The Supreme Court of India in Budhadev Karmaskar vs State of West Bengal[1] held that prostitutes also have a right to live with dignity under Article 21 of the Constitution of India since they are also human beings and their problems also need to be addressed. Thereafter in 2022, in Budhadev Karmaskar v. State of West Bengal and Others[2] held that the “basic protection of human decency...
The Supreme Court of India in Budhadev Karmaskar vs State of West Bengal[1] held that prostitutes also have a right to live with dignity under Article 21 of the Constitution of India since they are also human beings and their problems also need to be addressed. Thereafter in 2022, in Budhadev Karmaskar v. State of West Bengal and Others[2] held that the “basic protection of human decency and dignity extends to sex workers and their children, who, bearing the brunt of social stigma attached to their work, are removed from the fringes of the society, deprived of their right to live with dignity and opportunities to provide the same for their children.”Certain recommendations were made by a panel and the Union of India was directed to file its response to the recommendations made by the said panel. In Mathew vs State of Kerala[3] the Hon’ble held that a customer in a brothel situated in a specified area could also be proceeded against under the Immoral Traffic (Prevention) Act. The Hon’ble Supreme Court of India also published a handbook that encourages the use of the term sex worker instead of prostitute.
While plenty is in progress to better the lives of sex workers in the country, there is one provision that appears to not have received a lot of attention that it ought to receive, since it lies in much conflict with other laws in the country. This is Section 4 of the Immoral Traffic (Prevention) Act which is as follows:
“Punishment for living on the earnings of prostitution.—(1) Any person over the age of eighteen years who knowingly lives, wholly or in part, on the earnings of the prostitution of [any other person] shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both 2[and where such earnings relate to the prostitution of a child or a minor, shall be punishable with imprisonment for a term of not less than seven years and not more than ten years].
[(2) Where any person over the age of eighteen years is proved—
(a) to be living with, or to be habitually in the company of, a prostitute; or
(b) to have exercised control, direction or influence over the movements of a prostitute in such a manner as to show that such person is aiding, abetting or compelling her prostitution; or
(c) to be acting as a tout or pimp on behalf of a prostitute, it shall be presumed, until the contrary is proved, that such person is knowingly living on the earnings of prostitution of another person within the meaning of sub-section (1).]”
Prostitution is defined under Section 2(f) of the Immoral Traffic (Prevention) Act and it means “the sexual exploitation or abuse of persons for commercial purpose, and the expression “prostitute” shall be construed accordingly” The provision uses the word “person” and does not refer to gender or sex of the sexually exploited or the abused. This means that a male sex worker could come in to the above definition.
While so, there are laws that provide for the welfare of adults in India; laws that require adults to maintain adult dependents. Such as Section 125 of Cr.P.C. that would require a person having sufficient means to maintain his wife who is unable to maintain herself, adult daughter unable to maintain herself on account of physical or mental abnormality or injury as well as his parents. Similarly, there are such provisions under various personal laws that would require an adult male to maintain other adults. Likewise, senior citizens have a legitimate claim to maintenance from their adult offsprings and relatives. If such maintenance is being paid by a ‘prostitute’, would these adult dependents who have a legitimate claim to maintenance under various laws be committing a crime under Section 4?
Similarly, Section 7(a) is particularly violative of the fundamental right of a sex worker under Article 21 of the Constitution of India, because it would affect the rights of so many; sex workers, their friends and family and it would result in the force of law being used to push away a sex worker into the fringes of the society. A sex worker may want to be educated and may go to a school for adults or even a college, would the friends he/she makes there be guilty of an offence under Section 4? Because, strictly going by the provision, a person who is habitually in the company of a prostitute is presumed to be committing this offence. Similarly, what would the state of a roommate be? Or a partner? Or adult children or senior citizen parents who would be dependent on a sex worker?
For all these reasons, some parts of Section 4 of the Immoral Traffic (Prevention Act) is violative of Article 21 of the Constitution of India and lies in conflict with other laws.