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A Matter Of Choice!

The Bombay High Court of India has ruled that Prostitution is not a Crime! Decades ago, India had enacted the Immoral Traffic (Prevention) Act, 1956 (PITA) in order to prevent trafficking of women for prostitution. However, Justice Prithviraj K Chavan of the Bombay High Court recently said: “Women have right to choose vocation and cannot be detained without their consent.” Justice Chavan also set free three sex workers detained at a women’s hostel for committing the crime! The Judge, who observed that prostitution was no offence under the law, clarified that the purpose and the object of the PITA, 1956 was not to abolish prostitution. “There is no provision under the law which makes prostitution per se a criminal offence or punishes a person because she indulges in prostitution,” he stressed. According to Justice Chavan, exploitation or abuse of a person for commercial purposes and soliciting in public places are punishable under the law.

In September 2019, the Indian Police had arrested three women – aged 20, 22 and 23, respectively – for their alleged involvement in prostitution. The Police had also detained a man, named Nizamuddin Khan, for running a sex racket at a guest house in western Indian Province of Maharashtra’s Malad area. During the hearing in a Lower Court, it was revealed that the three women belonged to the Bedia Community. For the Bedia families, it is customary to send women to engage in sex work after a certain age. As there was a long tradition of prostitution in this community, the Lower Court stated that in this case, the parents had allowed the daughter to join the sex work. Hence, it would not be safe to give the responsibility of the daughter to the mother. As a result, the Magistrate directed that the three women be kept at a women’s hostel…

Meanwhile, Justice Chavan dismissed the Lower Court’s verdict, saying that as no case was being filed against the three women, it would be meaningless to keep them in the custody of any organisation. The High Court Judge also said the fact that the three women were members of a particular community had affected the Lower Court. The Lower Court should have remembered that the three women were adults, stressed Justice Chavan. He further said that the Lower Court ought to have considered the willingness and consent of the women before ordering their detention. “It is important to note that the petitioners or victims are major and, therefore, have a right to reside at the place of their choice, to move freely throughout the territory of India and to choose their own vocation, as enshrined the Constitution of India,” he insisted.

It is to be noted that prostitution has long been a theme in Indian Literature and Arts. Śhudraka had written ‘Mrichakatika’, a 10-act Sanskrit play, in the 2nd Century BC. The play is all about the story of a courtesan, Vasantsena. ‘Utsav’, a 1984 Hindi film, was based on this play. Amrapali, the nagarvadhu (prostitute) of the Kingdom of Vaishali, famously became a Buddhist monk later in the life. ‘Born into Brothels’, a 2004 American documentary film about the children of prostitutes in Sonagachi – a Red Light District of the eastern Indian city of Kolkata – had won the Academy Award for Documentary Feature in 2004. So, the profession is closely linked to the Indian History and Culture.

Prostitution is legal and regulated in Germany, Switzerland, Austria, Greece, Turkey, the Netherlands, Hungary and Latvia. In some other countries, the profession is legal, but not regulated. However, India and other South Asian countries are yet to legalise prostitution! The Legal Experts are of the opinion that Justice Chavan’s verdict might pave the way for the Indian Parliament to legalise prostitution. In a somewhat conservative country, like India, it is an important verdict, socially!

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