A recent verdict of the High Court
lays bare the paradox of how the Parliament has missed out on the most obvious
aspect of effectively prohibiting prostitution in India. The law that governs
the field is the Immoral Traffic (Prevention) Act. Tucked away in not just the
dark roads but even in cosy corridors is the tale of women forced into what is
seen as the worlds oldest profession 0r Lady Warren’s profession. Our
literature (read cinema) is full of stories of how women have been forced into
the profession. The depiction however is arguably far from real. The rare
exceptions being Sharmila Tagore in Gulzar’s Mausam and more recently Shefali
Chaya in Nagesh Kuknoors’s stomach churning Lakshmi.
The enactment itself is to provide in pursuance of the International Convention
signed at New York for the prevention of immoral traffic. The statue defines
prostitution to mean the sexual exploitation or abuse of persons for
commercial purposes or for consideration in money or in any other kind, and the
expression “prostitute” shall be construed accordingly; While Section 3
of the Act provides for a punishment keeping a brothel or allowing premises to
be used as a brothel, Section 4 provides punishment for living on the earnings
of prostitution and Section 5 provides punishment for procuring, inducing or
taking person for the sake of prostitution. On the case in hand before Justice
U Durga Prasad the police of Banjara Hills Police station raided a premises in
Jubilee Hills and found the said premises being used for prostitution. Those
arrayed as accused included the organisers of the brothel, the pimps and the
customers. One of the accused who was arrayed as an accused for being a
customer moved the court to quash the criminal case against him. He would
mainly contend that none of the stated provisions describe a customer as
offender and therefore the prosecution of the Petitioner was an abuse of
process of law and hence the proceedings be quashed. In yet another recent case
Justice Raja Elango too of the court found the same lacuna in the law. Dealing
with the present quash petition Justice Durga Parasad observed: Section 3
of the Act deals with punishment for keeping a brothel or allowing premises to
be used as a brothel. Section 4 of the Act deals with punishment for living on
the earnings of the prostitution … Obviously the allegation against the
petitioner is not that of either running brothel house or procuring women for
prostitution or that he is living by earning money on prostitution. He was
booked along with other accused only as a customer of the flesh trade. It is
interesting to note that none of the other penal provisions in the Act either
describe him as an offender.
It would be a moot point in the context if the issue would have been a tad
different if the act of the customer would be one allegedly as a person who
‘causes or induces a person to carry on prostitution’. The judge however did
not stop by just declaring that the customer petitioner cannot be prosecuted.
He went on to state: Law or literature cannot have more a noble aim than
depicting evil of the society and suggesting the eradicative measures. The
judge referred to the famed work of Gurajada Appa Rao: Kanya Sulkam and Sri
Sri’s Kavitha o Kavitha and said “it is unwise to say that a customer who
lurks in day and night in search of hidden avenues to quency his sexual lust is
a hapless victim of a crime to place him out of reach of the tentacles of the
law which is intended to eradicate the pernicious practice of immoral
trafficking of women. Such an unwarranted sympathy on a criminal will not help
achieve desired results though aimed at high”. The judge within the
parameters of judicial limitations left it for the Parliament to revisit the
premise. Over to the Parliament.
L. Ravichander.