NATIONAL LEGAL RESEARCH DESK
The Court in this case emphasized on the need to educate the girl child till 12th standard and stated that “If the girls are educated and studied, further opportunity can be given by the State Government to earn their own livelihood. It is well known that no women or girls join the profession at their own sweet will or volition. They have to do it under severe compulsion as there is no other alternative to them.” Also, it extensively referred to the cases of Vishaljeet v UOI, Gaurav Jain v UOI and Public at Large v State of Maharashtra on the issue of rescue, rehabilitation and settlement of the victims of prostitution into the society, and various other provisions of this Act including definition of certain terms as “prostitution”, “public place”, etc.
Reference was also made to a Report namely, “Prostitution in Surat (A Study of Women in the profession of Prostitution in Surat City, 1990) Report of the Research Project Financed by the M.S.U.B. Vide S.R. No. 34(3) (31) dated 30-12-1989 by Leena Vihang Mehta”, wherein suggestions were made with regard to give legal protection to prostitutes by regulating the minimum price structure and providing for regular medical checkups, living and work conditions in flesh trade, also the need to safeguard the interest of the children of prostitutes. Further, it was suggested that the prostitutes should be made aware about their legal position. Systematic legal guidance should be made available to them so that the chances of unnecessary harassment can be minimised and they get at least a fair and just legal trial. Almost all the respondents wished to have a secured job with regular income and a place to stay, though persistent motivation and outside support are needed to help these women to imbibe courage, confidence and security so that they could come out of this vicious circle.
The High Court of Gujarat in this writ petition of habeas corpus raised important question of interpretation of Immoral Traffic (Prevention) Act, 1956. The Court stated that it was satisfied that the authority had properly arrived at the subjective satisfaction to detain the person as he was indulging in the activity in connection with immoral traffic. The Act in question was not only concerned with an individual, but the society at large, herein the Court upheld the detention order and observed that the detenu should not be released from jail as he was committing crime not only against the individual but against the society at large particularly with women which also affected a large number of people with dangerous disease like A.I.D.S.
The grounds of detention reveal that the authority has recorded statements of witnesses on 20-5-2005 as well as 12-6-2005 and other material shown in the note and from the grounds, it is alleged that the activities carried on by the detenu fall within ‘immoral traffic” as defined in Section 2(g) of the Gujarat Prevention of Anti-Social Activities Act, 1985 (the PASA Act). The grounds of detention further revealed that the detenu was an immoral traffic offender. He was carrying on such activity on rented flats in Surat. The petitioner was engaged in the activity of immoral traffic by bringing girls and women from other cities to Surat and by supplying them to various customers in consideration of money and also providing rooms for the said purpose, he was running the business of prostitution and also earning his livelihood from the said income.
Thus, his activities were directly causing or were likely to cause harm, danger to life, property and public health, also immoral trafficking was resulting in spreading sexual disease including dangerous diseases like H.I.V. AIDS etc., and therefore, the Court observed that there was no need of any documentary evidence to prove that such activity had been dangerous to public health particularly when there was sufficient material on record of the case to show that the detenu was involved in the anti-social activities of running brothel or involved in the offences of immoral trafficking.
The Court while observing that the petition raised an important question of interpretation of Immoral Traffic (Prevention) Act, held as under:
- The purpose of the Act was to inhibit or abolish commercialized “vice” of prostitution and not to render prostitution per se a criminal offence or to punish a woman merely because she prostitutes.
- Section 2(a) “brothel” includes any house, room or place which is used for purposes of sexual exploitation or abuse for the gain of another person or the mutual gain of two or more prostitutes.
- Thus, where a single person practices prostitution for his or her own livelihood without another prostitute or some other person being involved in the maintenance of such premises, his or her residence will not amount to “brothel”.
- “Prostitution” under the Act means the sexual exploitation or abuse of persons (male or female) for commercial purposes, and the expression “prostitute” will be construed accordingly.
- This new definition clearly implies that those who have to be punished under the Act are those who exploit persons through prostitution.
- Most of the provisions of the Act are intended to punish the brothel-keepers, the pimps, those who live on the earnings of prostitution of another person and those who are involved in the trafficking of persons for the purpose of prostitution.
- The Court also observed that the Act does not prohibit prostitution as such but seeks to remove some of the conditions which promote prostitution. The provisions are directed mainly towards those who either organize prostitution by running brothels or induct women into the sex trade.
- The only situations for which a prostitute can be punished are:
Where prostitution is carried on in premises which are within a distance of 200 yards of any place of public religious worship, educational institution, hotel, hospital, nursing home or such other public place of any kind as may be notified in this behalf by the Commissioner of Police or District Magistrate.
Where a prostitute makes positive attempts to seduce or solicit persons for purposes of prostitution.