Court Declares Detention of Adult Sex Worker Without Reason Violates Fundamental Rights; Affirms Sex Work Not an Offense

In a significant ruling, a Mumbai Sessions Court has emphasized that engaging in sex work itself is not a criminal offense. The court ordered the release of a 34-year-old alleged sex worker from a shelter home, setting aside a magistrate’s decision to detain her for a year under the Immoral Traffic (Prevention) Act.

Additional Sessions Judge CV Patil underscored that individuals have the right to engage in work, stating that involvement in sex work is not inherently illegal. However, the court noted that engaging in sex work in public places, causing annoyance to others, can be considered an offense.

The judge further highlighted that the woman, who had two minor children, deserved to lead a dignified life. Detaining her against her will would curtail her freedom of movement across India, a right protected under Article 19 of the Constitution.

The woman had appealed under section 17(6) of the Immoral Traffic (Prevention) Act, requesting her release on executing a Personal Recognizance bond until the final hearing of the appeal. The court granted her request and ordered her release.

The Metropolitan Magistrate had initially ordered the woman’s detention for a year but allowed the release of the other two victims arrested during the same raid. The woman vehemently denied engaging in any immoral activities and highlighted the magistrate’s failure to consider her age and her right to residence under Article 19.

The State, in response to the appeal, argued that the woman was a repeat offender who had violated her undertaking to the police to abstain from sex work. They presented evidence of her engaging in sex work despite the undertaking. Additionally, the woman’s husband filed a custody case during the proceedings.

The court relied on a Supreme Court judgment in Budhadev Karmaskar vs. The State of West Bengal, which recognized the rights of sex workers and directed state governments to conduct surveys and release adult victims detained against their wishes in protective homes.

According to the Supreme Court’s ruling, voluntary sex is not illegal, and the criminality lies in operating a brothel. Thus, sex workers are entitled to equal protection under the law.

The court declined to grant custody of the woman to her husband, emphasizing that as an adult, she possessed the fundamental rights to move freely and reside anywhere within India, as guaranteed by Article 19 of the Constitution. The court emphasized that her age of 34 allowed her the liberty to choose her place of residence.

The court concluded that detaining the woman without justification would infringe upon her rights to move freely and reside in any part of India, as enshrined in the Constitution.

This ruling marks a significant step toward recognizing the rights and dignity of sex workers, highlighting that their work, while subject to certain limitations, should not be criminalized.

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