There is no provision under the law, which makes prostitution per se a criminal offence. However, seducing any person for the purpose of prostitution or running a brothel is illegal.

Observing that prostitution was not a criminal offence under the law, and that an adult woman had the right to choose her vocation, the Bombay High Court has ordered immediate release of three women sex workers detained at a state corrective institution in Mumbai.

In an order passed on Thursday, a bench of Justice Prithviraj Chavan said that prostitution had not been considered a criminal offence under the Immoral Traffic (Prevention) Act, 1956.

Justice Chavan was hearing a plea filed by the three women challenging an order passed by the Metropolitan Magistrate, Mazgaon, that had upheld their detention at a local correctional facility against their will.

As per the HC order, the women, all in their twenties, were picked up by the police in September last year following a raid at a guest house. The middleman was arrested and booked under the Act.

The three women were held as “victims” and sent to the correctional facility. Subsequently, the mothers and other legal guardians of the three women approached the magistrate’s court seeking their custody. The magistrate however, declined to give their custody to their guardians.

Justice Chavan, however, set aside the magistrate’s order. He said that the women were “adults,” and “entitled to their fundamental right to move freely and choose their own vocation.”

The High Court held that since the women were not being prosecuted under the law, there was no question of continuing their detention at the correctional home. “Even otherwise, the Immoral Traffic (Prevention) Act, 1956 does not empower the Magistrate to hold the custody of the victims beyond the period of three weeks without there being any final order to that effect after following due process of law,” the HC said.

It further said that there was nothing on record to show that the petitioners were seducing any person for the purpose of prostitution or that they were running a brothel. “There is no provision under the law, which makes prostitution per se a criminal offence or punishes a person because he indulges in prostitution,” it said.

“What is punishable under the Act is sexual exploitation or abuse of a person for commercial purpose and to earn the bread thereby. And where a person is carrying on prostitution in a public place or when a person is found soliciting or seducing another person as defined under the Act,” the court said.



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