The Immoral Traffic (Prevention) Act, 1956-Law Notes
Introduction
Prostitution : Women found in the flesh trade should be viewed more as victims of adverse socio-economic circumstances rather than as offenders in our society. The commercial exploitation of sex may be regarded as a crime but those trapped in custom-oriented prostitution and gender-oriented prostitution should be viewed as victims of gender-oriented vulnerability. ——————- Gaurav Jain v. Union of India (SC 1997)
** In ordinary parlance the word ‘prostitute’ means a woman who offers her body to indiscriminate sexual intercourse, specially for hire.
** In our country, prostitution has existed from times immemorial. From the Rigveda, it is found that there were women who were common to several men. i.e. they were prostitutes.
** Prostitution is a rampant in a social system. In some cases it is to the extent that, even parents and relatives throw females into flesh trade.
** It has survied through all ages in nearly all countries; though in some cases, it was tried to be regulated by law.
** Despite laws to prevent it, it is pracised, promoted and protected openly. Despite police raids, and the rehabilitation and reformation programmes, it is still flourishing.
** Prostitution and the evil of traffic in human beings for the purposes of prostitution acquired such monstrous proportions that, the international community responded to it by signing various conventions like for eg, the International Convention for the Suppression of Traffic in Persons and of the Exploitation of Prostitution.
** The reason for this immoral traffic in women, in India is due to poverty, illiteracy, unemployment, overpopulation, dowry system, customs like Devdasi, lure of luxery, etc. Because of these reasons, there was a need of prevention of immoral traffic of women.
** The constitutional mandate under Article 23 is prohibition of trafficking and all forms of exploitation. This was aimed at putting an end to all forms of trafficking in human beings including prostitution and beggary.
India being a signatory to the International Convention for the Suppression of Traffic in Persons and of the Exploitation of Prostitution, 1950, passed a central law to implement the provisions of Convention.
** Though there were a number of local Acts in force in the country, they were neither effective nor uniform. In 1956, the Suppression of Immoral Traffic in Women and Girls Act, known as SITA was passed.
The basic objective of SITA was to punish brothel keepers, procurers, and pimps and to prevent prostitution in or in the vicinity of public places.
The Act was amended in 1978 and 1986 and is now titled, “ The Immoral Traffice (Prevention) Act, 1956 “.
It is applicable to both men and women. It provides more stringent penalties and provisions.
The 64th Law Commission Report, (1975) stated that, prostitution could not be banned totally…”Law in every country has tried to regulate it so that it may be kept within its legitimate bounds without unduly encroaching upon the institution of marriage and family.
The SC in Gaurav Jain v. UOI, passed an order to set up an Advisory Committee to make suggestions for eradication, to free victims from the abuses of prostitution, to amend existing law, to prevent sexual exploitation.
The committee identified 10 types of prostitutes including, street walker, religious prostitutes, prostitutes in brothel, singing and dancing girls etc.
Others have classified prostitution into customary, forced, child and voluntary prostitution etc.
The Immoral Traffic (Prevention) Act, 1956
The object of the enactment was to inhibit or abolish the commercial vice(practice or habit or behaviour) of traffic in women, men and children for the purpose of prostitution as an organised means of living.
It is no doubt true that, what is aimed at under the Act is not abolition of prostitutes and prostitution as such and make it per se a criminal offence or punish a woman because she prostitutes herself, the purpose of the enactment was to inhibit or abolish commercialised vice, namely traffic in women and girls for the purpose of prostitution as an organised means of living.
Vishal Jeet v. Union of India, the court held that, the Act deals with not only a social but also a socio-economic problem. Therefore, the provisions of the legislation are more preventive than punitive.
The Act comprises of 25 sections with a Schedule. The important provisions of the Act are as follows.
Definitions
Section 2(a) “brothel” includes any house, room ,conveyance or place or any portion of any house, room, conveyance or place, which is used for purposes of sexual exploitation or abuse for the gain of another person or for the mutual gain of two or more prostitutes; It was held in Krishnamurthy v. public prosecutor that, it is not necessary that there should be evidence of repeated visits by persons to the place for the purpose of prostitution.
Section 2 (aa) “child” means a person who has not completed the age of sixteen years;
Section 2 (b) “corrective institution” means an institution, by whatever name called (being an institution established or licensed as such under section 21), in which persons, who are in need of correction, may be detained under this Act, and includes a shelter where undertrials may be kept in pursuance of this Act;
Section 2(ca) “major” means a person who has completed the age of eighteen years;
Section 2(cb) “minor” means a person who has completed the age of sixteen year but has not completed the age of eighteen years;
Section 2(g) “protective home” means an institution, by whatever name called (being an institution established or licensed as such under section 21), in which persons, who are in need of care and protection, may be kept under this Act and where appropriate technically qualified persons, equipment and other facilities have been provided but does not include-
( i ) a shelter where undertrials may be kept in pursuance of this Act, or (ii) a corrective institution;
Section 2(h) “public place” means any place intended for use by, or accessible to, the public and includes any public conveyance;
Section 2(f) “Prostitution” means the sexual exploitation or abuse of persons for commercial purposes and the expression “prostitute” shall be construed accordingly.
Thus, for the offence of prostitution, it is essential that,
- A female must offer her body to indiscriminate intercourse with men, usually for hire. It must be promiscuous (not selective of a single person) intercourse for hire.
- There must be sexual intercourse and
- It must be for hire for which the consideration may be in cash or kind.
It was held in Gaurav Jain case that, the word ‘abuse’ has a very wide meaning everything which is contrary to good order established by usage amounts to abuse. Physical or mental maltreatment also is an abuse. An injury to genital organs in an attempt to have sexual intercourse also amounts to sexual abuse. Any injury to private parts of a girl constitutes abuse under the Juvenile Justice Act, 1986.
State of Mysore, v. Susheela : Merely sexual intercourse is not an offence. What should be established is that, the female carried on the act of prostitution and it was for hire, whether in money or kind. State of Bihar v. Jagrup Singh, it was held that if the exposure is in expectation of some remuneration and if, while doing so, the prostitute indulges in acts of promiscuous intercourse, the offence is committed.
Punishments
(i) For keeping a brothel :
Section 3(1) of the Act punishes any person who keeps or manages or assists such keeping or management of the brothel. on first conviction with rigorous imprisonment for a term of not less than one year and not more than three years and also with fine which may extend to two thousand rupees and in the event of a second or subsequent conviction; with rigorous imprisonment for a term of not less than two years and not more than five years and also with fine which may extend to two thousand rupees.
As per Section3(2), Any landlord, owner, lessor, tenant, occupier or lessee is punishable if he knowingly uses the premises for prostitution, or allows the use of it or any part of it, or is wilfully a party to the use of such premises for brothel. He shall be punishable on first conviction with imprisonment for a term which may extend to two years and with fine which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term which may extend to five years and also with fine.
(ii) Punishment for living on the earnings of prostitution (s 4)
(1) Any person over the age of eighteen years who knowingly lives, wholly or in part, on the earnings of the prostitution of any other 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 and where such earnings relate to the prostitution of a child or a minor, shall be punishable with imprisonment for a term of not less than seven years and not more than ten years.
(2) Where any person over the age of eighteen years is proved-
(a) to be living with, or to be habitually in the company of, a prostitute; or
(b) to have exercised control, direction or influence over the movements of a prostitute in such a manner as to show that such person is aiding, abetting or compelling her prostitution; or
(c) to be acting as a tout or pimp on behalf of a prostitute, it shall be presumed, until the contrary is proved, that such person is knowingly living on the earnings of prostitution of another person within the meaning of sub-section (1).
(iii) Punishment for Procuring, inducing or taking person for the sake of prostitution (s 5)
(1) Any person who-
(a) procures or attempts to procure a person whether with or without his consent, for the purpose of prostitution; or
(b) induces a person to go from any place, with the intent that he may for the purpose of prostitution become the inmate of, or frequent, a brothel; or
(c) takes or attempts to take a person or causes a person to be taken, from one place to another with a view to his carrying on, or being brought up to carry on prostitution; or
(d) causes or induces a person to carry on prostitution,
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 which may extend to two thousand rupees, and if any offence 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:
Provided that if the person in respect of whom an offence committed under this sub-section-
( i ) is a child, the punishment provided under this sub-section shall extend to rigorous imprisonment for a term of not less than seven years but may extend to life; and
(ii) is a minor, the punishment provided under this sub-section shall extend to rigorous imprisonment for a term of not less than seven years and not more than fourteen years;
(3) An offence under this section shall be triable –
(a) in the place from which a person is procured, induced to go, taken or caused to be taken or from which an attempt to procure or take such person is made; or
(b) in the place to which he may have gone as a result of the inducement or to which he is taken or caused to be taken or an attempt to take him is made.
(iv) Detaining a person in premises where prostitution is carried on (s 6)
(1) Any person who detains any other person, whether with or without his consent,-
(a) in any brothel, or (b) in or upon any premises with intent that such person may have sexual intercourse with a person, who is not the spouse of such person, “shall be punishable on conviction, with imprisonment of either description for a term which shall not be 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. Provided that the court may, for adequate and special reasons to be mentioned in the judgment impose a sentence of imprisonment for a term of less than seven years.
(2) Where any person is found with a child in a brothel, it shall be presumed, unless the contrary is proved, that he has committed an offence under sub-section (1).
(2A)Where a child or minor found in a brothel, is, on medical examination, detected to have been sexually abused, it shall be presumed, unless the contrary is proved, that the child or minor has been detained for purposes of prostitution or, as the case may be, has been sexually exploited for commercial purposes.
(3) A person shall be presumed to detain a woman or girl in a brothel or in or upon any premises for the purpose of sexual intercourse with a man other than her lawful husband, if such persons with intent to compel or induce her to remain there, –
(a) withholds from her any jewellery , wearing apparel, money or other property belonging to her, or
(b) threatens her with legal proceedings if she takes away with her any jewellery , wearing apparel, money or other property lent or supplied to her by or by the direction of such person.
(4) Notwithstanding any law to the contrary, no suit, prosecution or other legal proceeding shall lie against such woman or girl at the instance of the person by whom she has been detained, for the recovery of any jewellery , wearing apparel or other property alleged to have been or lent supplied to or for such woman or girl or to have been pledged by such woman or girl or for the recovery of any money alleged to be payable by such woman or girl.
(v) Prostitution in or in the vicinity of public places (s 7)
(1) Any Person, who carries on prostitution and the person with whom such prostitution is carried on, in any premises-
(a) which are within the area or areas, notified under sub-section (3), or
(b) which are within a distance of two hundred meters 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 Commissioner of Police or magistrate in the manner prescribed, shall be punishable with imprisonment for a term which may extend to three months.
(1A) Where an offence committed under sub-section (1) is in respect of a child or minor, the person committing the offence shall be punishable with imprisonment of either description for a term which shall not be 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
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.
(2) Any person who-
(a) being the keeper of any public place knowingly permits prostitutes for purposes of their trade to resort to or remain in such place; or
(b) being the tenant, lessee, occupier or person in charge of any premises referred to in sub-section (1) knowingly permits the same or any part thereof to be used for prostitution; or
(c) being the owner, lessor or landlord of any premises referred to in sub-section (1), or the agent of such owner, lessor or landlord, lets the same or any part thereof with the knowledge that the same or any part thereof may be used for prostitution, or is willfully a party to such use, shall be punishable on first conviction with 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 second or subsequent conviction with imprisonment for a term which may extend to six months and also with fine which may extend to two hundred rupees, and if the public place or premises happen to be a hotel, the license for carrying on the business of such hotel under any law for the time being in force shall also be liable to be suspended for a period of not less than three months but which may extend to one year:
Provided that if an offence committed under this sub-section is in respect of a child or minor in a hotel, such license shall also be liable to be cancelled.
Explanation . – For the purposes of this sub-section, “hotel” shall have the meaning as in clause (6)of section 2 of the Hotel Receipts Tax Act, 1980 (54 of 1980)].
(3) The State Government may, having regard to the kinds of persons frequenting any area or areas in the State, the nature and the density of population therein and other relevant considerations, by notification in the Official Gazette, direct that prostitution shall not be carried on in such area or areas as may be specified in the notification.
(4) Where a notification is issued under sub-section (3) in respect of any area or areas, the State Government shall define the limits of such area or areas in the notification with reasonable certainty.
(5) No such notification shall be issued so as to have effect from a date earlier than the expiry of a period of ninety days after the date on which it is issued.
(vi) Seducing or soliciting for purpose of Prostitution (s 8)
Whoever, in any public place or within sight of, and in such manner as to be seen or heard from, any public place, whether from within any building or house or not-
(a) by words, gestures, willful exposure of his person (whether by sitting by a window or on the balcony of a building or house or in any other way), or otherwise tempts or endeavours to tempt, or attracts or endeavours to attract the attention of, any person for the purpose of prostitution; or
(b) solicits or molests any person, or loiters or acts in such manner as to cause obstruction or annoyance to persons residing nearby or passing by such public place or to offend against public decency, for the purpose of prostitution, 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:
Provided that where an offence under this section is committed by a man, he shall be punishable with imprisonment for a period of not less seven days but which may extend to three months.
Welfare Provisions
(i) Detention in a corrective institution (s 10A) :
Where- (a) a female offender is found guilty of an offence under section 7 or section 8, ; and. (b) the character, state of health and mental condition of the offender and the other circumstances of the case are such that it is expedient that she should be subject to detention for such term and such instruction and discipline as are conducive to her correction, it shall be lawful for the court to pass, in lieu of a sentence of imprisonment, an order for detention in a corrective institution for such term, not being less than two years and not being more than five years, as the court thinks fit :
Provided that before passing such an order, the court shall give an opportunity to the offender to be heard.
(ii) Special police officer and advisory body (s 13) :
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.
(iii) Rescue of person (s 16)
(1) Where a magistrate has reason to believe from information received from the police or from any other person authorized by the State Government in this behalf or otherwise, that any person is living, or is carrying on, or is being made to carry on, prostitution in a brothel, he may direct a police officer not below the rank of a sub-inspector to enter such brothel, 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.
(iv) Closure of brothels and eviction of offenders from the premise (s 18) :
A magistrate may, on receipt of information from the police or otherwise, that any house, room, place or any portion is used as a brothel, or for carrying on prostitution, then the magistrate may pass orders- directing eviction of the occupier within seven days of the passing of the order from the house, room, place or portion
Rehabilitation
(i) Application for being kept in a protective home or provided care and protection by court (s 19)
On application by prostitute to Magistrate, for keeping in protective home, or for providing care and protection by court, Magistrate may make such an order.
(ii) Removal of prostitute from any place (s 20) : The Magistrate, on receiving information, under section 20, may order removal of prostitute from a particular place and prohibit her or his re-entry.
(iii) Provisions for Protective homes (s 21) :
The State Government may in its discretion establish as many protective homes and corrective institutions under this Act as it thinks fit and such homes and institutions, when established, shall be maintained in such manner as may be prescribed.
Other Provisions
- The Act makes any offence under it a cognizable offence within the meaning of the CrPC.
- There can be arrest without warrant.
- There shall be a special police officer.
- Power to establish special courts has been conferred on the State Government.
- The State Government has been conferred power to make rules for carrying out the purposes of the Act.