Prostitution is one of the worst forms of woman subjugation and exploitation in twenty first century. Every society is plagued with it. Almost every country in the world is affected by trafficking in general and prostitution in particular as a country of origin, transit or destination for victims.
Since time immemorial, every civilized society and Government has put efforts to curb it, if not to eliminate it completely. A plethora of legislations are in place to prevent the abuse of women for prostitution. Efforts are made to regulate the profession by providing penal measures by protecting prostitutes as ‘victims.’
According to United Nations Office on Drugs and Crime(UNODC), human trafficking is inherently judged through three elements namely- The Act(What is done), The Means(How it’s done) and The purpose(Why it’s done).
It’s defined as- “An activity of recruitment, transportation, transfer, harbouring or receipt of persons by threat or use of force, coercion, abduction, fraud, deception, abuse of power or vulnerability, or giving payments or benefits to a person in control of the victim for the purpose of exploitation, which includes exploiting the prostitution of others, sexual exploitation, forced labour, slavery or similar practices and the removal of organs.”
UNODC and its protocols assist states in their efforts to implement the Protocol to Prevent, Suppress and Punish Trafficking in Persons (Trafficking in Persons Protocol). In addition, domestic legislations of countries also control and suppress immoral trafficking. In India, its Immoral Traffic Prevention Act,1956 that legislates upon human trafficking.
According to NCRB report, a total 5264 cases of human trafficking were reported in India in 2018. Amongst this, a total 64 percent were women and 48 percent were below 18 years old. The worst affected states are West Bengal, Bihar, Maharashtra, Telangana, Jharkhand, Rajasthan, Andhra Pradesh, Assam, and Orissa. Women from socially and economically disadvantaged classes especially those belonging to SC, ST, and OBC are more vulnerable to human trafficking.
In a recent judgment pronounced on 24th September,2020 , the Bombay High Court has expressly reiterated that ‘Prostitution is not an offence and an adult woman has a right to choose her vocation’ thereby upholding the fundamental rights of prostitutes as citizens enshrined in Part III of the Constitution of India.
It thus becomes imperative to analyze the entire gamut of some important provisions of SITA (‘The Suppression of Immoral Traffic in Women and Girls Act) and now referred as ‘The Immoral Traffic Prevention Act,1956’.
The Act was passed by parliament in pursuance of ‘The Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others’ which was approved by the United Nations General Assembly and came into force on 25 July 1951.
After fathoming the provisions of both SITA and the aforesaid UN Convention , one can comprehend that human dignity, welfare of individual, especially women as citizens, the institution of family and interests of community at large were the primary concerns before the legislators while enacting these laws on prostitution. The Act also attempts to check the capricious actions of law enforcement agencies while dealing with prostitutes as ‘offenders’ instead as ‘victims.’
While ordering to set free three sex workers from corrective homes where they were detained for almost a year against their willingness and wish, the Bombay High Court has also quashed the impugned order of Metropolitan Magistrate and held it to be in bad light of provisions of prostitution legislation.
The case was pertaining to three prostitutes belonging to ‘Bediya’ community that has immoral customary practice of sending girls for prostitution after attaining puberty. The parents of the victim were aware that their girls were indulging in prostitution and they were privy to the profession taken up by their daughters.
The metropolitan magistrate had therefore ordered to send the three victims to a state run protective home at UP for a year starting from 19th October,2019. The correction home was to extend care, protection, shelter and vocational training to the three victims. The impugned order was challenged in High Court after being confirmed by sessions judge in the appeal No.284 of 2019.
Zealously guarding the rights of the prostitutes as ‘victims’, the court has reiterated that ‘The Immoral Traffic Prevention Act,1956 does not empower the magistrate to hold the custody of victims beyond a period of three weeks without there being any final order to that effect after following the due process of law’.
The High Court also emphatically observed that ‘There is no provision under the law which makes prostitution per se a criminal offence or punishes a person because he indulges in prostitution. What is punishable under the Act is sexual exploitation or abuse of a person for commercial purpose and to earn the bread thereby, except where a person is carrying on prostitution in a public place as provided in section 7 or when a person is found soliciting or seducing another person in view of section 8 of the said act.
It added that record does not reveal that the three victims were indulged in prostitution and there is no material to substantiate this charge.
The court also emphasized on the fact that victims were major and therefore have a right to reside at a place of their choice, to move freely throughout the territory of India and to choose their vocation as enshrined in part III -the fundamental rights under Indian Constitution.
The Immoral Traffic (Prevention) Act, 1956 defines ‘prostitution’ under Sec 2(f) as “the act of a female offering her body for promiscuous sexual intercourse for hire, whether in money or in kind” The definition of ‘prostitute’ is also construed accordingly under Section 2(e).
The Act also makes an explicit distinction between a ‘Girl’ and ‘Woman’ for the purpose of definition. According to Sec 2 (b) , a “girl” means a female who has not completed the age of twenty-one years, while a “woman” means a female who has completed the age of twenty-one years as per Sec 2(j).
A cursory reading of the entire Act can amply infer that prostitution has not been banned under the Act. Only certain activities related with prostitution have been expressly prohibited. Further prostitution in certain places has been banned. Some important provisions of the Act and landmark judgments are discussed below-
Keeping a Brothel – Section 3 of the Act prohibits the keeping and management of the brothel. Any person who renders assistance for this purpose also violates the provisions of this section and is liable to be punished. A minimum sentence of one year’s rigorous imprisonment and not more than 3 years and a fine upto 2 thousand rupees has been prescribed for the first conviction. It has been raised to minimum two years and not more than five years and also with fine which may extend to two thousand rupees on subsequent conviction.
In Kamalabai Jethamal vs The State Of Maharashtra1962 AIR 1189, 1962 SCR Supl. (2) 632, the apex court in an appeal challenging the eviction of prostitute from the house and disputing her conviction as bad in law because search was not conducted in accordance with provisions of Code of Criminal Procedure, 1973 held that High Court had powers to order her eviction under section 18 of SITA after she was convicted under section 3 of the Act.
It was argued by defence counsel that the High Court in appeal could not order the appellant’s eviction because that power lies with only a Magistrate under Sec. 18 of the Act. It was added that the powers of the appeal court under Criminal Procedure Code are to reverse the order of acquittal or to order a fresh enquiry or a retrial et cetera, but not to order eviction from house.
This argument was also held untenable as the Act has a specific provision in Section 18(Closure of brothels and eviction of offenders from the premises) authorizing the making of such an order by a court convicting a person of offences under Section 3 or Section 7 of the Act.
Prostitution at Public Places- Section 7 prohibits carrying on prostitution in any premises which are within a distance of two hundred yards of any place of public religious worship, educational institution, hostel, hospital, nursing home or such other public place shall attract imprisonment for a term which may extend to three months or with fine which may extend to two hundred rupees, or with both, and in the event of a subsequent conviction with imprisonment for a term which may extend to six months and also with fine which may extend to two hundred rupees.
Closure of brothel – Section 18 provides that if the house, room, place is used as brothel at a public place , the occupier of the house can be given directions by the magistrate to vacate it within seven days. The owner , landlord or lessor can further be directed that he will have to obtain previous permission of the magistrate before house can be let out during period of one year from date of passing of order. Any failure to comply with the orders by the occupier renders him liable to conviction and punishment.
Living on the earnings of prostitution – Section 4 has prohibited living on earnings of a prostitute by a person over the age of 18 years. Such a person shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both. Not only express pimps and touts come under the sweep of this provisions , but also those exercising control, direction, or influence over movement of prostitutes in such a manner as to show that he/she is acting, abetting or compelling her to prostitution.
In Radhakrishnan v. State of Kerala – 2008 (2) KLT 521, it was held that the activity carried on in a given premises will amount to “prostitution” within the meaning of Section 2 (f) of the Act only if sexual abuse or exploitation of a person is done for a commercial purpose. For the activity to become one with a commercial purpose, it should partake the character of a business or one carried on for profit.
Procuring Girl or Woman for Prostitution- Section 5 : Procurement , inducement or taking away of a woman or a girl for prostitution has been prohibited under this section. Any person guilty of the offence shall be punishable on first conviction with rigorous imprisonment for a term of not less than one year and not more than two years and also with fine which may extend to two thousand rupees. On subsequent convictions, the minimum punishment should not be less than two years and not more than five years and also with fine which may extend to two thousand rupees.
In Naseem Bano@Naseem vs The State Of Nct Of Delhi, Crl. Appeal No. 121/2004, Delhi High Court held that Section 5 does not talk of ‘forcible prostitution’.
It talks of carrying on prostitution and of procuring girls for prostitution or inducing a person to become an inmate of a brothel or to take person for the purpose of prostitution.
The appellant in this case had contended that the said woman was initially carrying on prostitution at kotha of Luxmi situated in the same building and she was later taken for prostitution by the appellant at her kotha.
The Court verdict emphasized that from testimonies of all witnesses of prosecution, it was apparent that the appellant was ‘causing’ carrying on of prostitution at her brothel and was guilty of offence under Section 5 of Immoral Traffic Prevention Act. She was rightly convicted under Section 5 of the Act.
Seducing or soliciting in a Public Place- Section 8 : Seducing or soliciting in a public place for purpose of prostitution has been prohibited under this section. Even making of words or gestures for this purpose from a building or a house which can be seen from a public place is prohibited.
A person found guilty shall be punishable on first conviction with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred 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 hundred rupees.
In addition to these provisions of the Immoral Traffic (Prevention) Act, 1956, Procuration of minor girls (Section 366-A IPC), Importation of girls from foreign country (Section 366-B IPC), Selling of girls for prostitution (Section-372 IPC), Buying of girls for prostitution (Section -373 IPC) also pave way for suppression of immoral trafficking.
Article 23 of Indian constitution also provides for prohibition of traffic in human beings and forced labour which laid important thrust for legislation of SITA,1956. In pursuance of this Article, the parliament has passed the legislation for punishing acts which result in traffic in human beings.
It’s imperative to understand that the protection of Article 23 is available to both citizens as well as non-citizens. It protects individual not only against state but also private citizens. It casts a positive obligation on the state to take steps to abolish evils of traffic in human beings.
As per NCRB report 2018, some of the important causes of trafficking in India are poverty, social or cultural practice, migration, porous nature of borders, bureaucratic red tapism and corruption, and operation of international organized criminal networks. It’s incumbent upon individual, society and state to undertake collective efforts to curb the growing menace of human trafficking as it’s a flagrant violation of fundamental rights of individual.
Prostitution at Public Places: Section 7 prohibits prostitution in any premises which are within a distance of two hundred yards of any place of public religious worship, educational institution, hostel, hospital, nursing home or such other public place; it shall attract imprisonment for a term which may extend to three months or with fine which may extend to Rs 200, or with both, and in the event of a subsequent conviction with imprisonment for a term which may extend to six months and also with fine which may extend to Rs 200.