SC: Law is against commercialising prostitution, doesn't want to ban it

NEW DELHI: After an "exhaustive and microscopic" analysis of the 70-year-old Immoral Traffic Prevention Act (ITPA), Supreme Court has ruled that the principal objective of the legislation is neither to abolish prostitution nor to make it a criminal offence but to prevent its commercialisation.

A bench of Justices J B Pardiwala and R Mahadevan said, "We are sure that abolition of prostitution or making prostitution a criminal offence is not the principal object of the Act. Rather, what it aims for is the inhibition or abolition of the commercialisation of prostitution, i.e., prostitution as an organised means of living."

While dealing with the issue of rehabilitation of women rescued from brothels, the bench analysed the 1956 Act and said at commencement of 20th century, the trafficking of women for prostitution was common and considered "immoral", hence the word got attached to the law.

Immoral Traffic Prevention Act (ITPA) was largely brought forth to punish the perpetrators and not the prostitutes," the SC said.

Writing the 298-page judgment, Justice Pardiwala said Sections 7 and 8 of the Act, which seek to penalise individualised acts of prostitution under specific circumstances like "open prostitution" are exceptions to this general rule. Sec 7 penalises anyone engaging in prostitution in close proximity to public places, and Sec 8 criminalises the soliciting of customers at public places.

The bench said, "The idea being that although individual acts of prostitution are not sought to be directly shunned, yet public decency and social morality require that visible overtures even for such singular, non-commercial forms of prostitution be deterred in areas surrounding public institutions and other notified regions to prevent public nuisance. The court clarified that it was not trying to "make a case for the absolute criminalisation on the one hand, or the absolute un-regulation on the other hand, of prostitution as a trade. All that we are trying to convey is that having made it clear that the legislative aim is not to condemn all acts of prostitution, the definition carries with it some normative ambiguity by painting it as solely being abusive or exploitative".

On examination of definition of the word 'brothel' in Section 2 of Act, bench said, "It must be clarified that where a single woman practises prostitution for her own livelihood, without another prostitute, or some other person being involved in the maintenance of such premises, her residence will not amount to a 'brothel'."