The Immoral Traffic (Prevention) Act, 1956; Important Questions

 

  • What does this law do?

This is the main law dealing with sex work or prostitution in India. It punishes certain actions related to sex work (though not sex work itself).

It also deals with rescue and rehabilitation, giving wide powers to the Magistrate. For purposes of rescue, anyone can be taken away from a brothel and made to stay in a Government institution.

Many people and organisations have called for the overhaul of this law.


  • Is prostitution illegal in India?

Prostitution, that is, the exchange of money for sex, is not by itself illegal in India. Many related actions are illegal, however, such as:

  • Carrying on prostitution in certain places, such as close to a school or hospital. All persons involved in this, including the client, can be punished.
  • ‘Soliciting’ or attempting to tempt a person towards engaging a prostitute (referred to after this as “sex worker”).
  • Keeping a brothel.
  • Living off the earnings of a sex worker.
  • Making a person work as a sex worker.

  • What is prostitution?

Prostitution is itself defined as sexual exploitation or abuse of a person for money. It is different from trafficking which is defined in the Indian Penal Code, 1860.


  • What is a brothel?

A brothel is any place which is used for sexual exploitation or abuse for the gain of another person, or the gain of two or more sex workers.


  • What is a corrective institution?

A corrective institution is any institution where people in need of correction, such as sex workers found guilty of certain crimes under this law, are kept. It includes shelters where under trials are kept under this Act.

Under trials are people who have been arrested for a crime but have not been found guilty by any court, and whose trials are on-going.


  • What is a protective home?
  • A protective home is any institution where people in need of care and protection are kept under this Act. Protective homes must have certain equipment, facilities and technically qualified people.
  • A shelter where under trials are kept is not a protective home.

A corrective institution is not considered a protective home.


  • Is keeping a brothel a crime? Where it is defined?

Yes, According to Section 3 of this Act states “Punishment for keeping a brothel or allowing premises to be used as a brothel.—

  • Any person who manages a brothel in any way will be punished with jail time for one year and a fine up to Rs 2,000.
  • If he or she is found guilty a second time, the jail time can be between 2 to 5 years, and fine can be up to Rs. 2,000.”

  • What if person “A” is in charge of a space, and someone else uses it as a brothel?
  • A can be punished if A know it is being used as a brothel. The punishment is jail for up to 2 years and fine up to Rs 2,000.
  • If found guilty a second time, punishment can go up to 5 years.

  • How will the authorities decide that A knew about the brothel?

If:

  • there is a newspaper report that says the premise is being used for prostitution, following a search, or
  • the person is given a list of things found during the search

Then:

  • the law will assume that a person allowed or knew that a premise was being used as a brothel.
  • the person will have to prove that they did not know.

Irrespective of what other laws say, if a person is found guilty under this section, any lease relating to the premises shall be cancelled from then onwards.


  • Is it a crime to depend on money made through prostitution? Answer with relevant provision.

Yes, According to Section 4 of this Act i.e “Punishment for living on the earnings of prostitution” if an adult know the money is being made through prostitution. he/she can be jailed for up to 2 years or fined Rs 1000. If a child is being prostituted, the adult can be jailed for between 7 to10 years.

This will include, for example, “pimps” or adult family members of sex workers.


  • When will the court think that a person is living off money made by prostitution?

If it is proved that an adult:

  • lives or spends a lot of time with a sex worker
  • helps or forces her prostitution, or influences her to do that work
  • is a tout or pimp

The law assumes this person is living on the earnings of prostitution, and this person will be punished accordingly.


  • Is it a crime to get someone to do sex work? Answer with relevant provisions.

Yes, According to section 5 i.e Procuring, inducing or taking person for the sake of prostitution.—

Crime Jail time Fine
Making a person work as a sex worker. It doesn’t matter whether that person consented Between 3 to 7 years Up to Rs 2000
Convincing a person to move from anywhere to work as a sex worker, and live at or spend time in a brothel Between 3 to 7 years Up to Rs 2000
Making a person work as a sex worker, without her consent 14 years  
Making a child (less than 16 years) do sex work Between 7 years and life imprisonment Yes
Making a minor (16-18 years) do sex work Between 7 years and 14 years Yes

  • Where can the police and courts take action?

The police and the courts can take action both in the place where the person used to stay, as well as the place where she was made to go.


  • Is holding a person in a place where prostitution is carried on a crime? Answer with relevant provisions.

Yes, According to Section 6 i.e Detaining a person in premises where prostitution is carried on.—

If someone is being held in such a place to make that person have sex with someone they are not married to, punishment can be jail time between 7 years and life, and a fine.

However, the court can impose a sentence of less than 7 years, if there are good reasons.

If a person below 18 years is found with a person in a brothel, court will assume that she was held there for the purpose of prostitution.

If a person below 18 years is found in a brothel, and a medical exam shows he or she was sexually abused, then the court will presume that she was detained for prostitution. The opposite will have to be proved

The court will presume that a person has kept a woman or girl illegally in a brothel if the person:

  • does not give her property to her,
  • threatens her with legal action if she takes away any property given to her by this person.

Irrespective of what any other law says, a person who has detained a woman or girl cannot sue her for property they have given her or for any money she is supposed to pay them.


  • Is it a crime to carry on prostitution?

Only in certain places. According to Section 7 i.e “Prostitution in or in the vicinity of public place”

Crime Jail time Fine
If prostitution is being carried out:

  • In a place that has been notified by the Government
  • Or within 200 meters of a public place such as a school, hotel, hospital etc.
Then both the person committing prostitution and her client can be jailed for up to 3 months. No
If a person below 18 is involved in such areas Between 7 years and lifeHowever, the court has the discretion to impose a sentence of less than 7 years’ imprisonment No
Crime Jail time Fine
Is responsible for a public place and knows that sex workers stay there, or allows sex workers to use that place Up to 3 months the first time.Up to six months the second time.A hotel’s license can be suspended.If a person below 18 is involved, the hotel’s license can be cancelled. Rs. 200.
  • The State Government can order that prostitution should not be carried out in certain areas. This order will be published as a notification in the Gazette.
  • The State Government must clearly define the limits of these areas.
  • The notification will only come into effect 90 days after it was issued.

  • What is the crime of solicitation?

According to section 8 i.e “Seducing or soliciting for purpose of prostitution”

Solicitation is defined as:

  • tempting or attracting a person towards prostitution, or
  • loitering in an area and disturbing public decency, or
  • harassing any person for prostitution.

These actions must be committed in a public place to be a crime. The punishment is up to 6 months and Rs. 500 fine the first time, and up to 1 year and the same fine in case of repeated offences.


  • Explain Section 9 “Seduction of a person in custody”

If a person who is in a position of authority over another person helps in their prostitution, shall be punished with imprisonment for 7 years to life and fine.

This can include, for example, police officers who have detained women, or public servants in charge of children’s homes.

However, the court can give less than 7 years’ jail time, if it has good reasons.


  • Where a person is found guilty of prostitution sent?

According to Section 10A i.e “Detention in a corrective institution”

The court can order that a woman found guilty of prostitution or solicitation is sent to a corrective institution for 2 to 5 years instead of prison.

However, before sending to a corrective institution:

  • The court will hear the offender and the report of the Probation Officer, and
  • The court should feel that the offender will benefit from the corrective institution.

The order to be sent to a corrective institution can be appealed. The time frame for appealing is the same as for a sentence of imprisonment.

In certain circumstances, the offender can be released from the corrective institution after 6 months

  • If the authorities feel that the person can lead a productive life.

The release order can contain certain conditions about the movements of the offenders


  • Can details about offenders be made public?

Yes, but only in some cases – According to Section 11 i.e Notification of address of previously convicted offenders

If… And… Then…
A person is found guilty of a crime under this law, or of kidnapping or trafficking under the Indian Penal Code Is again found guilty within 5 years, of a crime with 2 years’ jail time The court can order that details about his address be made public for up to 5 years after his release.

  • Explain Section 13 – Special police officer and advisory body

The State Government can appoint a “special police officer” to deal with offences under this Act in certain areas.

This person could be a retired police or military officer of a certain rank.

The special police officer can be helped by other police officers.

The government has to set up an advisory body made up of 5 leading social workers to help the police.

The Central Government can similarly appoint “trafficking police officers” to investigate offences which involve more than one state.


  • Who can make arrests under this law, and when?

All crimes under this law are ‘cognizable’ as per the Indian Penal Code. This means a police officer can make an arrest without a warrant and start investigations without the permission of a court.

The arrest without warrant can only be made by the special police officer or with his permission.

  • If the special police officer asks a junior officer to make the arrest, he must give this order in writing with details.
  • The person being arrested must be told about this.
  • If the person being arrested asks, this order must be produced.

If it is urgent, an arrest can be made by a police officer authorized by the special police officer. But he must report this arrest as soon as possible.


  • Can the police search a place under this law?
  • Yes, the special police officer or the trafficking police officer has the power to search a place without a warrant if he or she thinks it necessary.
  • Before any search without warrant, the special police officer or the trafficking police officer must call two people from their locality – one of who is a woman – to witness the search.
  • A woman can also be brought from outside the locality.
  • A person who refuses to witness the search when asked to is committing a crime under the Indian Penal Code, 1860 (Section 187 punishes “Omission to assist public servant when bound by law to give assistance”.)
  • The police officer has the power to remove persons found in the place being searched.
  • Persons removed must be produced before a Magistrate.
  • A medical practitioner should also examine any person produced before the Magistrate under this section.
  • The relevant police officer as well as others involved in the search will not be liable for any legal proceedings for things done legally.
  • The police officer making a search should be accompanied by 2 women police officers.
  • If a woman is removed from the premise and interrogated, it should be done by a woman police officer.
  • If no woman police officer is available, then it should be done in the presence of a woman member of a recognized welfare organization.

The procedure for conducting searches under the general law on criminal procedure will apply here as well.


  • What can a Magistrate order, if a person is found to carry on prostitution?

If a Magistrate believes that a person is carrying out prostitution in a brothel, he can direct a police officer to remove this person from the brothel and have her appear in court.


  • What are the measures relating to a person who has been ‘rescued’ or ‘removed’?
  • If the police officer cannot produce the removed person before the Magistrate who gave the original order, he can produce her before the nearest Magistrate.
  • This Magistrate should order her safe custody until the other Magistrate is available.
  • This custody cannot last for more than 10 days.
  • The person cannot be sent to a person or place that can cause harm to her.
  • The Magistrate can make inquiries and directions regarding the rehabilitation of the person removed from the brothel.
  • While this inquiry is happening, the Magistrate can pass an order for the safe custody of the person.
  • If the person is below 18, then the Magistrate can place him or her in an institution recognized under children’s laws.
  • This custody cannot last for more than 3 weeks from the initial order, and the person cannot be sent to a person or place that can cause harm to her
  • After the inquiry, the Magistrate can direct that a person be kept in a protective home or other place for 1 to 3 years.
  • A person cannot be placed in the custody of someone of a different religious belief from them. The person in charge of the place of custody can be asked to enter into a bond to ensure that they take care of the person. This bond cannot be in force for more than 3 years.
  • A Magistrate can ask for advice from 5 respectable persons, 3 of whom should be women.
  • This order can be appealed to the Sessions Court, but this decision will be final.

  • Can a Magistrate shut down a brothel?

Yes. If a magistrate is given information that a certain space that is 200 metres from a public place is being used as a brothel, she can issue notice to the person in charge to explain within 7 days why the space should not be attached for improper use.

If after hearing the person in charge, the Magistrate feels the space is being used as a brothel, she can pass an order:

  • Evicting the occupier of the space within 7 days. This order cannot be appealed, and is valid for 1-3 years.
  • Directing that permission from the Magistrate is necessary before the space can be leased to anyone else for the following year. Ignoring this can lead to a fine of Rs. 500.
    • If a child has been found in the space, then the permission is necessary for the next 3 years

If the owner, lessor or landlord or agent is innocent, then the Magistrate will return the space to him or her, with a direction that the space not be given back to the person who was allowing its misuse.

Irrespective of what other laws might say, if a Magistrate or court passes an order under this section, any relevant lease agreement that applies to that space will become invalid.


  • Explain Section 19 i.e Application for being kept in a protective home or provided care and protection by court

A person carrying out prostitution may apply to a Magistrate to –

  • Be kept in a protective home, or
  • Be protected by an authority named by the Magistrate.

The Magistrate can direct this person to be kept in custody pending inquiry

Once the Magistrate has conducted an appropriate enquiry, he can order that the person is given shelter in a –

  • Protective home, or
  • In a corrective institution, or
  • Under the supervision of some specific person.

  • Can a sex-worker be ordered to leave an area?

Yes. Under the current law, a Magistrate can order a sex-worker to leave a neighbourhood or area.

Before the Magistrate does this, he must

  • hear from the sex-worker,
  • give a copy of the information he has received to the sex-worker,
  • look into the matter, and make an order in writing.

  • What happens if a sex-worker disobeys this order?

She can be punished with Rs. 200 fine, and then Rs. 20 every day that she disobeys.


  • How are protective homes and corrective institutions set up and run?

The State Government can set up protective homes and corrective institutions.

Other entities need a license to do this. Licenses can be issued by the State Government.

The State Government has a lot of power to regulate these homes and institutions. It can:

  • Require a woman to be in charge
  • Investigate the applicant before giving a license
  • Transfer a person from one institution to another. However, the total time spent in an institution must remain the same.
  • Change the terms of the license later on.
  • Revoke the license if the institution breaks this law

Licenses should be renewed 30 days before they expire, and are not transferable.

Also, it is a crime to maintain a protective home or corrective institution that does not comply with this section. The first offence will be punished a fine up to Rs 1000. Later offences can be punished with jail for 1 year or a fine of up to Rs 2,000.


  • Explain Section 21A – Production of records

A court can ask anyone who maintains a protective home or corrective institution to produce their records.


  • Explain Section 22 – Trials

Only a court including or higher than a Metropolitan Magistrate or a Judicial Magistrate (First Class) can try the major crimes under this laws.


  • Explain Section 22A “Power to establish special Courts” 

The State Government can set up special courts to try offences under this Act.

These special courts can only try cases under this Act, unless the High Court says otherwise.

The court will have power to try cases throughout the district or the metropolitan area it is in.


  • Explain Section 22AA. Power of Central Government to establish special courts

The Central Government can also set up special courts to try offences under this Act. They must consult with the relevant High Court.

Section 22-A will apply to these courts as relevant.


  • Explain Section 22B “Power of court to try cases summarily”

A State Government can direct that certain offences under this Act can be tried through a summary trial, which is a short version of a criminal trial.

Where there is a summary trial, the punishment cannot be more than 1-year imprisonment.

If the Magistrate feels that a summary trial is not appropriate, he can call witnesses back.


  • According to Section 23 who have power to make rules 

The State Government has the power to make rules to implement the ITPA.

The subject matter of these rules can include: (for further guidance on any of these issues please check to see if the State Government has framed any specific rules)

  • What is a public place?
  • How persons should be put in custody?
  • When an offender can be discharged from a corrective institution, and the nature of his / her license?
  • How people should be kept in protective homes or corrective institutions?
  • Implementing section 11 on the notification of released convicts.
  • Appointing special police officers.
  • Implementing section 18 on closing down brothels.
  • Setting up protective homes and corrective institutions, and their employees.
  • Details about licenses to set up and maintain protective homes and corrective institutions.
  • Conduct of persons in protective homes and corrective institutions, and their transfers and discharge.
  • Inspection of protective homes and corrective institutions.

The punishment for the breach of any rule can extend to a fine of up to Rs 250.

All rules must be approved by the State Legislature.

All rules must be laid before both houses of Parliament. Both houses must agree to the rules or any changes to the rules. If the government is making changes to a rule, all acts done under the rule while it was valid will be operational even after it is changed


 

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