By Gayathri G

The Kerala High Court recently held that a ‘customer’ who avails the services of a sex worker may be held criminally liable under the Immoral Traffic Prevention Act (ITPA). 

While on one hand, punishing customers could make the process of accepting prostitution as a profession difficult, but on the other hand it could also prove to be helpful in curbing sexual exploitation of victims of trafficking, which is the main objective of the legislation. 

This piece aims to analyse and simplify the Immoral Traffic Prevention Act, 1956  (ITPA) and its provisions.

SITA and legality of Prostitution in India 

ITPA was earlier known as the Suppression of Immoral Traffic Act, 1956 (SITA).  It was enacted as a result of India ratifying the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others which was adopted by the United Nations General Assembly in 1949 and entered into force in 1951.  In 1986, the term ‘suppression’ in the title of this act was substituted with the term ‘prevention’ along with several other changes in the act like defining prostitution, including separate and severe punishments if the offences are committed against children or minors etc.  

ITPA only deals with trafficking for the purpose of commercial sexual exploitation or prostitution. It consists of provisions to punish activities that abet or facilitate the same. No other form of trafficking is considered or punished under this act.

Even though the term ‘prostitution’ is continuously mentioned along with various activities, such as owning a brothel or soliciting, the act in itself is not a crime.  

As observed by the Bombay High Court in the case of Kajal Mukesh Singh v. State of Maharashtra, 2021,  no law exists in the country which makes prostitution per se a criminal offence. Only sexual exploitation or abuse of a person for commercial purposes is punishable subject to certain exceptions such as carrying on prostitution in a public place or when one is found soliciting or seducing another. 

In the case of Budhadev Karmaskar vs State of West Bengal, 2022, the Supreme Court held that the basic protection of human decency and dignity extends to even sex workers. The judgment also stated that sex work is a “profession”. It also held that adult sex workers who are participating with consent should not be subjected to any kind of criminal action by the police authorities.

Major Provisions of the ITPA

ITPA punishes activities that promote or facilitate commercial sexual exploitation. The Act provides for rehabilitation and correction of offenders and also provides for protection of victims of such crimes. It also bestows the magistrate and police officers with various powers and responsibilities. 

Another important point to be noted under this section is the distinction in definitions of ‘child’ and ‘minor.’ The term ‘child’ is used for a person who is or under the age of sixteen while ‘minor’ covers those who have completed the age of sixteen but not attained the age of eighteen yet. This is different from the definition of ‘child’ which can be found in the Protection of Children from Sexual Offences Act, 2012 and Juvenile Justice Act, 2015. As per the United Nations Convention on Child Rights and the two aforementioned legislations, a child is defined as anyone below the age of eighteen. 

The act also enlists the duties and powers of the concerned officers under this act. 

Police personnel are entrusted with the implementation of the act. Special Police Officers are appointed by the State and Central government respectively.  They are conferred with special powers to raid, rescue & search premises suspected of serving as brothels. 

In the case of C.P Raju v. State of Kerala, it was held by the Kerala High Court that only such special officers will be authorised to conduct investigation and arrest and the power cannot be delegated.

Magistrates can order arrests and removal, direct custody of rescued persons or close down brothels and evict sex workers. The act also has provisions to make available institutional rehabilitation for rescued sex workers.

All the offences under this act are cognizable which means that police officers may arrest without a warrant.  Furthermore, the punishments prescribed for the offences are much severe if children or minors are involved in the same.  

Drawbacks and Criticisms

The act has garnered a lot of criticism for the ambiguity in both its scope and provisions. Victim as defined under the act does not include the transpersons or males. The act only recognises females who are engaged in prostitution.  

Another major problem with the act is the criminalization of persons who thrive off earnings made from prostitution, unless the said person is a minor. This leaves open a large possibility for arresting the children of prostitutes who have attained the age of 18 or dependent siblings or parents. Monetary support is one of the major reasons why people end up doing prostitution due to which such a provision can have a very negative impact. 

The legislation also fails to provide for a holistic social support system that could integrate the victims to the mainstream. The act nowhere talks about providing adequate psychological, economical or educational support which is essential to rehabilitate the person and help them lead a normal life. 

Even though courts recognise prostitution as a profession as can be seen from the aforementioned cases, the act itself does not have any provisions which support this stance. Furthermore, it also punishes prostitution if carried on in a brothel or from any public place. This makes it almost impossible for a person to function as a prostitute even if they stay in the profession out of choice.  

Amendments 

In 2006, an amendment bill for ITPA was introduced. This amendment was suggested due to criticism from activists and survivors on how the 1956 act fails to address key issues and how some provisions adversely affected those involved in sex work that is consensual in nature. 

The bill aimed to make various important changes such as deleting Section 8 which penalises soliciting or seducing for prostitution, constituting authorities at centre and state level for preventing and combating trafficking, punishing those who visit brothels for sexually exploiting trafficked victims etc. Another important suggestion was to amend the definition of ‘child’ to cover anyone under the age of 18.  The bill however lapsed and did not see the light of the day. 

Now, a draft bill for preventing human trafficking is waiting to be introduced in the parliament. The Trafficking in Persons (Prevention, Care & Rehabilitation) Draft Bill, 2021 addresses all kinds of trafficking including those for commercial gain and sexual exploitation. 

The main objective of the bill is to prevent trafficking, prosecute the offenders and also provide care, protection and rehabilitation of the victims. It seeks to establish a National Anti Human Trafficking Committee which will help in effective implementation of this act. The draft law also expands the victim pool to include transgender persons, new definitions of exploitation and offenders which includes public servants, defence personnels and others in a position of power. Even though the title of the 1956 act consists of the term ‘trafficking’, it only deals with trafficking for the purpose of commercial sexual exploitation. No other form of trafficking such as for illegal organ transplants or for begging etc is not addressed by the act. lf the 2021 bill takes the form of law, there will finally be legislation to address all forms of trafficking.

Gayathri is a student of law at Christ University, Delhi-NCR campus and she is currently an intern with TA.

The Analysis (TA) is a legal advocacy and research group working on the issues of environment, health, gender, law and human rights. Feel free to share your submissions with us at contact@theanalysis.org.in