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Immoral Traffic (Prevention) Act, 1956

For Prelims: Immoral Traffic (Prevention) Act, 1956, Freedom of Profession, Ujjawala, National
Commission for Women

For Mains: Recognition of sex Work as a Profession, Rights of Sex worker, Government Policies &
Interventions

Source: IE

Why in News?

Recently, 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 seeking the services of prostitutes.

What is the Immoral Traffic (Prevention) Act of 1956?

About:
The Immoral Traffic (Prevention) Act (ITP), 1956, aims 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 as any place used for 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.

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.
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.
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’.
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.

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.
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”.

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:
The Supreme Court urged the government in 2018 to take action against the exploitation
of women in the sex industry and consider legalization in specific locations with
rigorous regulation.
In response to the court's directive, the government initiated widespread
awareness campaigns to educate the public about the risks associated with the
commercial sex trade.

What are the Societal Perceptions Regarding the Sex Work?

Cultural Stigma:
While legal in certain contexts, prostitution is often viewed as unethical and a breach of
cultural values. Some cultures perceive it as a threat to the sanctity of marriage and family.
Women in Sex Work (WSW) have been identified as one of the most discriminated
and vulnerable populations in India.
Sex workers often face social isolation due to the stigma attached to their
profession.
Gender Dynamics:
Many see prostitution as a degrading and abusive profession, particularly targeting
women.
The profession is often associated with exploitation and harm.
Sex workers encounter derogatory terms, physical violence, and discrimination,
exacerbating their vulnerability.
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.

Way Forward

The ethical implications of prostitution in India remain a subject of ongoing debate. Regardless of
one's stance, upholding trafficking laws is deemed crucial to preventing women and girls
from falling victim to enslavement.
Encourage open dialogue and educational programs to sensitize communities to diverse
perspectives on sex work, considering cultural sensitivities.
Emphasize the legal recognition of the equality of all citizens, regardless of their chosen
profession.

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