Greetings to the court,

I am counsel Rudrani Warad appearing on behalf of the petitioners in the present case. my co-
counsel has already argues two issues of the case in last hearing, I would be dealing with one last
issue.

the counsel would briefly state a few facts:

1. Indica is a pluralistic and multi-cultural society with federal, democratic and republic
structure. where concept of marriage is considered the most sacred relationship.
2. The parliament has recently enacted a gender neutral law to regularize prostitution as a
profession called – the Indica Commercial Sex Workers (Protection and Regulation ) Act.
3. The Petitioners have approached the Honourable Supreme Court to challenge the
constitutionality validity of the same.

The Counsel would like to move to the last issue of the case:

1. Whether the Indica Commercial Sex Workers (Protection and Regulation) Act is against
public health, safety and morality and is liable to be stuck down?

the counsel would like to proceed with the arguments

your honour the arguments for this issue are two fold- first based on public health and safety and
the other one based on constitutional and social morality.

the act your honour provides for compulsory registration of commercial sex workers and for that
require a certificate of fitness from medical practitioner. Section 4 of the act says that a registered
medical practitioner shall examine the chronic illness or presence of sexually transmissible diseases
in Sex Worker and give a declaration, now once this certificate is issued, and the person is registered
under sec 3, and gets a license for commercial sex work for a year. However, no such restrictions are
placed on the customers of such workers. There is no requirement for medical examination of
customers the check presence of illness or STDs. When it is a matter of public health and safety,
putting restrictions only on the workers is not enough as the customer having STDs pose equal
threat to the public health. hence, the very object of the Act is defeated.

The act states that it is enforced for regulation of the prostitution, but in fact the provisions of this
act are vague, unreasonable and arbitrary to the sex workers. For example, section 6 impose
restrictions on the timings of commercial sex work as they are not allowed to practice in daytime. No
explanation is provided as to why such restriction is imposed. This is arbitrary and unreasonable
restriction on right to earn of the sex worker.

Further sec 3 of the act says that the list of such licensed sex workers would be available to anyone
who makes an application thus breaching right to privacy – this has already been discussed at length
by my co counsel.

Further the process adopted for cancellation of license as given in sec 5 violates the principles of
natural justice as the sex workers are not even given notice of the same nor any opportunity is
provided for explanation of the behaviour. The fundamental principle of right to be heard is violated.
Thus the process of cancellation of the license is arbitrary.

Also the licensing authority under this act is solely the district magistrate and the right of
cancellation of such licences is also in the hands of the DM. And there exists no mechanism under
which the aggrieved party may approach any superior authority. Hence there are no checks and
balances on the power delegated to the magistrate.

Thus, these provisions of the act pose a threat to the general public health and safety.

The second aspect is the constitutional as well as social morality – does this act violates morality

Your honour morality is subjective to each individual, whether an act is moral or immoral is guided
by a common set of beliefs of the society. Indica is a pluralistic society with many faiths and beliefs
but since time immemorial, marriage has been considered a most sacred relationship in terms o
social values and physical union of two individuals and brings a number of obligations and privileges
affecting many people. This institution of marriage is also important for procreation of children and
their upbringing.

Now, the Commercial Sex Workers Act pose direct threat to this institution of Marriage as married
people are also able to participate in commercial sex work. Even in the case of Joseph Shine V Union
of India, the Supreme Court held that Adulterous relationship of a spouse is a moral wrong.

Hence, it is against the social morality of the society.

Now coming towards the constitutional morality of this act-

In Govt of NCT Delhi V. UOI, CJI Deepak Mishra held that ‘ Constitutional morality, appositely
understood, means the morality that has inherent elements in the constitutional norms and the
conscience of the Constitution.’ and one such element is the right of equality and non-
discrimination. And this Act stands contrary to the very fundamental of equality.

Your honour the this Act though it seems gender neutral, has a discriminatory impact. for this we
have to understand the societal structures of the nation of Indica. Though, nation strives for equal
opportunities, it is a patriarchal society. Your honour when we look at the societal structures even
the data shows that women are more vulnerable to such events. For every 10 victims of human
trafficking detected globally 7 are females (UN office of drug and crime). If we look at the state of
Indica, a research study from 2016 to 2021 shows that females are 30% more victims of trafficking
than males. Even the fact sheet states that there has been rise in domestic violence and mental
cruelty faced by women. When considering a legislation like this, the social realities of structures of
oppression and domination should be considered.

In the case of Madhu v Northern Railways the SC said that – seemingly innocent ground can in fact
have discriminatory effects due to the structural inequalities that exist between cases. That is exactly
what is happening here. In the case of Nitisha v Union of India, supreme court refered to a two-fold
test given by Canadian Supreme Court –

1. whether the impugned law disproportionately affects a particular group?

2. Whether the law has effect of reinforcing, perpetuating such disadvantage?
Both the tests are fulfilled in the present case. Hence, the act indirectly discriminates against the
women as it fails to take into consideration the underlying effects of this provision, and hence is
liable to be struck down.

the counsel seeks permission to move forward with the prayer

Prayer -

It is humbly prayed before the honourable court to pass an order declaring that Indica Commercial
Sex Workers (Protection and Regulation ) Act is unconstitutional on the grounds of Public Health,
Safety and Morality or set up a commission to review the said act in light of the questions raised by
the petitioner or pass any other order that the honourable court may deem fit.

much obliged.