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?

1. The legal framework does not provide judicial intervention to legalize prostitution.

Judicial review is a basic feature of the Constitution and it provides for a discretionary
remedy.1 The Supreme Court is empowered to invoke its discretionary powers under Article
142 and pass an order to do complete justice. However, it cannot be inconsistent with the
substantive provisions of the statutory law in question. Not observing this distinction creates
a tendency on part of the judiciary to make laws which would amount to overreach into the
domain of the legislature2 which was re-iterated by Gajendragadkar J. in a seven-judge bench
in the case of A.R. Antulay v. R.S. Naik.3 Although, separation of powers does not apply in
its rigidity, some degree of separation of power is anticipated. This degree of separation of
powers was made clear in the years to come where judges refrained from over-stepping their
jurisdiction. The legislature, the executive and the judiciary have their own broad spheres of
operation and it is not warranted for any of these three organs of the State to encroach upon
the domain of another, whose failure would lead to an upset in the delicate nature of the
constitution.4

The judiciary which places checks and balances on the other organs of the state may end up
violating the same if the separation of powers is not respected. Paradoxically, the greatest
danger to the administration of justice and constitutional interpretation arises from the
genuine desire of judges to do justice in each individual case. 5 Whenever, there is a remedy
available without the need to legislate, the judiciary is required to respect the same.

Prostitution is a subject matter that is diverse, complex and crucial. Every decision regarding
prostitution has to be thoroughly understood in the light of the ethos and demographic of the
country where the prevailing customs, tribal rituals are to be considered. The framework in
India provides power to the parliament to make laws. The elected representatives have the
confidence of the population as well as possess the necessary infrastructure to produce
legislations that are diverse, efficient and practical. With regards to power of the court to

1
Arunima Baruah v. Union of India, (2007) 6 SCC 120 at 1
2
Prem Chand Garg v. Excise Commr., AIR 1963 SC 996 at 12
3
A.R. Antulay v. R.S. Naik, (1998), 2 SCC 602 at 50
4
State of U.P. v. Manoj Kumar Sharma, (2021) 7 SCC 806 at 20
5
H.M. SEERVAI, CONSTITUTIONAL LAW IN INDIA (UNIVERSAL LAW PUBLISHING Co. Ltd., DELHI
2010)
legalize prostitution, a constitutional bench of the Supreme Court in Navtej Singh Johar v.
Union of India6, observed that a formal recognition by the government is necessary to enter
into relationships which involve public conduct or prostitution while denouncing the same for
homosexual relationships.

2. 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?

2.1 Importance of Rule of Law in a Parliamentary democracy.

It is humbly submitted before the Hon’ble court that the above issue does rest as a ‘policy
matter’ beyond the writ of the court.

The Constituent Assembly's members were outstanding visionaries as well as skilled and
dependable architects. Given the likelihood of conflicts of interest occurring among various
groups in a free and evolving society, they produced a document that showed a keen
knowledge highlighting the need to ingrain the concept of rule of law into the Indian polity
where parliamentary democracy was chosen as the form of Government wherein an elected
body of citizens had the authority to decide matters pertaining to the polity and state power
was separated among the three chief organs namely the legislature, the executive and the
judiciary.

Democracy is an essential feature of the constitution and is part of the basic structure which
involves the representation of the people in the form of an elected government. The
supremacy of the will of the people by the way of electing a representative is recognized in
Article 25 of the International Covenant on Civil and Political Rights (ICCPR, hereinafter)
which has been ratified by Tim-Tim.

Therefore, the issue of legalizing prostitution is best left at the hands of the legislature whose
defects, if any can be subject to judicial review. However, the judiciary cannot legislate on
behalf of the Parliament which will result in comprising with the system of checks and
balances which is antithetical to the democratic foundations of Tim-Tim.

A constitutional bench through Y.V. Chandrachud in Bachan Singh v. State of Punjab 7 held
that the things that fall within the domain of the legislature must be left to the legislature and

6
Navtej Singh Johar v. Union of India, (2018) 10 SCC 791 at 640.2.9
7
Bachan Singh v. State of Punjab, (1982) 3 SCC 24 at 175
it was the judiciary’s highest duty to recognize the limits of its power and permit the
democratic process to deal with matters falling outside of those limits.

2.2 Statutory safeguards to protect the interest of vulnerable groups.

The constitution enables the legislature to make laws to protect the vulnerable groups. The
Parliament of Tim-Tim, in furtherance of this power granted by the constitution has enacted
several laws which provide protection to such groups.

Immoral Traffic (Prevention) Act, 1956 prohibits the keeping or using of premises for the
purpose of prostitution.8 This provision aims to prevent the establishment of brothels and
other such places where women and children could be exploited for sexual purposes. The act
prohibits the living on the earnings of prostitution.9 This provision targets pimps and other
individuals who profit from the exploitation of others. It protects people from being coerced
or forced into prostitution and empowers the police to rescue persons from brothels and other
places of prostitution10 which is intended to protect vulnerable groups from being exploited in
these places. It also allows a person who has been rescued from prostitution to file an
application before a court to be kept in a protective home. 11 Protective homes are specially-
designed institutions that provide care and support to victims of sexual exploitation. In this
regard, the Supreme Court observed that the privacy of a woman cannot be violated and she
is entitled to protect herself if there is an attempt to violate her privacy against her wishes. 12

The Indian Penal Code specifically prohibits the trafficking of children below the age of 18
for any form of exploitation, including physical exploitation, mental exploitation or slavery.
Trafficking and sexual exploitation of children is a serious crime under the Indian Penal Code
which is punishable with imprisonment of not less than 5 years and up to 10 years along with
fine.13 The punishment for trafficking of children is higher than the punishment for trafficking
of adults which aptly protects the interests of the vulnerable groups. The Code imposes a
positive duty on the government to provide compensation and rehabilitation facilities to the
victims of trafficking, failure of which would be a violation of right to life under Article 21 of
the constitution14 which is one of the most cherished rights guaranteed by Tim-Tim.

8
The Immoral Traffic (Prevention) Act, 1956, § 3, No. 104 Acts of Parliament, 1956 (India)
9
The Immoral Traffic (Prevention) Act, 1956, § 4, No. 104 Acts of Parliament, 1956 (India)
10
The Immoral Traffic (Prevention) Act, 1956, § 16, No. 104 Acts of Parliament, 1956 (India)
11
The Immoral Traffic (Prevention) Act, 1956, § 19, No. 104 Acts of Parliament, 1956 (India)
12
State of Maharashtra v. Madhukar Narayan Mardikar, (1991) 1 SCC 57 at 8
13
The Indian Penal Code,1860 § 370A, No. 45 Acts of Parliament, 1860 (India)
14
Serina Mondal v. State of W.B., 2018 SCC OnLine Cal 4238 at 11
In addition to the above provisions, the government has taken a number of steps towards the
protection of vulnerable groups such setting up an Anti-Trafficking Cell to deal with matters
relating to law enforcement response on trafficking at the central level and National Anti-
Human Trafficking Task Force at the district level to prevent trafficking.

Tim- Tim acceded to and ratified the Convention on the Rights of the Child adopted by the
United Nations General Assembly through the Protection of Children from Sexual Offences
Act, 2012 (POCSO, hereinafter) which ensures a wide range of protection to children. The
Act provides for establishment of special courts to deal with cases concerning sexual offences
against children.15 The Act lays down specific procedures for the investigation and trial of
sexual offences against children which are specially designed to protect the privacy and
dignity of the victim and to minimize the trauma they may experience.

The Juvenile Justice (Care and Protection) Act, 2015(JJ Act, hereinafter) specifically focuses
on children and provides protection to the vulnerable groups. It provides protection to a
“child in need of care and protection 16” which includes a child who is found without any
home or settled place of abode, is found begging or living on the streets, is being or is likely
to be abused, tortured or exploited for the purpose of sexual abuse or illegal acts, or is found
vulnerable or likely to be inducted into drug abuse or trafficking.

The JJ Act provides for the establishment for at least one Juvenile Justice Board in each
district to ensure effective enforcement of the act and provides for constituting a Child
Welfare Committee (CWC, hereinafter) in each district. The CWC is duty bound from the
provisions of this act to ensure protection of children in need of care. 17 The act specifically
focuses on children as a vulnerable group.

Apart from the statutory provisions, international obligations impose a duty on Tim-Tim to
provide protection to the vulnerable groups.

Overall, the government is situated suitably in a position to provide protection to such groups
and any further change to the existing safeguards must be a ‘matter of policy’ which is best
left to the Parliament. Hence, the counsel for the respondent humbly submits before this
Hon’ble Court that the protection of vulnerable groups does not mandate judicial
intervention.

15
The Protection of Children from Sexual Offences Act, 2012, § 28, No. 32 Acts of Parliament, 2012 (India)
16
The Juvenile Justice (Care and Protection) Act, 2015, § 2(14), No. 2 Acts of Parliament, 2016 (India)
17
The Juvenile Justice (Care and Protection) Act, 2015, § 27, No. 2 Acts of Parliament, 2016 (India)