Source: Karnataka High Court

Why in News?

Recently, the Karnataka High Court in the matter of Mrs. X v. State of Karnataka & Anr. has stated that a woman who is a victim of prostitution cannot be punished for offences punishable under Section 5 of the Immoral Traffic Prevention Act, 1956 (The Act).

What was the Background of Mrs. X v. State of Karnataka & Anr. Case?

• The fulcrum of the complaint is that on 13^th January 2013 the Police Sub-Inspector attached to the crime wing of Kundapura Police Station received an information that some girls are being illegally transported from Udupi to Goa in a tempo traveler for the purpose of putting them in the business of prostitution.
• It is after such interception; the facts emerge that accused No.1 along with accused No.9 were taking the petitioner (accused No.8) and others for engaging them in the business of prostitution by paying them Rs.10,000/- each.
• On the basis of the said incident, a crime comes to be registered and the Police after investigation file a charge sheet against all the accused including the petitioner, who is arrayed as accused No.8.
• The concerned Court takes cognizance of the offence punishable under Section 5 of the Act against the petitioner along with others.
• Thereafter, the criminal petition is filed before the Karnataka High Court to quash the proceedings against the petitioner (accused no. 8).
• The learned counsel appearing for the petitioner would vehemently contend that the petitioner is the victim of prostitution at the hands of other accused and, therefore, the petitioner should not be permitted to be prosecuted.
• The Criminal petition is allowed by the High Court.

What were the Court’s Observations?

• A single judge bench of Justice M Nagaprasanna observed that the provisions, the purpose or the object of the Act is not to abolish prostitution or the prostitute. There is no provision under the law which penalizes a victim who indulges in prostitution.
• It was further states that nowhere Section 5 of the Act would indicate that a woman who is a victim of prostitution should be punished for offences punishable under Section 5 of the Act. It clearly indicates that any person who procures or attempts to procure a woman or a girl for the purpose of prostitution would become liable for such prosecution.

What is Section 5 of the Immoral Traffic Prevention Act, 1956?

About the Act:

• This Act aims to prevent the commercialization 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 Prostitution:

• Prostitution, as per the act, is the sexual exploitation or abuse of persons for commercial purposes

Section 5:

• This Section deals with procuring, inducing or taking person for the sake of prostitution.
• It states that—

(1) Any person who—

(a) Procures or attempts to procure a person, whether with or without his consent, for the purpose of prostitution; or

(b) Induces a person to go from any place, with the intent that he may for the purpose of prostitution become the inmate of, or frequent, a brothel; or

(c) Takes or attempts to take a person, or causes a person to be taken, from one place to another with a view to his carrying on, or being brought up to carry on prostitution; or

(d) Causes or induces a person to carry on prostitution;

shall be punishable on conviction with rigorous imprisonment for a term of not less than three years and not more than seven years and also with fine which may extend to two thousand rupees and if any offence under this sub-section is committed against the will of any person, the punishment of imprisonment for a term of seven years shall extend to imprisonment for a term of fourteen years.

Provided that if the person in respect of whom an offence committed under this sub-section, —

(i) Is a child, the punishment provided under this sub-section shall extend to rigorous imprisonment for a term of not less than seven years but may extend to life; and

(ii) Is a minor, the punishment provided under this sub-section shall extend to rigorous imprisonment for a term of not less than seven years and not more than fourteen years.

(3) An offence under this section shall be triable—

(a) In the place from which a person is procured, induced to go, taken or caused to be taken or from which an attempt to procure or take such person is made; or

(b) In the place to which he may have gone as a result of the inducement or to which he is taken or caused to be taken or an attempt to take him is made.

What is the Legality of Sex Work in India?

Sex Work as a Profession:

• The Supreme Court in the case of Budhadev Karmaskar v. State of West Bengal (2022), has recognized 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.

Highlights of Judgment in Budhadev Karmaskar v. State of West Bengal (2022):

• Criminal Law:
  • Sex workers are entitled to equal protection of the law and criminal law must apply equally in all cases, on the basis of ‘age’ and ‘consent’.
  • When it is clear that the sex worker is an adult and is participating with consent, the police must refrain from interfering or taking any criminal action.
  • Article 21 of the Constitution of India, 1950 (COI) declares that no person shall be deprived of his life or personal liberty except according to procedure established by law. This right is available to both citizens and non-citizens.
  • Sex workers should not be “arrested or penalised or harassed or victimised” whenever there is a raid on any brothel, “since voluntary sex work is not illegal and only running the brothel is unlawful”.
• Right of Child of a Sex Worker:
  • A child of a sex worker should not be separated from the mother merely on the ground that she is in the sex trade.
  • Basic protection of human decency and dignity extends to sex workers and their children.
  • Further, if a minor is found living in a brothel or with sex workers, it should not be presumed that the child was trafficked.
  • In case the sex worker claims that he/she is her son/daughter, tests can be done to determine if the claim is correct and if so, the minor should not be forcibly separated.
• Medical Care:
  • Sex workers who are victims of sexual assault should be provided every facility including immediate medico-legal care.
• Role of Media:
  • Media should take “utmost care not to reveal the identities of sex workers, during arrest, raid and rescue operations, whether as victims or accused and not to publish or telecast any photos that would result in disclosure of such identities.