In a significant order, a Mumbai Sessions Court reiterated that engaging in sex work is not an offence and that the petitioner had the right to work, even if its is sex work. The court ordered that the petitioner be released from the protection home where she was detained for over a year.
This is a position taken by the Supreme Court as well in Budhadev Karmaskar vs The State of West Bengal (Cri. Appeal no. 135/2010; decided on May 19, 2022). The case is still ongoing as Durbar Mahila Samanwaya Committee, a collective of 65,000 sex workers, had filed an IA in this case during COVID pandemic to get access of dry ration to sex workers. The case is now practically a continuous mandamus and the apex court continues to monitor the protection of rights of sex workers through this case since the original judgment of February 2011. The main case was of a brutal murder of a sex worker whereby the accused was convicted, and the apex court despised the appeal against the conviction.
Sex work is a complex and controversial issue that involves the exchange of sexual services for money or goods. It has been subjected to various legal and social frameworks, ranging from prohibition to regulated or decriminalized systems. The rights and treatment of sex workers have been a subject of debate and advocacy worldwide.
The Immoral Traffic (Prevention) Act, 1956 (ITPA) is the primary legislation governing sex work in the country. Under the ITPA, soliciting, brothel-keeping, and living off the earnings of prostitution are criminal offenses, while the act of prostitution itself is not explicitly illegal. However, the implementation and enforcement of these laws have been inconsistent, leading to a variety of challenges for sex workers.
Sessions court judgement
In a significant judgment dated April 26, the Additional Sessions Judge CV Patil reiterated that engaging in sex work itself is not an offense under the ITPA. This judgment recognized the distinction between the act of sex work and related activities such as soliciting or running a brothel, which are criminalized under the law.
The court’s decision emphasized that consenting adults have the right to engage in any lawful profession or trade of their choice. It argued that sex work, being a voluntary transaction between two adults, does not violate any fundamental rights. The judgment further highlighted that the
criminalization of sex work pushes it into the shadows, making it difficult for sex workers to access essential services, healthcare, and legal protection.
The appeal in question was filed by the detainee under Section 397 of the Criminal Procedure Code (Cr.P.C.), requesting her release on executing a Personal Recognizance (P.R.) bond until the final hearing of the appeal. She sought to set aside the order issued by the Metropolitan Magistrate, Mazgaon.
She asserted that she had not engaged in any immoral activities and has small minor children who need her care. The victim claims that the Magistrate did not consider her age and instead passed a mechanical order. She argued that, under Article 19 of the Constitution of India, she has the right to move and reside anywhere, but her liberty is being curtailed due to the order. Consequently, the victim requested her release and the setting aside of the Magistrate’s order.
Additionally, the court held that detaining an adult sex worker without any reasonable cause infringes upon their fundamental rights under Article 19 of the Indian Constitution, which guarantees the right to freedom of speech and expression and the right to practice any profession, occupation, trade, or business.
This judgment acknowledged the need for a more nuanced and rights-based approach towards sex work, emphasizing that the focus should be on addressing the structural and systemic issues that lead to vulnerability and exploitation rather than targeting sex workers themselves.
Notably, the judgement relied upon Budhadev Karmaskar vs The State of West Bengal (Cri. Appeal no. 135.2021; decided on May 19, 2022) whereby the Supreme Court had given directions for rehabilitation measures in respect of sex workers. The court had, inter alia, stated:
(i) Sex workers are entitled to equal protection of the law. 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.
iii) Whenever there is a raid on any brothel, since voluntary sex work is not illegal and only running the brothel is unlawful, the sex workers concerned should not be arrested or penalised or harassed or victimised.
iv) The State Governments may be directed to do a survey of all ITPA Protective Homes so that cases of adult women, who are detained against their will can be reviewed and processed for release in a time-bound manner.
The Sessions Court judgement may be read here:
Budhadev case hearing in SC
At the hearing on May 4, the amicus curiae, Jayant Bhushan raised concerns about the conditions and treatment of adult sex workers residing in protective homes across various states. “Adult women wanting to leave cannot be held against their will in these protective homes. These protective homes are like jails. Most of them do not want to be there. These are adult women, not criminals. States should not be allowed to treat them in this patriarchal manner and say this is for their protection, even when the women are not willing,” Bhushan said as reported by LiveLaw.
Bhushan informed the court that the affidavits of the states do not depict the ground reality as they have stated that women do not want to leave protection homes.
However, Advocate Aparna Bhat appearing for an applicant running one such protective home in Hyderabad, told the bench that… “I can say with experience that all the women who are rescued from brothels, on the date of rescue, say that they want to go back. This is because they do not know any better, and their belongings are also with the brothel owners,” reported LiveLaw. The bench said they would want to hear the parties at length and then pass orders. Bhat also submitted that people come to these protection homes under the guise of conducting surveys and ask the homes to release the women only to push them in to sex work again.
Last year, in May, a bench headed by Justice L Nageswara Rao (retired) was hearing this case and had said that adult women detained against their will in such protection homes should be permitted to leave.
The court also asked the Centre whether it has prepared a Bill on sex workers to which the Centre had committed back in 2016. The Additional Solicitor-General Jayant Sood sought time to get instructions and Justice Gavai said that if no law has been passed, then the court will pass orders accordingly.
The next hearing in the case is on July 25, 2023.
The Supreme Court order may be read here: