Chapter-V Review of Immoral Traffic (Prevention) Act, 1956

CHAPTER-V
REVIEW OF IMMORAL TRAFFIC (PREVENTION) ACT, 1956
This chapter reviews the present law on prostitution and trafficking in India.
The Parliament of India enacted the Suppression of Immoral Traffic in Women and
Children Act, 1956 (herein referred as SITA), as India was signatory to the United
Nations International Convention for the “Suppression of Traffic in Persons and of the
Exploitation of Others” of 1950. The SITA was amended twice in 1978 and in 1986.
The 1978 amendment enhanced the punishments for certain offences in the Act. The
1986 amendment changed the name of the Act as “The Immoral Traffic (Prevention)
Act, 1956” (herein referred as ITPA). This amendment has also changed the
definition of ‘prostitution’ and enhanced punishment for a set of offences further. The
amendment made the law gender neutral and recognised the existence of male
prostitution and trafficking in male child. Except for these, the ITPA does not diverge
from the basic scheme of the SITA. There is a continuum in the implementation and
interpretation of these two laws. As there are marginal differences between them, they
are not dealt with separately in this chapter, though the distinctions between them are
discussed wherever relevant.
The provisions of these Acts are judicially interpreted in several aspects. The
study only mentions those interpretations of provisions that have a bearing or impact
upon the personal liberties and freedoms of the women in prostitution and their
children.
Also included in the chapter are those law reforms suggested by some reputed
organisations that were seriously considered.
The legal regulation of prostitution in India is governed primarily by the
ITPA. Some related provisions are found in the Indian Penal Code, 1860 (herein
referred as IPC), which contains general sections against the trafficking and slavery of
women and children, besides State level police, railway, beggary, health and public
order statutes. The Constitution also contains certain provisions that address the issue
of trafficking in human beings.
The Indian Constitution upholds the principles of humanism, social and
economic justice, and the dignity of the individual together with equal opportunity
118
and equal protection of law for all its citizens. People in prostitution can by no means
be debarred from these constitutional rights.
Article 21 guarantees right to life, which has been interpreted by the Supreme
Court in Sunil Batra v Delhi Administration1 and Maneka Gandhi v Union of India2 as
inclusive of the right to live with human dignity.
Article 23 prohibits traffic in human beings. Article 39(e) directs that “the
health and strength of women and the tender age of children shall not be abused and
citizens shall not be forced by economic necessity to enter into avocations unsuited to
their age or strength.”
Article 39 (Q directs that children should be given opportunities and facilities
to develop in a healthy manner and in conditions of freedom and dignity and that
childhood and youth are protected against exploitation and against moral and material
abandonment.
Article 41 obligates the State to make effective provisions for securing the
right to work and education.
Article 51A casts a duty upon every citizen, a fortiori, on the State itself, to
renounce practices derogatory to the dignity of women and to develop humanism.
Our Constitution thus guarantees right to five with dignity on the one hand and
exhorts the State to protect women and children from exploitation on the other.
Article 15(3) directs that the State shall make special provisions for women
and children. The affirmative action enshrined in Article 15(3) is perhaps the least
interpreted fundamental right in our Constitution.
The IPC has various provisions for restraining kidnapping of minors.
Kidnapping or procuration are the initial steps in trafficking of minors. Under
Sections 366 and 366A of IPC kidnapping and procurement of a minor girl is an
offence punishable with 10 years imprisonment and fine. Section 366B provides for
imposition of 10 years imprisonment for importation of any girl under the age of 21
years from a foreign country. The offences are triable by a Court of Sessions. Under
Section 372 and 373 buying and selling of minor girls for prostitution is punishable
with imprisonment of 10 years and fine.
1 AIR 1978 SC 1675

2 AIR 1978 SC 597
119
The Juvenile Justice (Care and Protection of Child) Act, 2000 provides for the
care, protection, treatment and rehabilitation of neglected or delinquent juveniles
including girls. This Act is applied to issues related to child prostitution and children
of women in prostitution.
Other than these legislations there are several laws passed by the State
legislatures that have an impact on the lives of the women in prostitution and
prostitution per se.
The ITPA aims at abolishing traffic in human beings for prostitution. It, therefore,
penalises brothel keeping, pimping, procuring, detention of women or girl for
prostitution and seduction of a woman in custody.
The act does not seek to abolish prostitutes or prostitution per se and hence the
practice of prostitution individually, independently and voluntarily by a woman does
not constitute an offence. But it treats soliciting for prostitution and prostitution in
public place as offences. Before analysing the important provisions of the Act, the
definition of ‘prostitution’ is to be discussed.
Definition Of Prostitution
Section 2(f) of the ITPA defines prostitution as “the sexual exploitation or
abuse of persons for commercial purposes”. The person who is exploited is referred
to as a prostitute. The definition of prostitution under the SITA was found to be
unsatisfactory because it merely described prostitution as when a woman or girl
offered her body for sexual intercourse, not taking into consideration the seminal
point that exploitation or force was very often being used. The new legislation
changed the definition of ‘prostitution’ to mean the sexual exploitation or abuse of
persons for commercial purposes, and the expression ‘prostitute’ shall be considered
*3
accordingly.
Prior to the 1986 amendment, prostitution was defined as the ‘act of,a female
who offers her body for promiscuous sexual intercourse for hire, whether in money or
in kind, and whether offered immediately or otherwise, and the expression prostitute
shall be construed accordingly’. Thus two ingredients are needed so as to categorise
sexual activity as prostitution.
3 S.K. Ghosh, Women and Crime, Ashish Publishing House, 8/81, Punjabi Bagh, ND-26,1993, p 135
120
1. A female offers her body for indiscriminate sexual intercourse, and
2. She does it for payment.
According to the new definition under the 1986 amendment ‘prostitute’ means
‘the sexual exploitation or abuse of persons for commercial purposes.’ Thus
prostitution is not confined to the act of a female offering her body for hire, but
includes sexual exploitation or abuse of a female or a child for commercial purposes.
In the new definition the emphasis has shifted form a mere act that is deemed as
being against societal norms to the more serious criminal offence of sexual
exploitation and sexual abuse.
The ITPA is concerned with at least six different categories of people who are
in some ways connected with prostitution. Each category is treated differently,
subjected to different legal processes and punishments. The six categories addressed
by the law include:
1) . The procurer/seducer.
2) . The brothel keeper/ manager or his/ her assistant.
3) . Any person who allows or lets premises to be used for prostitution.
4) . Any person who lives on the earnings of a prostitute.
5) . The prostitute.
6) . The children of prostitutes.
Public Space And Prostitution

Though the law does not abolish prostitution, it regulates or curbs open
manifestation of prostitution. Anyone who carries on prostitution within close
proximity to a public place, including a hospital, nursing home, place of religious
worship, hostel, educational institution, or in an area notified under the provisions of
the Act, can be punished with imprisonment for a term of three months (Section 7).
This provision also applies to the client of the prostitute. If the prostitute is a child or
minor, then the client can be punished with a term of imprisonment for seven years or
more and liable to pay fine.
Seducing or soliciting for the purpose is also an offence under Section 8 of the
Act and punishable with imprisonment up to six months or a fine up to Rs 500, in the
case of a-first conviction. In case of a subsequent conviction, the prison sentence can
121
be extended up to one year including a fine of Rs 500. However, if the person
soliciting is a man, the statute provides that he shall be punishable with not less than
seven days imprisonment, which may be extended to three months. Thus prostitution
in itself is not an offence under the Act, save in the manner provided in Sections 7
and 8.4
The Andhra Pradesh High Court held that what is punishable under Section 8 is
not the actual sexual act between the woman or the girl soliciting for. the purpose of
prostitution and the man who responds to the words or gestures or exposure of the
female partner, but that it is only where a woman or a girl solicits for the purpose of
prostitution she is made punishable.5 The court observed that Section 8 does not
therefore suffer from the vice of discrimination prohibited under Article 14 of the
Constitution.
In Shanta v State6 the Gujarat High Court held that the Act does not aim at
abolition of prostitutes and prostitution as such and make it per se a criminal offence
or punish a woman because she prostitutes herself, but its purpose is to inhibit or
abolish commercialised vice. Justice Shelat held that certain exceptions to the above
are found in Sections 7 and 8 of the Act and that Section 7 makes punishable the
practice of prostitution in or in the vicinity of certain public places. This provision
therefore, he states, inhibits the woman herself from the practice of her profession in
contravention of its terms and to that extent renders prostitution a penal offence.
The ITPA overtly treats a woman in prostitution as an offender under Sections
7(1) and 8(b). Hence, contrary to its declared objectives, these Sections of the ITPA
criminalise the woman in prostitution. Importantly, the client is not an offender under
the Act.7
The ITPA provisions operate against the women in prostitution in many ways.
The Act contains several provisions that directly target the women in prostitution such
4 1962 Raj LW 598

5 1986 CrLJ 1397 AP
6 AIR 1967 Guj 211
7 Jean D’Cunha, The Legalisation of Prostitution: A sociological inquiry into the laws relating to
prostitution in India and the West, Bookmakers, published for Christian Institute for the Study of
Religion and Society, Bangalore, 1st Ed., 1991, p 43.
122
as those that prohibit prostitution in the vicinity of a public place and soliciting for the
o
purpose of prostitution.
The popular perception is that prostitution is a ‘necessary evil’, which
provides an easy outlet for the supposedly uncontrollable male sexuality.9 So while it
is tolerated, the rest of society needs to be protected from these evil women. So
prostitution needs to be contained within certain areas of the city. By an extension of
this logic the ITPA prohibits a prostitute from public places and forces her to work
only in certain areas. This causes the women in prostitution to be confined to a
‘ghetto’- like, area.10 By penalizing her, the Act subjects her to further exploitation and
forces her to live like a criminal in constant fear of police harassment. In keeping
with the basic premise that prostitution is a necessary evil to serve men’s interest, the
client is not punished and the touts can go scot-free. Flavia Agnes, a Mumbai-based
feminist lawyer, questions the very necessity of enacting the law.*11 If it is only to
prohibit trafficking in women, were there no other provisions that could be invoked
for this purpose?
Section 8 can be misused by the police to put any woman behind bars. Any
person can say that a woman was soliciting with her eyes and that a price was settled
19
and she assured him complete pleasure etc.
The person who responds to soliciting as mentioned in Section 7 must also be
made an accomplice and held equally responsible for the helpless women who, on
account of circumstances, are driven to hire by this degrading trade while, on the
1 o
other hand a man is not punished.

A female offender found guilty of an offence under Sections 7 and 8 can, in
lieu of a sentence of imprisonment, be placed in a corrective institution instead of in a
prison (Section 10A). In such a case the minimum period of detention is two years
which can be extended to five years. However, after a period of six months, the State
8 Reforms of Laws Relating to Prostitution in India - a summary, a report published by Centre for
Feminist Legal Research, 115D, Pocket ‘A’, Sukhdev Vihar DDA flats, New Delhi, April 1998.
9 Flavia Agnes, ‘Protecting Women Against Violence? Review of a Decade of Legislation, 1980-1989’,
Economic and Political Weekly, April 25, 1992, p 27.
10 Ibid. .
11 Ibid.
12 Lina Gonsalves, Women and the Law, Lancer Paperbacks* B-B Gulmohar Park, ND 49,1st Ed.,
1993, p 91.
13 Ibid, p 92
123
government can order her release if satisfied that she will lead a ‘useful and
industrious life’.14
A magistrate can order the immediate closure of a place that is being used for
prostitution and is within 200 meters of a public place and direct the eviction from the
premises from where she is ostensibly carrying out prostitution (Section 18).
Section 20 empowers a magistrate, on receiving information that any person
residing in or frequenting any place within the local limits of his jurisdiction is a
prostitute, to initiate proceedings against that person requiring her to remove herself
from such a place and be prohibited from re-entering it.
Though the statute is not intended to criminalise prostitution or the women
who engage in prostitution, Sections 7, 8 and 20 penalise the women in prostitution
for soliciting or for practicing prostitution.
What is not explained in the Act, is the logic behind handing out of a stricter
sentence to the woman for soliciting as distinct from the man. This differential
treatment in terms of sentencing needs to be questioned.15 Further, Section 10A,
which provides for detention in a corrective institution is only applicable to female
offenders and not male offenders. A corrective institution is a place where a person
can be detained if found by the magistrate to be in need ‘of correction’. And the
sentence is considerably higher than the maximum sentences under either Section 7 or
8 of the Act.
These provisions are based on an understanding which assumes that women in
prostitution must be removed from prostitution. Although she is not supposed to be
criminalised, as soon as she chooses to get involved in prostitution and is detected,
she is to be removed from the area and placed into rehabilitative care. The operation
of this provision exemplifies how the Act ultimately ends up criminalising
prostitution and penalising the women in prostitution.
Under Section 18 of the Act a magistrate is empowered to pass orders for
closure of brothels and eviction of offenders from the premises on receipt of
information from the police or otherwise. The occupier is given only seven days
notice for eviction from such premises. It was challenged in the Supreme Court that
14 Lina Gonsalves, Supra Note 12.

15 Centre for Feminist Legal Research, Supra Note 8.
124
Section 18 was ultra vires Article 14 of the Constitution.16 The Court while not
accepting the plea held that Section 18 was not discriminatory and that contravention
of Sections 3 and 7 amounts to a cognizable offence whereas a proceeding under
Section 18 is in no sense a prosecution and that its object is preventive. It stated that
regular trial and appeal are not called for.
The ITPA operates against a woman by targeting her family. If a child is
found with a woman in prostitution, he or she is presumed to have been used for the
purposes of prostitution.17 Her child can be arbitrarily removed from her custody
during ‘rescue’ operations. If her partner, parent or adult child is dependant on her
income for survival, then they will be deemed to be living off the earnings of a
prostitute and liable to prosecution. Perhaps the most pernicious provision of the Act
is Section 20 under which any woman can be forced to prove that she is not a
prostitute or risk being removed from the jurisdiction. Nor is there any restriction on
the number of times a woman can be removed from one jurisdiction to the next.
The Allahabad High Court rendered a positive judgment in this regard. It held
that when a married woman carried on prostitution not in a brothel, or for the benefit
of another, it was not an offence. The Court held that an order of a magistrate of her
18
detention in a protective home is without jurisdiction.
The Madras High Court in In Re Ratnamala19also passed a similar judgment.
The Court held that the idea is not to render prostitution per se a criminal offence or to
punish a woman merely because she prostitutes herself as is clearly indicated by the
last part of the definition of .‘brothel’ in Section 2(a) of the Act, which implies that
where a single woman practices prostitution for her own livelihood, without another
prostitute, or some other person being involved in the maintenance of such premises,
her residence will not amount to a ‘brothel’.
That the family of a woman in prostitution can be targeted is evident from a
case cited in AIR 1960 Guj 37. In this case the Gujarat High Court held that if a
husband living with his wife allows her to prostitute in the house, it can be presumed
under Section 4(2) that he is doing so for the purposes of living on the earnings of
16 AIR 1968 SC 1.
18 1963 All LJ 894 DB
19 AIR 1962 Mad 31
125
prostitution. The Court stated that he can be liable under the Act and the house can be
held to be a brothel.
Clearly, Section 20 is the most troublesome provision of the Act. This section
empowers a Magistrate to evict a person from the local limits of his jurisdiction and
forbid her from re-entering it on the sole ground that he has information that she is a
prostitute. The very fact that she is a prostitute thus disentitles her to most basic
rights to residence in an area of her choice even if she has not violated any of the
other provisions of the Act. In addition, a complaint can be made against any woman
who is suspected of being a prostitute and the onus is then on the woman to prove that
she is not in fact a prostitute. The broad scope of this provision acts as a form of
surveillance over the sexual conduct of all women in a public place.
Several challenges have been made to the provisions of the erstwhile SITA.
The ITPA, which is the present law is an ideological extension of the SITA and the
only changes envisaged are gender neutralisation and enhancement of punishments.
The earlier judicial interpretations are applicable even to the ITPA.
The question of constitutionality of Section 20 of the SITA formed the subject
matter of a few cases. The contentions generally against its constitutionality were that
the powers conferred on a magistrate under Section 20 were arbitrary in nature in as
much as no rules of guidance are laid down for the exercise of the discretion. A
magistrate is free to discriminate between prostitutes living in one locality and order
any of them to -leave the locality and not to return again without his permission.
Secondly, the power to issue the order of extemment for a locality, it was alleged,
imposed unreasonable restrictions on the freedoms guaranteed under Art 19 (1) (d),
(e) and (g) of the Constitution.
The Allahabad High Court accepted the contentions while the High Courts
of Bombay and Punjab took a contrary view. The controversy has been set at rest by
the decision of the Supreme Court in the State of Uttar Pradesh v Kaushailya.22 The
Court, in this case, held that the section neither conferred on the magistrate unguided
power so as to enable him to act arbitrarily, nor did it in anyway put unreasonable
20 Shama Bai v State AIR 1959 All 57

21 Begum v State (1963) ICRLJ 148.
22 AIR 1964 SC 416.
126
restraint on the rights. A magistrate is required to act judicially and to consider the
questions such as 1) whether she is a prostitute, 2) whether in the interest of general
public she should be required to remove herself from the place (area) where she is
residing or which she is frequenting. The powers of the magistrate are not
‘unchannelised’ and ‘uncontrolled’. His actions are subject to revisional jurisdiction
under Section 435 and 439 of the Code of Criminal Procedure. Further, the Court
held that there could be a ‘real’ and ‘obvious’ ‘differential’ between a prostitute who
is a public nuisance and one who is not.
In Kainala China v State23 the Punjab High Court held that Section 20 does not
offend Article 14 or Article 19 (1) (d), (e) and (g) of the Constitution. A reference to
the provisions of the section shows that the interest of general public is not to be
determined on any conjectural or arbitrary grounds. The magistrate has not been given
any unrestricted powers. In each case he is to examine the evidence and has to come
to a conclusion that the removal or extemment of a particular prostitute from a
particular locality was in the interest of general public. The expression ‘necessary in
the interest of general public’ could not be held to be vague, uncertain and elusive.
The section does not also offend Article 19(1) (d), (e) or (g) of the
Constitution. The right to movement or right to reside and settle is not restricted or
interfered with under the section, but reasonable restrictions within the meaning of
clause (5) and (6) of Article 19 are placed to channelise the same and that too in the
interest of the general public.24
The Punjab High Court held that freedom of movement and residence are also
regulated under Section 20 and for the purpose effective and safe judicial machinery
is provided. The restrictions placed on the prostitute are in the interest of general
*yc
public and the restrictions have been held to be reasonable. Further whether
deportation out of this jurisdiction of the magistrate is necessary or not depends upon
the facts of each case and degree of demoralising influence a particular prostitute is
exercising in a particular locality. If in a particular case a magistrate goes out of the
23 1963 (I) CRLJ; AIR 1963 Punj 36

24 Ibid
25 TU.J
127
way and makes an order, which is clearly disproportionate to the evil influence by a
particular prostitute, she has a remedy by way of revision to an appropriate court.
Certain doubts were expressed in Smt Shama Bai v State of Uttar Pradesh27
about the constitutional validity of Section 4(2) of the Act, which makes it penal to
remain dependant on the earnings of a prostitute. It was stated that persons whose
living with prostitutes is prohibited and made penal under the said section may not
necessarily be dependant on her and as such the restrictions imposed on that class of
persons had no reasonable relation with the object of the Act.
Two early cases involved challenges to Section 20 of the SITA (this section is
retained in the ITPA also). Under this section the magistrate is further empowered to
prohibit the prostitute from re-entering the place from which she has been removed.
In Smt Shama Bai v State of Uttar Pradesh, the case earlier mentioned, a woman in
prostitution challenged the constitutional validity of Section 20. She argued that
prostitution was her hereditary trade, that it was her only means of livelihood and that
of members of her family and the rights guaranteed in Art 14 and 19(1) (g) were
violated. This is a very interesting case. The Court held that prostitute women were
subjected to punitive form of surveillance to which other women were not, and that
this differential treatment constituted discrimination between persons who were
similarly situated.
This decision was progressive in many respects as the Court was prepared to
consider the work of prostitute women as a trade and not as a crime. The court
recognised that women entered the profession because of social and economic
hardship, rather than immorality. The Allahabad High Court held that it was true
that the work of a prostitute was a profession, occupation or trade within the meaning
of Art 19 (1) (g) of the Constitution of India and that the SITA had imposed
restrictions on the same. The Court further observed that upon an examination it was
clear that although there might be some substance in the complaint as to the
unconstitutionality of Sections 20 and 4(2), the provisions of the other sections were
26 1963 (I) CRU; AIR 1963 Punj 36

27 AIR 1959 All 57
28 Ratna Kapur & Brinda Cossman, On Women, Equality & the Constitution: Through the Looking
Glass of Feminism, Feminism & Law, NLSJ Publication, NLSIU, Nagarbhavi, Bangalore, 1st Ed.,
1993
128
not unreasonable and that as Sections 20 and 4(2) could be severed from the rest of
the act, the entire Act did not fall because these two Sections may be unconstitutional.
The Court made an obiter observation that very wide powers were given by
Section 20 to a magistrate to remove any woman or girl who is a prostitute from any
place and also to prohibit them from reentering it again and that prima facie the
provision is unconstitutional in that it infringed Articles 14 and 19. The Court further
held that the term ‘in the interest of general public’ was too vague, uncertain arid
elusive a criterion to form a rational basis for the discrimination made.
In Begum v. State29 the Punjab High Court struck down some aspects of
Section 20 as they offend Art 19(l)(d) and (e). The Court held that the portion of
Section 20, which enables a Magistrate to direct a prostitute to remove herself from
the place where she was living to a place without the local limits of his jurisdiction,
unreasonably encroached upon the fundamental rights guaranteed by Article 19(l)(d)
and (e).
The Andhra Pradesh High Court did not subscribe to this view. In
Seetharamamma v Sambasiva Rao30 the Court held that Section 20 does not abridge
Art 19(l)(d), (e) and (g). The Court stated that the law cannot be said to be bad
merely because it does not specify any place where the woman should reside nor the
route which she should take on her removal from the place concerned and that it is
open to her to live in any place except the prohibited area.
The Supreme Court over ruled the Allahabad and Bombay High Courts
decisions in the State of Uttar Pradesh v Kaushailya31 and affirmed the AP and Punjab
High Courts decisions32. In this case, Section 20 was again challenged as violating
Article 14. The Supreme Court, in adopting the reasonable classification approach,
held that the difference between prostitute women and non-prostitute women was a
reasonable classification. Further, the Court ruled that there were real differences
between a non-prostitute woman who does not deserve in the public interest any
restrictions on her movements, and a prostitute, whose actions in public places call for
29 AIR 1963 Pun 17

30 AIR 1964 AP 400
31 AIR 1964 SC 421
32 AIR 1964 AP 400; AIR 1963 Pun 36
129
the imposition of restrictions on her movements and even deportation33. The object of
the ITPA was not only to suppress immoral traffic in women and girls, but also to
improve public morals by removing prostitutes from public places in the vicinity of
religious and educational institutions.
The decision is based on a formal model of equality. The differences between
prostitute and non-prostitute women, and the differences between prostitutes in busy
localities and prostitutes working discretely, were seen to justify the differential
treatment. The effect was to preclude an entitlement to equality for those women
working in busy areas. There was no interrogation of the basis for the ostensible
differences. Rather, prostitute women were simply deemed different from other
women because of their inherent immorality. The approach not only stigmatises
women in prostitution by justifying the criminalisation of their work, but also adapts
moral considerations to distinguish them from all other women. Prostitute women
thus become inherently bad and immoral and need to be controlled by harsh penal
provisions.34
Some of the earlier judgments under the SITA show a degree of sensitivity to
the issue of prostitution. In Gurudev Kaur v Punjab , Gurudev Kaur was detained in
a protective home as her family members (brother and husband) alleged that she was a
prostitute. Gurudev Kaur in her statement stated that she wanted to live alone. She
feared for her life at the hands of her brother. Justice H.R. Khanna of the Punjab High
Court directed that since Gurudev Kaur was a major and had not applied for
admission in a protective home,, under Section 19(1) of SITA, she could not be
detained against her wishes in the protective home. He held that an order under
Section 19(1) could not be made only on an application made by the concerned.
Procedural Powers Of The Special Police Officers

The Courts have sounded a note of caution that the wide procedural powers
conferred on the special police officers be exercised with great care. The exceptions
granted to a special police officer under Section 15(6) of the Act cannot “be utilised to
33 AIR 1964 SC 421

34 Ratna Kapur & Brinda Cossman, Supra Note 28, p 45
35 AIR 1963 Punj 369
36 State v Gaya, AIR 1960 Bom 289, In re Ratnamala AIR 1962 Mad 31
130
conduct a search in disregard of elementary decencies even if they be decencies
related to a prostitute”.
The Courts have taken serious exception to the procedure adopted by the
authorities to apprehend the persons involved in prostitution and immoral traffic.
oo
In Kamala Bai v State of Maharashtra the police, in order to apprehend
some prostitutes in a brothel house, had engaged an elderly man to go to the house
and commit prostitution and had deputed a student of rather under age to be a witness
to the act. Strongly disapproving the procedure Justice observed;
“What is more reprehensible and a matter of greater concern is the
sending.. .(of) a young student who was reading for his matriculation. To use students
in this manner should not be allowed by any government authority in a country like
ours. It is no justification to say that in order to suppress immoral traffic in women
and to stop prostitution somebody has to be used and the only class of people that can
be employed are persons like (one) who is confessedly a police agent and (other) who
is a young man willing to be employed by the police.”
In State v Gaya40, the police in order to trap the persons running a brothel sent
its man to conduct those persons as their customer. The man not only feigned a
bargain but also had on payment sexual intercourse with one of the women of the
house. The police entrapped all the occupants of the house immediately after the
intercourse and recovered the money as a proof of the affair. While convicting the
‘keeper’ of the house, the Court commented:
“If investigation under this Act is proceeded in this manner, in conceivable
cases it will be difficult to determine whether a person was committing an offence
under the Act or carrying on an investigation. Such investigation also will not have
any salubrious effect upon the public mind and will not achieve the object for which
the Act was passed.”41
37
In re Ratnamala AIR 1962 Mad 34
38
1962 Supp (2) SCR 632
39
ibid
40
AIR 1960 Bom 289
41
ibid.
131
In re Ratnamala & another42 is another laudable judgment of Madras High
Court rendered in 1962. In this case, the police employed a decoy in the guise of a
customer, who went to a brothel in Madras and had sexual intercourse with a
prostitute. The rest of the police team and two witnesses barged into the room and
arrested the prostitute, the pimps and the brothel keeper. All this was gone into in
order to prove that the woman was prostitute and the house, a brothel. The judge
condemned this method of investigation by the police. The judge held that the action
of the police barging into the bedroom, without even a knock, was tantamount to
outraging the modesty of a woman under Section 504IPC and stated: “I must reiterate
that the modesty of a prostitute is entitled to equal protection with that of any other
,*43
woman.
Justice Ananthanarayana acquitted the prostituted woman, by holding: “the
purpose of the SITA is to inhibit or abolish the commercialised vice, namely, the
traffic in women and girls for purpose of prostitution as an organised means of living.
The idea was not to render prostitution per se a criminal offence or to punish a woman
merely because she prostitutes herself.”44
But the Madras High Court approved the use of decoy witness in a later case.
It held that for proving the offence of prostitution, evidence of decoy witness was
very necessary in most cases and that the cognizance of offence under Section 7 of the
Act, which he might be deemed to have committed while acting as decoy cannot be
taken by the Magistrate.45
The women prosecuted under this Act are kept under surveillance. The Courts
disapproved of this convention. They took strong exception to this practice. Merely
because the persons were facing trial in criminal courts for offences under Section 3,
4, 7 and 8 did not mean that they were suspects and therefore action of authorities in
maintaining surveillance over the business place of these persons, would be violative
of Art 14 and 21 of the Constitution, it was held.46
42 AIR 1962 Mad 31.

43 Ibid.
44 ibid, 33
45 1972 Mad LW (Cri) 211.
46 1987 Cri LJ 1435
132
In State of Maharashtra & another v Madhukar Narayan Mardikar47 the
Supreme Court held that even a woman of easy virtue is entitled to privacy and no one
can invade her privacy as and when one liked. The Court further held that it is also
not open to any and every person to violate her person as and when he wishes. She is
entitled to protect her person if there is an attempt to violate it against her wishes.
The. Court stated that she is equally entitled to the protection of law.
Heather Dell, a cultural anthropologist cites a Supreme Court judgment48
rendered in favour of equal educational opportunities for prostitute children through
the acceptance of a mother’s name on admission forms in January of 1993. Delhi’s
Indian Prostitutes Rescue Society had moved the Supreme Court in 1988 when
children of women in prostitution were denied admission to schools on the ground of
not being able to provide their father’s names. The Society pointed out that the State
was bound under the Indian Constitution to provide a healthy atmosphere for the
education, upbringing and personality development of children under Articles 39(e),
(f) and 45 of the Constitution. Under Article 21 that guarantees the right to life, liberty
and dignified existence.
The Supreme Court rendered two important judgments on the subject of
commercial sexual exploitation and the rescue and rehabilitation of children of
women victims.
On the specific problem of child prostitution, in a public interest litigation,
Vishal Jeet v Union of India49 the Supreme Court issued an order that the Central and
State governments should set up Advisory Committees to make suggestions for:
1. Measures to be taken in eradicating child prostitution.
2. The social welfare programme to be implemented for the care, protection,
treatment, development and rehabilitation of the young fallen victims and
mainly children and girls rescued either from the brothel houses or from the
vices of prostitution;
47 AIR 1991 SC 207.

48 Heather Dell, “Constitution Violence, Co-opting Rights: Indian Prostitute’s Rights Organisations” a
paper presentation, Voices, Information Package on Sex Work, prepared by Jagori, Women’s Training,
Documentation and Communication Centre, C-54, Top Floor, South Extension - Part -II, ND-110049,
2001, p7.
49 (1990) 3 (SCC) 318.
133
3. To make suggestions of amendments to existing laws or for enactment of any
new law, if so warranted, for the prevention of sexual exploitation for
children;
4. To examine the devadasi and jogini traditions and give suggestions for then-
welfare and rehabilitation.
5. Devising suitable machinery for implementing the suggestions made by the
Committee.
In Gaurav Jain v Union of India50 the Apex Court again issued an order directing,
inter alia, the constituting of a Committee to make an in-depth study of the problems
of prostitution, child prostitutes and children of prostitutes and to evolve suitable
schemes for their rescue and rehabilitation.
Right To Vote
Inclusion of a citizen’s name in the electoral list, issuance of voter identity
card by the Election Commission and issuance of ration cards by the revenue
authorities for public distribution services are basic necessities which are grossly
denied to the women in prostitution. This denial resulted in deprivation from basic
material resources. Delhi sex worker activist Nimmi Bai of the Indian Prostitutes
Rescue Association filed a petition before the Supreme Court to abolish the
insistence on counter signatures on prostitutes’ applications to vote. She pleaded:
“We are also human beings and above all daughters of this society. Why should a
second person endorse our right to vote?” The petition was dismissed.51
The cases that come up under Sections 7 and 8 of the Act are usually tried
summarily, rendering them extremely oppressive in their application. A summary
procedure is one where the woman is entitled to plead guilty to the charge and the
Magistrate accepts the plea on the fact of it without further evidence. There is an
immediate conviction. The prosecution does not have to prove the elements of the
crime that she is charged with if she has confessed to the crime. The onus would be
on the prosecution to prove its case against the accused through the presentation of
50 AIR 1990 SC 292

51 Quoted by Heather Dell, Supra Note 48, p7.
134
evidence other than the confession. Women often confess to the charge rather than
be remanded to a protective home to await trial. As a result, they can chalk up a
number of convictions through the summary procedure, and thus reinforce the
broader public perception of prostitutes as bad women and criminals. The
criminalisation of the prostitute through this process undermines the basic objectives
of the Act and ultimately also disempowers her.
The analysis of the existing law and its application reveals that the legislation
ends up targeting prostitution and women in prostitution rather than the traffickers
and procurers. The offences against the traffickers, brothel keepers and procurers are
hard to sustain in the fight of the strict requirements in terms of proving that
prostitution has taken place, as well as the fact that evidence against these individuals
is often hard to acquire. Decoy or trap witnesses have been used to entrap traffickers.
However, such evidence is treated with skepticism by the Courts and frequently
requires corroboration.
These provisions, which penalise the women in prostitution must be deleted.
While provisions under the Act that penalise prostitution racketeers are steps in the
right direction; criminal sanctions against female prostitutes are a cruel irony. They
contradict and violate the declared spirit of the Act, namely, not to penalise the
individual prostitute operating independently. The woman in prostitution is not a
criminal. She does not violate anybody or anything, but is herself violated. This is
particularly true for the vast number of female prostitutes who are victims of the
structurally induced forces of circumstances - both direct and indirect- victims of the
system - struggling to cope with their experiences of exploitation; Thus the penal
sanctions under the Act unjustly amount to victim punishment and must be deleted.52
Bias In Scope And Formulation

Some of the provisions which act against the interests of the women in
prostitution, are hereby discussed. A piecemeal critique of each proviso would be of
no use if the overall assumptions of the legislation are ignored.
52 Jean D’Cunha, Supra Note 7 at p 50.
135
The aims, objectives, scope and formulation of the Act, reveal its underlying
sexist assumptions and the gender bias against women in prostitution.53
The patriarchal attitudes about prostitution that form the underlying
assumptions of the Act are that man’s aggressive and uncontainable sexuality and
polygamous nature, considered ‘natural and biological’, have an outlet in prostitution
which thus, safeguards the family structure and.prevents rampant.rape.54
While women in prostitution are penalised, there are no such penal provisions
against the client, which clearly reveals the double standards of male sexual morality.
Another aspect of these double standards is that it is only street prostitution in public,
which is penalised, while prostitution behind closed doors is left untouched.55
The laws on prostitution are neither formulated to do justice to practitioners,
nor do they attempt to eradicate prostitution.56
The Act does not aim to abolish prostitution; rather it forbids trafficking in
women and girls for the purpose of prostitution as an organised means of earning a
livelihood and disallows prostitution near public places so that the atmosphere is not
‘contaminated’.57 Thus the basic aim is not to safeguard the interests of the women
but to protect public spaces from being ‘contaminated’.
Prostitution exists because there are men who go to women in prostitution and
it is a glaring example of gender bias in the law that the man is not made a party to
the offence of prostitution. The law thus regards the woman victim as the guilty party
and punishes her. So women in prostitution can be locked away even if it means
depriving their children of their sources of livelihood. However, there is no provision
for punishing the male patron. The 64th Law Commission Report considered the
question ‘of whether’ a person who hired a prostitute should be punished. And it was
decided that the patron could not be punished. The provisions of Section 7 of the Act
make ‘soliciting for the act of prostitution’ an offence but soliciting has not been
defined anywhere in the Act. Here too, the man who is the person who actually
53 Jean D’Cunha, “The Suppression of Immoral Traffic in Women and Girls Act (1956) India”, The
Indian Journal of Social Work, Vol XLIX, No 4 Oct 1988, p431
54 Jean D’Cunha, Embodiment Essays on Gender and Identity, Edited by Meenakshi Thappan, Oxford
University Press, 1997, p 241
55 ibid, p 242
56 Gopika Solanki & Gitanjali Gangoli, ‘The Official Discourse Around PITA’, Economic and Political
Weekly, December, 1996, p 3298
57 1962(1) CrLJ 162
136
responds to soliciting and is therefore a party to the offence is not dealt with. A man
who does nothing but pursues pleasure is let off but a woman who is forced into
prostitution often in order to make ends meet, is punished.58
But the Andhra Pradesh High Court opines that the law made no distinction
between the male and female and that both were punishable under it.59 While
upholding the constitutionality of Section 4 under Article 14, the court observed that
the male partner in the evil doing or act is not spared from any attack under the Act.
But research on prostitution laws points to distinct class, ethnic and gender
bias in enforcement of criminal sanctions in prostitution.60 While women in
prostitution are overwhelmingly penalised, clients, brothel-managers, pimps and
procurers remain relatively untouched.
While the act of prostitution is legal, penalties for loitering and soliciting
render it difficult to work, for a woman cannot make contact with her client legally.
Even more discriminatory is the fact that while both women in prostitution and
clients are active participants in the act of soliciting, it is only the woman who is
subject to the legal process.
Criminalising women in prostitution constricts and reinforces their subjective
identity as social deviants, reinforcing a prostitute sub culture, which is morally out
caste. This drives many a woman to operate more discretely and clandestinely, using
fictitious names and addresses.
Certain provisions of the Act isolated the woman in prostitution from her
family by making it a crime to five off the earnings of a prostitute. There is also a
provision that implicates all women (Section 20) by placing the onus on a woman to
prove that she is not a prostitute if such a complaint is made against her, otherwise
she can be removed from the locality where she resides. The Act ostensibly legalises
prostitution, while simultaneously ensuring that her rights to privacy, mobility,
family life and residence are restricted.62
58 Gopika Solanki & Gitanjali Gangoli, Supra Note 55

59 1986 CrU 1397
60 Jean D’Cunha, Supra Note 53.
61 Ibid.
62 Hustling for Rights, A Report on the CFLR Seminar, Aug. 16th to 18th, 1997, YMCA, New Delhi, p6
137
Nanditha Haksar, a Supreme Court lawyer and civil rights activist states that
the law makes the prostitute a criminal but her male patron is not made a party.63
Women in prostitution, who are marginalised and vulnerable sections of
society, come in frequent contact with the police and the judiciary. The attitudes and
biases of the enforcement agencies have a profound impact on the lives of these
women apart from the way they perceive themselves and their existence.
Child Prostitution And The Law

While implementing the IPTA law enforcers fail to draw a distinction between
prostitution and child prostitution. Though the Act takes a stem view of child
trafficking and child prostitution, in regular practice it fails to distinguish between
prostitution and child prostitution.
The Act fails to distinguish between child prostitution and adult prostitution.
It provides little scope for difference in treatment of two very different kinds of
phenomena.64
The police do next to nothing in preventing trafficking in children or child
prostitution. Experience reveals that instead of implementing the law sincerely, the
police are frequently hand in glove with brothel keepers, pimps and madams. Shobha
Saxena, a criminologist, cites the experience witnessed in Delhi. According to her,
not a single case of child prostitution has been registered in the capital city over the
last three years, yet a single raid on GB Road would help rescue at least 200 minors.
She quotes a senior police officer of Delhi who admits: “The. police do not have their
heart in it and are aligned with the flesh traders.”65 This is indeed a damning
indictment.
She also contends that payoffs to the police by the brothel keepers are high.
They charge them in the name of protection; otherwise their act is illegal. Even if
honest officials go to raid the brothel, the other policemen usually tip off the madams
and the pimps well in advance. Children in brothels are masqueraded as relatives of
63 Nanditha Haksar, ‘Dominance, Suppression & the Law’, Women & Law Contemporary Problems,
edited by Lothika Sarkar, B Sivaramayya, Vikas Publishing Houses Pvt. Ltd, Jangpura, New Delhi-
110014, p 38
64 Hustling for Rights, Supra Note 62
65 Shobha Saxena, Crimes Against women and Protective Laws, Deep & Deep Pub, ND 27,1st Ed.,
1995, p 273
138
the prostitutes and due to lack of evidence the police fail to pursue the case. If the
minors are rescued brothel keepers produce fake affidavits or certificates claiming to
be the parents. The Juvenile Courts release the minors and back they go to the
brothels.66
Saxena alleges that sometimes the Courts are insensitive to the plight of the
innocent girls. In the case of 15-year-old Alka, after molesting her for more than two
years, her father sold her for Rs 500 to a slum dweller who in turn sold her to a
brothel. The police rescued her but the Court handed her back to her father though it
was submitted that that she was a victim of incest. Her father raped her again.
According to a police officer: “It is a self defeating exercise. The child prostitute is
nobody’s child”.67
According to Saxena, when children are rescued in raids, they do not give any
evidence against the pimps or madams because of a fear psychosis. The Court,
relying on the traditional notions of evidence, dismisses the case and all efforts of the
/JO
police go waste, since they head back for the brothels.
Children Of Women In Prostitution

Children of women in prostitution are by definition neglected children under
the Juvenile Justice Act. The law empowers the State to intrude into the privacy of
the home of the woman in prostitution and remove her children from her custody and
even guardianship. Such provisions end up destroying the family of a woman in
prostitution and hence, penalise her for the work in which she engages.
The Courts have reinforced this position. In Gaurav Jain v Union of India69,
the Supreme Court stated that it was in the interest of the children of prostitutes and
society that they ‘should be segregated from their mothers and be allowed to mingle
with others and become part of society’. The Court was opposed to the establishment
of separate hostels and schools for the children of prostitutes. However, it was of the
view that ‘accommodation’ in hostels and other reformatory homes should be
adequately available to help segregate these children from their mothers living in
66 Shobha Saxena, Supra Note 65..

67 Ibid.
68 Ibid.
69 AIR 1990 SC 292
139
prostitute homes as soon as they are identified. The term ‘interest of the children’ is
a relative term. It depends upon who perceives their interest - the mother, the child,
the client, the police, general public or the Courts. In a parent-child relationship both
of them mutually draw a lot of emotional support from each other. Why should a
woman in prostitution and her child be deprived of it? It would only make their lives
more miserable. Instead of segregating them, will it not benefit the child if the
women in prostitution are accorded with a fife of human dignity? If they lead a life
devoid of a stigmatised existence, will the kids also not benefit?
Bias In Implementation
There is not only gender bias in implementing the law but also class bias.
Paradoxically, while tolerating the institution of prostitution, women providing the
service are socially castigated. Street prostitutes are harassed to preserve a
hypothetical veneer of morality and public decency, while prostitution behind closed
doors is ignored. Extensive data collected by Jean D’Cunha, a research scholar,
clearly shows that not only was the ITPA tardily implemented but it also operates
decisively against the women in prostitution (victim, survivor, worker), while
allowing the prostitution racketeers (entrepreneurs, landlords, brothel managers,
pimps, procurers) to go scot-free. She states that this reflects a class-based
discrimination in enforcement.70
It is also indicative of a gender-biased implementation in favour of the male.
In a male-controlled institution like prostitution, the police, landlords of premises
rented for prostitution, entrepreneurs, brothel managers, pimps, procurers, clients and
the like, mainly men, exercise forms of power over the women in prostitution and are
seldom brought to book, while the women who are exploited by them as sex
commodities, so as to make the enterprise possible in the first place, are penalised.71
70
Jean D’Cunha, Supra Note 7
71
ibid.
140
Non-recognition Of ‘Red Light’ Areas
The ITPA does not recognise the existence of ‘red light’ areas.72 It completely
ignores their existence. As a result women in prostitution, even in the areas known
for such activities, are liable to attract the law enforcement agencies.
This is exactly what often happens. Not only are ‘red light’ areas a frequent
target of ‘raids’, but. also traps are laid for those who may be discretely carrying on
their profession in not-so-very-public places. 73
The Act does not accord gender justice and regards prostitution a female
frailty and comes down heavily on the unfortunate women while turning a blind eye
towards their patrons. The women in prostitution also feel that it suffers from a
‘class bias’.74
Reasons For Bias In Penal Sanctions

It has been stated that prostitution racketeers often go scot-free while the
women in prostitution are penalised. A few reasons for this are: Offences are
bailable and there is no political will to trace racketeers after their release on bail; the
failure to record statements or to record them accurately thus rendering prosecution
of offenders ineffective; problems related to production of evidence; payment of
bribes to drop a case; submission of false age certificates in Court leading to failure
of cases against racketeers; and appearance of false parents in court which results in
callous discharge of prostitutes to their care.75
The statistics reveal that the woman in prostitution is the person most
frequently arrested, charged and convicted under the provisions of the ITPA.76 The
brothel owners, traffickers, pimps and procurers are rarely arrested, let alone charged
or prosecuted. The ITPA does little in terms of punishing those who exploit the
woman in prostitution and is severe in its impact on their rights - the person that the
Act is ostensibly intended to protect. The law ends up compounding the victimisation
72 M.Z. Khan & D.R. Singh, ‘Prostitution, Human Rights, Laws and Voluntary Action’, IJSW, Vol
XLVH, No. 4 (Jan 1987), p 448
73 ibid.
74 M.Z. Khan & D.R. Singh, Supra Note 72
76 Statistics provided in Table 3 and 14 of Chapter VI.
141
of the woman in prostitution rather than protecting her from the exploitation that
victimises her.77
Reasons For Higher Number Of Arrest Of Prostitutes

The following are the reasons for a higher number of arrests of women in
prostitution:
1. Hypothetical morality
2. Quotas
3. Police power
4. Harassment by brothel keepers
5. Circumstances of arrest by racketeers through bribes, muscle power and legal
loopholes.78
A mention has to be made on the quota system. The police are under pressure
from various quarters to prove their effective functioning by booking a particular
number of cases whether warranted or not. So under each category of offences under
various penal laws they periodically book cases and produce the ‘accused’ before the
Court. This is the ‘quota’ system.
Penal Sanctions Against Prostitution Racketeers and Clients

While the provisions under the Act that penalise prostitution racketeers are
steps in the right direction, criminal sanctions against women in prostitution are a
cruel irony. They contradict and violate the declared spirit of the Act, namely, not to
penalise the individual woman in prostitution operating independently. The woman in
prostitution is not a criminal. She does not violate anybody or anything, but is herself
violated. Thus the penal sanctions under the Act unjustly amount to victim
punishment and must be deleted.79
While the law does not penalise the client, the demand for penal provisions
against him have been raised in several quarters, firstly because the client is perceived
as an active and exploitative participant in the institution of prostitution and secondly
77
Centre for Feminist Legal Research, Supra Note 8.
78
Jean D’Cunha, Supra Note 7.
79
ibid
142
because penal sanctions should have a deterrent effect. The idea of introducing penal
sanctions against clients appears too simplistic. While it is true that clients benefit
immediately from the institution of prostitution by way of pleasure and /or power,
their demand for women in prostitution is a structurally created condition whose
economic, political, social and cultural ramifications need to be understood in all its
complexity and cannot be dealt with by penal sanctions alone. Secondly, while in the
short run prostitution is bound to continue, penal sanctions against clients may work
adversely against the women in prostitution. The trade may suffer a recession,
OA
leaving the women in dire financial straits in the absence ofjob alternatives.
However, placing the client totally outside the scope of penal provisions is
dangerous. It ignores the role played by the client within the institution of prostitution,
fails to check, or rather may encourage, the further exercise of brutality against the
woman in prostitution. It is a known fact that there is a rising demand for child
prostitutes, that clients indulge in violent, kinky or perverted sex with adult female
prostitutes, that the latter are often raped on the job and often go unpaid by clients.
D’ Cunha suggests that while the clients need not be made offenders for going
to women in prostitution, they must be penalised for any brutal and exploitative acts
against them.
Police And Law

The police are a well-known and integral part of the prostitution racket. Most
brothel owners regularly pay money to policemen. This payment is referred to as
hafta - weekly payment. The younger the girl, more is the premium for the hafta.
Non-implementation of the provisions of the ITPA works always to the advantage of
the police. The girls are arrested on one pretext or the other and money is extorted
from them. Stimulated raids result in terror and harassment of the girls leaving the
pimps and brothel owners unruffled. Well-meaning officials end up complaining of
their helplessness even to stop die extortion by their colleagues and give up their
attention due to the absence of any social support.82

81 Dr I.S. Gilada, Child Prostitution, Jagori package, Supra Note 48.
82 Ibid.
143
The term ‘Prostitute’ is a general abusive term used against any woman in any
situation.83 The police do not have any criteria for deciding whether a particular
woman is a prostitute. They frequently decide which woman is prostitute by several
considerations. These include, among other things, her manner, walk, make-up, dress,
hour of the day. This can also be an effective way to humiliate women or force them
to adhere to conservative norms, of society regarding manner of dressing, behaviour
and restrict her movement.84
The ITPA stipulates imprisonment upto six months or fine or both for
soliciting. A woman in prostitution can be convicted , if she makes any gesture, says
words or wilfully exposes herself, even from her own house for the purpose of
prostitution. The Act is used more to harass women in prostitution and extract bribes-
both sexual and monetary-than to prevent prostitution.85
Protective Homes
The law provided that women in prostitution may be kept in protective or
corrective homes indefinitely. For this reason, many women in prostitution prefer
conviction rather than rehabilitation. However, pleading guilty to an offence carries
its own consequences. In particular, it creates a record of criminal conduct by the
woman and thus reinforces the public perception of the women in prostitution as
criminals and prostitution as essentially criminal activity.
The existing institutional regime concerned with rehabilitation should be
replaced with a facilitative structure.87 General poverty coupled with State corruption
is the biggest violation that is taking place in respect of women in prostitution. Legal
aid and legal counseling have not always been provided to these women.88
The Law Commission in its 64th Report recommended that criminal sanctions
be applied to prostitution in so far as it relates to secret acts of consenting individuals
without exploitation.
83 Flavia Agnes, Supra Note 9, p 27

84 ibid.
85 Flavia Agnes, Supra Note 9, p 28.
86 Hustling for Rights, Supra Note 62, pl2.
87 Usha Ramanathan, Hustling for Rights, Supra Note 62, pl8
88 ibid, p 18
144
The National Expert Committee on women Prisoners, headed by Justice V.R.
Krishna Iyer, retired judge of the Supreme Court, in its report submitted to the
Minister for Human Resource Development in May 1987 made a forceful plea to
penalise the client by amending the law in the interest of attuning it to the present day
context of gender parity. The Iyer Committee Report mentions the Bombay Police
Act in particular, citing a Lawyer’s Collective report, that 23,000 to 30,000.women
had been arrested between 1980 and 1985 in Bombay under the Police Act whereas
10,000 women had been arrested under the ITPA. The Committee recommended that
the enforcement machinery of the ITPA be made squarely responsible for deterrent
action for which the Police Acts could be amended. It said women in prostitution
must be taken charge of under the ITPA, rather than rounded up under the Police Act
and released the next day after being fined or imprisoned in default of fine.89
The woman in prostitution is either treated as a criminal or a victim in need of
rehabilitation and as having no agency of her own. A woman charged under Sections
7 and 8 can be sent to a corrective institution. Under Section 17, a prostitute woman
can be placed in protective care. Under the garb of protection, the Act empowers the
law enforcement machinery to arrest, search without warrant, charge and detain the
prostitute for long periods.
A person carrying on or forced to carry on prostitution may make an
application to the Magistrate to be kept in a protective home or be provided care and
protection by the Court. The Magistrate after hearing the applicant and making an
inquiry can send the applicant to a protective home, a corrective institution or keep
her under the supervision of a person appointed by the Magistrate.90
The Allahabad High Court sounded a word of caution in using this
provision.91 The Court held that Magistrates should not use their powers to detain
minor girls in a protective home on the pretext of protecting them from going astray.
It held that it would be gross abuse of provisions to detain innocent persons who
happen to be women in a protective home. It further held that it was not justified to
89 SK Ghosh, Supra Note 3, p 136

90 Section 19 of ITPA
91 1967 All CriR 341.
145
detain a person in a protective home basing upon the rescue officer’s opinion that the
girl was in moral danger and needed protection particularly as she was a minor.
The Punjab High Court also expressed similar sentiments. It was held that
there must be an application by the girl, for an order to be passed under the Section
and that she cannot be kept in a protective home against her wishes.
Welfare provisions are alien to the ITPA.93 Only one Section considers that a
woman or girl may want to get out of prostitution. Under the Act an application may
be made by a woman or a girl to be placed in a protective home or in the care of the
Court. But a woman in prostitution who is illiterate and totally ignorant of her rights
and who is constantly intimidated would rarely have the confidence to do so. Also,
given the deplorable condition of the rescue homes, unless a woman is desperate she
would not even want to. When the police raid the brothels, the women are hustled
around, sent to remand or protective homes and then released into the hands of the
very brothel keepers who pose as their guardians.
The conditions in protective homes have been documented and have been
considered barely habitable. The provisions that enable a Magistrate to inquire into
the personal history of those rescued points to the assumptions about morality that
inform the law. The purpose of placing women in protective homes seems to be
directed more towards protecting the public from the potential ‘immoral’ or
‘depraved’ influence of such persons rather than protecting them from exploitation
and harm.94
At the same time, the welfare or rehabilitation measures included in the Act
treat the women in prostitution either as a victim, in need of being rescued or
protected, or as a morally corrupt woman who must be removed from the public
sphere to prevent deterioration of public morality.95 In the former case, she can be
removed to a protective home where she is ostensibly protected from the exploitative
aspects of the work. However, protective care is also intended to protect public
interest by removing the woman from prostitution whenever she attempts to engage in
92 AIR 1963 Pun 369

146
it. In the latter case she can be removed to a corrective institution where she is to be
reformed into a ‘good’, morally upright woman.
Exit From Prostitution: Duty Of The State To Provide Alternative

The existing rehabilitation policies, which permit the State to place women in
‘corrective’ and ‘protective’ custody with or without their consent, purportedly for
their own good, must be dismantled completely. The involuntary incarceration of
women in those institutions must be rejected as a policy and also as constitutionally
impermissible.
Viable alternatives have to be provided for those who wish to leave the
profession, including provision of safe houses and half way homes, which women in
distress can turn to on a voluntary basis.96 Such establishments must be based on a
policy of openness and accountability and steps are to be taken to prevent the
duplication of existing institutions that make no. attempt to hide their affinity to
prisons and are deliberately shielded from public scrutiny.
At present, protective and corrective homes provide redundant vocational
training to inmates, if at all, in sewing and stitching etc. without any follow up
support. The Centre for Feminist Legal Research proposes that the State be compelled
to provide soft loans, infrastructural support and educational scholarships to women
who wish to leave the profession instead of pushing marriage as the only option. It is
not essential that this area be codified into law as a statute since it is the constitutional
duty of the State to provide welfare measures for its citizens.
Decriminalisation of women in prostitution and the recognition of their legal
and constitutional rights will be important steps in countering the social stigmatization
and marginalisation that such women face, and will facilitate the process of exit from
the profession.97
The Supreme Court directed the State governments to evolve schemes for
rehabilitation of the girls lodged in various protective homes:98 It agreed to lay down
guidelines for administration of protective homes under the Act so that women

97 ibid.
98 1982 CriAppR 264
147
rescued from brothels as well as deserted women may be able to live with human
i
dignity in these protective homes and find gainful employment after discharge.
Emphasis On ‘Immorality’
Legal perceptions have viewed prostitution in terms of morality, as the title of
the law governing prostitution reveals." Woman activists have always resented
prefixing ‘immoral’ to trafficking. They believe that the word ‘immoral’ should be
removed while drafting laws.100 A moralising tool cannot empower women. Simply
using the term trafficking in women will not dilute , the significance of the problem
and would liberate the concept from its ‘moral prism’. The existing law only serves
to intensify the stigma against the women in prostitution.
Critique Of The Amendment

The amendment of 1986 does not change the basic framework nor provide any
clarity on the issue. It does not decriminalise prostitution nor offer any safety and
protection against harassment and indignity. As in other amendments, the main thrust
of the amendment is enhancement of punishment and creation of newer categories of
offences. The Act is given a new name and now it recognises that children or even
men can be sexually abused and exploited for commercial purposes. Importantly, the
provision that penalises a woman in prostitution is retained in the amendment. The
younger the age of the person who is sexually exploited, the greater the magnitude of
punishment of her exploiters. The amendment also increases punishment for living on
the earnings of prostitution of a child or minor to an imprisonment for a term of not
less than seven years and not more than ten years. The punishment for living on the
earnings of prostitution of majors is imprisonment up to two years and fine up to Rs
1000 or both. The Act provides for an increase in the prison term for offenders
convicted for offences against majors and also makes provisions for life imprisonment
for offences against children. The ITPA distinguishes between major, minor and
99 Geethanjali Gangoli, Supra Note 56, p 3298

100 Maitreyi Chatterjee, ‘Rehabilitation of the Prostitutes’, Paper presented in a workshop on
‘Trafficking in Women and Children’, Calcutta, 2-4 August 1992, organised by Socio-Legal Aid and
Research Center, Calcutta, p2, Voices, Information Package on Sex Work, prepared by Jagori,
Women’s Training, Documentation and Communication Centre, C-54, Top Floor, South Extension -
Part-n, ND-110049, 2001.
148
child. It defines a major as a person who is 18 years old, a minor 16 years but not 18
years and a child who is under 16 years of age.101
This distinction and the inclusion of the definition of a child in the new Act, is
firstly recognition of the existence of child prostitution and traffic in children for
prostitution.
Secondly, the need for these definitions is explained in the context of penal
measures under the Act, to be meted out to those using persons, for prostitution. The
younger the person who is sexually exploited and abused for commercial purposes the
more stringent is the punishment for the exploiters.102 This new clause is also based
on the presumption of the innocence of children. In contrast to the SITA, the ITPA
seems to take a more serious view of child prostitution.
Also introduced is enhanced punishment of imprisonment for any person on
whose premises prostitution is carried on. These provisions also include: 1)
Imprisonment that may he extended to life on conviction; 2) the presence of a child in
a brothel leads to the presumption of the offence of detention of a child; 3) sexual
abuse of a child or minor in a brothel leads to the presumption that he or she has been
detained for prostitution or sexual exploitation. The amendment seeks to plug the
loopholes available to landlords, tenants and other occupiers of premises to escape
punishment for brothel keeping under the defence of Tack of knowledge’. While
punishment for every other Section is increased, the male clients are not affected by
the amendment. The amendment mitigates the offence committed by male pimps and
touts by providing them imprisonment between seven days and three months.
The following are the only two provisions of the amendment that might
marginally benefit a woman in prostitution:103
The first one recognises the abuse of power by the police during raids. The
amendment prohibits male officers empowered under the Act from making a search
without a warrant unless accompanied by at least two women police officers.
Interrogation of women has to be carried out by women police officers, failing which
the questioning of such women and girls can be done only in the presence of a lady
101 Section 2 (ca) & (cb).

102 Sections 5 & 6.
103 Section 15 & 21.
149
member of a recognised welfare institution or organisation. Women and girls rescued
from brothels or other premises have been known to be harassed for money or sexual
favours by male police officers. This clause curtails police power at least to the extent
of maintaining the dignity of the women in prostitution. It also mandates a medical
examination of such persons to determine age or detection of injuries caused by
sexual abuse.
Secondly, it incorporates a new clause concerning rehabilitation. It stipulates
that protection homes should have appropriate technically qualified persons,
equipment and other facilities. The. Act now mandates that the protective homes
should not only allow women and girls to live in dignity but also to find gainful
employment. But it has to be borne in mind that these marginal safeguards can in no
way undo the harm caused to a woman driven to prostitution, if she continues to be
viewed as a criminal under the Act.104
Though the amendment of 1986 accords both men and women equal status
and responsibility, it fails to decriminalise women in prostitution. The amendments in
the Act, on the other hand, have led to pro-criminalisation.105
The second outcome of the modifications in some of the provisions is handing
over of more powers to the police. One is not sure whether such an increase would
result in providing more protection and welfare to the sexually exploited and abused
or to the police themselves and to the arrest, investigation, prosecution and
punishment of traffickers.106
Thirdly, improved procedures may lead to humane processing. A shift from
the prosecution of the onus of proof to the accused and the presumption of guilt may
facilitate conviction of culprits.
Lastly, the sharp increase in the penalties in various provisions seem to have
been made on the assumption that the higher the penalty the lesser the involvement of
the people in trafficking and sexual exploitation. But this assumption is outdated. In
fact, the provisions of severe punishment have made the Act digressive.
104
Flavia Agnes, Supra Note 9, p 28.
105
M. S. Pawar, ‘Prostitutionand the Girl Child’, 1991 (Jan): 52IJSW,pill,
106
ibid.
150
There is no provision in the Act for dealing with policing and punishment of
criminals who have set up inter-State networks to procure children and young
persons. Thus, neither the police nor magistrates are empowered to deal with inter
state offences, which the new legislation empowers. The induction into prostitution
of a child, who has not completed the age of 16 years, can be punished under the new
legislation with life imprisonment, seven , years mandatory; of a minor, who has
completed the age of 16 years but has not completed the age of 18 years with not less
than seven years mandatory and of a major, who has completed the age of 18 years,
with or without his or her consent, not less than three years and not more than seven
years imprisonment.107
In addition, where any person is now found with a child below 16 years of
age, in a brothel, it shall be presumed, unless the contrary is proved, that the person
has committed an offence. Also, where a child or minor found in a brothel, is upon
medical examination, detected to have been sexually assaulted, it shall be presumed,
unless the contrary is proved, that the child or minor has been detained for the purpose
of prostitution, or, as the case may be, has been sexually exploited for commercial
purpose.109 All offences punishable under the ITPA are cognizable offences.
Limitations Of The ITPA

The following are a few limitations of the ITPA:
1. The ITPA legislation over-emphasises the punitive process and further criminalises
women in prostitution. Mere punishment of a woman in prostitution is a negative and
counter productive measure resulting in police harassment and victimisation of
women in prostitution.110
2. The perspective with regard to rehabilitation measures has to be changed. It must
include provision of medical treatment, monitoring, follow up action, education and
other mainstreaming techniques for women who voluntarily opt out of prostitution.
Institutionalisation of rehabilitation has to be minimised and if institutionalisation is
107 Section 5.
108 Section 6.
109 Section 6.
110 Seema Midha, ‘Immoral Traffic Prevention Act 1986 (Amended SIT Act)’, Legal Education Series
No28, Indian Social Institute, ND, 1992, pl3.
151
necessary on a temporary basis regular supervisory bodies should keep a check on
running of such institutions.
3. The implementation of the Act regarding trafficking is largely left to the State
governments. There is no machinery to oversee and coordinate at the Central level.
4. The law is biased in terms of class and caste.
5. There is no provision in the Act for a competent legal aid service for the victims of
trafficking.
Even the amended ITPA has failed to come up with anything new that can
bring the traffickers to book.111 In the main it exhibits two characteristics: 1) More
powers to the police to apprehend the person involved in the act and 2) increase in
punishment to 7 years or life imprisonment. Increasing of powers to the police is less
likely to solve the problem of trafficking; rather it would lead to more complications
and increased corruption. While it is imperative that women in prostitution are
completely decriminalised, a separate legislation must be enacted that completely
prohibits trafficking in women or girls. Any right-minded person would want the law
enforcement agencies to keep the traffickers in prison and not the women in
119
prostitution who are mere victims.
While all other laws dealing with violence against women were enacted in
response to demands raised by a sustained campaign for legal reforms, the SITA and
its successor the ITPA stand apart because they have no such pretensions. In other
instances there is a basic presumption or at least a facade of safeguarding the rights of
a woman victim and protecting her dignity. This is lacking in trafficking laws. In fact
it penalises the victim.
These laws devalue the woman in prostitution by denying her access to those
remedies under the law that are available to ordinary citizens - against economic
exploitation, rape, sexual abuse, debt bondage and so on.114 While it is important to
recognise that women may enter into prostitution as a result of economic need, the
existing law tends to operate against the rights of the women in prostitution. The law
criminalises her rather than provide remedies against specific acts of coercion and
in
M. S. Pawar, Supra Note 105, p 112.
112
Ibid.
113
Flavia Agnes, Supra Note 9, p 28.
114
152
economic and sexual exploitation that may occur. The Centre for Feminist Legal
Research (CFLR) suggests that until it is recognised that consensual and voluntary
prostitution exist and must remain outside the domain of State control, the real areas
of exploitation shall remain un-addressed.115
Reviewing the laws protecting women against violence, Flavia Agnes, a
Mumbai-based feminist lawyer, points out that wherever the economic or political
power base might have been undermined, the government has not passed any laws.
She is of the opinion that those laws that confer excessive powers to the State need
serious re-questioning. Flavia is critical about the woman’s movements’ ‘mindless’
demands for legal reforms. Perhaps the movement has been shortsighted in raising
such demands in the first place and falling into the manipulative schemes of the
11 /
government. She feels that the women’s movement is too insignificant at the
moment to monitor the implementation of these laws and prevent their misuse. The
power acquired by the government in the name of protecting women is all the more
frightening in the present political context of rising communalism and criminalisation
117
of the political process.
The law views women in prostitution as a nuisance and as a law and order
problem. It is more concerned with who they are rather than what they do.118
Law Reform
The Centre for Feminist Legal Research, a Delhi based advocacy group and
the National Law School of India University, Bangalore (herein referred as NLSIU)
have made serious attempts at bringing legal reforms to prostitution and trafficking
laws. The NLSIU drafted two Bills in this area. The draft bills of CFLR and NLSIU
are discussed hereunder.
The Centre for Feminist Legal Research proceeds on the understanding that
the legal regulation of prostitution must recognise that there are complex dynamics at
play, which call for complex solutions.119 The nature of exploitation that occurs at the

116 ibid.
117 Ibid.
118 Hustling for Rights, Supra Note 62.
153
time a woman enters into; prostitution cannot be equated with the issues that concern a
woman who is already in it. Similarly, there are completely different ranges of
concerns that need to be addressed at the time of her exit from prostitution. The
CFLR therefore attempts to deal separately with the concerns arising at the point of
entry into prostitution, during the course of the work, and at the time of exit from
prostitution. It believes that at each, stage the focus of the law should be the
empowerment of the woman concerned. It has accordingly proposed the. following
legal reforms.
The CFLR proposes the repeal of the ITPA and its replacement with a three
pronged law reform strategy:120
1. Decriminalisation: This entails the complete decriminalisation of voluntary
prostitution as well as all related activities that are presently offences under the ITPA,
insofar as they relate to consenting adults.
At the same time it is also important to address the issue of child prostitution.
The CFLR believes that the distinction between consent and coercion must
necessarily collapse, since the age of consent of sexual intercourse under the Indian
Penal Code is 16 years. What needs to be considered is whether it is necessary to
evolve a separate statute or even amend the existing ITPA to deal with the issue.
In an earlier report, the CFLR proposed amendments in the EPC to deal with
sexual abuse of minors and young persons in addition to the existing provisions that
deal with rape. Additional offences were proposed under the heads of sexual
interference, invitation to sexual touching and sexual exploitation arid abuse of young
persons by those who are in a position of trust or authority. It recommends that these
provisions be enacted at the earliest and the provisions in the ITPA dealing with child
prostitution be repealed.
2. Rights Of Women In Prostitution: While it is difficult to challenge the position
that women in prostitution should be able to have access to the rights available to
ordinary citizens, the question to be addressed is whether it is necessary to demand
legislation that recognises certain rights of women in prostitution or whether mere

121 Section 375, Indian Penal Code.
154
decriminalisation is sufficient in itself to ensure that women in prostitution are able to
enforce legal rights in the same way as other citizens.
The CFLR believes that mere decriminalising of prostitution and leaving the
rest to take its own course cannot redress the social marginalisation of women in
1 99
prostitution, which has occurred over decades.
3. Redressal Mechanism: In order for the rights of women to be enforceable, a
redressal mechanism will need to be made available to them. One proposal is to
provide a special forum set up at the trial court level to deal with complaints and suit
for damages filed under the statute of rights or the special labour legislation.
However, the CFLR is doubtful whether such special treatment would help redress the
historical disadvantage that such women have experienced or it would reinforce the
stigma against them and naturalise their position as ‘immoral’ or ‘bad women’. The
other option, which.it tends to favour, would be to provide that such complaints be
filed before already existing legal forums under the proposed special statute which is
aimed at redressing the specific abuses, harms and discrimination that women in
prostitution experience, and also leave open the option to invoke already existing
laws, such as the labour laws, laws on sexual assault and rape.
The police frequently resort to the IPC, State Police Acts and other provisions
rather resorting to the ITPA provisions. The CFLR proposes that a specific provision
be included in the new law reform which states that neither the vagrancy laws, State
Police Acts, obscenity provisions under IPC or beggary laws should be used to arrest
or otherwise harass women ip prostitution.123 The definition of the ‘neglected
juvenile’ under the Juvenile Justice Act, 1986, includes a child of a prostitute. There
is an immediate assumption that such a child will be neglected per se because he or
she is the child of a prostitute.
4. Exit From Prostitution—Duty Of The State To Provide Alternatives: The
CFLR proposes that existing rehabilitation policies that permit the State to place
women in ‘corrective’ and ‘protective’ custody with or without their consent,
purportedly for their own good, be dismantled completely. The involuntary
122
123
Ibid.
155
incarceration of women in those institutions must be rejected as a policy and also as
constitutionally impermissible.
Instead, the CFLR emphasises viable alternatives for those who wish to leave
the profession, including the provision of safe houses and half way homes, which
women in distress can turn to on a voluntary basis.124 Such establishments must be
based on a policy of openness and accountability and all steps must be taken to
prevent the duplication of existing institutions that make no attempt to hide their
affinity to prisons and are deliberately shielded from public scrutiny.
It further states that at present, protective and corrective homes provide
redundant vocational training to inmates, if at all, in sewing and stitching etc. without
any follow up support.125 The CFLR proposes that the State be compelled to provide
soft loans, infrastructural support and educational scholarships to women who wish to
leave the profession instead of pushing marriage as the only option. It is not essential
that this area be codified into law as a statute since it is the constitutional duty of the
State to provide welfare measures for its citizens.
The CFLR believes that decriminalisation of prostitution and the recognition
of the legal and constitutional rights of women in prostitution will be an important
step in countering the social stigmatization and marginalisation that such women face,
1 Ofk
and will facilitate the process of exit from the profession.
It further proposes that the choice of women in determining their sexuality be
ensured. It is necessary to also protect the right of young persons and teenagers to a
certain degree of sexual autonomy and their rights to engage in certain kinds of
consensual sexual activities with their peers.
According to the CFLR, rape and sexual assault laws currently make it very
difficult for any woman to invoke the remedy, leave alone one who may have
willingly or unwittingly accepted an offer to be inducted into sex work. An important
aspect of these changes will be the definition of consent in cases of sexual assault so
that the standard of ‘no means no’ is statutorily recognised. Women who are asked to
testify against traffickers are often placing themselves at great risk, and this is one of

125 Ibid.
126 n.;A
156
the reasons why so few come forward. The CFLR recommends that the State set up a
witness protection programme for women who are testifying, and their families,
during the course of the trial and afterwards as well. They should also have access to
the safe houses and half way houses.
The existing legal framework actively works against the woman in
prostitution by refusing to accept the validity of the work she does and subjects her to
the punitive regime of the criminal law. When women in prostitution as well as
prostitution itself are regarded as immoral and a social evil, it becomes impossible for
them to seek redress from the State for actual exploitation that occurs. This can range
from sexual assault to misappropriation of their earnings and lack of access to health
facilities.
The Law Reform Proposed By NLSIU

The National Law School of India University drafted two Bills dealing with
prostitution and trafficking. Its understanding is that in the process of changes in
public perceptions and attitudes, the enforcement of legislative policy suffered a great
deal of confusion, distortion and paralysis. While the law intended to prevent
commercial exploitation of sex, what actually resulted was corruption in the
enforcement machinery and wider exploitation in more surreptitious ways often with
the protection of the so-called law enforcement apparatus. It states that the problem
now is more with the law and the manner of its enforcement, than with prostitution
and its related vices.127 At the same time, manifestation of prostitution in
contemporary times is posing serious threats to human dignity, public health and
morality and to women’s rights. This then is the agenda, which the National Law
School’s project in legislative reform aims to address.128
The NLSIU perceives that it is important for the effectiveness of any law
impacting social behaviour to be clear about the objective that is sought to be
achieved in the short run as well as the long run and the strategies preferred to
advance the goals. It recalls that no other social legislation is as confused and
127 National Law School of India University, Revised Draft Bill with Explanatory Notes on the
Immoral traffic (Prevention) Act, 1956, Edited by Dr N.A. Madhava Menon, Sponsored by the
Department of Women and Child Development, Govt, of India, New Delhi, December 1993.
128 Ibid.
157
ambiguous and its goals as the ITPA. It states: “What is the policy of the law towards
prostitution? By not prohibiting ‘per se’ does the law give the message that it does not
seek to intervene to suppress promiscuous sexual activity of women or otherwise?
Does it acknowledge sex work as a legitimate form of labour if conducted subject to
public order, public health and decency? Is this view not reinforced by the fact that
the client is not penalised and is in fact protected in the transaction? By punishing the
soliciting and organisation of business, does not the law encourage an otherwise legal
activity to be carried on in a clandestine manner encouraging corruption in
. enforcement and exposing the victims to further disadvantages in the trade? Where
does prostitution stand in the context of the market economy now being introduced
under the structural adjustment and liberalisation programmes? Does the emphasis on
sexual work ‘for commercial purposes’ still hold the key for legislative
intervention?”129
The NLSIU drafted two Bills namely: ‘The Prevention of Immoral Traffic and
the Rehabilitation of Prostituted Persons Bill, 1993’ and ‘The Prohibition of Immoral
Traffic and Empowerment of Sexual Workers Bill, 1993’. The former defines
‘prostitution’ as ‘sexual abuse and exploitation for commercial purposes or for
consideration in money or kind’. ‘Customer’ means a person who sexually abuses or
exploits another for purposes of prostitution. ‘Prostituted women’ are victims of
prostitution. These definitions indicate that the NLSIU is following the ‘victim’
model. Its obsession with morality is self-evident. It defines ‘persons in moral danger’
as women and children who are destitute or living in fear of sexual abuse in
circumstances where there are reasons to believe that they may be prostituted. The
NLSIU does not.give any justification for its over-emphasis of‘morality’ in respect of
the prostitution question.
The draft bill recommends three years imprisonment and Rs 50,000 as fine for
‘immoral trafficking’ and enhanced punishment of seven years and Rs 2 lakh fine for
subsequent convictions.
The bill also imposes punishment for prostitution, something not present in the
ITPA. The criminal proceedings under this provision would commence only on a
complaint preferred by the women in prostitution. The punishment prescribed is fine
129 National Law School of India University, Supra Note 127.
158
of Rs 50,000. This reminds one of the Yagnavalkya Smrithi, which also imposes fines
on the clients for specific performance of their obligation and payment of
remuneration for the service rendered by the prostituted women.
But prostitution committed on children is punishable even if no one prefers a
complaint. Imprisonment for five years and fine of Rs one lakh is the punishment
recommended. Facilitators to prostitution are also punishable under the law.
The draft bill follows a carrot and. stick policy. Several welfare measures for
women in prostitution are laid out. They are:
1. The government is supposed to conduct a periodic survey of prostitution.
2. The State has to set up adequate number of protective homes.
3. It has to provide health care to women in prostitution.
4. ‘Protective Homes’ have to accommodate women in ‘moral danger’
5. Rehabilitation has to be community based with NGO assistance.
6. A Welfare Fund for women and children in ‘moral danger’ has to be raised.
7. The sexual exploiters are liable to pay compensation for injuries caused in
prostitution.
The Bill seeks establishment of a special police force and courts. The offences
are made cognizable and the enforcement agencies can search without warrants. The
special courts can try the cases summarily and commit women to protective homes.
In the second draft bill’s Statement and Objects and Reasons, the NLSIU
observes: “An increasingly dominant perspective in public discourse on prostitution
in recent times reflect the concern for women’s rights. It was argued that women
should have the option to choose sexual work without being exploited by
intermediaries and in conditions of occupational safety and security. Today, the
society looks down upon prostitutes and penalises them along with traffickers and
sexual exploiters. The interests who appear to deserve legal protection in the business
of prostitution are those of the public and of the prostitute themselves. While law
should severely punish people involved in immoral trafficking and those indulging in
child prostitution, it should decriminalise totally the voluntary sexual work of
prostitutes (prostitution is a legitimate activity even today) equating it with any other
manual labour. This view, though apparently obnoxious to contemporary public
morals, is the only sensible position that law can adopt if it intends to empower the
159
women involved and to effectively regulate the health risks of prostitutes, their
11ft
customers and of the public at large.”
In this bill the woman in prostitution is termed as a ‘sex worker’. It means ‘a
woman who has taken to prostitution voluntarily and is doing the activity as an
‘occupation’. Prostitution means sexual intercourse for monetary consideration or for
consideration in monetary terms. Customer means any person who engages in
prostitution. The divergence of the definitions to the same terms in both the bills
only shows that the NLSIU is not able to reconcile the abolitionist with the
regulationist that resides in it.
Also listed in the Bill are a charter of‘sex workers’ rights and duties of brothel
keepers. This is an innovative approach. The ‘sex workers’ rights are:
1. Right to safe conditions of work.
2. Right to medical assistance.
3. Right to claim damages in case of injuries.
4. Right on incapacitation due to STDs.
5. Right against customers.
The brothel keepers are obliged to ensure safe conduct and provide safe work
place. The Bill envisages creation of a welfare fund for ‘sex workers’ and their
children by the State.
The NLSIU has given no clarification why two bills were drafted. It merely
states: “Keeping in mind the above policy considerations and the nature of issues
which agitate the public mind iii this regard, this law reform memorandum has
proposed two different bills containing different policies and institutional
arrangements to deal with the problem.” The NLSIU does not mention whether they
are to be implemented alternatively or simultaneously.
As per the orders of the Supreme Court in Gaurav Jain v Union131, the
Ministry of Women and Child Welfare of the Government of India came out with a
charter of proposals in 1997:
1. The present legal framework would be reviewed to ensure that the victims of
commercial sexual exploitation are not revictimised and all the exploiters, not
130 National Law School of India University, Supra Note 127.

131 AIR 1990 SC 292
160
excluding clients, traffickers, parents/guardians and others who collude with
them, are made liable for punishment.
2. Criminal procedures would also be modified and improved to ensure gender/
child sensitive application of judicial process and efficient and quick
prosecution of traffickers, including summary disposal of cases of
commercial sexual exploitation of women and children and trafficking.
3. Scope would be provided in the laws for NGOs participation to provide legal
counseling, and aid etc.
4. Provision for confiscation of assets of exploiters and compensation by
exploiters to the victims would also be considered.
5. Laws, including the Bonded Labour Abolition Act would be enforced or
amended where necessary to ensure release of victims from debt bondage.
6. Government would take effective, speedy and practical steps to ensure that
the existing legal provisions against commercial sexual exploitation of
women and children are strictly enforced.
7. Cases of commercial sexual exploitation of children/ minors below the age of
18 years, with or without consent, should be detected and prosecuted under
Section 375 of IPC and under Section 6 of the ITPA.
8. Anti trafficking and Prevention Cells should be set up.
9. Advisory Boards of social workers and NGOs, which are notified under
Section 13(3) of the ITPA, would be reconstituted with experienced, active,
committed and sincere members wherever existing.
10. Raids would be conducted in such a manner that the clients, pimps, brothel
keepers and other exploiters are apprehended. Revictimisation of women and
child victims by being targeted in raids would be avoided.
11. The following rehabilitation measures were suggested by the Ministry:
i) Night care shelters.
ii) Education support programme.
iii) Institutionalisation.
iv) Anganwadi cum day care centres or Balwadi.
v) Non-formal education.
vi) Formation of Self Help Groups by women victims.
vii) Community education.
161
Summary
The substantive and procedural aspects of the Immoral Traffic (Prevention)
Act, 1956 reflect inbuilt gender injustice. Its very title is indicative of the ITPA’s
grounding in untenable moralistic assumptions. The law imbibes popular perceptions
of morality. Women’s sexuality is either idealised and silhouetted for austerity or in
the event of assertion of sexual autonomy condemned as plainly immoral. Society and
the law are visibly uncomfortable when dealing with issues related to female
sexuality. These sexist assumptions are also reflected in the ITPA.
Though the Act’s intent is to curb trafficking, in actuality it ends up working
against voluntary prostitution. In the name of controlling prostitution, soliciting and
seducing for prostitution in public places, the Act criminalises voluntary prostitution.
Women who operate from the streets, hotels, brothels or other public resorts are
criminalised. In effect, not only is prostitution in public places criminalised but also
prostitution ‘within the vicinity of public places’. What emerges then is legislative
intolerance towards assertion of sexual autonomy by women involved in voluntary
prostitution. On the other hand, the Act is totally ineffective in controlling trafficking,
forced prostitution and child prostitution.
There is an inbuilt discrimination contained in the Act on the basis of gender
and class. Though the Amendment of 1986 has made the term ‘prostitute’ gender
neutral, each and every provision is constructed in such a manner that the women in
prostitution end up being victimised. They are arrested and prosecuted if they
prostitute, solicit, seduce in of within the vicinity of public places. If the Magistrate
feels that their presence is unwelcome in his/her jurisdiction, they can be immediately
thrown out of his/her ‘realm’. The concept of rehabilitation is currently considered
politically and morally correct. If the Magistrate is in a mood to reform these women
and ‘rehabilitate’ them he/she could send them to a ‘protective home’ or ‘rescue
home’ where they can be kept for a few years. This ‘gender neutral’ Act does not
speak of rehabilitating male prostitutes or keeping them in protective homes. The Act
as well as proponents of reform are silent about male prostitution. This is yet another
sexist assumption.
The ITPA is thoroughly misused by the police to harass women in
prostitution. The police seek bribes or sexual favours from these women. There is a
162
‘quota’ system in operation under which the women are periodically picked up. So
the women are frequently in and out of police stations, court halls and prisons.
Every aspect of the Act criminalises the women in prostitution. Rarely are
traffickers booked under the Act;
While the reforms to the law suggested by Centre for Feminist Legal Research
is pragmatic, the two Bills prepared by the National Law School of India University
are not comprehensive.
The ITPA has to be replaced by a law that only criminalises trafficking, forced
prostitution and child prostitution. The iaw must be framed in such a manner that the
rights of women in prostitution are not trampled upon in any form, whether they are
street prostitutes or those operating from brothels. The law should delink trafficking
from voluntary prostitution and v/omen in prostitution must be completely
decriminalised. Institutional rehabilitation has proved to further victimise the women.
Viable and humane alternatives will have to be created for women who opt out of
prostitution. The law should respect the volition of the women in prostitution.
163

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CHAPTER-V

REVIEW OF IMMORAL TRAFFIC (PREVENTION) ACT, 1956

1 AIR 1978 SC 1675

Public Space And Prostitution

4 1962 Raj LW 598

other hand a man is not punished.

14 Lina Gonsalves, Supra Note 12.

20 Shama Bai v State AIR 1959 All 57

23 1963 (I) CRLJ; AIR 1963 Punj 36

26 1963 (I) CRU; AIR 1963 Punj 36

29 AIR 1963 Pun 17

Procedural Powers Of The Special Police Officers

33 AIR 1964 SC 421

42 AIR 1962 Mad 31.

47 AIR 1991 SC 207.

50 AIR 1990 SC 292

Bias In Scope And Formulation

52 Jean D’Cunha, Supra Note 7 at p 50.

58 Gopika Solanki & Gitanjali Gangoli, Supra Note 55

Child Prostitution And The Law

police go waste, since they head back for the brothels.

Children Of Women In Prostitution

66 Shobha Saxena, Supra Note 65..

Reasons For Bias In Penal Sanctions

Reasons For Higher Number Of Arrest Of Prostitutes

Penal Sanctions Against Prostitution Racketeers and Clients

Police And Law

80 Jean D’Cunha, Supra Note 7.

83 Flavia Agnes, Supra Note 9, p 27

89 SK Ghosh, Supra Note 3, p 136

92 AIR 1963 Pun 369

Exit From Prostitution: Duty Of The State To Provide Alternative

96 Centre for Feminist Legal Research, Supra Note 8.

Critique Of The Amendment

99 Geethanjali Gangoli, Supra Note 56, p 3298

101 Section 2 (ca) & (cb).

Limitations Of The ITPA

115 Centre for Feminist Legal Research, Supra Note 8.

120 Centre for Feminist Legal Research, Supra Note 8.

124 Centre for Feminist Legal Research, Supra Note 8.

The Law Reform Proposed By NLSIU

129 National Law School of India University, Supra Note 127.

130 National Law School of India University, Supra Note 127.

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