CODE:

BBLC INTRA MOOT COURT COMPETITION

BEFORE THE HON'BLE SUPREME COURT OF INDIA

W.P. NO._____/2023

IN THE MATTER OF

ASTITVA
(PETITIONER)

V.

TREE OF LIFE
(RESPONDENT)

UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA

WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

Most Respectfully Submitted to the Honourable Chief Justice of India & Other Companion Judges.
 TABLE OF CONTENTS

Sl No. Page No.

1. Index of Authorities 3

2. List of Cases 4

3. Statement Of Jurisdiction 5

4. Statement of Facts 6 - 12

5. Issues Raised 13

6. Summary of Arguments 14

7. Arguments Advanced 15 - 18

8. Prayer 19

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 INDEX OF AUTHORITIES

STATUTES
1. The Constitution of India, 1949
2. The Immoral Traffic Prevention Act, 1956

BOOKS
1. M P Jain’s Indian Constitutional Law (7th Edition)
2. VN Shukla's Constitutional Law (12th Edition)
3. DD Basu’s Shorter Constitution of India (16th Edition)

WEBSITES
1. https://indiankanoon.org
2. https://livelaw.in
3. http://www.bareactslive.com
4. https://www.mondaq.com
5. https://www.indiacode.nic.in
6. http://www.legalservicesindia.com

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 LIST OF CASES

1. Chiranjit Lal Chowdhuri v. Union Of India 1950 SCR 869

2. Ramkrishna Dalmia v. Justice S.R. Tendolkar 1959 SCR 279
3. Subramanian Swamy v. Union of India (2016) 7 SCC 221
4. Chintaman Rao v. State of Madhya Pradesh 1950 SCR 759

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 STATEMENT OF JURISDICTION

It is most humbly submitted that the Petitioner has approached this Hon’ble Supreme Court under Article 32 of the
Constitution of India on grounds of violation of their fundamental rights.

The petitioner most humbly submits before the jurisdiction of the present court and accepts that it has the power
and authority to preside over and decide upon the present case.

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 STATEMENT OF FACTS
Indiana is a federal, democratic and republic with the rule of law, Independent Judiciary and maintains the
separation of powers. Indiana is a pluralistic and multi-cultural society where many faiths and belief systems
regulate the life of individuals and are embedded in the moral values of the country. Since time immemorial,
marriage has been considered the most sacred relationship in terms of social values and physical union of two
individuals. It is regarded as a moral duty and ‘Samskara’ (sacrament) for every Indianan to lead the life of a
householder. Marriage in Indiana is regarded as one of the necessary social events, particularly for the women to
live a meaningful life.
Though equal opportunities are strived to be achieved, the society is mostly patriarchal. Marriage brings a number
of obligations and privileges affecting many people. Indiana has, therefore, developed a pattern for guiding
marriages. Being committed to one’s partner in the course of marriage is the basic tenet of marriages in Indiana. In
Indiana, prostitution took its form first in ancient times with the emergence of illicit love affairs or extra marital
affairs. There has been an increase in the profession of prostitution since then. The Immoral Traffic Prevention Act,
1956 was the main legislation drafted in view of trafficking and solicitation of women in India. Prostitution is a
grey area when done individually and privately and the Act does not criminalise practicing of prostitution.
However, the punishment for illegal trafficking and solicitation for the purposes of prostitution was penalised in
the Act of 1956. There has been a constant debate regarding the legalising of prostitution in order to regulate the
act of prostitution by enacting a law by Parliament and to curb the violence by both clients and middlemen. There
has been a constant demand from the class of sex workers to legalise prostitution in Indiana as there are numerous
health issues faced by the sex workers. The Indianan Government thought that bringing prostitution under the legal
domain will make it easier to control criminal activity and also to regulate it as a profession. A large population is
engaged in this activity. However, due to lack of a proper law, the misuse has reached its peak in Indiana. The law
has been passed to prevent rampant criminality and to promote welfare and health of sex workers.
In 2020, general elections of Indiana, the Liberal Party won the general election and secured 312 out of 500 seats.
Its overall vote share was 45% of the total votes polled in the General Election. The Parliament of Indiana has
recently enacted a gender neutral law to regularise prostitution as a profession called The Indiana Commercial Sex
Workers (Protection and Regulation) Act, 2021. The law has been introduced to regularise commercial sex for all
the genders as registration and licence of practicing this profession is mandatory. It has given a free hand for
practicing commercial sex for money as consideration. The Act specifies terms for registering which includes
written consent of the spouse, in case of being married. It has also prescribed offences and penalties for being
involved in certain activities.
The new legislation has legalised commercial sex due to which there is a dip in the cases of rape and sexual assault
from past three months, as per the latest crime ratio reports. It has generated ample revenue for the government as
income tax is levied on the profession. There is a reduction in sexually transmitted diseases in the country due to
the mandatory and periodic medical assessment of the sex workers. The social stigma attached to this profession
has faded due to the new legislation. The law, though enacted on demand of the class of sex workers, has resulted
in many other citizens making applications for registering under the Act. There is a strong opposition and protests
from the married men and women for this Act due to the regularisation of ‘prostitution’ in the name of commercial
sex. There is a public outrage as it shakes the fundamentals of marriages in India and is opposed to the moral
values shared by the Indianan Society. There is a large hue and cry in the society as married women are harassed
for giving consent by their husbands, so that they can practice this profession and earn money. The women are
subjected to domestic violence and mental cruelty. There is a registration of fake licences. The rural population has
opposed this law by calling it unnecessary. Many States have expressed disagreement with this step of Liberal
Party.

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On the other hand, many single women are freely practicing this profession as the right of a woman or girl to make
autonomous decisions about her own body and reproductive functions is at the very core of her fundamental right
to equality and privacy, concerning intimate matters of physical and psychological integrity as outlined given under
the International Law. The LGBTQ community has taken a neutral stand over this issue. The transgender
population in particular has welcomed this initiative as they are not given employment in other workplaces and the
Act tries to regularise the profession so that they are not stigmatised or assaulted while practising it.
A civil society organization named “Astitva” challenged the constitutional validity of the Indiana Commercial Sex
Workers (Protection and Regulation) Act, 2021 before the Supreme Court of Indiana. The Supreme Court admitted
the petition. An NGO named “Tree of Life” representing the commercial sex workers filled an intervening petition.
The same was permitted and the matter is posted for final hearing with the following issues:
a) Whether section 3 The Indiana Commercial Sex Workers (Protection and Regulation) Act, 2021 is violative of
right to privacy?
b) Whether the requirement of spousal consent violates the sanctity of marriage as espoused by the Indianan
societal values and morality?
c) Whether The Indiana Commercial Sex Workers (Protection and Regulation) Act, 2021 is against public health,
safety and morality and is liable to be struck down?
Note: The Constitutional and Legal System of Indiana is identical to that of “Union of India”. The Moot
proposition has been framed solely for academic purposes and exclusively for conducting BBLC Intra Moot Court
Competition.

THE INDIANA COMMERCIAL SEX WORKERS (PROTECTION AND

REGULATION) ACT, 2021.
An Act to regularise the commercial sex work as a profession by registering for the voluntary commercial sex. To
accord status and reinforce the rights of sex workers who, bearing the brunt of social stigma attached to their work,
are removed to the fringes of the society, deprived of their right to live with dignity and practice commercial sex as
a profession.
WHEREAS it is expedient to regulate the of conditions of work and employment of commercial sex workers and
prohibiting solicitation of commercial sex at residential hotels, theatres, other places of public amusement or
entertainment and other establishments and for certain other purposes hereinafter.
AND WHEREAS to protect the commercial sex workers as well as their children from trafficking and abuse and to
control the compelling of involuntary sexual activities.
Be it enacted by Parliament in the Seventy fifth Year of the Republic of Indiana as follows:-
CHAPTER I
PRELIMINARY
1. Short title, extent and commencement –
(1) This Act may be called The Indiana Commercial Sex Workers (Protection and Regulation) Act, 2021.
(2) It extends to the whole of Indiana.

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(3) This section shall come into force at once; and the remaining provisions of this Act shall come into force on
such date as the Central Government may, by notification in the Official Gazette, appoint.
2. Definitions. - In this Act, unless the context otherwise requires –
(a) "adult" means any person who has completed the age of eighteen years;
(b) “place of work" includes any house room, conveyance or place or any portion of any house, room, conveyance
or place, which is used for purposes of commercial sex or for gain of another person or for the mutual gain of two
or more commercial sex workers;
(c) “commercial sex” means the voluntary consensual sexual activity performed for money or goods in exchange or
voluntary erotic performances performed for money or goods in exchange of the consensual sexual activity;
(d) “commercial sex worker” means an adult who receives money or goods in exchange for consensual sexual
services or erotic performances;
(e) “child" means a person who has not completed the age of sixteen years;
(f) “minor” means a person who has not completed eighteen years of age;
(f) “Magistrate” means a District Magistrate competent to exercise the powers on ferred by the section 3 within the
local jurisdiction of the commercial worker seeking license.
(g) “medical examination” means examination conducted by the registered medical practitioner.
(h) “registered medical practitioner” means a medical practitioner who possesses any medical qualification as
defined in clause (h) of section 2 of the Indian Medical Council Act,1956 (102 of 1956) and whose name has been
entered in a State Medical Register.
(i) “License after registration” shall mean and include Licence granted under Section 3 of the Act;
(j) “special police officer” means a police officer appointed by or on behalf of the State Government to be in
charge of police duties within a specified area for the purpose of this Act under sub section (2) of Section 12;
(k) “public place” means any place intended for use by, or accessible to, the public and includes any residential
hotels, restaurants, eating houses, theatres, other places of public amusement or entertainment and other
establishments of public interest.
(l) “solicit” means requesting for money and impetrating to hire services by word gestures,willful and indecent
exposure of any person, loitering thereby to cause obstruction or annoyance or otherwise attract or endeavour to
attract attention for the purpose of commercial sex.
CHAPTER II
REGISTRATION OF COMMERCIAL SEX WORKERS
3. Registration of commercial sex workers:
(1) Every commercial sex worker shall send the District Magistrate of local area concerned, an application, in a
prescribed form, together with such fees as may be prescribed, containing-
(i) the name of the commercial sex worker and manager, if any;
(ii) the postal address of the commercial sex worker;
(iii) proof of age and declaration of being an adult;
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(iv) the place of performance of commercial sexual activities;
(iv) a declaration to that effect of not practicing the commercial sex at public places;
(v) certificate of fitness from the registered medical practitioner under Section 5 of the Act;
vi) written consent of the spouse in case of being married;
(vi) such other particulars as may be prescribed.
(2) On receipt of the application and the fees, the District Magistrate shall, on being satisfied about the correctness
of the statement, register the commercial sex worker in the register of sex workers in such manner as may be
prescribed and shall issue, in a prescribed form, a registration certificate and licence to the commercial sex worker.
(3) The information entered into the register of sex workers shall be made available on an application and payment
of prescribed fees.
(4) A registration certificate granted under sub-section (2), shall be valid up to the end of the year for which it is
granted. An application for the renewal of a registration certificate and license shall be submitted not less than
fifteen days before the date of expiry of the registration certificate or of the renewed registration certificate, as the
case may be, and shall be accompanied by such fees, and the renewed registration certificate shall be in such form,
as may be prescribed.
(5) The persons having a valid registration and licence shall be allowed to practice voluntary commercial sex in
such places as prescribed on the licence.
4. Examination of commercial sex worker by registered medical practitioner.
(1) When a declaration under Section 3 (1) (v) is required to be made by the commercial sex worker, the registered
medical practitioner shall examine such person and prepare a report of his examination giving the following
particulars, namely:
(i) the name and address of the commercial sex worker;
(ii) the age of the commercial sex worker;
(iii) presence of chronic illness or diseases or infirmity if any;
(iv) presence of sexually transmissible diseases if any;
(v) details of treatment or preventative steps undertaken to prevent the spread of sexually transmissible diseases, if
any;
(vi) person being of sound mind capable of understanding the nature of act and giving free, informed consent;
(vii) any other material particulars in reasonable detail.
(2) The registered medical practitioner shall issue a certificate of fitness after examining the applicant and after
specifying the details if the commercial sex worker is fit for undertaking the voluntary sex work.
5. Cancellation of license.-
(1) The license issued under section 3(3) to commercial sexual worker shall be revoked or cancelled if any act in
contravention of Chapter III of the Act is performed by the commercial sex worker in the manner prescribed.
(2) The commercial sex worker shall not be entitled to renewal of license if the license has been cancelled on the
grounds of unlawful conduct or proved misbehaviour in public.
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6. Hours of work for the commercial sex.-
(1) The commercial sex worker shall not be able to practice commercial sex as a profession during the day time or
before 7:00 PM.
7. Place of work for the commercial sex.-
(1) No commercial sex worker shall engage in commercial sexual activities at the public places which are within a
distance of two hundred metres of any place of public religious worship, educational institution, hostel, hospital,
nursing home or such other public place of any kind as may be notified in this behalf by the District Magistrate in
the manner prescribed.
8. Seducing or soliciting commercial sex work at public places.-
(1) No commercial sex worker shall solicit the work at public places or within two hundred metres of such public
places.
CHAPTER III
OFFENCES AND PENALTIES
9. Acts done in contravention of the provisions of this Act.-
1) Any person who carries on commercial sex work without the registration and licence as per provided in Section
3 of the Act shall be punished with an imprisonment which may extend to two years or with fine or with both.
2) Any person who carries on commercial sex work during the day in contravention of Section 6 shall be punished
with a simple imprisonment which may extend to six months or with fine.
3) Any person who carries on commercial sex at public places in contravention of Section 7 shall be punished with
a simple imprisonment which may extend to one year or with fine.
4) Any person who solicits the work of commercial sex in contravention of Section 8shall be punishable on first
conviction with imprisonment for a term which may extend to six months, or with fine which may extend to one
thousand rupees, or with both, and in the event of a second or subsequent conviction, with imprisonment for a term
which may extend to one year, and also with fine which may extend to five thousand rupees.
10. Seduction or engaging in commercial sex with a minor-
1) Any person who seduces a child for the purposes of hiring the commercial sex worker for sexual activities of
causes or aids or abets the seduction of a child for offering the commercial sex shall be punishable on conviction
with imprisonment of either description for a term which shall not be less than seven years but which may extend
to ten years and shall also be liable to fine.
2) Any person who engages in commercial sex with a child with or without the consent of the child shall be
punishable on conviction with imprisonment of either description for a term which shall not be less than ten years
but which may extend to imprisonment for life and shall also be liable to fine.
11. Punishment for recording, publishing or transmitting the commercial sexual activity in electronic form.-
1) Whoever, intentionally or knowingly captures, records, publishes or transmits the image or video of any person
involved in commercial sex without his or her consent, under circumstances violating the privacy of that person,
shall be punished with imprisonment which may extend to seven years or with fine, or with both.
12. Procuring, inducing or forcing a person for the sake of engaging in commercial sexual activity.-

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(1) Any person who:
(a) procures or attempts to procure a person, whether with or without his consent, for the purpose of registering for
commercial sex;
(b) compels a person to apply for registering with the intent that he may be compelled to undergo commercial sex;
(c) takes or attempts to take or causes a person to be taken, from one place to another with a view to his carrying
on, or being brought up for registration against the person’s will; shall be punishable on conviction with rigorous
imprisonment for a term of not less than three years and not more than seven years and also with fine under this
sub-section is committed against the will of any person, the punishment of imprisonment for a term of seven years
shall extend to imprisonment for a term of fourteen years.
(2) Where the person compelled or induced is a minor, the punishment shall be an imprisonment for a term of ten
years shall extend to imprisonment for life.
13. Punishment for illegal possession of The Narcotic Drugs and Psychotropic Substances:
(1) Any person found in possession or consumption of any narcotic drug or psychotropic substance during the
commercial sex shall be punished with imprisonment which may extend to three years or with fine, or with both.
Provided that nothing in this act shall affect the operation of the Narcotic Drugs and Psychotropic Substances Act,
1985.
CHAPTER III
AUTHORITIES AND POWERS
14. Special police officer and Advisory body.
(1) There shall be for each area to be specified by the State Government in this behalf a special police officer
appointed by or on behalf of that Government, for dealing with offences under this Act in that area.
(2) The special police officer shall not be below the rank of an Inspector of Police.
(3) The special police officer of an area shall be assisted by such number of subordinate police officers (including
women police officers wherever practicable) as the State Government may think fit; and
(4) The Central Government may, for the purpose of investigating any offence under this Act or under any other
law for the time being in force dealing with sexual exploitation of any child and committed in more than one state,
appoint such number of police officers as trafficking police officers and they shall exercise all the powers and
discharge all the functions as are exercisable by special police officers under this Act with the modification that
they shall exercise such powers and discharge such functions in relation to the whole of Indiana.
15. Duties of Special police officers:
(1) The special police officer shall investigate into the matters of contravention of the offences under this Act.
(2) The special police officers shall visit the places of place of work of commercial sexual activity for inspection or
reporting the cases of involuntary sexual activities.
Provided that no search and seizure shall be conducted in any such premises in contravention of the Criminal
Procedure Code, 1973 or any other law in the time being in force.
16. Offences to be cognizable.-

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(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), any offence
punishable under this Act shall be deemed to be a cognizable offence within the meaning of that Code: Provided
that, notwithstanding anything contained in that Code,—
(i) arrest without warrant may be made only by the special police officer or under his direction or guidance, or
subject to his prior approval;
(ii) when the special police officer requires any officer subordinate to him to arrest without warrant otherwise than
in his presence any person for an offence under this Act, he shall give that subordinate officer an order in writing,
specifying the person to be arrested and the offence for which the arrest is being made; and the latter officer, before
arresting the person, shall inform him of the substance of the order and, on being required by such person, show
him the order;
(iii) any police officer not below the rank of sub-inspector, specially authorised by the special police officer may, if
he has reason to believe that on account of delay involved in obtaining the order of the special police officer, any
valuable evidence relating to any offence under this Act is likely to be destroyed or concealed, or the person who
has committed or is suspected to have committed the offence is likely to escape, or if the name and address of such
a person is unknown or there is reason to suspect that a false name or address has been given, arrest the person
concerned without such order, but in such a case he shall report, as soon as may be, to the special police officer the
arrest and the circumstances in which the arrest was made.
17. Rescue of person.
(1) Where a Magistrate has reason to believe from information received from the police or from any other person
authorised by the State Government in this behalf or otherwise, that any person or a child is being made to carry on
involuntary commercial sex, he may direct a police officer not below the rank of a sub-inspector, to enter such
place, and to remove there from such person and produce him before him.
(2) The police officer, after removing the person, shall forthwith produce him before the Magistrate issuing the
order.
(3) The Magistrate shall proceed to place the rescued minor at an appropriate shelter home or other such place, as
may be provided under the Juvenile Justice Act, 2015.
18. Trials.-No court, inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try
any offence under section 9, section 10, section 11, section 12, section 13.
19. Power of the Central Government to establish special courts.
(1) If the Central Government is satisfied that it is necessary for the purpose of providing for speedy trial of
offences under this Act and committed in more than one State, it may, by notification in the Official Gazette and
after consultation with the High Court concerned, establish one or more courts of Judicial Magistrates of the first
class or Metropolitan Magistrates for the trial of such offences.
20. Professionals to pay tax.
(1) The income generated from the commercial sex shall be taxable and the provisions of Income-Tax Act, 1961
shall be applicable.
----xxxxx-----

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 ISSUES RAISED

a) Whether section 3 The Indiana Commercial Sex Workers (Protection and Regulation) Act, 2021 is
violative of right to privacy?
b) Whether the requirement of spousal consent violates the sanctity of marriage as espoused by the Indianan
societal values and morality?
c) Whether The Indiana Commercial Sex Workers (Protection and Regulation) Act, 2021 is against public
health, safety and morality and is liable to be struck down?

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 SUMMARY OF ARGUMENTS

a) Whether section 3 The Indiana Commercial Sex Workers (Protection and Regulation) Act, 2021 is
violative of right to privacy?
Section 3 of the given Act is the direct violation of the right to privacy and right to live a safe life of the sex
workers. It fails to strike a balance between the restrictions put on the sex workers and the objective of this Act.
b) Whether the requirement of spousal consent violates the sanctity of marriage as espoused by the Indianan
societal values and morality?
Spousal consent is indeed the violation of the sanctity of marriage as an institution. The values enshrined in the
Indianian society states that marriage is a sacrament, but taking of spousal consent for the practice of the profession
of prostitution, completely blemishes the purity of the institution.
c) Whether The Indiana Commercial Sex Workers (Protection and Regulation) Act, 2021 is against public
health, safety and morality and is liable to be struck down?
The Indiana Commercial Sex Workers (Protection and Regulation) Act, 2021 is indeed against public health, safety
and morality. It is in direct contradiction with the objective that the Act supposedly wished to achieve about the sex
workers.

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 ARGUMENTS ADVANCED

a) Whether section 3 The Indiana Commercial Sex Workers (Protection and Regulation) Act, 2021 is
violative of right to privacy?
The Counsel for the Petitioner humbly submits that the given section is violative of the right to privacy. Section 3
of the Indiana Commercial Sex Workers (Protection and Regulation) Act, 2021 (hereinafter “the Act”), which is in
Chapter 2 of the said Act, is violative of Article 14 and 21 of the Constitution of Indiana.
As stated in the facts of the case, “The law has been passed to prevent rampant criminality and to promote welfare
and health of sex workers.” This particular Act is formulated on the demand of the class of sex workers, however,
it composes an unreasonable restriction upon them. To be precise, Section 3 and Chapter 2 of the Act deals with
registration of commercial sex workers. According to the Act, a sex worker has to register himself or herself by
making an application to the District Magistrate along with the prescribed fees, in order to freely practice
commercial sex as a profession. The Act claims to regularize prostitution in Indiana, however on the other hand the
Act has imposed unreasonable restrictions. In order to obtain a license, the sex worker has to fulfil and comply
with the provisions prescribed is Section 3 (1) of the Act.

“3. Registration of commercial sex workers:

(1) Every commercial sex worker shall send the District Magistrate of local area concerned, an application, in a
prescribed form, together with such fees as may be prescribed, containing-
(i) the name of the commercial sex worker and manager, if any;
(ii) the postal address of the commercial sex worker;
(iii) proof of age and declaration of being an adult;
(iv) the place of performance of commercial sexual activities;
(iv) a declaration to that effect of not practicing the commercial sex at public places;
(v) certificate of fitness from the registered medical practitioner under Section 5 of the Act;
vi) written consent of the spouse in case of being married;
(vi) such other particulars as may be prescribed.”

It is pertinent to note that all of this information is very personal in nature, of the commercial sex workers and such
information is demanded only of the concerned sex worker but not that of the person who avails such services from
them. As the Act ensures to be at the interest of the sex workers and claims to provide security to them, it is rather
contradictory not to demand the same data from the person who would avail the service. This is against the very
objective of the Act and is a direct infringement of their right to privacy and right to live a safe life under the rule
of law. The Act therefore fails to standby its actual motive, only collecting the personal details of the sex workers
will not ensure their safety and security. In regards to if, the sex workers face any issue during the time of
practicing the profession, then how will the concerned Investigating Officer who has been appointed be collecting
the information about the people who availed such services. If it is collected, it will help in better investigation.

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However, this is not where it gets restricted to, the entire Act is absolutely silent on how the data will be collected
and protected by the District Magistrate. There is no provision in the Act that specifically talks about that the data
that is to be collected, how the same will be managed and how the District Magistrate will ensure that the data that
the sex workers is giving to him is safe. Therefore, the Act is silent and negligent about the safety and the
confidentiality of the information that is being demanded.

Further, this is not restricted only to the collection and management of data, but also about dissemination of data.
Section 3 (3) of the Act clearly states that the information entered into the register of the commercial sex worker
shall be made available on an application and payment of prescribed fees. Therefore, on top of the shortcomings
regarding the collection and management of data, the problem is also with the easy availability of the confidential
information of the sex workers, through a mere application. This is direct infringement of the fundamental rights of
the sex workers.
Also, Section 3(1) (v) that talks of medical examination. This is to note that during the time when the sex worker
registers himself or herself for getting the license, has to undergo a medical examination. However, this medical
examination is only mandatory for the sex worker but not for the person availing the service from the sex worker.
This is said to be done for the fact that the sex worker is free from any sexually transmitted diseases. It can be seen
that through this it is the safety of the person availing the service is taken care of, but no the sex worker. The fact
that the person availing the service can also be having any sexually transmitted disease that might adversely affect
the health and safety of the sex worker is completely overlooked. This is in stark contrast with the vision of the
Act, which was to protect and safeguard the rights and well-being of the sex workers. The health and safety of the
sex workers should be given prime importance and should be prioritized. The Act has instead singularly prioritized
the health of the public at large instead of the sex workers. This in the blatant infringement of the right to life and
personal liberty of the sex workers, as guaranteed by Article 21 of the Constitution.
It is thus the duty of the sovereign to protect the safety and security of every citizen. The facts are also very evident
as there is registration of fake licenses as well. As these drawbacks thus result in failing to provide benefits to the
sex workers at large. Thus from the above contention, it is humbly submitted before this Hon’ble Court that the
data demanded by the District Magistrate in order to issue license, to practice commercial sex as a profession, is
violative of the fundamental rights guaranteed under Part III of the Constitutiton and it is violative of the right to
privacy in the same.
b) Whether the requirement of spousal consent violates the sanctity of marriage as espoused by the Indianan
societal values and morality?
The second issue at hand states that the consent is violative of marital sanctity. It is to be noted, as also provided in
the statement of facts, that marriage is a sacrament, it is one of the most vital factor that Indiana has, it also states
that in marriage one partner has to be committed to the other. Now that we state that for a sex worker to practice
commercial sex, has to seek the consent of spouse, we fail to recognize that’s such spouse whose consent has been
sought can also be coerced. Further, any person in a marital relationship, when goes ahead and indulges in such
occupation, it cannot be held as a marriage as viewed from the point of the Indianian society in general and that the
marital sanctity will be intact. There will be some strain that such an act will impose, it will not protect something
that Indiana has tried for years. To further the contention, it is argued that Article 14 of the Constitution possesses a
crucial criteria which is reasonable classification. Consent in the present case as is prevalent, is only asked from the
spouse of the sex worker. The courts have stated that the classification should be people who are of the same class.
Even if it is presumed that the prostitutes are at the different level of that of other people, however spouses cannot
be considered to be at a different footing. To state that the spouse of only the sex worker has to give the consent

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and the other who is availing the services, their spouse do not and cannot give the consent, does not satisfy the test
of reasonable classification that has been laid down. Therefore there is no reasonable nexus for the same.
c) Whether The Indiana Commercial Sex Workers (Protection and Regulation) Act, 2021 is against public
health, safety and morality and is liable to be struck down?
The contentions towards the first and second issues that has been raised, cumulatively leads to something which is
most pertinent, that is the constitutionality of the Act itself. When we speak about the constitutionality, we
presume, that the fundamental rights have been violated for the Hon’ble Court’s jurisdiction to strike it down. In
the present case there is a grave need why such Act needs to be struck down.
The Preamble of the Act states that the Act intends to accord status and reinforce the rights of sex workers who,
bearing the brunt of social stigma attached to their work, are removed to the fringes of the society, deprived of their
right to live with dignity and practice commercial sex as a profession. The Act thus in one way recognize that the
commercial sex workers have been isolated from society and the public do not consider them with dignity and in
other way the restrictions that have been placed on them impose the same restrictions, it therefore contradicts itself.
In this regard, Sections 6, 7 and 8 cumulatively pretends to regulate the timings of their commercial sex work,
however actually it controls instead of regulating the same. It states that the commercial sex worker can only
practice the profession only after 7 PM, however, no reasonable explanation has been given to attest the logic
behind such specific timings. The legislature has no authentic data to state that the majority of the work is done
only during night but not otherwise. Therefore it infringes their right to livelihood as well.
Thus the present restriction does not have a reasonable backing to it and hence it does not stands the test of
reasonability, to hold that the Act is constitutional.
The Courts have time and time again held that Legislature cannot merely consider an Act to be constitutional on
the basis of some undisclosed reason why they have enacted the Act or some provisions of the same Act. This has
been stated in the case of Chiranjit Lal Chowdhuri v. Union Of India which stated that “…while good faith and
a knowledge of existing conditions on the part of a legislature was to be presumed, yet to carry that presumption to
the extent of always holding that there must be some undisclosed and unknown reason for subjecting certain
individuals or corporations to hostile and discriminating legislation was to make the protecting a mere rope of
sand, in no manner restricting State action.” The same has later been reiterated in the case of Ramkrishna
Dalmia v. Justice S.R. Tendolkar.
The contention that the counsel for the petitioner seeks to make is that the Sections that have been put forward in
this Act, nowhere states that why such reasonable restrictions have been added. The Act does talk about regulation,
but its intention was not supposed to be restricting the commercial sex workers in entirety.
Apart from Section 3, there are other provisions as well which substantiate the claim of unconstitutionality of the
Act. Section 5(1) of the Act talks about revocation and cancellation of licences. It states that he license issued
under section 3(3) to commercial sexual worker shall be revoked or cancelled if any act in contravention of
Chapter III of the Act is performed by the commercial sex worker in the manner prescribed. Here, it is to be
construed that it provides an arbitrary power to an authority to further revoke a license. Further there is no
procedure which states that the person whose licence is to be cancelled has an opportunity to be heard in the
matter. This is against the principle of audi alteram partem which means that the adjudicator must hear both sides.
In the case of Subramanian Swamy v. Union of India the Hon’ble Supreme Court states that the presumption to
constitutionality is not always correct, it can be rebutted on two grounds –
(i) Discrimination based on impermissible or invalid classification.
(ii) Excessive delegation of powers.
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As for the first condition is concerned, as has been already elaborated, the partiality in terms of consent wherein
only one party has been unreasonably classified compared to the consent that should have been mandated to be
taken from the spouse of party availing the services.
In the present case in Section 5, there is no power that can check the excesses that the delegated authority can
make, thus it does not satisfies the 2nd condition as well. Therefore on the ground of violation of Article 14, the
counsel for the petitioner contends that the Act cannot be held to be constitutional.
Article 19(1)(g) postulates the right to freedom to practice one’s profession. However, this right has some fetters to
it in the form of Article 19(6) of the Constitution which provides for reasonable restrictions. This restrictions has to
be in the interest of general public, only then can the Act legislated to that effect can be said to be constitutional
and the restrictions, reasonable. In the present case, the medical examination of the commercial sex worker is
mandatory but not that of the person availing the services. The sex worker in this case stays completely unaware
and exposed to the fact that the person availing the services might already have a sexually transmitted disease. This
cannot be said to be in interest of the general public, in reality this is in contravention to the right to life as
enumerated in Article 21 and in complete contradiction to the objective of the Act in safeguarding the interests of
the sex workers. Article 21 encompasses within itself the right to work and earn livelihood, but the direct exposure
of the sex workers to their customers who might possibly have a life threatening disease, adversely affects the
health of the sex workers, which in turn affects their right to livelihood.
Moreover, the restrictions that have been placed by Sections 6, 7 and 8 also violates the right to livelihood of the
sex workers. The sections have stated that the sex workers cannot practice in public places, residential places or
any such places. There is no clear statement regarding a specific place where the sex workers can practice their
profession. This surely affects the right to livelihood of the sex workers, as guaranteed by the Article 21 of the
Constitution. In the case of, Chintaman Rao v. State of Madhya Pradesh, the Apex Court states that “The word
“reasonable” implies intelligent care and deliberation, that is, a choice of a course which reason dictates.
Legislations which arbitrarily or excessively invades the right cannot be said to contain the quality of
reasonableness…”
Section 17 of the Act gives the power to the police officer to remove a sex worker from his or her place of
residence, when this is connected to Section 3 which mandates the one sided (and therefore violative) enlistment of
information including the place of residence, both of the provisions can be said to be a bad law. When the
information collected through Section 3 itself is one sided (information is only collected of the sex workers but not
the persons availing the services) and therefore is violative of the right to privacy and live safe life, then Section 17
also becomes infructuous.
The legislation has therefore failed to provide the defence to the aforementioned sections in them providing
restrictions over the rights of the sex workers and therefore failed to pass the test of constitutionality. Therefore the
counsel for the petitioner humbly submits before this Hon’ble Court to strike down this impugned legislation.

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 PRAYER
Wherefore in the light of the facts of the case, issues raised, arguments advanced and authorities cited, it is humbly
submitted before the Hon'ble Court to kindly adjudge and declare:

THAT
(i) Section 3 of the Act is violative to right of privacy.
(ii) The requirement of spousal consent violates the sanctity of marriage.
(iii) To hold the Act unconstitutional and strike it down.

OR

Pass any other order or direction that the Hon'ble Court deems fit in the interest of Justice, Equity and Good
Conscience and for this act of kindness the Counsel on behalf of the Respondent as in duty bound shall forever
pray.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

___________

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