E. Whether the Legal Framework provides judicial intervention to legalize prostitution?

Whether this issue can rest as a policy matter beyond the writ of the court or whether the
protection of vulnerable groups requires judicial intervention?

‘Prostitution’ is defined in the Immoral Traffic (Prevention) Act, 1956 as the sexual
exploitation or abuse of persons for commercial purposes or for consideration in money1.

Unfortunately, there is no separate distinction which differentiates individuals who engage in

voluntary sex work. Hence, there is a need to distinguish and regulate individual sex work
from exploitation of sex workers for commercial purposes, in absence of which individuals
are exploited and children are forced into prostitution.

1. The legal framework provides judicial intervention to legalize prostitution

The counsel for the petitioner humbly submits before this Hon’ble Court that the legal
framework of Tim-Tim permits the intervention of the judiciary to legalize prostitution.

Prostitution is a subject matter that is diverse, complex and crucial. Decisions regarding
prostitution has to be thoroughly understood in the light of the ethos and demography of the
country. More importantly, decisions taken have to be in confirmation with the provisions of
the constitution.

In the above instance, children are forced to beg on the streets which is a direct violation of
Article 23 of the constitution. Minor girls are forced into prostitution and have contracted
diseases such as HIV at a young age which is a violation of their right to life enshrined in
Article 21 of the constitution. Many children are sourced from immigrant camps and do not
enjoy the right of being provided with free and compulsory education which is another
fundamental right that is being curtailed and is protected by Article 21A of the constitution.
Hence, the apex court as the guarantor of fundamental rights is required to intervene and
protect the rights of the children.

The functions of the Supreme Court are not merely restricted to the application of law to
facts, they also extend to making laws. A constitutional bench of the Supreme Court
observed that the theory regarding the incapacity of courts to not make laws was a myth that
was exploded a long while ago.2 The Supreme Court is empowered to invoke its discretionary

1
Immoral Traffic (Prevention) Act, 1956, § 2(f) No. 104, Acts of Parliament, 1956 (India)
2
Anoop Baranwal v. Union of India [ Election Commission Appointments] (2023) 6 SCC 161 at 114
powers under Article 142 of the constitution to pass guidelines to legalize prostitution in
absence of a legislation by the Parliament.

The legislature often fails to keep pace with the changing needs and values nor is it realistic
to expect that it will have provided for all contingencies and eventualities. It is, therefore, not
only necessary but obligatory on the courts to step in to fill the lacunae.3

The Supreme Court has issued guidelines in several cases in absence of a legislation. In
Vishaka v. State of Rajasthan4, the Supreme Court had categorically stated that the
guidelines issued are to be treated as law declared under Article 141 of the constitution which
is derived from its power to issue writs under Article 32 to enforce fundamental rights.

Sex work has been identified as a profession by this Hon’ble Court in Buddhadev
Karmaskar v. State of W.B.5 Hence, in absence of a legislation to regulate the profession, it is
imperative upon the highest constitutional court of the country to issue guidelines and ensure
that fundamental rights of right to life, liberty, health and dignity of sex-workers, many of
whom are children who are being forced into such activities are not violated.

2. The protection of vulnerable groups requires judicial intervention.

2.1 Role of the judiciary as the guardian of the constitution.

The Supreme Court acts a ‘sentinel on the qui vive’ in relation to the Fundamental Rights 6. It
is the duty of the apex court to uphold fundamental rights7 and cannot refuse to protect the
individuals whose rights have been infringed merely because a remedy exists outside the writ
of the court.

Decisions taken by the government on a particular issue are usually referred as ‘policy
matter’. The issue of legalizing and regulating prostitution can certainly rest as a policy
matter outside the writ of the court, however, there is no express provision of law that
disallows the Supreme Court to issue directions or pass guidelines when there is no recourse
provided by the Parliament. In fact, in the recent past the higher judiciary has deviated from
its conservative approach of restraining itself to interpreting the letter of the law to actively
participating in declaring laws whenever there is a manifest defect in a law or when there is
no legislation to address the issue at hand.
3
Rattan Chand Hira Chand v. Askar Nawaz Jung, (1991) 3 SCC 67 at 17
4
Vishaka v. State of Rajasthan (1997) 6 SCC 241 at 16
5
Budhadev Karmaskar v. State of W.B., 2022 SCC OnLine SC 704 at 7
6
8 M.P. JAIN, INDIAN CONSTITUTIONAL LAW 881 (Lexis Nexis India 2018)
7
Daryao v. State of U.P., AIR 1961 SC 1457 at 8
Directions are either issued to fill in gaps in the legislation or to provide for matters that have
not been provided by any legislation. The court has taken over the legislative function not in
traditional interstitial sense but in an overt manner and has justified it as being an essential
component of its role as a constitutional court.8

The doctrine of separation of powers envisages that the legislature should make law, the
executive should execute it and the judiciary should settle disputes in accordance with the
existing law.9 However, the same ceases to exist when the fundamental rights of individuals
are violated. Earlier, the judges of the constitutional courts restricted themselves to
interpreting the letter of law with minimum consideration to the socio-economic fabric of the
nation. It is due to a shift towards proactively protecting the rights of individuals, the
Supreme Court is seen as a champion of rights which is visible through the bouquet of rights
that have been included under the ambit of Article 21, which was otherwise a dead letter in
spirit. Hence, a seven-judge-bench in the case of P. Ramachandra Rao v. State of
Karnataka10 observed that the fetters perceived on its jurisdiction are merely self-imposed
and could not stand in the way of its responsibility to safeguard the constitution and protect
fundamental rights.

In today’s world of positive rights and justifiable social and economic entitlements, hybrid
administrative bodies, private functionaries discharging public functions, the Supreme Court
has to perform oversight function with urgency and enlarge the field of checks and balances
to include government inaction.11

The Supreme Court also set up a panel to uplift the sex workers who live in a degraded
condition and appealed to the youth of the country to provide relevant inputs to address the
problem12. This shows that the Supreme Court in the past has intervened to protect the rights
of vulnerable groups and has countered government inaction.

In this regard, the Supreme Court needs to step in and place checks and balances to include
government inaction with regards to unabated trafficking of children as a result of which
minor girls are being forced into prostitution.

2.2 Need for urgent judicial intervention.

8
S.P. SATHE, JUDICIAL ACTIVISM IN INDIA- TRANSGRESSING BORDERS AND ENFORCING
LIMITS, 242 (Oxford University Press India 2014)
9
ibid
10
P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578 at 37
11
supra note at 2
12
Budhadev Karmaskar v. State of W.B., (2011) 10 SCC 283 at 27
The Parliament has been sluggish in making laws in furtherance of guidelines by the
constitutional courts. For instance, the Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Bill, 2013 was passed by the Parliament 15 years
after the Supreme Court issued guidelines regarding sexual misconduct in workplaces.

The court cannot direct the parliament to legislate on an issue within a specific time period as
is explicitly barred from interfering in parliamentary proceedings.13 The Supreme Court by
the way of passing guidelines does not interfere with parliamentary proceedings and also
provides a framework to be followed in absence of a legislation.

It is undisputed that children were trafficked from immigrant camps and minor girls were
pushed into prostitution which is not only a violation of various provisions of the Indian
Penal Code,1860, The Immoral Traffic (Prevention) Act, 1956 and international obligations
of Tim-Tim but also a direct violation of constitutional provisions such as Article 23(1)
which prohibits traffic in human beings, begging and other similar forms of forced labour and
right to life of the children under Article 21 which makes the Supreme Court duty-bound to
intervene in order protect the rights of vulnerable groups.

Hence, it is humbly submitted before this Hon’ble Court that urgent judicial intervention is
required due to the violation of fundamental rights and the unabated trafficking which
continues even after the investigation by the Commissioner of Police and the existence of
certain statutory provisions which have proved to be ineffective to achieve their purpose.

13
INDIA CONST. art. 122, § 2