IS PROSTITUTION LEGAL OR ILLEGAL IN INDIA

1
IS PROSTITUTION LEGAL OR ILLEGAL IN INDIA?
2
Are Prostitutes entitled to live a life of
dignity?
3

• The Immoral Trafficking Prevention Act, 1956
  ("ITPA"), the main statute dealing with sex work
  in India, does not criminalise prostitution or
  prostitutes per se, but mostly punishes acts by
  third parties facilitating prostitution like
  brothel keeping, living off earnings and
  procuring, even where sex work is not coerced

4
Reasons behind the Act

• Government of India in the year 1950 ratified an
  international convention for suppression of
  traffic in persons and of the exploitation of the
  prostitution of others.

5
What the convention says

• Article 1
• The Parties to the present Convention agree to
  punish any person who, to gratify the passions of
  another
  
• (1) Procures, entices or leads away, for purposes
  of prostitution, another person, even with the
  consent of that person
  
• (2) Exploits the prostitution of another person,
  even with the consent of that person.

6
Article 2 The Parties to the present Convention
further agree to punish any person who (1)
Keeps or manages, or knowingly finances or takes
part in the financing of a brothel (2)
Knowingly lets or rents a building or other place
or any part thereof for the purpose of the
prostitution of others
7
What constitution says-

• Article 14 provides for equality in general.
• Article 15 Prohibits discrimination on the
  grounds of religious race, caste, sex or place of
  birth, or of any of them.
  
• Article 15 (3) provides for special protective
  discrimination in favour of women and child
  relieving them from the moribund of formal
  equality. It states that, nothing in this
  article shall prevent the state from making any
  special provision for women and children

8

• Article 16 (1) covers equality of opportunity in
  matters of public employment.
  
• Article 23 prohibits traffic inhuman beings and
  forced labour and makes it punishable under
  Suppression of Immoral Traffic in Woman and Girls
  Act 1956 which is renamed in 1986 as The Immoral
  Traffic (Prevention) Act.
• Article 24 prohibits employment of children in
  any hazardous employment or in any factory or
  mine unsuited to their age.

9
Article 38, enjoins the State to secure and
protect as effectively as it may a social order
in which justice social, economic and political
shall inform all the institutions of national
life.

• It basically says provide opportunities to make
  equal results.

10

• Article 39 the state should direct its policy
  towards securing, among other things, a right to
  adequate means of livelihood for men and women
  equally and equal pay for equal work their age or
  strength
• Article 39 (f) provides that the children should
  be given opportunities and facilities to develop
  in a healthy manner and conditions of freedom and
  dignity and that childhood should be protected
  against exploitation.

11

• Article 45 makes provision for free and
  compulsory education for children. Which is now
  well settled as a fundamental right to the
  children.
• Article 46 directs that state to promote the
  educational and economic interests of the women
  and weaker sections of the people and that it
  shall protect them from social injustice and all
  forms of exploitation.

12
Universal Declaration of Human Rights

• Article 1, all Human beings are born free and
  equal in dignity and rights.
  
• Article 2, that everyone (which includes fallen
  women and their children,) is entitled to all the
  rights ad freedoms set forth in the Declaration
  without any distinction of any kind such as race.
  Colour, sex, language, religion, political or
  other opinion, national or social origin,
  property, birth or other status.

13

• Article 3, Right to life, liberty and security of
  person.
  
• Article 4, that no one shall be held in slavery
  or servitude slavery and the slave trade shall
  be prohibited in all their forms. (The fallen
  victims in the flesh trade is no less than a
  slave trade. AIR 1997 SC 3021. See At page 3028
  Para 6, line 16.)

14

• Article 5, no one shall be subject to torture or
  to cruel, inhuman or degrading treatment or
  punishment.
  
• (The fallen/trapped victims of flesh trade are
  subjected to cruel, inhuman and degrading
  treatment which are obnoxious, abominable and an
  affront to article 5 of the said declaration and
  also article 21 of Indian constitution. AIR 1997
  SC 3021. See At page 3028 Para 6 last 4 lines of
  the said Para.)

15

• Article 6, Declares that everyone has the right
  to recognition everywhere as a person before the
  law.

16

• Article 7, that all are equal before that law and
  are entitled without discrimination, to equal
  protection of the law.
  
• (Denial of equality of the rights and
  opportunities and of dignity and of the rights of
  equal protection against any discrimination of
  fallen women is violation of Universal
  Declaration under Article 7 and as well as
  Article 14 of Indian constitution.)

17
LAW

• Suppression of Immoral Traffic in Women and Girls
  Act-1956.
  
• Prevention of Immoral Traffic Act -1956
• The Immoral Traffic (Prevention) Act-1956

18
Why the name has changed?
19
It was proposed to change the name of the Act to
Immoral Traffic (Prevention) Act in view of
widening the scope of the Act to cover all
persons, whether male or female, who are
exploitedsexually for commercial purposes
20
OBJECTIVE OF THE IMMORAL TRAFFICKING PREVENTION
ACT,1956 (ITPA)?
21
Objectives of the Act- Continuing

• PUNISH IMMORAL TRAFFICKING
• PUNISH TRAFFICKERS
• PUNISH PERSONS LIVING EARNINGS OF THE WOMAN
• WELFARE MEASURES DIRECTED TOWARDS REHABILITATION
  OF SEX WORKERS
  
• The emphasis IS NOT on the sex worker but the
  clients/pimps/brothel owners etc.
  

22
Continuing

• Licensing authorities are being empowered to
  cancel licences of hotels where of hotels where
  children or minors are detected to be used for
  purposes of prostitution.
• Interrogation is don only by women police
  officers if not in the presence of a woman social
  worker.
  
• In case of seduction in custody, the punishment
  is sought to be enhanced to that laid down for
  rape in the Indian Penal Code
  

23
What is prostitution?

• 2 (f) means the sexual exploitation or abuse of
  persons for commercial purposes, and the
  expression prostitute shall be construed
  accordingly.

24

• Section 2 (f) of the old Act
• Prostitution means the act of a female offering
  her body for promiscuous sexual intercourse for
  hire, whether in money or in kind and whether
  offered immediately or otherwise and the
  expression prostitute will be construed
  accordingly

25
Section 3 Punishment for keeping a brothel or
allowing premises to be used as a brothel

• Not less then one year rigorous, not more than
  three years, and also with fine up to two
  thousand rupees. (in first convection)
  
• Not less then two years rigorous but not more
  than five years, also with fine up to two
  thousand rupees.
  

26
Section 4 Punishment for living on the earning s
of Prostitution

• Up to two year and fine of one thousand rupees
• If this earning is out of child or minor shall be
  punishable with imprisonment for a term of not
  less than seven years and not more than ten years.

27
Section 5 Procuring, inducing or taking person
for the sake of prostitution

• Punishment not les then 3 years, not more than
  seven years.
  
• If the offence under the sub-section is committed
  against the will of the person imprisonment for a
  term of seven years shall extent to fourteen
  years
• If it is child not less than 7 years, but may
  extended to life
  
• If it is minor, not less than 7 years, and not
  more than 14 years.

28
Section 6 Detaining a person in premises where
prostitution is carried on.

• Not less than 7 years but may be for life.
• (with or without consent)

29
Section, 7 Prostitution in or in the vicinity
of public places

• With the imprisonment for a term which may extend
  to three months.
  
• Where the offence is committed is in respect of a
  child or minor the person committing the offence
  shall be not less than seven years but which may
  be for life or for a term which may extend to ten
  years and shall also be liable to fine

30
Section 8

• Seducing or soliciting for purpose of
  prostitution.

31
Section 9 seduction of a person in custody.

• Any person who having the custody, charge or care
  of, or a position of authority over any person
  causes aid or abets the seduction for
  prostitution of that person shall be punishable
  upon conviction for a term which shall be not
  less than seven years but which may be for life
  or a term which may extend to 10 years and shall
  also be liable to fine

32
Section 13 of the Act

• 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.
  

33

• 2(A) the District Magistrate may, if he considers
  it necessary or expedient so to do, confer upon
  any retired police or military officer all or any
  of the powers conferred by or under this Act on a
  special police officer, with respect to
  particular cases or classes of cases or to cases
  generally
• Provided that no such power shall be conferred
  on-
  
• Retired police officer unless such officer, at
  the time of his retirement, was holding a post
  not below the rank of an Inspector.
  
• A retired military officer unless such officer at
  the time of his retirement was holding a post not
  below the rank of a commissioned officer
  

34

• For the efficient discharge of his functions in
  relation to offences under this Act-
  
• the special police officer of an area shall be
  assisted by such number of subordinate police
  officers (including women police officers where
  practicable) as the state Government may think
  fit and
• the state Government may associate with the
  special police officer a non-official advisory
  body consisting of not more than five leading
  social welfare workers of that area (including
  woman social welfare workers, wherever
  practicable) to advise him on questions of
  general importance regarding the working of this
  Act

35

• 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 persons and committed
  in more than one state, appoint such number of
  police officers as trafficking police officer 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 India

36
Delhi High Court Mumtaj_at_Behri V. the state

• Para 3. The first and foremost challenge of
  learned counsel for the appellant was as to
  legality and validity of entire process of raid,
  arrest, investigation and prosecution of the
  appellant. Submission of learned counsel for the
  appellant was that Section 13 of the Act mandates
  State Government to appoint Special Police
  Officer for dealing with the offences under the
  Act

37
Kerala High Court.Joseph v. sub inspector of
Police

• Has repeated the Delhi and West Bengal High Court
  decisions. At para 4.

38

• 4. In Superintendent and Remembrancer of Legal
  Affairs on behalf of State of West Bengal v.
  Sardar Bhadur Singh and Ors. (1969) Crl. LJ.
  1120) the High Court of Calcutta held that the
  expressions "police duties" and "dealing with
  offences" are of the widest amplitude and
  necessarily connote all that the police has to do
  in connection with the offences under the Act
  including detection, prevention and
  investigation. In Delhi Administration v. Ram
  Singh (AIR 1962 SC 63) the Supreme Court held
  that the expression "dealing with offences" in
  Section 13(1) of Suppression of Immoral Traffic
  in Women and Girls Act will include any act which
  the police has to do in connection with the
  offences under the Act. The expression "function
  in relation to offences" in Section 13(3) also
  includes its functions connected with the
  investigation of the offences. What has to be
  understood in the light of what is said in the
  above decision is that the expression "dealing
  with offences under the Act" includes detection,
  registering of the crime and investigation of the
  crime. Section 13 provides for appointment of
  special police officer for each area to be
  specified by the State Government and in that
  section it is said that the appointment of
  special police officer is for dealing with
  offences under the Act.

39

• A plain reading of Section 13 would go to show
  that the detection, registering and investigation
  of the crime have to be done by the special
  police officer.

40
Section 14,

• Offences to be cognizable- notwithstanding any
  thing 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 with the meaning of that
  Code,
• Provided that, notwithstanding anything contained
  in that code-

41
(i) Arrest without warrant maybe 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 that 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
42

• (iii) Any police officer not below the rank of
  sub-inspector specially authorized 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 tobe 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
  maybe, to the special police officer the arrest
  and the circumstances in which the arrest was
  made.

43
The High Court of KeralaSinu Sainudheen vs. sub
inspector of police

• 5. Section 14 of the Act says that
  notwithstanding anything contained in the Code of
  Criminal Procedure, any offence punishable under
  the Act shall be deemed to be a cognizable
  offence within the meaning of that Code. The
  proviso to the above Section says that
  notwithstanding anything contained in the
  Criminal Procedure Code, arrest without warrants
  may be made only by the special police officer or
  under his direction or guidance or subject to his
  prior approval.

44

• The second proviso to the Section enjoins that
  when the Special Police Officer requires any
  Officer subordinate to him to arrest without
  warrant otherwise then in his presence any person
  for an offence under the 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.

45

• Para 7. What is said in the second proviso to
  Section 14 is that for the purpose of arresting
  any person, an order in writhing specifying the
  person to be arrested has to be given to the
  subordinate officer by the special police
  officer. Such an order in writing can be given by
  the special police officer specifying the person
  to be arrested only after seeing that a
  particular person has committed an offence. There
  is also provision in the proviso which says that
  in the order in writing given by the special
  police officer the offence for which the arrest
  is being made also has to be mentioned. That also
  would indicate that the special police officer
  can give an order in writing to a subordinate
  officer for arresting a person only after he is
  being convinced that there are reasons to believe
  that a particular person has committed an
  offence.

46

• Here the sanction govern by the Assistant
  Commissioner of Police who is the special police
  officer cannot at all be said to be a sanction
  given for effecting arrest by a subordinate
  officer as is said in the second proviso to
  Section 14 since the sanction order was made even
  before the raiding of the house of the first
  accused. For the reason it cannot be said that
  there was sufficient authorisation given by the
  special police officer to the Sub Inspector of
  Police for effecting arrest as mentioned in
  Section 14 of the Act.

47
Section 15 search without warrant

• In the case of T.Jacob v, state of Kerala

48

• 7. Before parting with the case, I like to point
  out that the Assistant Superintendent of Police,
  who conducted the raid in the instant case, was
  not justified in doing so without complying with
  the provisions of Section 15 (1) of the above
  Act. There was no ground stated in the charge or
  anywhere else why he did not call at least one
  woman witness of the locality to attend and
  witness the search. It is a mandatory provision.
  See the view expressed in Harnam Singh v. State,
  AIR 1964 Punj 436 at P. 437. Even apart from
  that, the conduct of the Police Officer in
  proceeding into the bed room of the revision
  petitioner and entering through the back door
  without the civility of a knock on the front
  door, which was locked inside or warning the
  revision petitioner for the intrusion would be a
  misuse of his powers in the instant case.

49

• Anyway, the Police Officer at least could have
  knocked at the front door and got it opened. The
  place of occurrence is a Room No. 10 of the Beach
  Hotel, Calicut, which is a reputable hotel in the
  locality. It is very strange that the Police
  should have gone to such a hotel and conducted a
  raid of this type and brought down the prestige
  of the hotel in the estimate of the public
  without any regard for decency or decorum. It is
  also surprising that the Police Officer had taken
  into custody all the moveables including the
  personal belongings under a mahazar. One of the
  articles was the button hole pin inscribed with
  "Rotary International", which has nothing to do
  with the commission of the crime.

50

• It would be seen that every article, whether
  belonged to him or not had been removed out of
  the room. There was absolutely no necessity for
  removal of all these articles unless they were
  required for the proof of the crime. Anyway, the
  charge having been found against I do not propose
  to take any further action in the matter.
• 8. In the result, the revision petition is
  allowed. The revision petitioner is discrageed
  under Section 251-A (2), Criminal P. C. The
  moveables recovered from the revision petitioner
  will be handed over to him immediately.

51
This presentation is prepared byAlternative Law
Forum, 122/4 Infantry road,Bangalore-560001,Pho
ne 91-80-22865757E-Mail alforum_at_vsnl.net
jagadeesh_bn_at_altlawforum.org www.altlawforum.org
This is copy left material Please feel free to
use, modify and circulate it. When you modify
this presentation please send us a copy.