This article is written by Shebin Saji.
Table of Contents
The Suppression of Immoral Traffic in Women and Children Act, 1956 was given assent on 30th December 1956 and was made applicable to the whole of India. The act was made to suppress immoral traffic in women and children as India signed the United Nations International Convention for the “Suppression of Women in Traffic in Persons and of the Exploitation in Others” in New York on 9th May 1950. Subsequent amendments not only changed the nomenclature of the act but even the preamble to The Immoral Traffic (Prevention) Act, 1956 (hereinafter referred to as PITA) and an act made “for the prevention of immoral traffic” respectively. The PITA has undergone two amendments in the year 1978 and 1986 respectively and it made the act more gender-neutral. This legislation aims to stop immoral trafficking and prostitution in India and is divided into 25 sections and one schedule.
Apart from PITA, the Indian Penal Code, 1860, the Constitution of India, 1950, the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJA) and various state legislations also have been enacted to deal with the issue of prostitution and trafficking. The act does not make prostitution illegal per se but it makes keeping and using of premises as a brothel, living on the income earned via prostitution, pimping, soliciting, seducing a person for prostitution in custody or otherwise and prostitution in a public area etc. an offence punishable under the act. It, thus, means if prostitution is done independently or voluntarily then it won’t constitute an offence. This article highlights the different aspects and roles of institutions under the act.
Meaning of brothel and prostitution
Before proceeding further, it is important to know the definitions of ‘brothel’ and ‘prostitution’ given under section 2(a) and section 2(f) respectively.
A brothel includes “any:
- house or any portion of any house;
- room or any portion of any room;
- conveyance or portion of any conveyance;
- place or portion of any place;
for purpose of:
- sexual exploitation or;
- abuse for the gain of another person or;
- for the mutual gain of two or more prostitutes.”
It is vital to prove whether such place is used for commercial exploitation or abuse. It is a question of fact whether a single use of such a place can make it fall under the definition of the brothel. It must be noted that it largely depends on the circumstances surrounding and the person keeping the place.
The criteria for declaring a person as a ‘prostitute’ is construed from the definition of prostitution. It means “the sexual exploitation or abuse of persons for commercial purpose.” Accordingly, two things to be remembered are:
- the occurrence of exploitation or abuse of a person for sex, and
- such a person engaging in this activity does it for commercial gain.
Special police officer and his powers
Special police officer (SPO) is a person appointed by the state government to discharge his police duties for an area who shall be above the rank of a sub-inspector of police. The District Magistrate (DM) may also appoint a retired police officer or a retired officer of the military above the rank of sub-inspector or a commissioned officer, at the time of retirement, and vest them with the same power as that of an SPO. The central government has been vested with the power to appoint ‘trafficking police officers’ intended for dealing with offences related to sexual exploitation of persons. They can investigate any offence relating to PITA or any other law for the time being in force which is committed in more than one state. These officers can discharge functions and exercise power like an SPO all over India. The powers entrusted to an SPO are as follows:
- The act is a complete code in itself and an officer can arrest without warrant or can allow his subordinate to arrest any person, provided it is given in writing, without a warrant. An arrest under PITA cannot be made by regular police. However, it a settled principle of criminal law that a trial shall not be vitiated merely because the investigation is not done by the authorized investigation officer until prejudice is shown.
- SPO has been given the power to search any premises without a warrant under Section 15. Such officer must have a reasonable ground to believe that securing a warrant from a Magistrate will cause undue delay and lead to the destruction of pieces of evidence. Therefore, only on reasonable grounds a search can be made without a warrant and must not be used arbitrarily. PITA being a special act its provisions need to be strictly followed and the investigating agencies cannot show complete disregard to the provisions of Section 15 (1) and (2).
- While searching, he shall go with no less than two women officers and can call two or more reputable resident of the neighbourhood (one shall be a woman) where the search is made under Section 15(1). The inhabitants shall witness it and the SPO has the authority to take any person found on the premises to an appropriate magistrate.
- Next, a mandatory medical examination of such person shall be done. A woman detained during a search will be interrogated by a woman officer or a woman from a recognised welfare organisation.
Magistrate and his powers
Section 2 (c) defines a magistrate as “specified in the second column in a Schedule as being competent to exercise the powers conferred by section in which the expression occurs and which is specified in the first column of the Schedule”. A magistrate under this act is vested with wide powers like:
- As mentioned above, DM may appoint a specified person to act as SPO under Section 13 (2A).
- A magistrate has the power to rescue a person under section 16 living or carrying on prostitution in a brothel and for this an officer not below a sub-inspector shall be entrusted with the task to enter and produce the person removed from such brothel before him.
- The person removed or rescued who was not produced before an appropriate magistrate then he can be taken to the nearest magistrate who shall pass an order for his safe custody. Once appropriate magistrate gets cognizance of the matter then an inquiry shall be directed to the probation officer and an order under section 17 (2) of same nature mentioned above may be passed.
- If the inquiry finds that the person needs care and protection then he can be sent for detention in a protective home for one year to three years.
- A magistrate can take assistance from a panel of five respectable members to discharge functions under section 17 (2) and can keep a list of social workers working to end immoral traffic in the society.
- The addition of section 17A has empowered the magistrate to see the genuineness of the parent, guardian or husband of the person rescued under section 16 by investigating through a recognised welfare organisation and accordingly pass appropriate order as per section 17.
- A magistrate can issue a notice for show cause to the in-charge of premises or place, allegedly used as a brothel, located in a public place. Within seven days the in-charge has to satisfy him as to why the property shouldn’t be attached for improper use and if the magistrate disagrees then he may pass an order either leading to the eviction of the occupier or direct such landlord, lessor or owner of the place to get prior approval from the magistrate before letting it out. Provided that if it found that the owner, lessor or landlord are innocent then the premises shall be given to them on the condition that it shall not be let out to person using it for improper use.
- A magistrate can remove any prostitute in his jurisdiction and may issue a notice to her and show cause as to why she should not be prohibited from staying in his jurisdiction and re-entering it. The magistrate after conducting an inquiry and hearing the person alleged to be a prostitute may pass an order for her removal if he thinks it is best for the public.
- Sahyog Mahila Mandal and Ors. v. State of Gujarat and Ors.: MANU/GJ/0110/2004
“Even a woman or girl living in a brothel or who is carrying on or being made to carry on prostitution in a brothel and removed therefrom on the direction of Magistrate under Section 16(1) is required to be produced under Section 16(2) of the Act before the Magistrate issuing the order and is required to be dealt with in accordance with Section 17 (2), (3), (4) and (5) for the purposes of safe custody and rehabilitation.”
- Sangeeta and Ors. v. State and Ors.: MANU/DE/0613/1995
“A close scrutiny of the said Sub-sections leaves one in no doubt that every function of the learned Magistrate whichever is to be performed by him is subject to the provisions of Sub-section (5) of Section 17.”
- Prerana v. State of Maharashtra and Ors., 2003 (2) MhLj 105
“A Magistrate before whom persons rescued under the Immoral Traffic (Prevention) Act, 1956 or found soliciting in a public place are produced, should, under Section 17(2) of the said Act, have their ages ascertained the very first time they are produced before him. When such a person is found to be under 18 years of age, the Magistrate must transfer the case to the Juvenile Justice Board if such person is a Juvenile in conflict with law, or to the Child Welfare Committee if such person is a child in need of care and protection.”
- Avijit Biswas v. The State of West Bengal and Ors.: MANU/WB/0386/2020
“It is notable that for exercise of powers under Section 20 of the IT Act, being the removal of a prostitute from any place… powers have been granted inter alia on Executive Magistrates specially empowered by the State Government as well.”
- State of U.P. v. Kaushailiya, (1964) 4 SCR 1002; AIR 1964 SC 416
“Section 20, in order to prevent moral decadence in a busy locality, seeks to restrict the movements of the second category of prostitute and to deport such of them as the peculiar methods of their operation in an area may demand.”
Punishments under PITA
The punishments imposed under the act are varied and can be found in sections 3-9, 11, 18, 20 and 21. The offences punishable are keeping and using of premises as a brothel, living on the income earned via prostitution, pimping or else soliciting for prostitution, seducing a person in custody and prostitution in a public area etc. an offence punishable under the act.
- Section 3 punishes any person with rigorous imprisonment who keeps or allows premises to be used as a brothel. The manager of a brothel shall get a punishment between one year to three years with a fine of Rs. 2000 on first conviction and for subsequent conviction the punishment shall be between two to five years with the same amount of fine. As per sub-section (2) an owner-tenant, lessor-lessee or landlord-occupier shall be punished with at least two years with a fine of Rs. 2000 on first conviction and for subsequent conviction the punishment may be enhanced to five years with a fine. A conviction from section 3 makes the lease of the place invalid where brothel was run.
- As per section 4, a person living his life from the money made by a prostitute can be imprisoned for two years or a fine of Rs. 1000 or both and if found such earning is made from prostituting a child or a minor then it can go up to ten years no less than seven years of imprisonment shall be served. One requisite of this section is that a person should be above the age of eighteen. Examples of section 4 are pimp, tout, a person habitually living with a prostitute etc. Section 3 and 4 do not apply to the customers of a prostitute.
- The Bombay High Court in Bindo Ganesh Patil v. The State of Maharashtra: MANU/MH/2420/2018 has clearly said that “Section 5 of the PITA pertains to procuring, inducing or taking [person] for the sake of prostitution. This offence is complete when a person procures another person for prostitution or induces such person to go from any place with intent that such person becomes the inmate of a brothel or to take such a person from one place to another to carry on prostitution.” The punishment is rigorous imprisonment of 3 to 7 years with Rs. 2000 fine. If it is done against a persons’ will or is minor then between seven to fourteen years and if the same is done with a child then it is seven years to life imprisonment.
- Section 6 allows the court to punish a person detained in any place used for prostitution for seven to ten years imprisonment of either description along with fine. The court has to provide special reasons if the punishment of fewer than seven years has been given to the accused. No legal proceedings would lie against any woman who has been detained under such premises by the detainer. There are certain presumptions in section 6 like:
- A child in a brothel found to have been sexually abused then she has been detained for purpose of prostitution, or
- It is presumed under sub-section (3) that a woman is detained for sex if a person withholds her property like jewellery or induces her with the threat of legal proceedings if she dares to take away her property.
- Section 7 (1) bars people to carry on prostitution within a specified area, violation of this provision leads to the imprisonment of three months. However, the punishment changes to seven to ten years with fine if prostitution is committed within such specified areas with a child or a minor. Any punishment less than seven years shall be recorded with special reasons in the judgement.
- Section 7 (2) not only prohibits owner-tenant, lessor-lessee or landlord-occupier or agent but even the keeper of a public place like hotels prostitution in public vicinity. For the first conviction, the punishment is three months with a fine of Rs. 200 and for subsequent conviction, it is six months with a fine. The licence of the hotel where prostitution is carried can be cancelled for a period not less than three months to one year. However, if a child or a minor is found in such hotel for prostitution then the licence can be cancelled forever.
- Seduction or solicitation in public places whether from within a house or not amounts to an imprisonment of six months with fine on first conviction which increases to one year for subsequent conviction under section 8. The word ‘solicit’ has the essential import of an oral entreaty or persuasion for prostitution.
- Custodial prostitution leads to the imprisonment of either description for a term of seven years to life or ten years with fine as per section 9. Any punishment less than seven years needs to be justified by giving special reasons.
- If a previously convicted offender gets convicted committing an offence under PITA within five years from his release then the court at the time of passing sentence can ask for the notification of his residence as per section 23 for 5 years from the date his sentence has come to an end. This order shall be rendered void if such conviction is overturned by a higher Court.
- When the directions passed under section 18 (1)(b) is flouted then the owner, landlord or lessor can get a fine up to Rs. 500 and if the proviso of the abovementioned provision is not adhered to then an offence is set to have been committed as per section 3 (2) (b) or section 7 (2) (c) of PITA.
- Any prostitute removed from a place and defying the orders of magistrate passed under section 20 shall be fined Rs. 200 and if it continues then she will be liable to a fine of Rs. 20 daily.
- A protective home or a corrective institution must adhere to the terms of its licence. A contravention of the same attracts a fine of Rs. 1000 for the first time and subsequent conviction it is single year imprisonment or Rs. 2000 fine or even both.
As per section 22, offences committed under section 3-8 shall be triable exclusively by a magistrate not lower to a Metropolitan Magistrate or a First-Class Judicial Magistrate. Section 22A and section 22 AA provides power to the state and the central governments to establish special courts after consultation with the High Court. They shall be set up with a purpose of speedy trial of offences leading to speedy justice. The state government can even direct the magistrates under section 22B to try the cases summarily and in such cases section 262 to 265 of the Code of Criminal Procedure, 1973 shall apply. The power to imprison any offender tried summarily shall be of one year. Nevertheless, if the magistrate feels that the case is of such a nature that it cannot be tried summarily then it can recall any witnesses and can hear or rehear the case.
Protective homes and corrective institutions
A protective home and a corrective institution are licenced under section 21. However, a protective home is “an institution where people in need of care and protection are kept” in the umbrella shade of technically qualified persons along with necessary equipment and other facilities required for the institutions proper functioning. It. On the other hand, a corrective institution is “an institution where a person in need of correction or reformation may be detained.” No victim under PITA can be sent to a corrective institution against her wishes if she is an adult. It is also different in the sense that the former does not include a corrective institution or a shelter where undertrials are kept and the latter includes a shelter where undertrials are kept as per the act.
Section 21 gives power to the state government to create numerous such homes and institutions as it feels fit. These institutions have to work according to the norms laid down by the state government. The procedures concerning a protective home or a corrective institution are as follows:
- An application to the State Government must be sent by an individual or an authority like a non-governmental organisation.
- After its acceptance, a licence is issued to such individual or authority. This licence is made as per the rules made under the act.
- The management of such home or institution shall be preferred to give to a woman.
- Before handing over the licence a full-fledged investigation shall be made by the state government.
- No licence issued or renewed is transferrable.
- The licence granted can be revoked if it found that the protective home or corrective institution is not working as per the rules or provisions of this act. However, the licence holder shall be heard before any such action would be taken. The revocation will cease the functioning of such home or institution.
- The licence holder under shall be required to submit records and other documents as required by the court.
A magistrate after receiving an application from the trafficked person to send her to a protective home or provided care and protection by the court shall inquire and can accept the demand of her application for such period as specified. During this period, the trafficked person must be given protective care and vocational training so that she becomes self-sufficient and economically self-reliant.
A court under section 10A can send a female offender to the institution, guilty under the provisions of section 7 or 8 if it deems fit that her detention under the institution would be beneficial to her. The detention order can stay for a period of two to five years in lieu of a sentence of her imprisonment.
JJA and PITA
JJA and PITA are legislation that wants rehabilitation of young children who have fallen victims of flesh trade. In Delhi High Court Legal Services Committee v. Union of India, the High Court while considering these principles has been explicitly clear for such children and stated “they cannot be treated as a child in conflict with the law and sent to Juvenile Justice Board and thus must be under the protective umbrella of Child Welfare Committee as a child in need of care and protection.”
In this regard, the two celebrated judgements of the Supreme Court, Gaurav Jain v. Union of India and Vishal Jeet v. Union of India on commercial sexual exploitation and the rescue and rehabilitation of children and women victim are also important to be looked upon. The former has stated about the rights of the children of prostitutes and their rehabilitation and the later had pointed out the obligation of the central and state governments to ensure the welfare of children and girls involved in forced prostitution.
The people involved in the flesh market are often those who are of poor economic strata, migrant workers and who want extra income. These people are often lured into having a rosy future and persuaded by trickery or flattery. Once they enter the system it is hard for them to live a normal life. The negative consequences of joining this field of work are not only borne by the prostitute but even her children and her family.
PITA is legislation formulated to curb the mischief and offences associated with immoral trafficking but it seems that the act is more regressive than progressive in the sense that these fallen angels of the flesh trade are subjected to evil treatment rather than as victims. The system seems to be cruel to them by arresting them and not treating as victims of crime. Hence, an empathetic approach towards fallen angels and strictest measures against the pimps, brothel keepers and immoral traffickers needs to be ensured by the society and the system.
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