Two petitions (Special Civil Application No. 15195 of 2003 and Special Civil Application No. 4594 of 2003) raising common questions sought to challenge the provisions of Sections 7(1)(b), 14 and 15 of the Immoral Traffic (Prevention) Act, 1956 (for short ITPA) on the ground that they violate the fundamental rights guaranteed under Articles 14, 19 and 21 of the Constitution of India. The petitions also challenged the notification dated 23.2.2000 issued by the Commissioner of Police under the provisions of Section 7(1)(b) of ITPA by which the areas within the jurisdiction of Chakla Bazaar Police Station, Surat were notified rendering carrying on prostitution in any premises within those areas as an offence.

The petitions outlined the origin of the Red Light Area (Chakla Bazar), the alleged atrocities committed by the police on the women there, arresting the women in Chakla Bazaar area without following the procedure established by law, and causing forcible evictions from their homes. The petition contented that the women in prostitution/sex work are entitled to right to privacy, and equal protection of law. A direction was also sought on the respondents to formulate a rehabilitation plan of a permanent nature which did not separate these women from their family members and which would be finalized after a thorough study and with their participation and consent.

After discussing in detail the affidavits filed by all concerned, the High Court stated that there has been a considerable acrimonious debate over the question: Is prostitution a form of exploitation to be abolished or an occupation to be regulated? The question is no longer about morality: is prostitution a vice and are those involved evil or lacking in morals? There are basically two camps, those seeking to eradicate prostitution and those who view the women involved as sex workers. The Court stated that it has to steer through the non-legal aspects of the debate, because, what social standards should be reflected in the laws in the matter of prostitution is in the legislative domain. The Court referred to International Conventions and Protocols, Constitutional provisions and provisions of the ITPA.

The court did not accept the contention raised on behalf of the petitioners regarding the right to prostitution as a fundamental right of women or girls in it. The Court stated that it had to be wary of the vested interests in the prostitution of others, thriving on the commercial gains from exploitation of prostitutes while posing as champions of their rights. Prostitution, in short, becomes an activity that is degrading to individual dignity of the prostitute and it is a vehicle for pimps and customers to exploit the disadvantaged position of women in our society.

The Court held that purpose of Sections 7 and 8 of ITPA is to proscribe prostitution in public places and they are neither discriminatory nor arbitrary and, therefore, do not violate the right to equality by criminalizing prostitution in public places. Therefore, there is no violation of the fundamental right to life and personal liberty of persons guaranteed by Article 21 of the Constitution

Referring to ITPA the High Court held that its provisions, clearly call for identifying the victim-prostitutes, girls or other persons, who are trafficked persons or are under the control of pimps and procurers or brothel owners. A failure to correctly identify a trafficked person or a woman or girl or other person in respect of whom offence punishable under the Act is committed, i.e. a victim-prostitute, is likely to result in denial of that person's human rights. The law is required to be strictly enforced against traffickers and those involved in controlling and exploiting prostitutes and committing offences in respect of prostitutes.

The High Court issued the following directions inter alia: -

-         The provisions of Section 7(1)(b) of the ITPA do not violate Articles 14, 19(1) (d) (e) (g) or Article 21 of the Constitution of India;

-         The notification dated 23.2.2000 issued by the Commissioner of Police, Surat under Section 7(1)(b) is legal and valid and does not violate any fundamental rights guaranteed by Articles 14, 19(1) (d) (e) (g) or Article 21 of the Constitution;

-         The provisions of Section 14 of the ITPA making any offence punishable under the Act to be deemed to be a cognizable offence and empowering Special Police Officer to make arrest without warrant do not violate Article 14 or Article 21 of the Constitution;

-         The provisions of ITPA contemplate identifying the victims and their rescue and rehabilitation in protective homes or corrective institutions and, therefore, the authorized police officers and the appropriate magistrates are required to exercise their functions and duties in a manner that would achieve the object rehabilitation of the women and girls rescued or removed from brothels and other premises;

-         The establishment of a State Level Rehabilitation Committee.