1958 (5) TMI 51 - HC - Indian Laws

Summary

Issues Involved:

1. Constitutionality of the Suppression of Immoral Traffic in Women and Girls Act, 1956.
2. Reasonableness of restrictions imposed by the Act under Article 19(1)(g) and Article 19(6) of the Constitution.
3. Validity of Section 20 of the Act under Article 14, Article 19(1)(d), and Article 19(1)(e) of the Constitution.
4. Validity of Section 10(2) of the Act under Article 22 of the Constitution.
5. Validity of Section 4(2)(a) of the Act.

Issue-wise Detailed Analysis:

1. Constitutionality of the Suppression of Immoral Traffic in Women and Girls Act, 1956:

The petitioner argued that the Act is ultra vires of the Constitution as it illegally prohibits her from carrying on her trade of prostitution and imposes unreasonable restrictions. The court noted that while prostitution has existed historically and is influenced by various socio-economic factors, the Act aims to suppress immoral traffic in women and girls in line with international conventions. The court emphasized that hardship is not a ground to invalidate a constitutionally passed Act. The Act was enacted to implement the International Convention signed at New York on 9th May 1950, for the suppression of immoral traffic in women and girls. Therefore, the Act's constitutionality must be assessed based on whether it imposes reasonable restrictions in the interests of the general public.

2. Reasonableness of Restrictions Imposed by the Act under Article 19(1)(g) and Article 19(6) of the Constitution:

The court recognized that prostitution is a profession, occupation, or trade within the meaning of Article 19(1)(g) of the Constitution. However, this right is subject to reasonable restrictions in the interests of the general public. The court examined various sections of the Act and concluded that the Act does not prohibit prostitution altogether but imposes restrictions that are reasonable. For instance, Section 3 punishes the running of a brothel, Section 4 punishes living on the earnings of prostitution, and Section 7 restricts prostitution within 200 yards of certain public places. These restrictions were deemed reasonable as they aim to mitigate the evils of prostitution and protect public interest.

3. Validity of Section 20 of the Act under Article 14, Article 19(1)(d), and Article 19(1)(e) of the Constitution:

Section 20 authorizes a Magistrate to remove a prostitute from his jurisdiction if it is necessary in the interest of the general public. The petitioner argued that this section violates Article 14 due to lack of reasonable classification and unrestricted discretion given to the Magistrate. The court noted that there is no guiding principle in the Act for the Magistrate to decide which prostitute to remove, leading to arbitrary selection, which is hit by Article 14. Additionally, Section 20 was challenged under Article 19(1)(d) and Article 19(1)(e) as it infringes the right to move freely and reside in any part of India. The court tentatively agreed that the indefinite removal of a prostitute under Section 20 could lead to denial of fundamental rights under Article 19(1)(g), (d), and (e).

4. Validity of Section 10(2) of the Act under Article 22 of the Constitution:

Section 10(2) authorizes punitive detention of a person convicted under the Act for a period of not less than two years and not more than five years. The petitioner argued that this provision violates Article 22(4), which limits preventive detention to three months. The court clarified that Article 22 deals with preventive detention, whereas Section 10(2) involves punitive detention after a trial and conviction. Therefore, Section 10(2) does not violate Article 22 and falls within the legislative competence of Parliament under Article 35(a)(ii) and entry 93 in List I of the Schedule.

5. Validity of Section 4(2)(a) of the Act:

Section 4(2)(a) presumes that a person living with a prostitute is living on her earnings unless proven otherwise. The court noted that in Indian society, family members often live together, and it is conceivable that many prostitutes live with their family members without them being economically dependent or encouraging prostitution. The presumption in Section 4(2)(a) imposes an unreasonable restriction unrelated to the suppression of immoral traffic in women. Therefore, the court found some substance in the petitioner's challenge to this subsection's constitutionality.

Conclusion:

The court found some merit in the petitioner's challenges to Sections 20 and 4(2)(a) of the Act but did not issue a final opinion due to the premature nature of the petition. No adverse order had been passed against the petitioner, and mere potential threat does not warrant a writ. The petition was accordingly rejected.