awareness programs to inform people about the dangers of the commercial sex trade in response to the court’s order.
- In 2018, the Supreme Court recommended the government to address the mistreatment of women in the sex business and explore legalization in certain areas under strict regulation.
What are the Societal Perceptions Regarding the Sex Work?
- Cultural Stigma:
- Although legal in some states, prostitution is generally seen as immoral and a violation of cultural norms; in some, it is seen as a challenge to the sacredness of marriage and the family.
- Women in Sex Work (WSW) have been identified as one of the most discriminated and vulnerable populations in India.
- Because of the stigma associated with their occupation, sex workers frequently experience social isolation.
- Although legal in some states, prostitution is generally seen as immoral and a violation of cultural norms; in some, it is seen as a challenge to the sacredness of marriage and the family.
- Gender Dynamics:
- Many believe that prostitution is an abusive and demeaning business that primarily targets women.
- The profession is often associated with exploitation and harm.
- Sex workers are particularly vulnerable to physical abuse, discrimination, and the use of insulting language.
- Many believe that prostitution is an abusive and demeaning business that primarily targets women.
- Advocacy for Autonomy:
- On the flip side, proponents argue that women should have the agency to decide how they use their bodies.
- Some view prostitution as a profession where women can exercise their freedom of choice.
- On the flip side, proponents argue that women should have the agency to decide how they use their bodies.
Way Forward
- The ethical consequences of prostitution in India are still debated. However, enforcing trafficking laws is vital to prevent women and girls from being enslaved.
- Encourage open debate and educational initiatives to raise awareness of different perspectives on sex work, taking into account cultural sensitivity.
- Emphasize that all citizens are equal under the law, regardless of the career path they have chosen.