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Gujarat HC criminalises visiting brothels: Ruling could lead to harassment of voluntary sex workers,

This article was first published on First Post here and is republished here with the permission of the author.

The Gujarat High Court recently ruled that a person who avails of the services of a prostitute in a brothel is liable to be punished under Section 370 of Indian Penal Code (IPC). The said section criminalises human trafficking, including slavery and sexual exploitation. The present case is related to quashing of FIR against a customer in a brothel who had been charged with "trafficking of persons" under Section 370. By stating that customers in a brothel are covered by section 370, the High Court presupposes that prostitution in a brothel is coerced. This reasoning is fallacious and directly impacts the livelihood of sex workers in brothels while also refusing to recognise the dignity of "prostitution" as a profession.

Trafficking of persons under Indian law

The primary legislation dealing with the prevention of immoral traffic in India is The Immoral Traffic (Prevention) Act, 1956 (hereinafter 1956 Act) which makes "sexual exploitation or abuse of persons for commercial purposes or for consideration in money or in any other kind" a punishable offence in India. Further, sections 372 and 373 criminalised the selling or buying of minors for prostitution. Prior to The Criminal Law (Amendment) Act, 2013 Section 370 of the IPC only dealt with slavery in India without any reference to sexual exploitation. It was only in 2013 after the Jyoti Singh gangrape case that the scope of Section 370 was expanded (by the enactment of The Criminal Law Amendment Act, 2013) to criminalise not only slavery but any form of human trafficking of minors and adults. Accordingly, any act of "physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs" is now punishable under Section 370. It bears noting that neither the 1956 Act nor the IPC criminalises prostitution. What is punishable under Indian law is the "trafficking of persons" or the exploitation of prostitution.

The Gujarat High Court, in this case, held that it is not only those who actively traffic humans (such as brothel owners) who are liable under Section 370, but even customers at a brothel as they are said to "receive" a person for the purpose of exploitation under Section 370.

Differentiating voluntary sex work from coerced prostitution

In its judgment, the high court noted that Section 370 would not apply where sex workers "engaged in prostitution of their own volition, and not pursuant to any inducement, force or coercion". The court based its observation on a clarification issued by the Justice Verma Committee which was constituted in the wake of the Jyoti Singh incident to submit its recommendations for reform of sexual assault laws in India. The clarification was issued by the committee to address concerns that Section 370 could be used as a tool to harass sex workers and their clients where sex workers engaged in prostitution of their own free will. The Justice Verma Committee clarified that section 370 is not meant to punish prostitution, but the "exploitation of prostitution" and therefore, Section 370 would not apply where a sex worker undertook activities on their own (ie, in cases of voluntary sex work).

What is confusing about the Gujarat High Court judgment is that while the court stated that the question of whether prostitution was voluntary or coerced would depend on the facts, the court ruled that Section 370 would apply to a customer in a brothel. In doing so, the court has indirectly presumed that any prostitution which takes place in a brothel is coerced. This reasoning is flawed for the following reasons: firstly, it is conceivable that a particular sex worker in a brothel could be engaging in prostitution voluntarily to earn a livelihood. Recent articles on The Quint and The Economist highlight instances of voluntary prostitution, especially with the emergence of online escort websites. The articles highlight how prostitution (even within brothels) is not necessarily coerced and women may make a conscious choice to engage in prostitution for economic reasons such as financial support for their families. Interestingly, the euphemistic phrase, "Mrs Warren’s Profession" (which refers to ‘prostitution’), was originally the title of a play written by George Bernard Shaw. Shaw in his play explored the notion that prostitution is caused not by depravity but due to economic reasons.

Secondly, the Gujarat High Court explanation to Section 370 clearly states that consent of the victim is immaterial in determining the offence of prostitution. Going by the explanation, a customer would not be able to raise the defence that the victim (prostitute in question) had consented to prostitution. This means that all forms of prostitution in a brothel would be treated as forced prostitution under Section 370 irrespective of whether the sex work was indeed voluntary in nature. The possible reason for excluding consent from Section 370 can be found in the Justice Verma Committee Report which notes: “offences committed initially on them (victims of human trafficking) never come to light. Over time, the sexual abuse becomes part of their lives. It then gets termed as prostitution and then the abuse borders on being consensual." In other words, victims who have been habituated to sexual abuse may engage in little or no protest against sexual abuse, thereby becoming a "consenting victim"; this makes it desirable to treat consent as immaterial under Section 370.

Although Indian law does not criminalise prostitution, by holding the customers/clients of sex workers liable, the livelihood of sex workers in brothels stands to be threatened. Another harm that results from assuming prostitution in brothels to be coerced is the failure to recognise that women could engage in the profession of "prostitution" of their own accord; such thinking goes against the notion of the dignity of the profession. A possible outcome of the Gujarat High Court judgment could be harassment of clients of voluntary sex workers by law enforcement agencies through Section 370, which would give rise to the very same mischief which the Justice Verma Committee had sought to cure.

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