Parivartan Sex Work Law On The Books PDF

RAPID POLICY ASSESSMENT & RESPONSE
Project Parivartan
Overview and Law on the

Books Review
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This Document
This document has been produced by the Rapid Policy Assessment team of Project
Parivartan. It consists of an overview of Rapid Policy Assessment and Response,
followed by the completed “Law on the Books” module describing Indian laws relevant
to HIV vulnerability of commercial sex workers in India. The module was completed by
Julie George and Anand Grover of the Lawyer’s Collective HIV/AIDS Unit.
Rapid Policy Assessment and Response (RPAR)

RPAR is an intervention that mobilizes local knowledge and capacity to fight HIV/AIDS
among sex workers, injection drug users, and members of other marginalized populations
at the local level. The goals of RPAR are to 1) identify ways in which law and the way
law is put into practice increase or can reduce the risk of disease among marginalized
populations, and 2) to catalyze community action to bring about healthful change.
Researchers and interventionists dealing with the health of marginalized populations have
long recognized certain basic facts about the law in public health:
 law often determines what sort of programs are available (e.g., HIV testing,
needle exchange, treatment availability, 100% condom campaigns)
 law influences the behavior of people at risk – it can create an enabling
environment for prevention, but it can also increase risk
 “law on the books” is often very different from “law on the streets” – good
policies don’t always make for good practices
 practices can often be changed to promote health in particular places even if
national laws on the books cannot be addressed.
RPAR takes on these realities, by combining traditional legal analysis of the law on the
books with rapid empirical data collection on the implementation of law in particular
places. Researchers in a site city use a variety of tools including interviews, focus groups
and surveys to find out how the law is being applied and how it influences the attitudes
and behavior of people at risk. The research is guided by a Community Action Board
(CAB) that works over a period of 6-8 months to analyze the research findings and turn
them into an action plan for change at the local and national levels. The process,
including principal training points, is depicted below in Figure 1 and a detailed flow chart
of the entire process can be found at the end of this overview.
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Figure 1: Rapid Policy Assessment and Response

Training Training
Action
Plan
Collect Draft Community
Convene Data action/
existing preliminary collection Analysis
data report CAB change
Report
Evaluation ongoing collection of process measures Evaluation
The RPAR toolkit consists of 5 pairs of Tools and Training Materials Modules:
Module I guides the organization of the RPAR, including preliminary

outreach and the formation and meeting plans of the CAB
Module II is a complete tool kit for gathering the relevant law on the
books, as well as existing data on the operation of the criminal justice
system (e.g., number of prisoners, crime statistics) and the epidemiology
of HIV and other relevant health conditions. The ten domains of law on
the books covered in Module II include drug use, commercial sex work,
HIV testing, medical privacy and antidiscrimination.
Module III contains detailed guides for conducting interviews and focus
groups, and organizing the data.
Module IV sets out a step-by-step analysis process for the CAB. The
process uses a network-based model of local governance: CAB members
and researchers build a “power map” from the data and their existing
knowledge that depicts the organizations in the community that have the
power to influence the risk environment for populations at risk. They use
“problems and solutions” and “root causes” exercises to uncover a
complex account of why people are at risk of HIV and other health
problems in the community, and how risk-creating conditions can be
changed. They use a “priority-setting” exercise and the power map to
formulate an effective plan of action. See Figure 2.
Module V is an ethics module, designed to help the local research team

comply with principles of research ethics and concern for subjects.
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The tools were initially developed for an IDU population, and are currently being tested
in Eastern Europe and Russia. Revisions to the toolkit are also underway to specify their
relevancy to the sex worker population in an Indian context. The current tools, as
developed for an IDU population, are available in English at:
http://www.temple.edu/lawschool/phrhcs/rpar.htm.
The RPAR tools can readily be adapted for other populations and health concerns. The
modules may also be used independently. An “RPA” (Rapid Policy Assessment) can be
conducted to identify important policies and how they are being implemented using
Modules II and III without the CAB intervention components of Modules I and IV.
Likewise, Module II can be used for collection of law on the books without research on
implementation using Module III, and vice versa.
Figure 2: Analytic Steps in the RPAR

What organizations are influencing What are the most useful
the risks faced by IDUS? changes to pursue?
What are the policy obstacles to

reducing risk for IDUs? How can
these obstacles be overcome?
1. Power Map
2. Problems 3. Root 4. Priority-
5. Power Map & Solutions Causes Setting
Action
What are the

How can the organizations that deeper causes of
influence the situation be motivated IDU risk?
to bring about healthy change?
The RPAR makes several unique contributions to policy research and advocacy:
1) It emphasizes the link between formal policies and actual practices.
2) It highlights the importance of and enables bottom-up change at the local

level.
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3) It creates a means of holding states accountable not just for their formal
policies but for the real practices that influence people’s daily lives.
4) It offers a means to mobilize communities to increase their participation

and effectiveness in governing their own lives.
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Project Flowchart
When What Module
Before RPAR Initial Consultation I
project begins
Week 0 (first day PI Meeting I-V
of training)
Local Team Training
Week 1 Begin existing data collection modules II
Recruit CAB I
Weeks 1 - 12 First CAB meeting I
Collect existing data II
Prepare team for qualitative data collection III
Second CAB meeting I
Week 13 End existing data collection II
Week 14 Begin qualitative data collection III
Week 15-21 Conduct focus groups III
Third CAB meeting I
Conduct key informant interviews III
Weeks 23-26 Begin Analysis and Action Plan IV
Fourth CAB meeting I,IV
Week 25 Complete qualitative data collection III
Week 27 CAB meeting 5 (Workshop) I, IV
Continue drafting report
Week 29 CAB meeting 6 (Workshop) I, IV
Week 32 CAB meeting 7 IV
Week 36 End RPAR
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Acknowledgements
The Rapid Policy Assessment and Response model was originally designed with support
from the International Harm Reduction Development Program of the Open Society
Institute, and revised under grant number R01 DA17002-02 from the National Institutes
of Health, U.S.A. The designers of the RPAR model were Scott Burris, Patricia Case,
Zita Lazzarini and Joseph Welsh. The RPAR was strongly influenced by the Rapid
Assessment and Response model designed by Gerry Stimson, Chris Fitch and Tim
Rhodes at the Imperial College School of Medicine, London, for the World Health
Organization. Portions of the training materials for the RPAR have been adapted from the
RAR Technical Guide and the IDU-RAR technical guide.
For more information, contact
Scott Burris
James E. Beasley Professor of Law

Temple University Beasley School of Law
1719 N. Broad Street
Philadelphia, PA 19122
USA
+1 215 204 6576 (phone)
+1 215 204 1185 (fax)
scott.burris@temple.edu
Patricia Case
Department of Social Medicine

Harvard Medical School
641 Huntington Avenue
Boston, MA 02115
617 432 2564 (phone)
617 4322565 (fax)
patricia_case@hms.harvard.edu
Zita Lazzarini
University of Connecticut Health Center

MC-6325
263 Farmington Avenue
Farmington, CT 06030-6325
860 679 5495 (phone)
860 679 5464 (fax)
Lazzarini@nso.uchc.edu
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2.0 Commercial sex work and trafficking
2.0.1 Identify any law prohibiting participating in or profiting from

commercial sex work including
- offering sex for money
Citation The Immoral Traffic Prevention Act, 1956, Section 7

Type of Statute (Central)
provision
Text of law Section 7. Prostitution in or in the vicinity of public place.—(1) Any
person who carries on prostitution and the person with whom such
prostitution is carried on, in any premises:
(a) which are within the area or areas, notified under sub-section (3), or
(b) which are within a distance of two hundred meters of any place of
public religious worship, educational institution, hotel, hospital, nursing
home or such other public place of any kind as may be notified in this
behalf by the Commissioner of Police or Magistrate in the manner
prescribed,
shall be punishable with imprisonment for a term which may extend to
three months.
(1-A) Where an offence committed under sub-section (1) is in respect of

a child or minor, the person committing the offence shall be punishable
with imprisonment of either description for a term which not be less than
seven years but which may be for life or for a term which may extend to
ten years and shall also be liable to fine:
Provided that the Court may, for adequate and special reasons to be
mentioned in the judgment, impose a sentence of imprisonment for a
term of less than seven years.
(2) Any person who:

(a) being the keeper of any public place knowingly permits prostitutes for
purposes of their trade to resort to or remain in such place; or
(b) being the tenant, lessee, occupier or person in charge of any premises
referred to in sub-section (1) knowingly permits the same or any part
thereof to be used for prostitution; or
(c) being the owner, lessor or landlord of any premises referred to in sub-
section (1), or the agent of such owner, lessor or landlord, lets the same
or any part thereof with the knowledge that the same or any part thereof
may be used for prostitution, or is willfully a party to such use
shall be punishable on first conviction with imprisonment for a term
which may extend to three months, or with fine which may extend to two
hundred rupees, or with both, and in the event of a second or subsequent
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conviction with imprisonment for a term which may extend to six months
and also with fine, which may extend to two hundred rupees, and if the
public place or premises happen to be a hotel, the license for carrying on
the business of such hotel under any law for the time being in force shall
also be liable to be suspended for a period of not less than three months
but which may extend to one year:
Provided that if an offence committed under this sub-section is in respect
of a child or minor in a hotel, such license shall also be liable to be
cancelled.
Explanation. For the purposes of this sub-section, “hotel” shall have the
meaning as in clause (6) of Section 2 of the Hotel-Receipts Tax Act,
1980 (54 of 1980).
(3) The State Government may, having regard to the kinds of persons
frequenting any area or areas in the State, the nature and the density of
population therein and other relevant considerations, by notification in
the official Gazette, direct that the prostitution shall not be carried on in
such area or areas as may be specified in the notification.
(4) Where the notification is issued under Sub-section (3) in respect of

any area or areas, the State Government shall define the limits of such
area or areas in the notification with reasonable certainty.
(5) No such notification shall be issued so as to have effect from a date

earlier than the expiry of a period of ninety days after the date on which it
is issued.
Narrative Being a prostitute or sex worker is not punishable under ITPA. ITPA
summary does not criminalise sex work per se. It, however, does proscribe sex
work in areas set out in Section 7. These are:
(a) areas notified by the State Government; and
(b) areas within a distance of two hundred meters of any religious,
educational or medical institution, hotel or other notified public place.
In Shanta v. State, AIR 1967 Gujarat 211, the Gujarat High Court
observed that the purpose of ITPA is to inhibit prostitution as an
organised means of living. The idea is not to render prostitution per se a
criminal offence, or to punish a woman merely because she prostitutes
herself.
Questions
for practice

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9

provision
Text of law Section 8. Seducing or soliciting for purpose of prostitution.—
Whoever, in any public place or within sight of, and in such manner as to
be seen or heard from, any public place, whether from within any
building or house or not:
(a) by words, gestures, willfull exposure of her person (whether by sitting
by a window or on the balcony of a building or house or in any other
way), or otherwise tempts or endeavour to tempt, or attracts or endeavour
to attract the attention of, any person for the purpose of prostitution; or
(b) solicits or molests any person, or loiters or acts in such manner as to
cause obstruction or annoyance to persons residing nearby or passing by
such public place or to offend against public decency, for the purpose of
prostitution,
which may extend to six months, or with fine which may extend to five
hundred rupees, or with both, and in the event of a second or subsequent
conviction, with imprisonment for a term which may extend to one year,
and also with fine which may extend to five hundred rupees:
Provided that where an offence under this Section is committed by a man

he shall be punishable with imprisonment for a period of not less than
seven days but which may extend to three months.
Narrative Attracting or drawing attention of persons for prostitution through words,
summary gestures or actions from a public place or any conspicuous site is
punishable. Prostitution is understood to mean offer for promiscuous
sexual intercourse in return for payment of money. Offering sex for
money is illegal to the extent that such offer is made through means set
out in Section 8(a) and at a place, which is either public or visible to the
public at large.
Questions
for practice

- living on the earnings of a sex worker
Citation Office of the Addl. Director Genl. of Police, C.I.D., A.P., Hyderabad
DT: 19-4-2003. C. No. 21DIG/WPC/CID/2003. CIRCULAR MEMO
Type of Administrative instructions

provision
Text of law Office of the Addl. Director Genl. Of Police, C.I.D., A.P., Hyderabad
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Sub: Trafficking of women and children – Certain instructions – Reg

Ref: C.No.21/SP(WPC)/CID.2002 Dt: 21-9-2002 of Addl. DGP, CID,
AP Hyd
In the meeting of the State Co-ordination Committee on Trafficking of

women and children held on 3-2-2003 in the chambers of Chief
Secretary, it was pointed out that majority of the cases booked were
against the victims/sex workers U/s (4) of ITP Act and not against the
traffickers.
Sec (4) of ITP Act states that any person living on the earning of the
prostitution of any other person is liable for the offence under this section
and not the victim who is indulging in prostitution for her own living.
Thus the victim women cannot be booked under section (4) of the ITPA.
Likewise it was already pointed out in the memo C.No
21/SP(WPC)/CID/2002, Dt: 21-09-2002 of Addl. DGP, CID, AP,
Hyderabad, that cases against women victims of sexual exploitation
should not be booked U/s (8) of ITPA for soliciting and only
pimps/organizers/Traffickers should be booked.
Inspite of the instructions issued cases are being booked, against victims
U/s 8 of ITP Act by some unit officers. it should also be borne in mind
that during any raids on a brothel house, if a minor girls is found a
victim, a case should be booked under rape ie., 376 IPC against the male
customers and traffickers, organizers and pimps.
Hence, all the Supdts. Of Police and Commissioners of police are

instructed not to book repeat not to book the victim women for soliciting.
Our endeavor should always be to bring the traffickers and organizers to
book. If, in future, any cases are booked against the women for soliciting,
the explanation of the concerned officers be called for and action initiated
against them. All Ss.P and Cs..P will acknowledge the receipt of this
memo.
Sd.,
‘for ADDL.DIRECTOR GENL. OF POLICE. C.I.D., A.P.,
HYDERABAD.
TO
All Supdts. Of Police, A.P, All Commissioners of Police, A.P. State
Copy to Principal Secretary, Home Department, Govt. of A.P.,
Hyderabad for information
Narrative A circular memo issued by the DGP in the state of Andhra Pradesh
summary instructs police officers not to invoke Sections 4 and 8 against sex
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workers or victims of sexual exploitation.

Questions Is the circular being used by police officers in favour of sex workers?
for practice

- being a sex worker
Citation Andhra Pradesh Devadasis (Prohibition of Dedication) Act, Act No.10 of
1988, Sections 3, 5 and 6
Type of Statute (State)
provision
Text of law Section 3. Dedication as devadasis to be unlawful.—
(1) The dedication of a woman as Devadasi, whether before or after
the commencement of this Act and whether she has consented to
such dedication or not, is hereby declared unlawful and void; and
any woman so dedicated shall not thereby be deemed to have
become incapable of entering into a valid marriage.
(2) Any custom or usage, prevailing in any Hindu community such as
the Bogum, Kalavanthula, , Sani, Nagavasulu, Devadasi,
Kurmapulu, basavi, Jogini and parvathi and the like, that a
woman of that community who gives or takes part in any melam
(nautch) dancing or music performance in the course of any
procession or otherwise is thereby regarded as having adopted a
life of prostitution and becomes incapable of entering into a valid
marriage, and the performance of any ceremony or act in
accordance with any such custom or usage, whether before or
after the commencement of this Act, and whether the woman
concerned has consented to such performance or not, are hereby
declared unlawful and void.
Section 5. Penalties.—
Any person who performs, promotes, takes part in or abets the
performance of any ceremony or act for dedicating a woman as a
devadasi or any ceremony or act connected therein shall on conviction be
punishable with imprisonment of either description for a term which may
extend to three years but which shall not be less than two years and with
fine which may extend to rupees three thousand but which shall not be
less than rupees two thousand.
Provided that where the person referred to in this section is a parent or

guardian or relative of a woman so dedicated, he shall on conviction be
punishable with imprisonment of either description for a term which may
extend to five years but which shall not be less than two years and with
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fine which may extend to rupees five thousand but which shall not be less
than rupees three thousand:
Provided further that the woman who is dedicated in such ceremony or

act or in respect of whom such ceremony or act is performed shall not be
punishable.
Narrative The devadasi system refers to the traditional practice of dedicating young
summary girls to a deity. Over time, the young girls were forced into sex work. The
Andhra Pradesh Devadasis (Prohibition of Dedication) Act, Act No.10 of
1988 renders the dedication of a woman as a devadasi unlawful and void,
irrespective of the woman’s consent. The Statement of Objects and
Reasons of the Act observes that the certain practices of exploitation of
women, such as Devadasi, Bason, Jogini, and Parvathi, “result in
dehumanisation of who became objects of indignity and exploitation
during their whole life. Most of them are turned into prostitutes living at
the mercy of village people and looked down upon by the society. The
women so dedicated often belong to socially and economically weaker
sections of the society. It is, therefore, considered necessary to
eradicated this evil system by enacting suitable, legislation declaring
such practices as illegal providing for deterrent punishment to those who
perform, promote, take part in or abet the performance of any ceremony
connected therewith.” The law prohibits women from becoming
devadasis. However, the woman in respect of whom the ceremony is
performed is not punishable.
Questions
for practice

- owning or operating a brothel
Citation The Immoral Traffic (Prevention) Act, 1956, Sections 2(a) and 3
provision
Text of law 2. Definitions.—In this Act. unless the context otherwise requires—
(a) “brothel” includes any house, room, conveyance or place, or any
portion of any house, room, conveyance or place, which is used for
purposes of sexual exploitation or abuse for the gain of another person or
for the mutual gain of two or more prostitutes;
Section 3. Punishment for keeping a brothel or allowing premises to be

used as a brothel.— (1) Any person who keeps or manages, or acts or
assists in the keeping or management of, a brothel, shall be punishable on
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first conviction with rigorous imprisonment for a term of not less than
one year and not more than three years and also with fine which may
extend to two thousand rupees and in the event of a second or subsequent
to conviction with rigorous imprisonment for a term of not less than two
years and not more than five years and also with fine which may extend
to two thousand rupees.
(2) Any person who,—
(a) being the tenant, lessee, occupier or person in charge of any premises,
uses, or knowingly allows any other person to use, such premises or any
part thereof as a brothel, or
(b) being the owner, lessor or landlord of any premises or the agent of
such owner, lessor or landlord, lets the same or any part thereof with the
knowledge that the same or any part thereof is intended to be used as a
brothel, or is wilfully a party to the use of such premises or any part
thereof as a brothel,
which may extend to two years and with fine which fine which may
conviction, with rigorous imprisonment for a term which may extend to
five years and also with fine.
(2-A) For the purposes of sub-section (2), it shall be presumed, until the
contrary is proved, that any person referred to in clause (a) or clause (b)
of that sub-section, is knowingly allowing the premises or any part
thereof to be used as a brothel or, as the case may be, has knowledge that
the premises or any part thereof are being used as a brothel, if,—
(a) a report is published in a newspaper having circulation in the area in
which such person resides to the effect that the premises or any part
thereof have been found to be used for prostitution as a result of a search
made under this Act; or
(b) a copy of the list of all things found during the search referred to in
clause (a) is given to such person.
(3) Notwithstanding any thing contained in any other law for the time
being in force, on conviction of any person referred to in clause (a) or
clause (d) of sub-section (2) of any offence under that sub-section in
respect of any premises or any part thereof, any lease or agreement under
which such premises have been leased out or held or occupied at the time
of the commission of the offence, shall become void and inoperative with
effect from the date of the said conviction.
Narrative Section 3(1) of ITPA criminalises persons who keep or manage a brothel
summary or assist in keeping or managing a brothel. The definition of a brothel is
set out in Section 2(a) and covers premises run by a third party for profit.
Premises owned or operated by two or more sex workers for gain of
another or mutual gain of two or more sex workers are brothels.
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However, in Ratnamala, In re, AIR 1962 Mad 31, it was held that
premises where a single woman practises prostitution for her own
livelihood without another prostitute or some other person being involved
in the maintenance of such premises will not amount to a brothel.
In Re John, AIR 1966 Mad 167, it was held that that a single woman
receiving customers in not guilty under this section. The term ‘keeping a
brothel’ would not apply where one woman receives a number of men.
Section 3(2) criminalises persons in possession of and persons who own

the premises, who knowingly allow the premises to be used as brothels.
In the circumstances listed in Section 3(2A), the law raises a presumption
that such persons knowingly allow the premises to be used as brothels.
Questions
for practice

- pimping
provision
Text of law See text above.
Narrative Besides proscribing soliciting by sex workers, the provision also applies
summary to third parties as has been held in State v. Premchand, AIR 1964 Bom
155, where the Bombay High Court observed that persons other than
prostitutes could urge or accost others for the purpose of prostitution and
that soliciting is indulged more by the mobile middlemen than by the
prostitute herself. Pimps and middlemen soliciting customers were held
guilty under Section 8.
Questions
for practice

- pimping
provision
Text of law Section 4. Punishment for living on the earnings of prostitution.—(1)
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Any person over the age of eighteen years who knowingly lives, wholly
or in part, on the earnings of the prostitution of any other person shall be
punishable with imprisonment for a term which may extend to two years,
or with fine which may extend to one thousand rupees, or with both, and
where such earnings relate to the prostitution of a child or a minor, shall
be punishable with imprisonment for a term of not less than seven years
and not more than ten years.
(2) Where any person over the age of eighteen years is proved,—
(a) to be living with, or to be habitually in the company of, a prostitute;
or
(b) to have exercised control, direction or influence over the movements
of a prostitute in such a manner as to show that such person is aiding
abetting or compelling her prostitution; or
(c)to be acting as a tout or pimp on behalf of a prostitute,
it shall be presumed, until the contrary is proved, that such person is
knowingly living on the earnings of prostitution of another person within
the meaning of sub-section (1).
Narrative Under Section 4(2)(c), persons pimping for sex workers are presumed to
summary be living off earnings of prostitution and hence punishable.
In Re John, AIR 1966 Mad. 167, the Madras High Court held that if a
person is proved to have exercised influence over the movements of a
prostitute in such a manner as to show that such person is aiding, abetting
or compelling her prostitution, he shall be presumed to be living on the
earnings of prostitution.
Questions
for practice

- pimping
provision
Text of law Section 5. Procuring, inducing or taking person for the sake of
prostitution.—(1) Any person who—
(a) procures or attempts to procure a person whether with or without
his/her consent, for the purpose of prostitution; or
(b) induces a person to go from any place, with the intent that he/she may
for the purpose of prostitution become the inmate of, or frequent, a
brothel; or
(c) takes or attempts to take a person or causes a person to be taken, from
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one place to another with a view to his/her carrying on, or being brought
up to carry on prostitution ; or
(d) causes or induces a person to carry on prostitution;
shall be punishable on conviction with rigorous imprisonment for a term
of not less than three years and not more than seven years and also with
fine which may extend to two thousand rupees, and if any offence under
this sub-section is committed against the will of any person, the
punishment of imprisonment for a term of seven years shall extend to
imprisonment for a term of fourteen years:
Provided that if the person in respect of whom an offence committed
under this sub-section,—
(i) is a child, the punishment provided under this sub-section shall
extend to rigorous imprisonment for a term of not less than seven years
but may extend to life; and
(ii) is a minor, the punishment provided under this sub-section shall
and not more than fourteen years.
(2) [ **** ** ]
(3) An offence under this section shall be triable,—
(a) in the place from which a person is procured, induced to go, taken or
caused to be taken or from which an attempt to procure or taken such
persons made; or
(b) in the place to which she may have gone as a result of the inducement
or to which he/she is taken or caused to be taken or an attempt to take
him/her is made.
Narrative Section 5 of ITPA penalises procuring persons for prostitution. Procuring

summary is understood to mean pimping or pandering to, or to obtain, as a
prostitute, for another. Penalties are enhanced in case the person procured
for prostitution is below the age of 18.
Questions
for practice

Citation The Immoral Traffic (Prevention) Act, 1956, Section 4
provision
Text of law Section 4. Punishment for living on the earnings of prostitution.—(1)
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(2) Where any person over the age of eighteen years is proved,—
(a) to be living with,or to be habitually in the company of, a prostitute; or
(b) to have exercised control, direction or influence over the movements
of a prostitute in such a manner as to show that such person is aiding
abetting or compelling her prostitution; or
(c)to be acting as a tout or pimp on behalf of a prostitute,
it shall be presumed, until the contrary is proved, that such person is
knowingly living on the earnings of prostitution of another person within
the meaning of sub-section (1).
Narrative ITPA punishes any adult person who knowingly lives off the avails of
summary prostitution. The sex worker herself is not punishable; others living off
the earnings of sex work are liable to punishment.
Questions
for practice

Citation Office of the Addl. Director Genl. of Police, C.I.D., A.P., Hyderabad
Type of Administrative Instructions (State Police)

provision
Narrative An internal circular memo issued by the police in the state of Andhra
summary Pradesh reconfirms that no sex worker can be charged under Section 4 of
ITPA for living off the earnings of prostitution.
Questions
for practice

- soliciting sex for money, patronizing a sex worker or other law aimed at
the customer.
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provision
Narrative Section 7 proscribes prostitution in public places and other notified areas.
summary In addition to sex workers (person who carries on prostitution), the
section also applies to clients (the person with whom such prostitution is
carried on).
Questions
for practice

the customer.
provision
Text of law See text above
Narrative Section 5(1)(a) proscribes procuring or attempting to procure a person for
summary the purpose of prostitution. In Cheriyan v. State, 1973 Cr. LJ 839 (Ker),
the High Court of Kerala upheld the conviction of a customer charged
with procuring a woman for prostitution holding that Section 5 was
applicable to customers of sex workers. Rejecting a literal interpretation
of the word “procure”, the Court held that procure means not only
procuring for others but also procuring for oneself.
Questions
for practice

the customer.
Type of Statutory law
provision
Narrative The proviso to Section 8 clarifies that males soliciting for prostitution are
summary also punishable. It is unclear whether the section applies to male pimps or
customers or both.
Questions
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for practice

- being a sex worker
- owning or operating a brothel
- pimping
the customer.
Citation The Andhra Pradesh (Telangana Area) Non-Mulki Prostitutes and

Dancing Girls Act, 1350-F
provision
Text of law Section 2. Definitions.—In this Act, unless there is anything repugnant
in the subject or context,—
a) ‘non-mulki prostitute’ shall mean a prostitute whose continuous
residence in the area to which this Act extends has been for less
than fifteen years;
b) ‘non-mulki dancing girl’ shall mean a woman whose continuous
residence in the area to which this Act extends has been for less
than fifteen years and whose main occupation is dancing and
singing whether she lives in prostitution or not;
c) ‘temporary residence licence’ shall mean a licence granted under
this Act to a non-mulki prostitute or a non-mulki dancing girl;
d) ‘licensee’ shall mean a non-mulki prostitute or a non-mulki
dancing girl to whom a residence licence has been granted.
Section 3. Non-mulki prostitute or dancing girl not to reside without

obtaining residence licence.—
No non-mulki prostitute or dancing girl shall carry on her occupation
within the limits of the City of Hyderabad or of any district in the area to
which this Act extends without obtaining a residence licence.
Section 4. Application for obtaining residence licence.—

Any non-mulki prostitute or dancing girl desiring to carry on or continue
her occupation within the city of Hyderabad or any district in the area to
which this Act extends shall, in case she arrives after the commencement
of this Act, apply in writing within four days from the date of her arrival,
and in case she had been residing there, within one month from the date
of her arrival, and in case she had been residing there, within one month
19
20
from the date of commencement of this Act, in the city of Hyderabad to

the Commissioner of City Police, and a in a district to the Superintendent
of Police, for grant of a residence licence.
Section 5. Residence licence.—

(1) On an application being made under Section 4, the Commissioner of
City Police or the Superintendent of Police may, in his discretion and
according to the circumstances, issue the residence licence applied for
or refuse to grant it without assigning any reasons.
(2) The residence licence may, while specifying the house or locality,
also required in licencee to reside in a particular house or locality.
Section 6. Result (sic) to grant licence.—

If a licence is refused, the applicant shall, within seven days from the
date of refusal, remove herself from the local limits within which she has
not been permitted to reside. In case of default the authority compentent
to grant licence shall take action against the application under sub-section
(2) of Section 8.
Section 7. Term of temporary residence licence and its cancellation.—

(1) The term of licence granted under Section 5 to a newly arrived non-
mulki prostitute shall be one month and of a licence granted to a
newly arrived non-mulki dancing girl shall not exceed six months.
But the licence may, from time to time, be renewed if the conduct of
the licencee is not otherwise objectionable.
(2) Where the misconduct of a licencee is likely to disturb public peace
and if there are sufficient reasons to suspect that a non-mulki dancing
girl is indulging more in prostitution than in her main occupation, the
authority competent to grant licence, may, cancel the licence before
the expiry of its term.
Section 8. Effect of cancellation of licence.—

(1) When a licence is cancelled or it expires under sub-section (2) of
Section 7 or sub-section (3) of Section 9, the authority competent
to grant licence shall direct the licensee to go out of its
jurisdiction within a specified period which shall not be less than
seven days.
(2) Where an order passed under sub-section (1) is not complied with
within the specified period or when compliance therewith is
refused, the authority competent to grant licence shall remove the
defaulter in police custody from his jurisdiction. Where a woman
is so removed, a report in respect of her removal shall be
forwarded to the office-in-charge of a police station to whose
jurisdiction she has been removed.
Section 9. Permanent residence licence.—–
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21
(1) Where a licencee, having obtained a temporary residence licence

had resided continuously for one year, or, a non-mulki prostitute
or a non-mulki dancing girl, who had resided in the City of
Hyderabad or any district the area to which this Act extends for
one year before the commencement of this Act and her conduct
had not been otherwise objectionable, desires to reside
permanently or continue her occupation, the Commissioner of
City Police in the City of Hyderabad, and in any district of the
area to which this Act extends the Superintendent of Police, may,
on her application in writing, grant her a permanent residence
licence.
(2) When a licencee under sub-section (1) leaves the area to which
this Act extends for a period of more than fifteen days, she shall,
before her departure and immediately after her return, inform the
authority competent to grant licence, of the dates of her departure
and return.
(3) When a licencee under sub-section (1) does not furnish the
requisite information in accordance with sub-section (2) or resides
outside the area to which this Act extends continuously for six
months, her permanent residence licence shall expire and such
woman shall revert to her original status.
Section 10. Nature, trial and punishment of offences.—

(1) A non-mulki prostitute or a non-mulki dancing girl who carries
on her occupation within the limits of the City of Hyderabad or
any district of the area to which this Act extends without
obtaining a residence licence, shall be punished with fine which
may extend to two hundred rupees and in case she continues the
same even after conviction, the authority competent to granted a
licence may take action against her under sub-section (2) of
Section 8.
(2) An offence under this section shall be tried and punished by a
Magistrate of the Second Class and be cognizable and bailable.
Narrative This state law provides a licensing system to regulate non-mulki sex
summary workers and dancing girls.
Questions Is any sex workers licensed to do sex work under this Act?
for practice
2.0.2 Identify other laws that are or could be used to prosecute sex workers
including
- laws prohibiting sexual activity in public
- obscenity laws
21
22
- laws governing “immorality,” “lewdness,” etc.
Citation Indian Penal Code, 1860, Sections 268 and 294

provision
Text of law Section 268. Public nuisance.—
A person is guilty of a public nuisance who does any act or is guilty of an
illegal omission which causes any common injury, danger or annoyance
to the public or to the people in general who dwell or occupy property in
the vicinity, or which must necessarily cause injury, obstruction, danger
or annoyance to persons who may have occasion to use any public right.
A common nuisance is not excused on the ground that it causes some

convenience or advantage.
Section 294. Obscene acts and songs.—Whoever, to the annoyance of

others,
(a) does any obscene act in any public place, or
(b) sings, recites or utters any obscene songs, ballad or words, in or near
any public place,
shall be punished with imprisonment of either description for a term
which may extend to three months, or with fine, or with both.
Narrative A sex worker could be held guilty of causing public nuisance or acting in
summary an obscene manner. To secure a conviction for obscenity, the prosecution
needs to be prove that:
(1) the act done or song, ballad or words uttered should be
obscene,
(2) the act or utterance should be committed in a public place,
and
(3) the act or utterance should cause annoyance to others.
Courts in India have adopted the Hicklin test to determine what is

obscene, viz. whether the tendency of the matter charged as obscene is to
deprave and corrupt those whose minds are open to such immoral
influences. (See Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 SC
881).
Questions Are sex workers commonly arrested under these provisions?
for practice
2.0.3 Identify any law prohibiting the possession or sale of condoms.

Citation
Type of
22
23
provision
Text of law
Narrative Possession or sale of condoms per se is not illegal in India. We have not
summary come across any reported case holding that possession of condoms is
illegal. Possession may, however, be used as corroborative evidence to
prove that a sexual act had occurred.
Questions
for practice
2.0.3 Identify any law prohibiting the possession or sale of condoms.

Citation Indian Penal Code, 1860, Sections 107, 109, 115 and 116 along with
Section 377
provision
Text of law Section 107. Abetment of a thing.—A person abets the doing of a thing,
who—
First.—Instigates any person to do that thing; or
Secondly.—Engages with one or more other person or persons in any
conspiracy for the doing of that thing, if an act or illegal omission takes
place in pursuance of that conspiracy, and in order to the doing of that
thing; or
Thirdly, Intentionally aids, by an act or illegal omission, the doing of that
thing.
Explanation 1.—A person who, by wilful misrepresentation, or by wilful

concealment of a material fact which he is bound to disclose, voluntarily
causes or procures, or attempts to cause or procure, a thing to be done, is
said to instigate the doing of that thing.
Explanation 2.—Whoever, either prior to or at the time of the
commission of an act, does anything in order to facilitate the commission
of that act, and thereby facilitates the commission thereof, is said to aid
the doing of that act.
Section 109. Punishment of abetment if the act abetted is committed in

consequence of the abetment, and where no express provision is made
for its punishment.—Whoever abets any offence shall, if the act abetted
is committed in consequence of the abetment, and no express provision is
made by this Code for the punishment of such abetment, be punished
with the punishment provided for the offence.
Section 115. Abetment of offence punishable with death or

imprisonment for life–if offence not committed.—
Whoever abets the commission of an offence punishable with death or
imprisonment for life, shall, if that offence be not committed in
23
24
consequence of the abetment, and no express provision is made by this

Code for the punishment of such abetment, be punished with
imprisonment of either description for a term which may extend to seven
years, and shall also be liable to fine;
If act causing harm be done in consequence.—and if any act for which

the abettor is liable in consequence of the abetment, and which causes
hurt to any person, is done, the abettor shall be liable to imprisonment of
either description for a term which may extend to fourteen years, and
shall also be liable to fine.
Section 116. Abetment of offence punishable with imprisonment–if

offence be not committed.—
Whoever abets an offence punishable with imprisonment shall, if that
offence be not committed in consequence of the abetment, and no express
provision is made by this Code for the punishment of such abetment, be
punished with imprisonment of any description provided for that offence
for a term which may extend to one-fourth part of the longest term
provided for that offence; or with such fine as is provided for that
offence, or with both;
If abettor or person abetted be a public servant whose duty it is to

prevent offence.—and if the abettor or the person abetted is a public
servant, whose duty it is to prevent the commission of such offence, the
abettor shall be punished with imprisonment of any description provided
for that offence, for a term which may extend to one half of the longest
term provided for that offence, or with such fine as is provided for the
offence, or with both.
Section 377. Unnatural offences.—Whoever voluntarily has carnal

intercourse against the order of nature with any man, woman or animal
shall be punished with imprisonment, which may extend to ten years, and
Explanation.—Penetration is sufficient to constitute the carnal intercourse
necessary to the offence described in this section.
Narrative Possession or sale of condoms per se is not illegal in India. Yet,
summary provision of condoms for sexual acts that are considered unnatural under
Section 377, IPC i.e, anal and/or oral sex, may be construed as abetment.
Abetment provisions under the IPC may hit sale or distribution of
condoms to persons known to be engaging in ‘unnatural’ sex, such as
homosexuals.
Questions
for practice
24
25
2.0.4 Identify any provisions authorizing or requiring mandatory STD

examination or treatment for people arrested or convicted of crimes
related to sex work.
Citation Immoral Traffic Prevention Act, 1956, Section 15(5-A)

provision
Text of law Section 15. Search without warrant.—
…
(4) The special police officer or the trafficking police officer, as the
case may be, entering any premises under sub section (1) shall be
entitled to remove therefrom all the persons found therein.
(5) The special police officer or the trafficking police officer, as the
case may be, after removing the person under sub section (4) shall
forthwith produce her before appropriate Magistrate.
(5A) Any person who is produced before a Magistrate under sub-

section (5), shall be examined by a registered medical practitioner
for the purposes of determination of the age of such person, or for
the detection of any injuries as a result of sexual abuse or for the
presence of any sexually transmitted diseases.
Explanation.—In this sub-section, “registered medical

practitioner” has the same meaning as in the Indian Medical
Council Act, 1956.
Narrative Under Section 15(5-A), persons removed from premises raided by the
summary police are required to undergo a medical examination, for inter alia
detecting sexually transmitted diseases. The provision covers those
arrested for crimes related to sex work in addition to victims rescued by
the police.
Questions
for practice

Citation The Andhra Pradesh Suppression of Immoral Traffic in Women and
Girls Rules, 1958, Rule 8(3)(4)
Type of Statutory Rules (State)
provision
Rule 8. Admission into protective home.—
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26
Text of law …
(3) The Superintendent or some other official of the protective home
considered suitable by such Superintendent shall then take the
woman or girl to the nearest hospital for examination. If there is
no hospital within a reasonable distance the medical examination
of the woman or girl shall be conducted by the nearest qualified
lady doctor.
(4) Women or girls found to be suffering from any venereal disease

shall be kept as far as possible, separate from the other inmates of
the protective home. Women or girls found to be suffering from
minor ailments shall be treated by the medical officer of the
protective home. If any woman or girl is suffering from serious
illness, she shall be taken to the nearest hospital for admission and
a report shall immediately be sent to the Commissioner of police
in the case of cities of Hyderabad and Secunderabad and to the
nearest magistrate in other cases. A copy of the report shall be
simultaneously sent to the Chief Inspector.
Narrative In the state of Andhra Pradesh, sex workers, who are placed in
summary institutions on conviction, post rescue or after applying for protective
custody, are compulsorily required to undergo medical examination. Rule
8(4) requires segregation of those found suffering from venereal diseases.
Implicitly then, the examination mandated under Rule 8(3) includes tests
for sexually transmissible infections.
Questions Are sex workers mandatorily tested for sexually transmissible infections?
for practice

Citation Code of Criminal Procedure, 1973, Section 53
provision
Text of law Section 53. Examination of accused by medical practitioner at the
request of police officer.—(1) When a person is arrested on a charge of
committing an offence of such a nature and alleged to have been
committed under such circumstances that there are reasonable grounds
for believing that an examination of his person will afford evidence as to
the commission of an offence, it shall be lawful for a registered medical
practitioner, acting at the request of a police officer not below the rank of
sub-inspector, and for any person acting in good faith in his aid and under
his direction, to make such an examination of the person arrested as is
26
27
reasonably necessary in order to ascertain the facts which may afford

such evidence, and to use such force as is reasonably necessary for that
purpose.
(2) Whenever the person of a female is to be examined under this section,

the examination shall be made only by, or under the supervision of, a
female registered medical practitioner.
Narrative Where the police has reasonable grounds for believing that a medical
summary examination of an arrested person will afford evidence for the
commission of an offence (say for example, commission of offences
related to sex work), the police can request a medical practitioner to
examine the arrested person in order to obtain such evidence.
Questions
for practice

Citation Prison’s Act, 1894, Section 24
provision
Text of law Section 24. Prisoners to be examined on admission.—
(1) Whenever a prisoner is admitted into prison, he shall be searched,
and all weapons and prohibited articles shall be taken from him.
(2) Every criminal prisoner shall also, as soon as possible after

admission, be examined under the general or special orders of the
Medical Officer, who shall enter or cause to be entered in a book,
to be kept by the Jailer, a record of the state of the prisoner’s
health, and of any wounds or marks on his person, the class of
labour he is fit for if sentenced to rigorous imprisonment, and any
observations which the Medical Officer thinks fit to add.
(3) In the case of female prisoners the search and examination shall
be carried out by the matron under the general or special orders of
the Medical Officer thinks fit to add.
Narrative It is mandatory for every prisoner to undergo medical examination. The
Summary provisions do not spell out tests that constitute such examination. Instead,
discretion is vested with the Medical Officer to direct general or special
investigations. Instructions of the Medical Officer are required to be
followed at all times. The Medical Officer in a jail has the discretion to
order inmates arrested or convicted for crimes related to sex work to
27
28
undergo tests to detect STDs.

Questions
for practice
2.0.6 Identify any form of civil disability (e.g., right to vote, right to education)
imposed upon people convicted of offenses related to sex work.
Citation Constitution of India, Article 21
Type of Constitution
provision
Text of law Article 21. Protection of life and personal liberty.—No person shall be
deprived of his life or personal liberty except according to procedure
established by law.
Narrative Where a person is convicted and imprisoned under sentence of Court, he
summary does not lose all the fundamental rights belonging to all persons under the
Constitution, except those which cannot possibly by enjoyed owing to the
fact of incarceration, such as the right to move freely or the right to
practice a profession. It is an obligation of the State to ensure that there is
no infringement of the indefeasible rights of a citizen to life, except in
accordance with law, while a person is in its custody. [See Nilabati
Behara v. State of Orissa, AIR 1993 SC 1960]
Questions
for practice
Citation Immoral Traffic Prevention Act, 1956, Section 20
provision
Text of law Section 20. Removal of prostitute from any place.—(1) A Magistrate on
receiving information that any person residing in or frequenting any place
within the local limits of his jurisdiction is a prostitute, may record the
substance of the information received and issue a notice to such person
requiring her to appear before the Magistrate and show cause why she
should not be required to remove herself from the place and be prohibited
form re-entering it.
(2) Every notice issued under sub-section (1) shall be accompanied by a

copy of the record aforesaid, and the copy shall be served along with the
notice on the person against whom the notice is issued.
28
29
(3) The Magistrate shall, after the service of the notice referred to in sub-
section (2), proceed to inquire into the truth of the information received,
and after giving the person an opportunity of adducing evidence; take
such further evidence as he thinks fit and if upon such inquiry it appears
to him that such person is a prostitute and that it is necessary in the
interest of the general public that such person should be required to
remove herself therefrom and be prohibited from re-entering the same,
the Magistrate shall, by order in writing communicate to the person in the
manner specified therein, require her after a date (to be specified in the
order) which shall not be less than seven days from the date of the order,
to remove herself from the place to such place whether within or without
the local limits of his jurisdiction, by such route or routes and within such
time as may be specified in the order and also prohibit her from re-
entering the place without the permission in writing of the Magistrate
having jurisdiction over such place.
(4) Whoever,—
(a) fails to comply with an order issued under this section, within the
period specified therein, or whilst an order prohibiting her from re-
entering a place without permission is in force, re-enters the place
without such permission, or
(b) knowing that any person has, under this section, been required to
remove herself from the place and has not obtained the requisite
permission to re-enter it, harbours or conceals such person in the place,
shall be punishable with fine which may extend to two hundred rupees
and in the case of a continuing offence with an additional fine which may
extend to twenty rupees for every day after the first during which she or
he has persisted in the offence.
Narrative This provision imposes a disability on a sex worker’s right to movement

summary and residence within the jurisdiction of a Magistrate who passes an order
directing her removal from a place.
Questions Have orders under Section 20 of ITPA been issued against any sex
for practice worker?
Citation The Immoral Traffic Prevention Act, 1956, Section 11 read with the
Andhra Pradesh Suppression of Immoral Traffic in Women and Girls
Rules, 1958, Rule 6
Type of Statutory Rules (State)
provision
29
30
Text of law Section 11. Notification of address of previously convicted offenders.—

(1) When any person having been convicted—
(a) by a court in India of an offence punishable under this Act or
punishable under section 363, section 365, section 366,
section 366A, section 366B, section 267, section 368, section
370, section 371, section 372 or section 373 of the Indian
Penal Code (15 of 1860), with imprisonment for a term of two
years or upwards; or
(b) by a court or tribunal in any other country of an offence which
would, if committed in India, have been punishable under this
Act or under any of the aforesaid sections with imprisonment
for a like term,
is within a period of five years after release from prison, again
convicted of any offence punishable under this Act or under any
of those sections with imprisonment for a term of two years or
upwards by a court, such court may, if it thinks fit, at the time of
passing the sentence of imprisonment on such person, also order
that his residence, and any change of, or absence from such
residence after release be notified according to rules made under
section 23 for a period not exceeding five years from the date of
expiration of that sentence.
(2) If such conviction is set aside on appeal or otherwise, such order

shall become void.
(3) An order under this section may also be made by an Appellate

Court or by the High Court when exercising its powers or
revision.
(4) Any person charged with a breach of any rule referred to in sub-
section (1) may be tried by a Magistrate of competent jurisdiction
in the district in which the place last notified as his residence is
situated.
Rule 6. Notification of residence, etc. by convicted offenders.—

(1) A convicted offender who has been ordered by the Court under
Section 11 to notify his residence or any change of, or absence
from, such residence shall immediately after his release, report
himself to the police officer having jurisdiction over his place of
residence and shall also leave his correct address with such police
officers. Thereafter, he shall report himself to such police officer
once in every month till the expiry of the period for which he is
required to notify his residence.
Narrative Certain restrictions are placed on the rights to movement and residence
Summary of an offender sentenced for more than two years.
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31
Citation Representation of People Act, 1951, Section 62(5)
Type of Section 62. Right to vote.—
provision (5) No person shall vote at any election if he is confined in a prison,
whether under a sentence of imprisonment or transportation or
otherwise, or is in the lawful custody of the police
Provided that nothing in this subsection shall apply to a
person subjected to preventive detention under any law for the
time being in force.
Text of law The Representation of People Act, 1951 deprives all convicts and
undertrials of their voting rights. The voting rights remain in suspension
during their incarceration.
Narrative
summary
Questions
for practice
Citation The Andhra Pradesh Habitual Offenders Act, 1962, Sections 2(a) to (e),
3 and 11
provision
Text of law Section 2. Definitions.—In this Act, unless the context otherwise
requires—
(a) ‘Code’ means the Code of Criminal procedure, 1898 (central Act
5 of 1898);
(b) ‘corrective settlement’ means any place established, approved or
certified as a corrective settlement under Section 13;
(c) ‘District Collector’ means the Chief local officer in charge of the
revenue administration of a district but in relation to the cities of
Hyderababd and Secunderabad, the Commissioner of Police.
(d) ‘Government’ means the State Government.
(e) ‘Habitual offender’ means a person who, during any continuous
period of five years, whether before or after the commencement
of this Act or partly before and partly after such commencement,
has been sentenced on conviction on not less than three occasions
31
32
after he attained the age of eighteen years to a substantive term of

imprisonment for any one or more of the scheduled offences
together as to form parts of the same transaction, such sentence
not having been reversed in appeal or on revision:
Provided that in computing the continuous period of five
years referred to above, any period spent in jail either a sentence
of imprisonment or under detention shall not be taken into
account.
Explanation.— An order requiring a person to give
security for good behaviour with reference to Section 110 of Code
shall be deemed to amount to a sentence of substantive
imprisonment within the meaning of this clause.
Chapter II Registration of habitual offenders and restriction of their

movements
Section 3. Power to take finger and palm impressions, footprints and
photographs at any time.—
The District Collector or any officer authorised by him in this behalf
may at any time order the finger and palm impressions, foot-prints and
photographs of any registered offender to be taken.
Section 11. Power to restrict movements of required offenders.—

(1) If in the opinion of the Government it is necessary or expedient in
the interests of the general public so to do, the Government may by
order direct that any registered offender shall be restricted in his
movements to such areas and for such period not exceeding three
years as may be specified in the order
…
Narrative The law empowers the Government to place restriction on the

summary movements of habitual offenders.
Questions
for practice
2.0.7 Does the law related to sex work apply differently to male and female sex
workers, and if so, how?
Citation Amendment Act 44 of 1986, Statement of Objects and Reasons
Type of
provision
Text of law Statement of Objects and Reasons
In view of the aforesaid suggestions, it is proposed to widen the scope of
the Act to cover all persons, whether male or female who are exploited
sexually for commercial purposes to make further amendments in the
32
33
Act.
Narrative The Statement of Objects and Reasons clarifies that the 1986 amendment
summary intended to extend ITPA to both male and female sex workers. The only
difference is that of penalties levied for certain offences and certain
‘beneficial’ provisions, which have been made available to female sex
workers. These provisions are listed below.
Questions
for practice
Citation Immoral Traffic Prevention Act, 1956, Section 8
provision
Text of law See text above
Narrative Section 8 lays down different penalties for male and female sex workers
summary for the offence of seducing or soliciting for the purpose of prostitution. If
a female sex worker is involved, the penalty on first conviction is
imprisonment for a term which may extend to six months, or fine which
may extend to five hundred rupees, or both. The penalty for a subsequent
conviction is imprisonment for a term which may extend to one year, and
fine which may extend to five hundred rupees. It appears that if a male,
either a sex worker or customer, is involved, the penalty is imprisonment
for a period of not less than seven days, but which may extend to three
months. The general enhanced penalty for a second conviction does not
appear to apply to male sex workers.
Questions
for practice
Citation Immoral Traffic Prevention Act, 1956, Section 10-A
provision
Text of law Section 10-A. Detention in a corrective institution.—(1) Where,—
(a) a female offender is found guilty of an offence under Section 7 or
Section 8, and
(b) the character, state of health and mental condition of the offender
and the other circumstances of the case are such that it is
expedient that she should be subject to detention for such term
and such instruction and discipline as are conducive to her
33
34
correction,
it shall be lawful for the court to pass, in lieu of a sentence of
imprisonment, an order for detention in a corrective institution for such
term, not being less than two years and not being more than five years, as
the court thinks fit:
Narrative The court may pass an order for detention in a correction institution only
summary in respect of female sex workers.
Questions
for practice
2.0.8 Does the law related to sex work apply differently to underage sex
Citation Immoral Traffic Prevention Act, 1956, Sections 2, 5, 6 and 7
provision
Text of law Section 2. Definitions.—In this Act. unless the context otherwise
requires—
(aa) “child”means a person who has not completed the age of sixteen
years;
(ca) “major” means a person who has completed the age of eighteen
years;
(cb) “minor” means a person who has completed the age of sixteen years
but has not completed the age of eighteen years
For others, See text above.

Narrative ITPA provides for enhanced penalties and presumptions when a child or
summary a minor is found to involved in any of the offences.
Offence Adult Minor Child

Procuring, RI for a term of  3 RI for a term of RI for a term of  7
inducing or years and  7  7 years and  years but which
taking years and fine 14 years. may extend to life.
person for which may extend
the sake of to Rs. 2,000.
prostitution
(section 5) If offence
committed against
will of person,
punishment of
imprisonment for a
term of 7 years
shall extend to
imprisonment for a
term of 14 years.
Detaining a Imprisonment of Where minor  Where person
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35
person in either description found in brothel, found with

premises for a term  7 is on medical child in
where years but which examination, brothel,
prostitution may be for life or detected to rebuttable
is carried on for a term which have been presumption
(section 6) may extend to ten sexually that offence
years and fine. abused, committed.
rebuttable  Where child
Imprisonment < 7 presumption found in
years for adequate that minor has brothel, is on
and special been detained medical
reasons for purposes of examination,
prostitution or, detected to
as the case have been
may be, has sexually
been sexually abused,
exploited for rebuttable
commercial presumption
purposes that child has
been detained
for purposes
of prostitution
or, as the
case may be,
has been
sexually
exploited for
commercial
purposes.
Prostitution Suspension of Cancellation of Cancellation of
in or in the hotel licence for a hotel licence hotel licence
vicinity of period of  3
public months, but which
places, may extend to a
including year
hotel
(section 7)
Questions
for practice
Citation Indian Penal Code, 1860, Sections 366A, 366B, 372 and 373
provision
Text of law Section 366A. Procuration of a minor girl.—
Whoever, by any means whatsoever, induces any minor girl under the
age of eighteen years to go from any place or to do any act with intent
that such girl may be, or knowing that it is likely that she will be, forced
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36
or seduced to illicit intercourse with another person shall be punishable

with imprisonment which may extend to ten years, and shall also be
liable to fine.
Section 366B. Importation of girl from foreign country.—

Whoever imports into India from any country outside India or from the
State of Jammu and Kashmir any girl under the age of twenty-one years
with intent that she may be, or knowing it to be likely that she will be,
forced or seduced to illicit intercourse with another person, shall be
punishable with imprisonment which may extend to ten years and shall
also be liable to fine.
Section 372. Selling minor for purposes of prostitution, etc.—

Whoever sells, lets to hire, or otherwise disposes of any person under the
age of eighteen years with intent that such person shall at any age be
employed or used for the purpose of prostitution or illicit intercourse with
any person or for any unlawful and immoral purpose, or knowing it to be
likely that such person will at any age be employed or used for any such
purpose, shall be punished with imprisonment of either description for a
term which may extend to ten years, and shall be liable to fine.
Explanation I.— When a female under the age of eighteen years is sold,
let for hire, or otherwise disposed of to a prostitute or to any person who
keeps or manages a brothel, the person so disposing of such female shall,
until the contrary is proved, be presumed to have disposed of her with the
intent that she shall be used for the purpose of prostitution.
Explanation II.—For the purposes of this section ‘illicit intercourse’
means sexual intercourse between persons not united by marriage or by
any union or tie which, though not amounting to a marriage, is
recognised by the personal law or custom of the community to which
they belong or, where they belong to different communities, of both such
communities, as constituting between them a quasi-marital relation.
Section 373. Buying minor for purposes of prostitution, etc.—

Whoever buys, hires or otherwise obtains possession of any person under
the age of eighteen years with intent that such person shall at any age be
likely that such person will at any age be employed or used for any
term which may extend to ten years, and shall also be liable to fine.
Explanation I.—Any prostitute or any person keeping or managing a
brothel, who buys, hires or otherwise obtains possession of a female
under the age of eighteen years shall, until the contrary is proved, be
presumed to have obtained possession of such female with the intent that
she shall be used for the purpose of prostitution.
Explanation II.—‘Illicit intercourse’ has the same meaning as in section
36
37
372.
Narrative The IPC penalises procuration and import of women under the age of 21
summary years if such acts is done with the view that they may be forced or
seduced to illicit intercourse. It also proscribes the sale and purchase of
persons under the age of 18 years for the purpose of sex work or illicit
intercourse. In case the person sold or purchased is a girl and the
purchaser is a sex worker or a person keeping or managing a brothel, a
rebuttable presumption is raised that the girl was sold for the purpose of
sex work.
Questions
for practice
Citation Additional DGP Circular Memo
Type of Administrative circular
provision
Text of law During any raids on a brothel house, if a minor is found a victim, a case
should be booked under rape i.e. 376 of IPC against male customers and
traffickers, organizers and pimps
Narrative
summary
Questions
for practice
2.0.9 Does the law set out alternatives to trial and/or incarceration for those
arrested/convicted for sex-work crimes (e.g., mandatory drug treatment,
community service, vocational training).
Citation Immoral Traffic Prevention Act, 1956, Section 10-A
provision
Narrative ITPA provides an alternative of detention in a corrective institution to
summary female sex workers convicted for offences under Section 7 or Section 8.
Questions
37
38
for practice
Citation The Andhra Pradesh Suppression of Immoral Traffic in Women and Girls
Rules, 1958, Rule 5
Type of Statutory rules (State)
provision
Text of law Rule 5. Detention of woman or girl in protective home.— Where, in
pursuance of sub-section (2) of Section 10 or sub-section (2) of Section
17 or sub-section (2) of Section 19, a Magistrate passes an order directing
that a woman or a girl be detained in protective home, a warrant of
detention in Form III shall be prepared in duplicate and shall be
forwarded to the superintendent of the protective home who shall retain
one copy and return the other to the Magistrate after making an
endorsement therein that the woman or girl referred to in the warrant has
been duly taken in his charge.
Narrative
Summary
Questions
for practice
Citation Immoral Traffic Prevention Act, 1956, Sections 19 and 21
provision
Text of law Section 19. Application for being kept in a protective home or provided
care and protection by court.—(1) A person who is carrying on, or is
being made to carry on prostitution, may make an application, to the
Magistrate within the local limits of whose jurisdiction he is carrying on,
or is being made to carry on prostitution, for an order that he may be—
(a) kept in a protective home, or
(b) provided care and protection by the court in the manner specified in
sub-section (3).
(2) The Magistrate may, pending inquiry under sub-section (3), direct
that the person be kept in such custody as he may consider proper, having
regard to the circumstances of the case.
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39
(3) If the Magistrate, after hearing the applicant and making such inquiry
as he may consider necessary, including an inquiry by a Probation
Officer appointed under the Probation of Offender Act, 1958 (20 of
1958) into the personality, conditions of home and prospects of
rehabilitation of the applicant, is satisfied that an order should be made
under this section, he shall, for reasons to be recorded, make an order
that the applicant to be kept,—
(i) in a protective home, or
(ii) in a corrective institution, or
(iii) under the supervision of a person appointed by the Magistrate
for such period as may be specified in the order.
Section 21. Protective homes.— (1) The State Government may in its
discretion establish as many protective homes and corrective institutions
under this Act as it thinks fit and such homes and institutions when
established shall be maintained in such manner as may be prescribed.
(2) No person or no authority other than the State Government shall, after
the commencement of this Act, establish or maintain any protective home
or corrective institution except under and in accordance with the
conditions of a licence issued under this section by the State Government.
(3) The State Government may, on application made to it in this behalf

by a person or authority, issue to such person or authority a licence in the
prescribed form for establishing and maintaining or as the case may be,
for maintaining a protective home or corrective institution and a licence
so issued may contain such conditions as the State Government may
think fit to impose in accordance with the rules made under this Act:
Provided that any such condition may require that the management of the
protective home or corrective institution shall, wherever practicable, be
entrusted to women:
Provided further that a person or authority maintaining any protective

home at the commencement of this Act shall be allowed a period of six
months from such commencement to make an application for such
licence:
Provided also that a person or authority maintaining any corrective

institution at the commencement of the Suppression of Immoral Traffic
in Women and Girls (Amendment) Act, 1978, shall be allowed a period
of six months from such commencement to make an application for such
licence.
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40
(4) Before issuing a licence the State Government may require such
officer or authority as it may appoint for this purpose, to make a full and
complete investigation in respect of the application received in this behalf
and report to it the result of such investigation and in making any such
investigation the officer or authority shall follow such procedure as may
be prescribed.
(5) A licence, unless sooner revoked, shall remain in force for such
period as may be specified in the licence and may, on application made in
this behalf at least thirty days before the date of its expiration, be
renewed for a like period.
(6) No licence issued or renewed under this Act shall be transferable.
(7) Where any person or authority to whom a licence has been granted
under this Act or any agent or servant of such person or authority
commits a breach of any of the conditions thereof or any of the
provisions of this Act or of any of the rules made under this Act, or
where the State Government is not satisfied with the conditions,
management or superintendence of any protective home or corrective
institution, the State Government may, without prejudice to any other
penalty which may have been incurred under this Act, for reasons to be
recorded, revoke the licence by order in writing:
Provided that no such order shall be made until an opportunity is given to
the holder of the licence to show cause why the licence shall not be
revoked.
(8) Where a licence in respect of a protective home or corrective

institution has been revoked under the foregoing sub-section such
protective home or corrective institution shall cease to function from the
date of such revocation.
(9) Subject to any rule that may be made in this behalf, the State
Government may also vary or amend any licence issued or renewed
under this Act.
(9-A) The State Government or any authority authorised by it in this

behalf may, subject to any rules that may be made in this behalf, transfer
an inmate of a protective home to another protective home or to a
corrective institution or an inmate of a corrective institution to another
corrective institution or to a protective home, where such transfer is
considered desirable having regard to the conduct of the person to be
transferred, the kind of training to be imparted and other circumstances of
the case:
Provided that,—
(a) no person who is transferred under this sub-section shall be required
to stay in the home or institution to which she is transferred for a period
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41
longer than she was required to stay in the home or institution from
which she was transferred;
(b) reasons shall be recorded for every order of transfer under this sub-
section.
(10) Whoever establishes or maintains a protective home or corrective

institution except in accordance with the provisions of this section, shall
be punishable in the case of a first offence with fine which may extend to
one thousand rupees and in the case of second or subsequent offence with
imprisonment for a term which may extend to one year, or with fine
which may extend to two thousand rupees, or with both.
Narrative A sex worker must apply for an order to be passed under this section and
summary she cannot be kept in protective homes against her wishes. An order for
sending a person to a protective home cannot be passed in a mechanical
manner.
Questions
for practice
Citation The Andhra Pradesh Suppression of Immoral Traffic in Women and
Girls Rules, 1958, Rules 5 and 20
Type of Statutory rules
provision
Text of law Rule 5. Detention of woman or girl in protective home.— Where, in
pursuance of sub-section (2) of Section 10 or sub-section (2) of Section
17 or sub-section (2) of Section 19, a magistrate passes an order directing
that a woman or a girl be detained in protective home, a warrant of
detention in Form III shall be prepared in duplicate and shall be
forwarded to the superintendent of the protective home who shall retain
one copy and return the other to the Magistrate after making an
endorsement therein that the woman or girl referred to in the warrant has
been duly taken in his charge.
Rule 20. Educational and vocational training of inmates of protective

home.—
(1) Provision may be made for general education in all protective homes.
Besides general education, each protective home shall, as far as possible
provide for the vocational training of the inmates, the wishes of each
inmate being consulted, as far as possible, as to the particular training she
41
42
shall undergo. Suitable employment, which shall include house work

sewing, weaving, spinning and the like may be provided. All courses of
training shall be approved by the Chief Inspector.
(2) Teachers shall be engaged for imparting general education and
instructions appointed for giving vocational training to the inmates. In an
emergency, the Superintendent may direct such teachers and instructors
to attend to executive or administrative duties.
(3) The inmates of a protective home may be sent wherever advisable to
other institutions for similar educational and vocational training with the
prior approval of the Chief Inspector.
Narrative
summary
Questions
for practice
42
43
2.1 Trafficking
2.1.1 Identify any law prohibiting trafficking in human beings.
Citation Constitution of India, Article 23

provision
Text of law Article 23. Prohibition of traffic in human beings and forced labour.—
(1) Traffic in human beings and begar and other similar forms of forced
labour are prohibited and any contravention of this provision shall be an
offence punishable in accordance with law.
(2) Nothing in this article shall prevent the State from imposing
compulsory service for public purposes, and in imposing such service the
State shall not make any discrimination on grounds only of religion, race,
caste or class or any of them.
Narrative The prohibitions contained in Article 23 are actualised in the Immoral
summary Traffic Prevention Act, 1956 (ITPA) and the Bonded Labour System
(Abolition) Act, 1976. Only ITPA is discussed here.
In People’s Union for Democratic Rights v. Union of India, AIR 1982

SC 1473, the Supreme Court broadly construed Article 23 as prohibiting
all forms of forced labour as violative of human dignity and contrary to
basic human values. Even where labour is for remuneration, if it is in
any way “forced”, such labour is within the ambit of Article 23. “Forced
labour” includes physical force, coercion, or even “compulsion arising
from hunger and poverty, want and destitution” if the remuneration is for
less than minimum wages.
“Article 23 which relates to Fundamental Rights in Part III of the

Constitution and which has been put under the caption ‘Right against
exploitation’ prohibits ‘traffic in human beings and begar and other
similar forms of labour’ and provides that any contravention of Article
23(1) shall be an offence punishable in accordance with law. The
expression ‘traffic in human beings’ is evidently a very wide expression
including the prohibition of traffic in women for immoral or other
purposes. … This malady [sex trafficking] is not only a social but also a
socio-economic problem, and therefore, the measures to be taken in that
regard should be more preventive than punitive. … The expression
‘traffic in human beings’ is evidently a very wide expression including
the prohibition of traffic in women for immoral or other purposes. Article
35(a)(ii) of the Constitution reads that notwithstanding anything in this
Constitution, Parliament shall have, and the legislature of a State shall
not have, power to make laws for prescribing punishment for those acts
which are declared to be offences under this part. The power of
legislation, under this article, is given to the Parliament exclusively, for,
otherwise the laws relating to fundamental rights would not have been
43
44
uniform throughout the country. The power is specifically denied to the

State legislature.” [See Vishal Jeet v. Union of India, AIR 1990 SC 1412]
Question for
practice
2.1 Trafficking
2.1.1 Identify any law prohibiting trafficking in human beings.
Citation Indian Penal Code, 1860, Sections 362, 366A, 366B, 367, 370, 371, 372
and 373
provision
Text of law Section 362. Abduction.—
Whoever by force compels, or by any deceitful means induces, any
person to go from any place, is said to abduct that person.
Section 366A. Procuration of a minor girl.—

Whoever, by any means whatsoever, induces any minor girl under the
age of eighteen years to go from any place or to do any act with intent
that such girl may be, or knowing that it is likely that she will be, forced
with imprisonment which may extend to ten years, and shall also be
liable to fine.
Section 366B. Importation of girl from foreign country.—

Whoever imports into India from any country outside India or from the
State of Jammu and Kashmir any girl under the age of twenty-one years
with intent that she may be, or knowing it to be likely that she will be,
forced or seduced to illicit intercourse with another person, shall be
punishable with imprisonment which may extend to ten years and shall
Section 367. Kidnapping or abducting in order to subject person to

grievous hurt, slavery, etc.—
Whoever kidnaps or abducts any person in order that such person may be
subjected, or may be so disposed of as to be put in danger of being
subject to grievous hurt, or slavery, or to the unnatural lust of any person,
or knowing it to be likely that such person will be so subjected or
disposed of, shall be punished with imprisonment of either description
for a term which may extend to ten years, and shall also be liable to fine.
Section 370. Buying or disposing of any person as a slave.—

Whoever imports, exports, removes, buys, sells or disposes of any person
as a slave, or accepts, receives or detains against his will any person as a
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45
slave, shall be punished with imprisonment of either description for a

term which may extend to seven years, and shall also be liable to fine.
Section 371. Habitual dealing in slaves.—

Whoever habitually imports, exports, removes, buys, sells, traffics or
deals in slaves, shall be punished with imprisonment for life, or with
imprisonment of either description for a term not exceeding ten years,
and shall also be liable to fine.
Section 372. Selling minor for purposes of prostitution, etc.—

Whoever sells, lets to hire, or otherwise disposes of any person under the
age of eighteen years with intent that such person shall at any age be
likely that such person will at any age be employed or used for any such
term which may extend to ten years, and shall be liable to fine.
Explanation I.— When a female under the age of eighteen years is sold,
let for hire, or otherwise disposed of to a prostitute or to any person who
keeps or manages a brothel, the person so disposing of such female shall,
until the contrary is proved, be presumed to have disposed of her with the
intent that she shall be used for the purpose of prostitution.
Explanation II.—For the purposes of this section ‘illicit intercourse’
means sexual intercourse between persons not united by marriage or by
any union or tie which, though not amounting to a marriage, is
recognised by the personal law or custom of the community to which
they belong or, where they belong to different communities, of both such
communities, as constituting between them a quasi-marital relation.
Section 373. Buying minor for purposes of prostitution, etc.—

Whoever buys, hires or otherwise obtains possession of any person under
the age of eighteen years with intent that such person shall at any age be
any person or for any unlawful and immoral purpose, of knowing it to be
likely that such person will at any age be employed or used for any
term which may extend to ten years, and shall also be liable to fine.
Explanation I.—Any prostitute or any person keeping or managing a
brothel, who buys, hires or otherwise obtains possession of a female
under the age of eighteen years shall, until the contrary is proved, be
presumed to have obtained possession of such female with the intent that
she shall be used for the purpose of prostitution.
Explanation II.—‘Illicit intercourse’ has the same meaning as in section
372.
Narrative Abduction as defined in Section 362 serves only as definition and is not a
45
46
summary substantive offence, but is punishable only when accompanied by a

particular purpose as contemplated in Sections 364 to 366. See
Biswanath Mallick v. State of Orissa, 1995 Cri. L. J. 1416 (Orissa High
Court). Kidnapping is the abduction of a minor (sixteen for girls,
eighteen for boys) and is punishable on its own. See 2.1.4 below.
Question for
practice
2.1 Trafficking
2.1.2 Identify any provisions that specifically address trafficking in human
beings for sex work.
Citation Immoral Traffic Prevention Act, 1956, Sections 2–5

provision
Text of law Section 2. Definitions.—In this Act. unless the context otherwise
requires—
(a) “brothel” includes any house, room, conveyance or place, or any
portion of any house, room, conveyance or place, which is used for
purposes of sexual exploitation or abuse for the gain of another person or
for the mutual gain of two or more prostitutes;
(aa) “child” means a person who has not completed the age of sixteen
years;
…
(cb) “minor” means a person who has completed the age of sixteen years
but has not completed the age of eighteen years;
…
(f) “prostitution” means the sexual exploitation or abuse of persons for
commercial purposes, and the expression “prostitute” shall be construed
accordingly;
Section 3. Punishment for keeping a brothel or allowing premises to be

used as a brothel.—(1) Any person who keeps or manages, or acts or
assists in the keeping or management of, a brothel, shall be punishable on
first conviction with rigorous imprisonment for a term of not less than
one year and not more than three years and also with fine which may
to conviction with rigorous imprisonment for a term of not less than two
years and not more than five years and also with fine which may extend
to two thousand rupees.
Section 4. Punishment for living on the earnings of prostitution.—(1)

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47
Section 5. Procuring, inducing or taking person for the sake of

prostitution.—(1) Any person who—
(a) procures or attempts to procure a person whether with or without
his/her consent, for the purpose of prostitution; or
(b) induces a person to go from any place, with the intent that he/she may
for the purpose of prostitution become the inmate of, or frequent, a
brothel; or
(c) takes or attempts to take a person or causes a person to be taken, from
one place to another with a view to his/her carrying on, or being brought
up to carry on prostitution ; or
(d) causes or induces a person to carry on prostitution;
shall be punishable on conviction with rigorous imprisonment for a term
of not less than three years and not more than seven years and also with
fine which may extend to two thousand rupees, and if any offence under
this sub-section is committed against the will of any person, the
punishment of imprisonment for a term of seven years shall extend to
imprisonment for a term of fourteen years:
Provided that if the person in respect of whom an offence committed
under this sub-section,—
(i) is a child, the punishment provided under this sub-section shall
but may extend to life; and
(ii) is a minor, the punishment provided under this sub-section shall
and not more than fourteen years.
Narrative ITPA is a revision of the Suppression of Immoral Traffic in Women and

summary Girls Act, 1956. It prohibits keeping a brothel, living off of the earnings
of prostitution and coercing a person to go into prostitution.
“[Section 3] punishes persons who keep brothels. Sub-section (3) of

Section 3 lays down that notwithstanding any other law ‘any lease ..,
under which such premises ... are held or occupied at the time of the
commission of the offence, shall become void and inoperative with effect
from the date of the said conviction’. It is plain therefore that the
consequence of a conviction under Section 3 is the invalidation of the
lease of the premises where the brothel is run. The logical consequence
must be that the occupier must be thrown out of the prostitutional
premises.” [See Chitan J. Vaswani v. State of West Bengal, AIR 1975 SC
2473]
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48
Question for
practice
2.1 Trafficking
2.1.3 Does the law applicable to trafficking apply differently to men or
women?
Citation Indian Penal Code, 1860, Sections 366, 366A, 366B, 372 and 373

provision
Text of law Section 366. Kidnapping, abducting or inducing woman to compel her
marriage, etc.—
Whoever kidnaps or abducts any woman with intent that she may be
compelled, or knowing it to be likely that she will be compelled, to marry
any person against her. will, or in order that she may be forced or
seduced to illicit intercourse, or knowing it to be likely that she will be
forced or seduced to illicit intercourse, shall be punished with
imprisonment of either description for a term which may extend to ten
years, and shall also be liable to fine; and whoever, by means of criminal
intimidation as defined in this Code or of abuse of authority or any other
method of compulsion, induces any woman to go from any place with
intent that she may be, or knowing that it is likely that she will be, forced
as aforesaid.
For text of Sections 366A, 366B, 372 and 373, IPC, see above.
Narrative The IPC has heightened penalties for kidnapping or abduction of women
summary specifically for the purpose of illicit sexual behaviour, as well as for the
trafficking of girls into India for such purpose. It also proscribes the sale
and purchase of persons under the age of 18 years for the purpose of sex
work or illicit intercourse. In case the person sold or purchased is a girl
and the purchaser is a sex worker or a person keeping or managing a
brothel, a rebuttable presumption is raised that the girl was sold for the
purpose of sex work. This act was revised in 1986 to make the act
mostly gender-neutral.
In Panna v. State of Rajasthan, 1987 Cri LJ 997, the Rajasthan High

Court held that a Meena custom of selling or auctioning daughters is not
a valid defence to Section 366 violation, even where the custom existed
before the Constitution came into force.
It is important to note that in Shahik Ramjan v. State of Andhra Pradesh,

1999 Cri LJ 2161, the Andhra Pradesh High Court overturned the
conviction of a defendant under Sections 366-A and 372 for abducting a
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49
woman to compel her services as prostitute because the victim was not a
minor at the time of the offences, and instead charged under Section 365
(kidnapping or abducting with intent secretly and wrongfully to confine a
person), which carries a lesser punishment (imprisonment of either
description which may extend to seven years and fine). The court noted,
“I would like to observe that it is a novel situation that if a person above
the age of 18 years is abducted and sold to a brothel house and used as a
prostitute, there is no specific offence in the Indian Penal Code and one
has to take recourse to Section 365.” NOTE: This case appears to be
wrongly decided; Section 366, on its face applies to both minors and
adults if abducted for the purpose of “illicit intercourse”.
Question for
practice
2.1 Trafficking
2.1.4 Does the law applicable to trafficking apply differently to minors?
Citation Immoral Traffic Prevention Act, 1956, Sections 2 and 5

provision
Text of law See text above, 2.1.3
Narrative Enhanced penalties are provided for in case minors are involved.
summary
Question for
practice
2.1 Trafficking
2.1.4 Does the law applicable to trafficking apply differently to minors?
Citation Indian Penal Code, 1860, Sections 361, 366, 366A, 366B, 372, 373

provision
Text of law Section 361. Kidnapping from lawful guardianship.—Whoever takes or
entices any minor under sixteen years of age if a male, or under eighteen
years of age if a female, or any person of unsound mind, out of the
keeping of the lawful guardian of such minor or person of unsound mind,
without the consent of such guardian, is said to kidnap such minor or
person from lawful guardianship.
Explanation.—The words “lawful guardian” in this section include any
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50
person lawfully entrusted with the care or custody of such minor or other
person.
Exception.—This section does not extend to the act of any person who in
good faith believes himself to be the father of an illegitimate child, or
who in good faith believes himself to be entitled to the lawful custody of
such child, unless such act is committed for an unlawful or immoral
purpose.
For Sections 366, 366A, 366B, 372 and 373, see text above.
Narrative In Parkash v. State of Haryana, AIR 2004 SC 227, the Supreme Court
summary observed that on a plain reading of Section 361, the consent of the minor
who is taken or enticed is wholly immaterial: it is only the guardian’s
consent which takes the case out of its purview. Nor is it necessary that
the taking or enticing must be shown to have been by means of force or
fraud. Persuasion by the accused person which creates willingness on the
part of the minor to be taken out of the keeping of the lawful guardian
would be sufficient to attract Section 361.
Question for
practice
2.1 Trafficking
2.1.5 What are the penalties for the various trafficking offences?
Citation
Type of
provision
Text of law
Narrative Note: the penalty provisions for the proscribed acts are incorporated
summary into the prohibition provisions, and are not reproduced below.
Question for
practice
2.1 Trafficking
2.1.6 Do people trafficked for sex work have any civil recourse to recover
damages from those responsible for trafficking?
Citation Chairman, Railway Board v. Chandrima Das, AIR 2000 SC 988
Type of Case law

provision
Text of law
Narrative No case law was found that explicitly grants private cause of action.
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51
summary Presumably, common law claims based on contract, quasi-contract and

tort claims (e.g., unjust enrichment, false imprisonment, breach of oral
contract, conversion, etc.) could be brought against the perpetrators.
Chairman, Railway Board v. Chandrima Das, AIR 2000 SC 988,

concerned a Bangladeshi woman gang raped by railway employees,
brought a writ petition for compensation against the government. It was
held that a woman, even though she was a foreign natural, could maintain
suit for violation of her fundamental right; no sovereign immunity existed
because the running of a railway was not an act of state, but a
commercial activity undertaken by the government; and the government
could be held vicariously liable for the tortious conduct of its employees.
Question for
practice
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52
2.2 Immigration status and sex work
2.2.1 Identify any law that addresses the consequences of a criminal arrest or
conviction of a non-citizen.
2.2.2 Identify any provision of law under which being a sex worker would
influence the eligibility of a non-citizen for permanent residency status or
naturalization.
2.2 Immigration
2.2.1 Identify any law that addresses the consequences of a criminal arrest or
conviction of a non-citizen.
Citation Constitution of India, Articles 14 and 21
provision
Text of law Article 14.Equality before law.—The State shall not deny to any person
equality before the law or equal protection of the laws within the territory
of India.
Article 21. Protection of life and personal liberty.—No person shall be

established by law.
Narrative Article 14 guarantees to all persons, citizens and non-citizens, the right to
summary equality before the law and equal protection of the law. Article 21
provides that no person, whether a citizen or a non-citizen, is to be
deprived of his life or personal liberty, except according to procedure
established by law. The procedure to be followed on arrest and the rights
of an undertrial or convict are not dependent on the citizenship of a
person.
Question for
practice
2.2 Immigration
2.2.1 Identify any law that addresses the consequences of a criminal arrest
or conviction of a non-citizen.
Citation The Foreigners Act, 1946, Sections 3 and 6
provision
Text of law Section 3. Power to make orders.—
(1) The Central Government may by order make provision either
generally or with respect to any particular foreigner or any prescribed
class or description of foreigners, for prohibiting regulating or restriction
the entry of foreigners into India, or their departure there from or their
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presence or continued presence therein.
(2) In particular and without prejudice to the generality of the foregoing

powers, order made under this section may provide that the foreigner—
(a) shall not enter (India), or shall enter (India), only at such times
and by such route and at such port or place and subject to the
observance of such conditions on arrival as may be prescribed;
(b) shall not depart from (India), or shall depart only at such times
and by such route and from such port or place and subject to the
observance of such conditions on departure as may be prescribed;
(c) shall not remain in (India), or in any prescribed area therein;
(cc) shall, if he has been required by order under this section not to
remain in India, meet from any resources at his disposal the cost
of his removal from India and of his maintenance therein pending
such removal);
(d) shall remove himself to, and remain in, such area in (India) as
may be prescribed;
(e) shall comply with such conditions as may be prescribed or
specified—
(i) requiring him to reside in a particular place;
(ii) imposing any restrictions on his movements;
(iii) requiring him to furnish such proof of his identity and to
report such particulars to such authority in such manner
and at such time and place as may be prescribed or
specified;
(iv) requiring him to allow his photograph and finger
impressions to be taken and to furnish specimens of his
handwriting and signature to such authority and at such
time and place as may be prescribed or specified;
(v) requiring him to submit himself to such medical
examination by such authority and at such time and place
as may be prescribed or specified;
(vi) prohibiting him from association with persons of a
prescribed or specified description;
(vii) prohibiting him from using or possessing prescribed or
specified articles.
(ix) otherwise regulating his conduct in any such particular as
may be prescribed or specified;
(f) shall enter into a bond with or without sureties for the due
observance of, or as an alternative to the enforcement of, any or
all prescribed or specified restrictions or conditions;
(g) shall be arrested and detained or confined
and may make provision for any matter which is to be or may be

prescribed and for such incidental and supplementary matters as may, in
the opinion of the Central Government, be expedient or necessary for
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giving effect to this Act.
(3) Any authority prescribed in this behalf may with respect to any
particular foreigner make orders under Clause (e), or Clause(f) of sub-
section (2).
Narrative The Central Government is empowered to make orders relating to

summary foreigners which may extend to restrictions in case or in lieu of arrest.
Question for
practice
2.2 Immigration
2.2.1 Identify any law that addresses the consequences of a criminal arrest
or conviction of a non-citizen.
Citation Repatriation of Prisoner Act, 2003, Sections 2, 4–10
provision
Text of law Section 2. Definitions.—
(a) “contracting state” means a government of any country or place
outside India in respect of which arrangement has been made by the
central government with the government of such country or place through
a treaty or otherwise for transfer of prisoners from India to such country
or place and vice versa and includes any other government of such
country or place specified by the central government, by notification in
the official gazette, under sub-section (1) of section 3.
(c) “prisoner” means a person undergoing a sentence of imprisonment

under an order passed by a criminal court including the courts established
under the law for the time being in force in contracting states.
Section 4. Application for transfer by a prisoner.—

Any prisoner who is a citizen of a contracting state may make an
application to the central government for transfer of his custody from
India to that contracting state:
Provided that if a prisoner is not able to make an application himself
because of his ill health, mental condition, old age or being a minor, then
the application may be made by other person entitled to act on his behalf.
Section 5. Consideration of request by Central Government.—

(1) On receipt of the application under section 4, the central
government shall direct the officer in charge of the prison, where
the prisoner is confined, to furnish such information, which in the
opinion of that government is relevant for the purpose of transfer.
(2) On receipt of the information under sub-section (1), if the central
government is satisfied that-
(a) no inquiry, trail or any other proceeding is pending against
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the prisoner;
(b) death penalty has not been awarded to the prisoner;
(c) the prisoner has not been convicted for an offence under
the martial law; and
(d) transfer of custody of the prisoner to the contracting state
shall not be prejudicial to the sovereignty security or any
other interest of India,
it shall pass an order for forwarding the application of the
prisoner to the contracting state.
Section 6. Comments of Contracting State.—

(1) The application of the prisoner shall be forwarded by the central
government through prescribed means to the government of the
contracting state to deal with such application along with the
following information, namely: -
(a) a copy of the judgment and a copy of the relevant
provisions of the law under which the sentence has been
passed against the prisoner;
(b) the nature, duration and date of commencement of the
sentence of the prisoner;
(c) medical report or any other report regarding the
antecedents and character, of the prisoner, where it is
relevant for the disposal of his application or for deciding
the nature of his confinement; and
(d) any other information which the central government may
consider necessary.
(2) Where any application of a prisoner forwarded by the central
government has been accepted by the contracting state, the
central government may seek from such contracting state, all or
any of the following information or documents before taking
decision to transfer the prisoner to the contracting state, namely:-
(a) a statement or document indicating that the prisoner is a
citizen of the contracting state;
(b) a copy of the relevant law of the contracting state
constituting the act or omission as the offence, on account
of which the sentence has been passed in India, as if such
act or omission was an offence under the law of the state;
(c) a statement of the fact or any law or regulation relating to
the duration and enforcement of the sentence of the
prisoner in the contracting state upon his transfer;
(d) the willingness of the contracting state to accept the
transfer of the prisoner and an undertaking to administer
the remaining part of the sentence of the prisoner;
(e) an undertaking to comply with the conditions, if any,
specified by the central government; and
(f) any other information or document which the central
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government may consider necessary.
Section 7. Consideration of request by Central Government.—

(1) If the central government, on receipt of a communication from the
concerned contracting state,—
(a) expressing its willingness to accept the transfer of the
prisoner; and
(b) undertaking to comply with the conditions specified in the
warrant, is satisfied that the prisoner should be transferred
to the said state,
the central government may, notwithstanding anything
contained in any other law for the time being in force, issue a
warrant in accordance with the provisions of section 8 in such
form as may be prescribed.
(2)Where a warrant is issued under sub-section (1), the central
government shall inform the contracting state accordingly and
request that state to specify the person to whom and the place
within India where custody of the prisoner shall be delivered.
Section 8. Provision to issue warrant for transfer.—

(1) The central government shall authorize an officer not below the
rank of a joint secretary to a state government, within the limits of
whose jurisdiction the place of imprisonment of the prisoner is
situated, to issue a warrant on behalf of the central government
under sub-section (1) of section 7 directing the officer in charge
of the prison therein to deliver the custody of the prisoner to the
person authorized by the contracting state to which the prisoner is
to be transferred, presenting such person a copy of the warrant
together with all the records relating to the prisoner and the
personal effects taken from the prisoner at the time of his
admission in the prison.
(2) Upon the presentation of a warrant referred to in sub-section (1),
the officer in charge of the prison shall forthwith comply with the
warrant and obtain, thereon the signature of the person to whom
delivery of the prisoner, records and the personal effects relating
to the prisoner to be removed from the prison is given.
(3) After delivery of the prisoner to the person authorized by the
contracting state under sub-section (2), the officer in charge of the
prison transferring the prisoner shall forward a copy of the
warrant to the court which committed the prisoner to the prison,
along with a statement that the prisoner has been delivered to the
person authorized by the contracting state under subsection (1).
(4) The delivery of the prisoner in compliance of the warrant issued
under sub section (1) shall discharge the officer in charge of the
prison from the responsibility of keeping the prisoner in his
custody.
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Section 9. Operation of warrant and retaking prisoner.—

It shall be lawful for the person authorized by the contracting state to
whom the custody of a prisoner is delivered under the provisions of sub-
section (2) of section 8 to receive and hold in custody such prisoner and
to convey him out of India and if the prisoner escapes from such custody
within India, the prisoner may be arrested without warrant by any person
who shall without undue delay deliver such prisoner to the officer in
charge of the nearest police station and the prisoner so arrested shall be
liable for committing an offence under section 224(45 of 1860) of the
Indian Penal Code and shall also be liable for such sentence of
imprisonment in India which he would have to undergo if the delivery of
custody of such prisoner had not been made under section 8.
Section 10. Transfer to record.—

Where a prisoner is or is to be transferred to a contracting state under the
provisions of this Act, the central government may requisition the records
of any proceeding, including judicial proceedings relating to that prisoner
from any court or office, and may direct that such records shall be sent to
the government of the contracting state.
Narrative Despite existence of treaties and agreements, repatriation can be

summary implemented only in if a domestic law permitting it exists. Prior to the
Repatriation of Prisoners Act, 2004, there was no legislation, which
provided for transporting non-citizens or receiving citizens who are
convicted for offences. The limitation is that under the statute there has to
be an arrangement/treaty/agreement between the two countries before
any prisoner can be repatriated.
Such repatriation can happen when the prisoner (a person against whom a
sentence exists) makes an application for such transfer and in some
situations, someone each can make an application on his behalf.
Such a request made by the prisoner is scrutinised by the concerned
government. Once the concerned government is convinced that there is
no other matter/inquiry is pending against the prisoner, that the prisoner
has not be awarded with a death penalty, that the prisoner has not be
convicted under the martial law and finally that the transfer of such a
prisoner will not be prejudicial to the sovereignty and security of India, it
will forward the request to the contracting state.
It is pertinent to note that the character and the antecedents of the

prisoner might be required to be looked at for the purposes of
repatriation.
Question for
practice
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58
2.2 Immigration
naturalization.
Citation Citizenship Act, 1955, Section 6 read with Schedule III
provision
Text of law Section 6. Citizenship by naturalization.—
(1) Where an application is made in the prescribed manner by any person
of full age and capacity who is not a citizen of a country specified in the
first schedule for the grant of a certificate of naturalization to him the
central government may, if satisfied that the applicant is qualified for
naturalization under the provisions of the third schedule, grant to him a
certificate of naturalization:
Provided that, if in the opinion of the central government the
applicant is a person who has rendered distinguished service to the cause
of science, philosophy, art, literature world peace or human progress
generally it may waive all or any of the conditions specified in the Third
schedule.
(2) The person to who, a certificate of naturalization is granted under

sub-section (1) shall, on taking the oath of allegiance in the form
specified in the Second Schedule be a citizen of India by naturalization as
from the date on which that certificate is granted.
THE THIRD SCHEDULE. Qualifications for Naturalization.—

The qualifications for naturalization of a person who is not a citizen of a
country specified in the first schedule are-
(a) that he is not a subject or citizen of any country where citizens of
India are prevented by law or practice of that country from becoming
subject or citizens of that country by naturalization;
(b) that, if he is a citizen of any country, he has renounced the citizenship
of that country in accordance with the law therein in force in that
behalf and has notified such renunciation to the Central Government;
(c) that he has either resided in India or been in the service of a
government of India or partly the one and partly the other, throughout
the period of twelve months immediately preceding the date of the
application;
(d) that during the twelve years immediately preceding the said period of
twelve months, he has either resided in India or been in the service of
a Government of India, or partly the one and partly the other, for
periods amounting in the aggregate to not less than nine years;
(e) that he is of good character;
(f) that he has an adequate knowledge of a language specified in the
Eighth schedule to the Constitution; and
(g) that in the event of a certificate of naturalization being granted to
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59
him, he intends to reside in India, or to enter into or continue in,

service under a Government of India or under an international
organization of which India is a member or under a society, company
or body of persons established in India;
Provided that the Central Government may, if in the special

circumstances of any particular case, it thinks fit,—
(i) allow a continuous period of twelve months ending not more than
six months before the date of the application to be reckoned, for
the purposed of Cl.(c) above, as if it had immediately preceded
that date;
(ii) allow periods of residence or service earlier than thirteen years
before the date of the application to be reckoned in computing
aggregate mentioned in Cl. (d) above.
Rule 17. Form of application for naturalization.—

(1) An application for a certificate of naturalization shall be made in form
XII to the Collector within whose jurisdiction the applicant is ordinarily
resident and the collector shall transmit every such application to the
central government through the state government along with his report.
(2) Such application shall be accompanied by—

(i) duly stamped affidavits from the applicant and two respectable
Indian citizens testifying to the character of the applicant and
the correctness of the statements made in the application and
(ii) a certificate to the effect that the application has an adequate
knowledge of one of the language specified in the Eighth
Schedule to the Constitution.
Narrative In case of a sex worker, the only probable difficulty in attaining

summary citizenship in India through naturalization is that there is a clause/
condition, which requires that the person/applicant applying for
naturalization should be of a good character. There has been no clear
understanding to this term but judgments of various courts on sex work
show that sex work is not held in high esteem and women who engage in
sex work might not be respected. Therefore a sex worker may not be
considered to be a person with good character and might not be eligible
to become a citizen of India.
Question for
practice
2.2 Immigration
naturalization.
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60
Citation Citizenship Act, 1955, Section 10

provision
Text of law Section 10. Deprivation of citizenship.—
(1) A citizen of India who is such by naturalization or by virtue only of
Clause (c) of Article 5 of the Constitution or by registration otherwise
than under Clause (b)(ii) of Article 6 of the Constitution or Clause (a) of
subsection (1) of Section 5 of this Act shall cease to be a citizen of India
if he is deprived of that citizenship by an order of the central government
under this section.
(2) Subject to the provisions of this section, the central government may,
by order deprive any such citizen of Indian citizenship if it is satisfied
that-
(a) the registration or certificate of naturalization was obtained by means
of fraud, false representation or the concealment of any material fact;
or
(b) that citizen has shown himself by act or speech to be disloyal or
disaffected towards the Constitution of India as by law established; or
(c) that citizen has, during any war in which India may be engaged,
unlawfully traded or communicated with an enemy, unlawfully traded
or communicated with an enemy or been engaged in, or associated
with, any business that was in his knowledge carried on in such
manner as to assist an enemy in that war; or
(d) that citizen has within five years after registration or
naturalization been sentenced in any country to imprisonment
for a term of not less than two years; or
(e) that citizen has been ordinarily resident out of India for a continuous
period of seven years and during that period has neither been at any
time a student of any educational institution in a country outside India
or in the service of a government of India or of an international
organization of which India is a member nor registered annually in
the prescribed manner at an Indian Consulate his intention to retain
his citizenship of India.
(3) The central government shall not deprive a person of citizenship

under this section unless it is satisfied that it is not conducive to the
public good that person should continue to be a citizen of India.
(4) Before making an order under this section, the central government
shall give the person against whom the order is proposed to be made
notice in writing informing him of the ground on which it is proposed to
be made and, if the order is proposed to be made on any of the grounds
specified in sub-section (2) other than Clause (e) thereof, of his right,
upon making application therefore in the prescribed manner to have his
case referred to a committee of Inquiry under this section.
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(5) If the order is proposed to be made against a person on any of the

grounds specified in sub section (2) other than Clause (e) thereof and that
person so applies in the prescribed manner, the central government shall
and in any other case it may refer the case to a committee of Inquiry
consisting of a Chairman (being a person who has for at least ten years
held a judicial office) and two other members appointed by the central
government in this behalf.
(6) The Committee of Inquiry shall on such reference hold the inquiry in
such manner as may be prescribed and submit its report to the central
government and the central government shall ordinarily be guided by
such report in making an order under this Section.
Narrative There is no specific provision that addresses the consequences of arrest

summary or conviction for offences related to sex work. A naturalized citizen, who
is sentenced to an imprisonment of more than two years in any country
within a period of five years of naturalization, can be deprived of
citizenship.
Question for
practice
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62
2.3 Rape and sexual violence
2.3.1 Identify criminal laws prohibiting rape and note whether the definition
explicitly or by judicial interpretation exempts sex workers, married women or
others from coverage under some circumstances.
2.3.2. Identify criminal laws governing sexual conduct between minors and
between minors and adults (e.g., statutory rape). Indicate the age at which minors
may legally consent to sexual intercourse, if specified by law.
2.3.2 Identify criminal laws prohibiting intimate partner violence and note
whether the definition explicitly or by judicial interpretation exempts sex workers,
married women or others from coverage under some circumstances.

2.3.1 Identify criminal laws prohibiting rape and note whether the
definition explicitly or by judicial interpretation exempts sex
workers, married women or others from coverage under some
circumstances.
Citation Indian Penal Code, 1860, Sections 375, 376, 376A-D and 377
provision
Text of law Section 375. Rape.— A man is said to commit “rape” who, except in the
case hereinafter excepted, has sexual intercourse with a woman under
circumstances falling under any of the six following descriptions:—
First.— Against her will
Secondly.—Without her consent
Thirdly.—With her consent, when her consent has been obtained by
putting her or any person in whom she is interested in fear of death
or of hurt
Fourthly.—With her consent, when the man knows that he is not her
husband, and that her consent is given because she believes that he is
another man to whom she is or believes herself to be lawfully
married.
Fifthly.—With her consent, when at the time of giving such consent,
by reason of unsoundness of mind or intoxication or the
administration by him personally or through another of any
stupefying or unwholesome substance, she is unable to understand the
nature and consequences of that to which she gives consent.
Sixthly.—with or without her consent, when she is under sixteen
years of age.
Explanation.— Penetration is sufficient to constitute the sexual

intercourse necessary to the offence of rape.
Exception.—Sexual intercourse by a man with his own wife, the wife not
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being under fifteen years of age, is not rape.
Section 376. Punishment for rape.—

(1) Whoever, except in the cases provided for by sub-section (2),
commits rape shall be punished with imprisonment of either description
for a term which shall not be less than seven years but which may be for
life or for a term which may extend to ten years and shall also be liable to
fine unless the women raped is his own wife and is not under twelve
years of age, in which cases, he shall be punished with imprisonment of
either description for a term which may extend to two years or with fine
or with both :
Provided that the court may, for adequate and special reasons to be
mentioned in the judgment, impose a sentence of imprisonment for a
term of less than seven years.
(2) Whoever,—
(a) being a police officer commits rape—
(i) within the limits of the police station to which he is
appointed; or
(ii) in the premises of any station house whether or not
situated in the police station to which he is appointed;
or
(iii) on a woman in his custody or in the custody of a
police officer subordinate to him; or
(b) being, a public servant, takes advantage of his official position
and commits rape on a woman in his custody as such public
servant or in the custody of a public servant subordinate to him;
or
(c) being on the management or on the staff of a jail, remand home or
other place of custody established by or under any law for the
time being in force or of a woman's or children's institution takes
advantage of his official position and commits rape on any inmate
of such jail, remand home, place or institution; or
(d) being, on the management or on the staff of a hospital, takes
advantage of his official position and commits rape on a woman
in that hospital; or
(e) commits rape on a woman knowing her to be pregnant; or
(f) commits rape on a woman when she is under twelve years of age;
or
(g) commits gang rape,
shall be punished with rigorous imprisonment for a term which shall not
be less than ten years but which may be for life and shall also be liable to
fine:
Provided that the court may, for adequate and special reasons to be
mentioned in the judgment, impose a sentence of imprisonment of either
description for a term of less than ten years.
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Explanation 1.—Where a woman is raped by one or more in a group of

persons acting in furtherance of their common intention, each of the
persons shall be deemed to have committed gang rape within the
meaning of this sub-section.
Explanation 2.—“Women’s or children’s institution” means an
institution, whether called an orphanage or a home for neglected woman
or children or a widows' home or by any other name, which is established
and maintained for the reception and care of woman or children.
Explanation 3.—“Hospital” means the precincts of the hospital and
includes the precincts of any institution for the reception and treatment of
persons during convalescence or of persons requiring, medical attention
or rehabilitation.
Section 376A. Intercourse by a man with his wife during separation.—

Whoever has sexual intercourse with his own wife, who is living
separately from him under a decree of separation or under any custom or
usage without her consent shall be punished with imprisonment of either
description for a term, which may extend to two years and shall also be
liable to fine.
Section 376B. Intercourse by public servant with woman in his

custody.—
Whoever, being a public servant, takes advantage of his official position
and induces or seduces, any woman, who is in his custody as such public
servant or in the custody of a public servant subordinate to him, to have
sexual intercourse with him, such sexual intercourse not amounting to the
offence of rape, shall be punished with imprisonment of either
description for a term which may extend to five years and shall also be
liable to fine.
Section 376C. Intercourse by superintendent of jail, remand home,

etc.—
Whoever, being the superintendent or manager of a jail, remand home or
other place of custody established by or under any law for the time being
in force or of a woman's or children's institution takes advantage of his
official position and induces or seduces any female inmate of such jail,
remand home, place or institution to have sexual intercourse with him,
such sexual intercourse not amounting to the offence of rape, shall be
punished with imprisonment of either description for a term which may
extend to five years and shall also be liable to fine.
Explanation 1.—“Superintendent” in relation to jail, remand home or
other place of custody or a women’s or- children's institution includes a
person holding any other office in such jail, remand home, place or
institution by virtue of which he can exercise any authority or control
over its inmates.
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Explanation 2.—The expression “women’s or children’s institution” shall

have the same meaning as in Explanation 2 to sub-section (2) of section
376.
Explanation 3.—“Hospital” means the precincts of the hospital and
includes the precincts of any institution for the reception and treatment of
persons during convalescence or of persons requiring medical attention
or rehabilitation.
Section 376D. Intercourse by any member of the management or staff

of a hospital with any woman in that hospital.—
Whoever, being on the management of a hospital or hem. on the staff of a
hospital takes advantage of his position and has sexual intercourse with
any woman in that hospital, such sexual intercourse not amounting to the
offence of rape, shall be punished with imprisonment of either
description for a term which may extend to five years and shall also be
liable to fine.
Explanation.—The expression “hospital” shall have the same meaning as

in Explanation 3 to sub-section (2) of section 376.
Section 377. Unnatural offences.—

Whoever voluntarily has carnal intercourse against the order of nature
with any man, woman or animal, shall be punished with imprisonment
for life, or with imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine.
Explanation.—Penetration is sufficient to constitute the carnal
intercourse necessary to the offence described in this section.
Section 354. Assault or criminal force to woman with intent to outrage

her modesty.—Whoever assaults or uses criminal force to any woman,
intending to outrage or knowing it to be likely that he will thereby
outrage her modesty, shall be punished with imprisonment of either
description for a term which may extend to two years, or with fine, or
with both.
Section 509. Word, gesture or act intended to insult the modesty of a

woman.—Whoever, intending to insult the modesty of any woman, utters
any word, makes any sound or gesture, or exhibits any object, intending
that such word or sound shall be heard, or that such gesture or object
shall be seen, by such woman, or intrudes upon the privacy of such
woman, shall be punished with simple imprisonment for a term which
may extend to one year, or with fine, or with both.
Narrative The criminal law in India does not recognise marital rape, except where
summary the wife is under 15 years of age. A man cannot be held to be guilty of
rape of his own wife when she is over the age of fifteen years, on account
of the matrimonial consent. The Calcutta High Court, while interpreting
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Section 375, held that the wife cannot retract the consent but the husband
has no right to enjoy her person with out regard to the question of safety
to her. (See Huree Mohun Mythee (1890) 18 Cal 49). It is important to
note that in India, the absence of marital rape laws and the importance
given to conjugal rights in the marriage/divorce laws work to further
restrict the rights of women. Most ‘personal laws’ [i.e. laws applicable
relating to marriage, divorce, custody, etc which are applicable to one on
account of one’s religion] in India are premised on the notion that women
consent to all sexual activity with their spouses. The Supreme Court has
reinforced this concept of conjugal rights within the marital context.
Section 375 of the IPC deals with non-consensual sexual intercourse

(confined to sexual assault, which involves penile-vaginal penetration
only). The explanation to Section 375 of the IPC exempts marital rape
and is applicable for offences against women only. Non-penetrative
sexual assaults are usually booked under Section 354 and Section 509 of
the IPC. Section 354 does not specify any act but puts sexual violence in
terms of outraging the modesty of a woman, while Section 509 defines it
in items of insulting the modesty of a woman. Both these sections fail to
define sexual violence in terms of violating the bodily integrity and
autonomy of the woman. [Source: Legislating an Epidemic, Lawyers
Collective]
In State of Maharashtra v. Madhukar Narayan Mardikar, AIR 1991 SC

207, the Supreme Court held that even a woman of “easy virtue” is
entitled to privacy and it is 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 wish.
Question for
practice

2.3.2 Identify criminal laws governing sexual conduct between minors and
between minors and adults (e.g., statutory rape). Indicate the age at
which minors may legally consent to sexual intercourse, if specified
by law.
Citation Indian Penal Code, 1860, Section 375
provision
Narrative The definition of rape provides that sexual intercourse with a woman
summary when she is under sixteen years of age is rape, whether the sexual
intercourse with or without consent.
Question for
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67
practice

by law.
Citation Indian Penal Code, 1860, section 90
provision
Text of law Section 90. Consent known to be given under fear or misconception.—
A consent is not such a consent as is intended by any section of this code,
if the consent is given by a person under fear of injury, or under a
misconception of fact, and if the person doing the act knows, or has
reason to believe, that the consent was given in consequence of such fear
or misconception; or
Consent of insane person.—If the consent is given by a person who,
from unsoundness of mind, or intoxication, is unable to understand the
nature and consequence of that to which he gives his consent; or
Consent of child.—unless the contrary appears from the context, if the
consent is given by a person who is under twelve years of age.
Narrative The IPC raises a rebuttable presumption that consent by a child under
summary twelve years of age has been given under fear or misconception.
Question for
practice

by law.
Citation Majority Act 1875, Sections 2 and 3
provision
Text of law Section 2. Saving.—
Nothing herein contained shall affect: -
(a) The capacity of any persons to act in the following matters
(namely), marriage, dower, divorce and adoption;
(b) The religion or religious rites and usages of any class of citizens of
India; or
(c) the capacity of any person who before this Act comes into force has
attained majority under the law applicable to him.
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Section 3. Age of majority of persons domiciled in India.—

(1) Every person domiciled in India shall attain the age of majority on his
completing the age of eighteen years and not before.
(2) In computing the age of any person, the day on which he was born is
to be included as a whole day and he shall be deemed to have attained
majority at the beginning of the eighteenth anniversary of that day.
Narrative The general age of consent for persons domiciled in India is 18.
summary
Question for
practice

whether the definition explicitly or by judicial interpretation
exempts sex workers, married women or others from coverage under
some circumstances.
Citation The Protection of Women from Domestic Violence Act, 2005
provision
Text of law Section 3. Definition of domestic violence.—
For the purpose of this Act, any act, omission or commission or conduct
of the respondent shall constitute violence in case it—
a) harms or injures or endangers the health, safety, life, limb or well-
being, whether mental or physical, of the aggrieved person or
tends to do so and includes causing physical abuse, sexual abuse,
verbal and emotional abuse and economic abuse; or
b) harasses, harms, injures or endangers the aggrieved person with a
view to coerce her or any other person treated to her to meet any
unlawful demand for any dowry or other property or valuable
security; or
c) has the effect of threatening the aggrieved person or any person
related to her by any conduct mentioned in clause (a) or clause
(b); or
d) otherwise injures or causes harm, whether physical or mental, to
the aggrieved person.
Explanation I.—for the purpose of this section,—

(i) “physical abuse” means any act or conduct which is of such a
nature as to cause bodily pain, harm, or danger to life, limb, or health
or impair the health or development of the aggrieved person and
includes assault, criminal intimidation and criminal force;
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(ii) “sexual abuse” includes any conduct of a sexual nature that

abuses, humiliates, degrades or otherwise violates the dignity of
woman;
(iii) “verbal and emotional abuse” includes-

(a) Insults, ridicule, humiliation, name calling and insults or
ridicule specially with regard to not having a child or a male
child; and
(b) repeated threats to cause physical pain to any person in whom
the aggrieved person is interested.
(iv) “economic abuse” includes—

(a) deprivation of all or any economic or financial resources to
which the aggrieved person is entitled under any law or
custom whether payable under an order of a court or
otherwise or which the aggrieved person requires out of
necessity including, but not limited to, household necessities
for the aggrieved person and her children, if any, stridhan,
property, jointly or separately owned by the aggrieved
person, payment of rental related to the shared household and
maintenance;
(b) disposal of household effects, any alienation of assets
whether movable or immovable, valuables, shares, securities,
bonds and the like or other property in which the aggrieved
person has an interest or is entitled to use by virtue of the
domestic relationship or which may be reasonably required
by the aggrieved person or her children or her stridhan or any
other property jointly or separately held by the aggrieved
person; and
(c) prohibition or restriction to continued access to resource or
facilities, which the aggrieved person is entitled to use or
enjoy by virtue of the domestic relationship including access
to the shared household.
Explanation II.—For the purpose of determining whether any act,

omission, commission or conduct of the respondent constitutes “domestic
violence” under this section, the overall facts and circumstances of the
case be taken in to consideration.
Section 2. Definitions.—
(f) Domestic Relationship means a relationship between two persons who
live or have, at any point of time, lived together in a shared household,
when they are related by consanguinity, marriage, or through a
relationship in the nature of marriage, adoption or are family members
living together as a joint family.
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Section 17. Shared household.—

(1) Notwithstanding anything contained in any other law for the time
being in force, every woman in a domestic relationship shall have
the right to reside in the shared household, whether or not she has
any right, title or beneficial interest in the same.
(2) The aggrieved person shall not be evicted or excluded from the
shared household or any part of it by the respondent save in
accordance with the procedure established by law.
Narrative The Protection of Women from Domestic Violence Act was brought into
summary force on 26 October 2006. It prohibits violence against women in
domestic relationships, which includes relationships in the nature of
marriage.
Question for
practice

some circumstances.
Citation Indian Penal Code, 1860, Sections 498A and 304B
provision
Text of law Section 498A. Husband or relative of husband of a woman subjecting
her to cruelty.—
Whoever, being the husband or the relative of the husband of a woman,
subjects such woman to cruelty shall be punished with imprisonment for
a term which may extend to three years and shall also be liable to fine.
Explanation.—For the purpose of this section, “cruelty” means-
(a) any wilful conduct which is of such a nature as is likely to drive the
woman to commit suicide or to cause grave injury or danger to life, limb
or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to
coercing her or any person related to her to meet any unlawful demand
for any property or valuable security or is on account of failure by her or
any person related to her to meet such demand.
Section 304B. Dowry death.—

(1) Where the death of a woman is caused by any burns or bodily injury
or occurs otherwise than under normal circumstances within seven years
of her marriage and it is shown that soon before her death she was
subjected to cruelty or harassment by her husband or any relative of her
husband for, or in connection with, any demand for dowry, such death
shall be called “dowry death”, and such husband or relative shall be
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deemed to have caused her death.

Explanation—For the purpose of this sub-section, “dowry” shall have
the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28
of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment

for a term which shall not be less than seven years but which may extend
to imprisonment for life.
Narrative Sections 498A of the IPC prohibits cruelty to a wife by her husband or
summary his relative. This protection is restricted to married women.
Similarly, in case of death of a woman within seven years of marriage

where it is shown that she was subject to cruelty or harassment by her
husband or relative, the law raises a presumption that the husband or
relative caused such death.
Question for
practice

some circumstances.
Citation Indian Evidence Act, 1872, Section 114A
provision
Text of law Section 114A. Presumption as to absence of consent in certain
prosecutions for rape.—
In a prosecution for rape under clause (a) or clause (b) or clause (c) or
clause (d) or clause (e) or clause (g) of sub-section (2) or section 376 of
the Indian Penal Code, (45 of 1860) where sexual intercourse by the
accused is proved and the question is whether it was without the consent
of the woman alleged to have been raped and she states in her evidence
before the Court that she did not consent, the Court shall presume that
she did not consent.
Narrative The procedural law relating to rape trials raises a presumption of absence
summary of consent on the basis of the victim’s statement. This presumption
applies to all women, including sex workers.
Question for
practice
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3.0 Criminal or other penalties for homosexual identity or behavior
3.0.1 Does the law prohibit homosexual conduct (acts) or status (identity)?
3.0.2 Identify the penalties for violating these laws.
3.0.3 Do these provisions apply differently to men, women, or transgendered

persons?

provision
Text of law Section 377. Unnatural offences.—Whoever voluntarily has carnal
intercourse against the order of nature with any man, woman or animal
shall be punished with imprisonment, which may extend to ten years, and
Explanation— penetration is sufficient to constitute the carnal intercourse
necessary to the offence described in this section.
Narrative The law does not explicitly prohibit homosexual status or identity.
summary
Based on a conception of sexual intercourse in purely functional
terms, that is, for the purpose of procreation, the proscription of
“carnal intercourse against the order of nature” thus is the
proscription of any non-penile-vaginal penetrative sexual
intercourse. Penetration would be sufficient to establish the
offence of carnal intercourse mentioned in the section. In sum, the
section penalizes anal and oral sex. In Khanu v. Emperor 1925
Sind 286, it was held that coitus per os is punishable under the
section. In Calvin Francis v. State of Orissa, 1992 (I ) OLR 316,
followed the same reasoning as the above case and held that oral
and anal sex fall within the purview of section 377.
It is a cognizable and non-bailable offence, triable by a magistrate

of the first class. The accused can be sentenced to life
imprisonment or imprisonment that can extend to ten years and a
fine.
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The section does not differentiate between consensual and non-

consensual carnal intercourse. However, consent may be a factor in
sentencing, as seen in Fazal Rab Choudhary v. State of Bihar, AIR 1983
SC 324, where the accused was convicted for committing an unnatural
offence upon a minor boy and the Supreme Court held that in view of the
fact that no force was used, there was scope for modification of sentence
which was reduced from three years’ rigorous imprisonment to six
months rigorous imprisonment. Aside from this, there are no other
reported decisions where consent influenced the quantum of punishment
under Section 377, IPC.
The section is facially neutral. Any person who has sexual intercourse,
which is against the order of nature, can be punished under this law,
whether s/he is a heterosexual, homosexual or bisexual. Heterosexual
couples who engage in sodomy or oral sex can also be indicted under this
section (Marriage is taken as an implied consent by the wife for 'normal'
intercourse and not for anal intercourse. If the wife consented, both are
guilty. If she did not, the husband alone is guilty. Under Section 13 of the
Hindu Marriage Act, 1955 and Section 11 of Divorce Act, 1869, a wife
can apply for divorce if the husband has been guilty of
sodomy/bestiality.)
Question for
practice
3.0 Criminal or other penalties for homosexual identity or behaviour

provision
Text of law Section 268. Public nuisance.—A person is guilty of a public nuisance
who does any act or is guilty of an illegal omission which causes any
common injury, danger or annoyance to the public or to the people in
general who dwell or occupy property in the vicinity or which must
necessarily cause injury, obstruction, danger or annoyance to persons
who may have occasion to use any public right.
A common nuisance is not excused on the ground that it causes some

convenience or advantage.
Narrative Public nuisance has been defined in the IPC to mean any act or omission
summary which is illegal and which may cause common injury or danger or
annoyance to the public or people in general. This provision is wide
enough to cover public acts (of sexual expression) between homosexuals
under the head of “public nuisance” especially if read with Section 377 of
the IPC. There are, however no reported cases where homosexual
conduct has been considered “public nuisance” under Section 268 of the
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IPC. However, it appears that Section 268 of the IPC is used against
sexuality minorities.
The provision does not apply differently to men, women or transgendered

persons.
Question for
practice

provision
Text of law Section 294. Obscene acts and songs—Whoever, to the annoyance of
others-
(a) does any obscene act in any public place; or
(b) sings, recites or utters any obscene song or ballad or words, in or
near any public place,
shall be punished with imprisonment of either description for a term,
which may extend to three months, or with fine, or with both.
Narrative This section punishes people who perform any ‘obscene’ act causing
summary annoyance to others. The acts include exposing body parts, singing,
reciting or uttering any obscene song, word, etc, in or near a public place.
The offence is cognisable and bailable and can be tried by any

magistrate. The punishment is imprisonment upto three months or fine or
both. For a conviction under this section, the element of annoyance needs
to be proved.
Though Section 377 criminalises only the sexual act of unnatural

offences, i.e. sodomy, and does not criminalise a person for having a
homosexual orientation, homosexual identity may be targeted by
construing homosexual behaviour short of intercourse in public as
obscenity under this provision. There is, however, no reported case to
support this.
The provision applies equally to all persons, irrespective of gender.

Question for Have MSM been arrested under Section 294 of the IPC?
practice Do they plead guilty and pay a fine?
Has anyone pleaded ‘not guilty’ and been tried for an offence under
Section 294 of the IPC?
If yes, has anyone of them been convicted?

Citation The Air Force Act, 1950, section 46(a)
provision
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Text of law Section 46. Certain forms of disgraceful conduct.—Any person subject
to this act who commits any of the following offences, that is to say, -
(a) is guilty of any disgraceful conduct of a cruel, indecent or
unnatural kind; or
(b) malingers, or feigns, or produces disease or infirmity in himself,
or intentionally delays his cure or aggravates his disease or
infirmity; or
(c) with intent to render himself or any other person unfit for service,
voluntarily causes hurt to himself or that person ;
shall, on conviction by court-martial, be liable to suffer
imprisonment for a term which may extend to seven years or such less
punishment as is in this Act mentioned.
Narrative Any person governed by this Act, that is, Air Force personnel, found
summary guilty of any disgraceful conduct of a cruel or indecent or unnatural kind,
in a court martial, can be sentenced to imprisonment for a term which
may extend to seven years or. The phrase ‘unnatural kind’ would take
colour from the phrase ‘unnatural offences’ in Section 377 of the IPC.
Question for
practice

Citation The Army Act, 1950, section 46(a)
provision
to this Act who commits any of the following offences, that is to say, -
unnatural kind; or
(b) malingers, or feigns, or produces disease or infirmity in himself or
intentionally delays his cure or aggravates his disease or
infirmity; or
(c) with intent to render himself or any other person unfit for service.
voluntarily causes hurt to himself or that person;
shall on conviction by court-martial, be liable to suffer imprisonment for
a term which may extend to seven years or such less punishment as is in
this Act mentioned.
Narrative See narrative summary to the part on the Air Force Act above.
summary
This particular provision applies to personnel of the Army.
Question for
practice
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Citation The Navy Act, 1957, sections 53 and 54
provision
Text of law Section 53. Uncleanness or indecent acts.—Every person subject to
naval law who is guilty of,—
(a) uncleanness; or
(b) any indecent act,
shall be punished with imprisonment for a term which may extend to two
years or such other punishment as is hereinafter mentioned.
Section 54. Cruelty and conduct unbecoming the character of an

officer.—(1) Every officer who is subject to naval law who is guilty of
cruelty shall be punished with imprisonment for a term which may
extend to seven years or such other punishment as is hereinafter
mentioned.
(2) Every officer subject to naval law who is guilty of any scandalous or
fraudulent conduct unbecoming the character of an officer shall be
punished with imprisonment for a term which may extend to two years or
such other punishment as is hereinafter mentioned.
Narrative The provision of the Navy Act, 1957 differs from other statutes in pari
summary materia. The phrase “indecent act” could include sexual intercourse
between persons of the same sex.
The punishment for such acts can extend upto two years or as otherwise
mentioned in the act itself, on conviction in a court martial.
The provision applies to Navy personnel.

Question for
practice
3.0 Criminal or other penalties for homosexual identity or behaviour

Citation The Border Security Force Act, 1968, Section 24
provision
to this Act who commits any of the following offences, that is to say,-
unnatural kind; or
(b) malingers, or feigns, or produces disease or infirmity in himself
infirmity; or
(c) with intent to render himself or any other person unfit for
service, voluntarily causes hurt to himself or that person,
shall, on conviction by a Security Force Court, be liable to suffer
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summary
This provision applies to the personnel of the Border Security Force, a
paramilitary force in India.
Question for
practice

Citation The Coast Guard Act, 1978, section 23
provision
to this Act who commits any of the following offences, that is to say,-
unnatural kind; or
(b) malingers, or feigns, or produces disease or infirmity in himself
infirmity; or
(c) with intent to render himself or any other person unfit for
service, voluntarily causes hurt to himself or that person,
shall, on conviction by a Coast Guard Court, be liable to suffer
summary
This provision applies to personnel of the Coast Guard, a part of the
Indian armed forces.
Question for
practice

Citation The Indo-Tibetan Border Police Force Act, 1992, section 27
provision
to this Act who commits any of the following offences, that is to say,—
unnatural kind; or
(b) malingers or feigns or produces disease or infirmity in him self or
intentionally delays his cure or aggravates his disease or
infirmity; or
(c) with intent to render himself or any other person unfit for service,
voluntarily causes hurt to himself or that person,
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shall, on conviction by a Force Court, be liable to suffer

summary
This provision applies to the personnel of the Indo-Tibetan Border Police
Force, a paramilitary force in India.
Question for
practice

Citation The Andhra Pradesh (Telangana Area) Eunuchs Act, 1329-F
Type of State statutory law
provision
Text of law Section 1. Short title, extent and commencement.—
1-A. Unless there is anything repugnant in the subject or context the
word ‘eunuch’ shall, for the purpose of this Act, include all persons of
the male sex who admit to be impotent or who clearly appear to be
impotent on medical inspection.
Section 2. Register of eunuchs.—The Government shall cause a register

to be kept of the names and place of residence of all eunuchs residing in
the City of Hyderabad or at any other place to which the Government
may specially extend this Act and who are reasonably suspected of
kidnapping or emasculating boys, or of committing unnatural offences or
abetting the commission of the said offences; and it shall direct such
register to be maintained by the officer appointed for this purpose, from
time to time, and the Government shall, from time to time, make rules
regarding the responsibility of preparing and maintaining it.
Section 3. Complaint of entry in register.—Any person aggrieved by

any entry made or proposed to be made in the aforesaid register, may
either at a time when the register is first made or subsequently lodge a
complaint with the aforesaid officer, who shall either enter, remove or
retain the name of such person in the register, as he thinks fit.
Every order for removal of the name of such person shall contain the
grounds of the removal thereof.
The District Magistrate shall have power to review the order passed by
such officer on such complaint either on appeal by the petitioner or
otherwise.
Section 4. Registered eunuch found in female clothes.—Every

registered eunuch found in female dress or ornamented in a street or a
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public place or in any other place with the intention of being seen from a
street or public place or who dances or plays music or takes part in any
public entertainment in a street or a public place may be arrested without
warrant and shall be punished with imprisonment for a term which may
extend to two years or with fine or both.
Section 5. Penalty when boy under sixteen is found with registered

eunuch.—Any registered eunuch who has with him in his house or under
his control a boy of less than sixteen years of age shall be punished with
imprisonment for a term which may extend to two years or with fine or
with both.
Section 6. Education and training of children whose parents are not

discovered.—The District Magistrate may direct that any such boy be
delivered to his parents or guardian, if they can be discovered, and they
are not eunuchs; if they cannot be discovered or they are eunuchs, the
Magistrate may make such arrangements as he thinks necessary for the
maintenance, education and training of such boy and may direct that the
whole or any part of a fine inflicted under Section 5 may be applied for
such arrangement. The Government may direct that out of any Local or
Municipal Fund or other amount the cost of such arrangement as is not
met by the fine shall be defrayed.
Section 7. Penalty for emasculation or abetting therefor.—Any person

who emasculates himself or any other person with or without his consent
or abets in emasculation shall be punished with imprisonment for a term
which may extend to seven years and shall also be liable to fine.
Narrative The Act requires the Government to maintain a register of eunuchs, who
summary reside in Hyderabad and other notified places, who are reasonably
suspected of committing unnatural offences. A penalty is imposed on
registered eunuchs, who are found dressed as females or ornamented or
who dance or play music or participates in public entertainment in streets
or public places.
Question for
practice

Citation The Prisoners Act, 1894, section 45(4)
Type of Statute
provision
Text of law Section 45. Prison-offences—The following acts are declared to
be prison-offences when committed by a prisoner—
(1) such wilful disobedience to any regulation of the prison as
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shall have been declared by rules made under section 59 to be a

rison-offence;
(2) any assault or use of criminal force;
(3) the use of insulting or threatening language;
(4) immoral or indecent or disorderly behaviour;
(5) wilfully disabling himself from labour;
(6) contumaciously refusing to work;
(7) filing, cutting, altering or removing handcuffs, fetters or
bars without due authority;
(8) wilful idleness or negligence at work by any prisoner sentenced
to rigorous imprisonment;
(9) wilful mismanagement of work by any prisoner sentenced to
rigorous imprisonment;
(10) wilful damage to prison-property;
(11) tampering with or defacing history-tickets, records or
documents;
(12) receiving, possessing or transferring any prohibited article;
(13) feigning illness;
(14) wilfully bringing a false accusation against any officer or
prisoner;
(15) omitting or refusing to report, as soon as it comes to his
knowledge, the occurrence of any fire, any plot or conspiracy,
any escape, attempt or preparation to escape, and any attack or
preparation for attack upon any prisoner or prison-official; and
(16) conspiring to escape, or to assist in escaping, or to commit any
other of the offences aforesaid.
Section 46. Punishment of such offences.—The Superintendent may

examine any person touching any such offence, and determine
thereupon, and punish such offence by—
(1) a formal warning:
Explanation.-A formal warning shall mean a warning personally
addressed to a prisoner by the Superintendent and recorded in the
punishment-book and on the prisoner's history-ticket;
(2) change of labour to some more irksome or severe form for such
period as may be prescribed by rules made by the State
Government;
(3) hard labour for a period not exceeding seven days in the case
of convicted criminal prisoners not sentenced to rigorous
imprisonment;
(4) such loss of privileges admissible under the remission
system for the time being in force as may be prescribed by rules
made by the State Government;
(5) the substitution of gunny or other coarse fabric for clothing
of other material, not being woollen, for a period which shall
not exceed three months;
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(6) imposition of handcuffs of such pattern and weight, in such

manner and for such period, as may be prescribed by rules made
by the State Government;
(7) imposition of fetters of such pattern and weight, in such
manner and for such period, as may be prescribed by rules made
by the State Government;
(8) separate confinement for any period not exceeding three months;
Explanation.-Separate confinement means such confinement
with or without labour as secludes a prisoner from
communication with, but not from sight of, other prisoners, and
allows him not less than one hour's exercise per diem and to
have his meals in association with one or more other prisoners ;
(9) penal diet,-that is, restriction of diet in such manner and subject
to such conditions regarding labour as may be prescribed by the
State Government:
Provided that such restriction of diet shall in no case be
applied to a prisoner for more than ninety-six consecutive hours,
and shall not be repeated except for a fresh offence nor until
after an interval of one week;
(10) cellular confinement for any period not exceeding fourteen
days:
Provided that after each period of cellular confinement an
interval of not less duration than such period must elapse before
the prisoner is again sentenced to cellular or solitary confinement;
Explanation.- Cellular confinement means such confinement
with or without labour as entirely secludes a prisoner from
communication with, but not from sight of, other prisoners;
(11) penal diet as defined in clause (9) combined with cellular
confinement;
(12) whipping, provided that the number of stripes shall not exceed
thirty:
Provided that nothing in this section shall render any female or civil
prisoner liable to the imposition of any form of handcuffs or fetters,
or to whipping.
Narrative According to this provision, a prisoner who is found guilty of behaving in

summary an immoral, indecent or disorderly way can be punished. The term
“indecent” may be interpreted to mean behaviour, which is not
heterosexual normative behaviour.
Section 46 specifically provides that women shall not be liable to

imposition of handcuffs, fetters or to whipping.
Question for
practice
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4.0 Criminal provisions specific to people with HIV
4.0.1 Does the law prohibit any of the following by a person with HIV?
- Any act that could expose another to HIV
- Exposure with intent to infect with HIV
- Actual transmission of HIV
- Sexual intercourse
- Other sexual contact
- Sharing injection equipment
4.0.2 What is the penalty for each?
4.0.3 Are there any affirmative defenses?

- If the person with HIV uses a condom
- If the person with HIV infection discloses his/her status and obtains
consent for contact
Please note:
 No law prohibits any of the acts listed in 4.0.1 specifically by an HIV-positive person.
However, the general criminal laws do have provisions which could be used to
prosecute the acts listed above.
 The penalties in some cases are set out in the provision itself and are therefore not set
out in separate boxes.
4.0 Criminal penalties for knowing exposure to HIV

- Any act that could expose another to HIV
provision
Text of law Section 269. Negligent act likely to spread infection of disease
dangerous to life.—Whoever unlawfully or negligently does any act
which is, and which he knows or has reason to believe to be, likely to
spread the infection of any disease dangerous to life, shall be punished
with imprisonment of either description for a term which may extend to
six months, or with fine, or with both.
Narrative Section 269 of the Indian Penal Code, 1860 (IPC) appears in the Chapter
summary relating to offences affecting the public health, safety, convenience,
decency and morals. In the past, these provisions were used to deal with
diseases such as cholera, plague and syphilis.
Section 269 of the IPC would be attracted in case of the commission of

an act by an HIV-positive person, who knows or has reason to believe,
that the act committed by him is likely to spread the infection of HIV,
which is a disease dangerous to life. In Queen Empress v. Krishnappa
and Murugappa, ILR Vol. VII 276 (1883), a person, who knew that he
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was suffering from cholera, travelled in a train without informing the

railway authorities about his condition. He was accompanied by a
companion, who purchased the ticket for him. The person was convicted
under section 269 and his companion was held to be an accomplice.
Actual transmission of HIV is not a pre-requisite for conviction under

this section.
Section 269 would be attracted where the act is done either unlawfully or
negligently by the person. The IPC does not define what is unlawful or
what is negligent. However, an action that is contrary to any Indian law
would be unlawful. An act is said to be done negligently when the actor
(a) neglects or fails to do something that a prudent and reasonable person,
guided upon those considerations which ordinarily regulate the conduct
of human affairs, would do or (b) does something which a prudent and
reasonable person would not do. Thus, failure to exercise that reasonable
and proper care and precaution to guard against injury would amount to
negligence. Thus any act, done unlawfully or negligently, which would
expose another to HIV is covered by section 269.
Our research thus far does not show conviction of HIV positive persons
under this section, though we are aware of prosecutions pending against
HIV positive persons under the same.
The punishment is imprisonment of either description for a term which

may extend to six months, or with fine, or with both.
Question for
practice

- Exposure with intent to infect with HIV
provision
Text of law Section 270. Malignant act likely to spread infection of disease
dangerous to life.— Whoever malignantly does any act which is, and
which he knows or has reason to believe to be, likely to spread the
infection of any disease dangerous to life, shall be punished with
imprisonment of either description for a term which may extend to two
years, or with fine, or with both.
Narrative Section 270 of the IPC too appears in the chapter relating to offences
summary affecting the public health, safety, convenience, decency and morals. In
the past, these provisions were used to deal with diseases such as cholera,
plague and syphilis.
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Section 270 of the IPC would be attracted in case of the commission of

an act by an HIV-positive person, who knows or has reason to believe,
that the act committed by him is likely to spread the infection of HIV,
which is a disease dangerous to life.
Actual transmission of HIV is not a pre-requisite for conviction.
Section 270 would be attracted where the act is done with a malignant
intention (i.e. acting out of malice or deliberate intention). Therefore, any
act by an HIV-positive person with intent to expose another to HIV is
covered by this section.
The punishment is imprisonment of either description for a term which

may extend to two years, or with fine, or with both
Question for
practice

Citation Indian Penal Code, 1860, sections 319, 321, 322, 323, 336 and 337
provision
Text of law 319. Hurt.—Whoever causes bodily pain, disease or infirmity to any
person is said to cause hurt.
321. Voluntarily causing hurt.—Whoever does any act with the

intention of thereby causing hurt to any person, or with the knowledge
that he is likely thereby to cause hurt to any person, and does thereby
cause hurt to any person, is said “voluntarily to cause hurt“.
323. Punishment for voluntarily causing hurt.—Whoever, except in the

case provided for by section 334, voluntarily causes hurt, shall be
punished with imprisonment of either description for a term which may
extend to one year, or with fine which may extend to one thousand
rupees, or with both.
336. Act endangering life or personal safety of others.—Whoever does

any act so rashly or negligently as to endanger human life or the personal
safety of others, shall be punished with imprisonment of either
description for a term which may extend to three months or with fine
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which may extend to two hundred and fifty rupees, or with both.
337. Causing hurt by act endangering life or personal safety of

others.—Whoever causes hurt to any person by doing any act so rashly
or negligently as to endanger human life, or the personal safety of others,
shall be punished with imprisonment of either description for a term
which may extend to six months, or with fine which may extend to five
hundred rupees, or with both.
Narrative The penal provisions relating to causing hurt would be attracted in case
summary of actual transmission of HIV.
Section 319 of the IPC defines hurt as being caused when bodily pain,
disease or infirmity is caused. Actual transmission of HIV is an act which
causes disease and would be covered by this section.
An offence is committed when a person causes hurt by doing an act, by

which he intends to or which he knows is likely to cause hurt. Thus, it is
necessary to prove that the accused had the intent to transmit HIV or
knowledge that the act would be likely to transmit HIV.
The punishment for voluntarily causing hurt is imprisonment of either

description for a term which may extend to one year, or with fine which
may extend to one thousand rupees, or with both.
Sections 336–337 penalise causing of hurt by commission of rash or

negligent acts so as to endanger human life or the personal safety of
others. The punishment for so causing hurt is imprisonment of either
description for a term which may extend to six months, or with fine
which may extend to five hundred rupees, or with both.
In order to secure convictions under the above provisions, it is necessary

to prove that hurt was caused, i.e. that HIV was actually transmitted.
Question for
practice

Citation Indian Penal Code, 1860, sections 319, 320, 322, 325, 336 and 338
provision
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Text of law 319. Hurt.—Whoever causes bodily pain, disease or infirmity to any
person is said to cause hurt.
320. Grievous hurt.—The following kinds of hurt only are designated as

“grievous”:–
Firstly.–Emasculation.
Secondly.–Permanent privation of the sight of either eye.
Thirdly.–Permanent privation of the hearing of either ear.
Fourthly.–Privation of any member or joint.
Fifthly.–Destruction or permanent impairing of the powers of any
member or joint.
Sixthly.–Permanent disfiguration of the head or face.
Seventhly.–Fracture or dislocation of a bone or tooth.
Eighthly.–Any hurt which endangers life or which causes the sufferer to
be during the space of twenty days in severe bodily pain, or unable to
follow his ordinary pursuits.
322. Voluntarily causing grievous hurt.—Whoever voluntarily

causes hurt, if the hurt which he intends to cause or knows himself to be
likely to cause is grievous hurt, and if the hurt which he causes is
grievous hurt, is said “voluntarily to cause grievous hurt“.
Explanation.–A person is not said voluntarily to cause grievous hurt

except when he both causes grievous hurt and intends or knows
himself to be likely to cause grievous hurt. But he is said voluntarily
to cause grievous hurt, if intending or knowing himself to be likely to
cause grievous hurt of one kind, he actually causes grievous hurt of
another kind.
325. Punishment for voluntarily causing grievous hurt.—Whoever,

except in the case provided for by section 335, voluntarily causes
grievous hurt, shall be punished with imprisonment of either
description for a term which may extend to seven years, and shall also be
liable to fine.
336. Act endangering life or personal safety of others.—Whoever does

any act so rashly or negligently as to endanger human life or the personal
description for a term which may extend to three months or with fine
which may extend to two hundred and fifty rupees, or with both.
338. Causing grievous hurt by act endangering life or personal safety

of others.—Whoever causes grievous hurt to any person by doing any act
so rashly or negligently as to endanger human life, or the personal
description for a term which may extend to two years, or with fine
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which may extend to one thousand rupees, or with both.
Narrative The penal provisions relating to causing grievous hurt too would be
summary attracted in case of actual transmission of HIV.
Section 319 of the IPC defines hurt as being caused when bodily pain,
disease or infirmity is caused. If the bodily pain, disease or infirmity
endangers life, grievous hurt is said to be caused. Actual transmission of
HIV endangers the life of the other and is therefore covered by the
definition of “grievous hurt”.
An offence is committed when a person causes grievous hurt by doing an

act, by which he intends to or which he knows is likely to cause grievous
hurt. Thus, it is necessary to prove that the accused had the intent to
transmit HIV or knowledge that the act would be likely to transmit HIV.
The punishment for voluntarily causing grievous hurt is imprisonment of

either description for a term which may extend to seven years, and shall
Sections 336 and 338 penalise causing of grievous hurt by commission of

rash or negligent acts so as to endanger human life or the personal safety
of others. The punishment for so causing grievous hurt is imprisonment
of either description for a term which may extend to two years, or with
fine which may extend to one thousand rupees, or with both.
In order to secure convictions under the above provisions, it is necessary

to prove that grievous hurt was caused, i.e. that HIV was actually
transmitted.
Question for
practice

Citation Indian Penal Code, 1860, section 304A
provision
Text of law 304A. Causing death by negligence.—Whoever causes the death of
any person by doing any rash or negligent act not amounting to culpable
homicide shall be punished with imprisonment of either description for
a term which may extend to two years, or with fine, or with both.
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Narrative In case an HIV positive person negligently infects another person and the
summary latter dies on account of progression of HIV/AIDS, the first mentioned
HIV positive person could be prosecuted under this section. However,
our research has not yielded any reported instances of prosecution under
this section.
Question for
practice

- Sexual intercourse
Citation
Type of
provision
Text of law
Narrative No law specifically prohibits sexual intercourse by a person with HIV.
summary
Question for
practice

- Other sexual contact
Citation
Type of
provision
Text of law
Narrative No law specifically prohibits other sexual contact by a person with HIV.
summary
Question for
practice

- Sharing injection equipment
Citation
Type of
provision
Text of law
Narrative No law specifically prohibits sharing of injection equipment by a person
summary with HIV.
Question for
88
89
practice

- If the person with HIV uses a condom
Citation Indian Penal Code, 1860, sections 269, 270, 319325, 336–338
provision
Text of law See above
Narrative The IPC does not specifically provide use of condom by an HIV-positive
summary person as an affirmative defence for commission of any of the acts listed
in 4.0.1 above.
In complaints under Sections 269 and/or 270 of the IPC, the prosecution
would have to prove that the accused had either engaged in acts listed in
4.0.1 either unlawfully, negligently or malignantly. It could be open to the
accused to show that proper use of condom takes the act out of the
purview of negligence or malignance. Lack or improper use of a condom
or use of expired condoms, if proved, could be construed as negligence.
In complaints for causing hurt or grievous hurt, the prosecution has to

prove that the accused had the intent to transmit HIV or knowledge that
the act would be likely to transmit HIV. It could be open to the accused
to show that proper and consistent use of condom by her/him is indicative
of lack of intent to transmit HIV.
Question for
practice

- If the person with HIV infection discloses his/her status and
obtains consent for contact
provision
Text of law Section 87. Act not intended and not known, to be likely to cause death
or grievous hurt, done by consent.— Nothing which is not intended to
cause death, or grievous hurt, and which is not known by the doer to be
likely to cause death or grievous hurt, is an offence by reason of any
harm which it may cause, or be intended by the doer to cause, to any
person, above eighteen years of age, who has given consent, whether
express or implied, to suffer that harm; or by reason of any harm which
it may be known by the doer to be likely to cause to any such person
who has consented to take the risk of that harm.
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90
Narrative The IPC enumerates consent as a general defence.

summary
In Queen Empress v. Rakma Kom Sadhu, B. S. Vol. XI 59 (1886), where
a sex worker was charged under section 269 with having communicated
syphilis to the complainant, the Bombay High Court held that the accused
sex worker was not guilty because the act of sexual intercourse would not
spread a disease dangerous to life without the intervention of the
complainant, himself a responsible person and an accomplice. It was
suggested that an offence of cheating could be made out if it could be
shown that intercourse was induced by misrepresentation on the part of
the accused. Legal commentators have questioned the soundness of this
decision, as the complainant was not aware that the accused was infected
with syphilis prior to the sexual intercourse.
However, section 87 provides that the defence of consent would not be

applicable in cases where the act is intended to cause grievous hurt
(which could be read to include transmission of HIV) or death and the
doer of the act knows that the act is likely to cause grievous hurt or death.
Question for
practice

- If the person with HIV infection discloses his/her status and
obtains consent for contact
Citation Indian Penal Code, 1860, Section 91
provision
Text of law Section 91. Exclusion of acts which are offences independently of harm
caused.—The exceptions in sections 87, 88 and 89 do not extend to acts
which are offences independently of any harm which they may cause, or
be intended to cause, or be known to be likely to cause, to the person
giving the consent, or on whose behalf the consent is given.
Narrative Section 91 of the IPC however provides that consent cannot be pleaded
summary as a defence, where the act is an offence independent of any harm that
may be caused to the consenting person.
Sections 269 and 270, which are designed to protect public health and
safety, are attracted where there are unlawful, negligent or malignant acts
that are likely to spread the infection of a dangerous disease and make
such acts independent offences, irrespective of the harm caused to
another. Therefore, even if an HIV positive person has sexual intercourse
with an HIV negative person with the latter's express consent to sexual
intercourse with an HIV positive person, Section 91 would bar the
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defendant from pleading consent as a defence in a prosecution under

section 269 or Section 270.
Question for
practice
4.1 Additional penalties for crimes committed by persons with HIV
4.1.1 Identify any law imposing additional penalties for engaging in sex work
while infected, purchasing sex while infected, assault while infected, or other
criminal activities?
Please note: There is no law that imposes additional penalties for engaging in sex work
while infected, purchasing sex while infected, assault while infected or other criminal
activities.
4.1 Additional penalties for crimes committed by persons with HIV
Citation
Type of
provision
Text of law
Narrative
summary
Question for
practice
4.2 Other HIV-specific criminal laws
4.2.1 Identify any other HIV-specific criminal laws.
Please note: There is no other HIV-specific criminal law.
4.2 Other HIV-specific criminal laws

Citation
Type of
provision
Text of law
Narrative
summary
Question for
practice
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6.0 Right to health care/HIV treatment

6.0 Does the law establish a “right to health care”?
6.0 Right to health care
Citation Constitution of India 1950, Articles 21 and 47

Types of Constitution
provision
Text of Article 21. Protection of life and personal liberty.—No person shall be
Law deprived of his life or personal liberty except according to the procedure
established by law.
Consumer Education and Research Center v. Union of India, AIR 1956 SC
636
Article 47. Duty of the State to raise the level of nutrition and the standard
of living and to improve public health.—The State shall regard the raising
of the level of nutrition and standard of living of its people and
improvement of public health as among its primary duties and, in particular,
the State shall endeavour to bring about prohibition of the consumption
except for medicinal purposes of intoxicating drinks and of drugs which are
injurious to health.
Narrative The Supreme Court has held that Article 21 includes right to health and
summary access to medical treatment.
In Vincent Panikkulangara v. Union of India, (1987) 2 SCC 165, the

Supreme Court held that maintenance and improvement of public health
have to rank high amongst state obligations, as these are indispensable to
the very physical existence of the community.
In Consumer Education and Research Centre v. Union of India, AIR

1956 SC 636, the Supreme Court recognized that the right to health
is essential for human existence and is, therefore, an integral part of
the right to life. It also held that humane working conditions and
health services and medical care are essential components of Article
21.
In Paramanand Katara v. Union of India, AIR 1989 SC 2039, the Supreme

Court held that Article 21 casts on the members of the medical profession, a
total, absolute, paramount obligation to extend medical assistance for
preserving life of a person seeking immediate relief, irrespective of any
legal impediments by way of procedural formalities. No medical
practitioner, whether in the public or the private sector, can refuse medical
treatment to a person in case of an emergency situation.
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In State of Punjab and Others v. Mohinder Singh, AIR 1997 SC 1225, the Supreme Court
reiterated that the right to health is integral to right to life. Government has a constitutional
obligation to provide health facilities.
[See also Surjit Singh v State of Punjab, (1996) 2 SCC 336, Paschim Bangha Khet
Mazdoor Samity v State of West Bengal, (1996) 4 SCC 37, Dr Ashok v Union of India,
(1997) 5 SCC 10, State of Punjab v Ram Lubhaya Bagga and (1998) 4 SCC 117]
Article 47, which casts an affirmative obligation on the State, is a Directive Principle of
State Policy, and as such, is non-justiciable or unenforceable in a court of law. However,
Courts read fundamental rights (Part III of the Constitution) harmoniously with Directive
Principles of State Policy (Part IV of the Constitution) to achieve the social objectives
underlying the Directives. [See Kesavananda Bharathi v. State of Kerala, (1973) 4 SCC
225 and Chandra Bhavan Boarding v. State of Mysore, AIR 1970 SC 2042]
Thus, Article 47 is read into Article 21 and Courts have held that the right to life includes
the right to health and subsequently right to health care. The state is under an obligation to
raise the level of nutrition, improve public health as well as the standard of living; failure to
do so would constitute a violation of right to health under Article 21.
Question
for practice
6.0 Right to health care

Citation The Indian Medical Council (Professional Conduct, Etiquette and Ethics)
Regulations, 2002
Types of Regulations
provision
Text of 2. DUTIES OF PHYSICIANS TO THEIR PATIENTS
Law
2.1 Obligations to the Sick
2.1.1 Though a physician is not bound to treat each and every person asking
his services, he should not only be ever ready to respond to the calls of the
sick and the injured, but should be mindful of the high character of his
mission and the responsibility he discharges in the course of his
professional duties. In his treatment, he should never forget that the health
and the lives of those entrusted to his care depend on his skill and attention.
A physician should endeavour to add to the comfort of the sick by making
his visits at the hour indicated to the patients. A physician advising a patient
to seek service of another physician is acceptable, however, in case of
emergency a physician must treat the patient. No physician shall arbitrarily
refuse treatment to a patient. However for good reason, when a patient is
suffering from an ailment which is not within the range of experience of the
treating physician, the physician may refuse treatment and refer the patient
to another physician.
2.4 The Patient must not be neglected: A physician is free to choose whom
he will serve. He should, however, respond to any request for his assistance
in an emergency. Once having undertaken a case, the physician should not
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neglect the patient, nor should he withdraw from the case without giving
adequate notice to the patient and his family. Provisionally or fully
registered medical practitioner shall not willfully commit an act of
negligence that may deprive his patient or patients from necessary medical
care.
Narrative The Medical Council of India has incorporated principles of ethics into the
summary regulations governing medical practitioners. According to the first principle,
a physician must treat the patient in case of emergency. The second
principle requires a doctor not to willfully commit an act of negligence,
which would deprive patients from necessary medical care.
The Supreme Court has in Paramanand Katara v. Union of India, AIR 1989 SC 2039,
relied on these principles to cast an obligation on the private doctors to provide medical
care to the needy in emergency situations disregarding any legal impediments. These
provisions together with Article 21 impose a higher degree of obligation on the part of the
medical practitioners.
Question for
practice
6.2 Right to treatment for HIV/AIDS
6.2.2 Does the law indicate how to allocate scarce HIV/AIDS medicines, such
as by setting up criteria for anti-retroviral treatment or setting priorities for types
of patients (for example, pregnant women)?
6.2 Right to treatment for HIV/AIDS

Citation  National Guidelines for Implementation of Antiretroviral Therapy
2004.
 Programme Implementation Guidelines for a Phased Scale up of
Access to Antiretroviral Therapy for People Living with
HIV/AIDS.
Type of Guidelines
provision
Text of law Annexed.
Page 11 of the National Guidelines for Implementation of

Antiretroviral Therapy 2004
Allocating Scarce HIV/AIDS medicines
On 1 April 2004, the Government of India launched free access to
antiretroviral medicines in select centres in six high prevalence states,
viz. Andhra Pradesh, Karnataka, Maharashtra, Tamil Nadu, Manipur,
Nagaland and NCT of Delhi through government hospitals as part of the
first phase. In Phase I of implementation, the sub-groups among the
persons living with HIV/AIDS, being targeted on priority are:
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1. Sero-positive mothers who have participated in the PPTCT

programme;
2. Sero-positive children below the age of 15 years;
3. People with AIDS who seek treatment in government hospitals.
Page 12 of the Programme Implementation Guidelines for a Phased

Scale up of Access to Antiretroviral Therapy for People Living with
HIV/AIDS.
10. Treatment of HIV with ART
Criteria for starting ARV therapy in adolescents and adults:
 Confirmed HIV infection and one of the following conditions:

 WHO clinical state IV (clinically advanced): HIV disease irrespective
of CD4 counts
 WHO clinical stage II: HIV disease with consideration of using CD4
cell counts< 350/mm.
 WHO stage I, II or III disease with CD4 cell count< 200/mm.
Criteria for starting ARV therapy in infants and children:
For HIV sero-positive infants aged 18 months, WHO recommends

initiation of ARV therapy, if;
 The infant has virologically proven infection (using HIV DNA PCR,
HIV RNA or P24 antigen) and has:
a. WHO Paediatric stage III HIV disease (e.g clinical AIDS)
irrespective of CD 4%
OR
B WHO paediatric stage I ( e.g asymptomatic) and CD4< 20%(to be
treated only if CD4 assay available)
 If virologic tests to confirm HIV infection status are not available but
CD4 cell assays are available, WHO recommends that ARV therapy can
be initiated in HIV-seropositive infants who have WHO stage II or III
disease and CD 4 percentage < 20%. In such cases HIV antibody testing
must be repeated at age 18 months to definitively confirm that the child is
HIV infected; only infants with confirmed infection should have ARV
therapy continued.
 For HIV seropositive children>18 months, WHO recommends
initiation of ARV therapy if:
(a) WHO paediatric stage III HIV disease(e.g. clinical AIDS)

irrespective of CD4%
OR
(b) WHO paediatric stage II disease with consideration of using
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CD4<15% to assist in decision-making.

(c) WHO paediatric stage I (e.g. asymptomatic) and CD4<15%.
Narrative Given the cost of treatment and infrastructural constraints, ARV

summary provision started in a phased manner, starting with six high prevalence
states.
Although the programme guidelines prioritize patients on the basis of gender, age and
physical condition, in practice, anyone meeting the clinical criteria (of CD4 <200) is
administered treatment. There are now 33 sites across the country with 21,318 patients
receiving drugs as on 31.12.2005.
Criteria for administering ARVs.
NACO guidelines are silent on inclusion and exclusion criteria. The

above criteria are the World Health Organization’s guidelines for ARVs.
Each State Aids Control Society has the responsibility to develop and
implement the criteria.
From anecdotal information received by us, the Andhra Pradesh State

AIDS Control Society follows the NACO guidelines and do not have any
other specific inclusion and exclusion criteria.
Question for
practice
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7.0 Reportability of HIV/AIDS and other communicable diseases
7.1 Reporting and registries

7.1.1 Determine whether the law requires reporting of AIDS, HIV, Hepatitis (B or C),
TB, and/or syphilis to health authorities.
7.1.2 Who must report cases of infection or disease?
7.1.3 What agency or agencies maintain the registries?
7.1.1 Determine whether the law requires reporting of AIDS, HIV,

Hepatitis (B or C), TB, and/or syphilis to health authorities.
Citation The Epidemic Diseases Act, 1897, Section 2
provision
Text of law Section 2. Power to make special measures and prescribe regulations as
to dangerous epidemic diseases—
(1) When at any time the State Government is satisfied that the State
or any part thereof is visited by or threatened with, an outbreak of
any dangerous epidemic disease, the State Government, if it
thinks fit that the ordinary provisions of law for the time being in
force are insufficient for the purpose, may take, or require or
empower any person to take, such measures and, by public notice,
prescribe such temporary regulation to be observed by the public
or by any person or class of persons as it shall deem necessary to
prevent the outbreak of such disease or the spread thereof, and
may determine in what manner and by whom any expenses
incurred including compensation if any shall be defrayed.
(2) In particular and without prejudice to the generality of the

forgoing provisions, the (State Government) may take measures
and prescribe regulations for-
(a) *****
(b) The inspection of persons travelling by railway or otherwise and
the segregation, in hospital, temporary accommodation or
otherwise, of persons suspected by the inspecting officer of being
infected with any such disease.
Narrative This Act empowers State Governments to take measure to prevent the
summary outbreak and spread of dangerous epidemics. Governments may invoke
this power to require reporting of HIV cases, and to subsequently isolate
people infected by HIV.
Question for
practice

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Citation The Indian Medical Council (Professional conduct, Etiquette and Ethics)
Regulations, 2002, Regulations 1.9, 5.1, 5.2 and 7.14
Type of
provision
Text of law 1.9 Evasion of Legal Restrictions.—The physician shall observe the
laws of the country in regulating the practice of medicine and shall also
not assist others to evade such laws. He should be cooperative in
observance and enforcement of sanitary laws and regulations in the
interest of public health. A physician should observe the provisions of the
State Acts like Drugs and Cosmetics Act, 1940; Pharmacy Act, 1948;
Narcotic Drugs and Psychotropic substances Act, 1985; Medical
Termination of Pregnancy Act, 1971; Transplantation of Human Organ
Act, 1994; Mental Health Act, 1987; Environmental Protection Act,
1986; Pre–natal Sex Determination Test Act, 1994; Drugs and Magic
Remedies (Objectionable Advertisement) Act, 1954; Persons with
Disabilities (Equal Opportunities and Full Participation) Act, 1995 and
Bio-Medical Waste (Management and Handling) Rules, 1998 and such
other Acts, Rules, Regulations made by the Central/State Governments or
local Administrative Bodies or any other relevant Act relating to the
protection and promotion of public health.
5.1 Physicians as Citizens.—Physicians, as good citizens, possessed of

special training should disseminate advice on public health issues. They
should play their part in enforcing the laws of the community and in
sustaining the institutions that advance the interests of humanity. They
should particularly co-operate with the authorities in the administration
of sanitary/public health laws and regulations.
5.2 Public and Community Health.— Physicians, especially those

engaged in public health work, should enlighten the public concerning
quarantine regulations and measures for the prevention of epidemic and
communicable diseases. At all times the physician should notify the
constituted public health authorities of every case of communicable
disease under his care, in accordance with the laws, rules and regulations
of the health authorities. When an epidemic occurs a physician should not
abandon his duty for fear of contracting the disease himself.
7.14— The registered medical practitioner shall not disclose the secrets
of a patient that have been learnt in the exercise of his / her profession
except–
in a court of law under orders of the Presiding Judge;

in circumstances where there is a serious and identified risk to a
specific person and / or community; and
notifiable diseases.
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In case of communicable / notifiable diseases, concerned public health

authorities should be informed immediately.
Narrative The code of medical ethics governing allopathic medical practitioners

summary requires them to notify public health authorities immediately in
accordance with the law. However, we have not found any notification
issued by the Andhra Pradesh State Government mandating reportability
of HIV.
Question for
practice

Citation The Practitioners of Indian Medicine (Standards of Professional Conduct
Etiquette and Code of Ethics) Regulations 1982, Regulations 7.14 and
13
Type of Regulations
provision
Text of law Regulation 7. Patience, delicacy and secrecy.—Patience and delicacy
shall characterise the practitioner of Indian medicine. Confidence
concerning individuals or domestic life entrusted by patients to a
practitioner of Indian medicine and defects in the disposition or character
of patients observed during medical attendance shall never be revealed
unless their revelation is required by law. Sometimes, however, a
practitioner must determine whether his duties to society require him to
employ knowledge obtained through confidences to him as such
practitioner to protect a healthy person against a communicable disease to
which he is about to be exposed. In such instances, the practitioners of
Indian medicine shall act as he would desire another to act towards one
of his own family in like circumstances.
Regulation 13. Public Health.—

A practitioner of Indian medicine especially engaged in public health
work, shall enlighten the public concerning measures for the prevention
of epidemics and communicable diseases. At all times, the practitioner
shall notify the constituted public health authorities of every case of
communicable disease under his case, in accordance with the laws, rules
and regulations to the health authorities. When an epidemic prevails, he
shall continue his labour without regard to the risk of his own health.
Narrative A practitioner of Indian medicine is required to notify public health
summary authorities in case of communicable diseases in accordance with the law.
This duty extends to such communicable diseases that may be notified by
the Government. However, we have not found any notification issued by
the Andhra Pradesh State Government mandating reportability of HIV.
Question for
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practice

Citation Homoeopathic Practitioners (Professional Conduct, Etiquette and Code
of Ethics) Regulations, 1982, Regulations 35 and 36
Type of Regulations
provision
Text of law Regulation 35. Practitioners as Citizens.— Practitioners of
Homoeopathy as good citizens, possessed of special training, shall advise
concerning the health of the community wherein they dwell. They shall
play their part in enforcing the laws of the community and in sustaining
the institutions that advance the interest of humanity. They shall
cooperate with the authorities in the observance and enforcement of
sanitary laws and regulations and shall observe the provisions of all laws
relating to Drugs, Poisons and Pharmacy made for the protection and
promotion of public health.
Regulation 36. Public Health.—Practitioners of Homoeopathy engaged

in public health work, shall enlighten the public concerning quarantine
regulations and measures for the prevention of epidemic and
communicable diseases. At all times the practitioners shall notify the
constituted public health authorities of every case of communicable
disease under their care, in accordance with the laws, rules and
regulations of the health authorities. When an epidemic prevails, the
practitioner of Homoeopathy shall continue his labours without regard to
the risk to his own health.
Narrative A practitioner of homeopathy is required to notify public health
summary authorities in case of communicable diseases in accordance with the law.
This duty extends to such communicable diseases that may be notified by
the Government. However, we have not found any notification issued by
the Andhra Pradesh State Government mandating reportability of HIV.
Question for
practice

Citation Guidelines for HIV Surveillance, National AIDS Control Organisation
Type of Guidelines
provision
Text of law Analysis: Data Collected at each HIV Sentinel site and for each sentinel
group at that site should be reported in the prescribed format as per the
reporting schedule.
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Unlinked anonymous testing: A sample of blood originally collected for

other purposes is tested for HIV after all information that could identify
the source of the blood sample are eliminated from the sample. For
surveillance purposes, unlinked anonymous testing or screening is the
method of choice for collecting blood for HIV testing. This is because
participation bias may be minimized.
(e) Testing Methodology: The unlinked anonymous testing method must

be used, as it minimises participation bias. In this type of testing, a part of
the blood sample originally collected for other purposes is used for
testing for HIV. For example, at an STD clinic, when blood sample is
collected for VDRL, a part of it can be separated out and sent to the
laboratory after removing all personal identifiers, namely, name, address,
etc. so that the HIV test results cannot be linked with the individual. The
sentinel sites should, however, be encouraged to refer the clinic
attendees, when necessary, to the centres where voluntary HIV testing
and counselling should be provided.
Narrative Cases of HIV are reported through the sentinel surveillance mechanism
summary in an unlinked and anonymous manner for the purposes of data collection
and for epidemiological estimation.
Question for
practice

7.1.3 What agency or agencies maintain the registers?
Citation
Type of
provision
Text of law
Narrative
summary
Question for
practice
[Reportability Table]
Disease/condition Local National Hospitals Other gov. Other non-
health health entity (list) gov. entity
author author (list)
AIDS
HIV infection
HBV
HCV
TB
101
102
Syphilis
Other STDs
As stated above, medical practitioners are required to maintain the secrecy of their
patients. They can only divulge details if a public health law mandates reportability of a
medical condition. As stated earlier, we have not identified any notification mandating
reportability of the abovelisted conditions.
7.2 Permitted uses of HIV-status information in registries
7.2.1 Who has access to the data (with individually identifiable information)?
7.2.2 For what purpose can health officials or others use the data?
7.2.3 Is registry information also covered by general privacy laws collected in

domain 9, below?
7.2.4 Are there penalties for improper use or disclosure?
7.2. Permitted uses of HIV-status information in registries
Citation Right to Information Act, 2005, Section 8

provision
Text of law Section 8. Exemption from disclosure of information.—
(1) Notwithstanding anything contained in this Act, there shall be no
obligation to give any citizen,—
(e) Information available to a person in his fiduciary relationship, unless

the competent authority is satisfied that the larger public interest warrants
the disclosure of such information,
(j) information which relates to personal information the disclosure of

which has no relationship to any public activity or interest, or which
would cause unwarranted invasion of the privacy of the individual unless
the Central Public Information Officer or the State Public Information
Officer or the appellate authority, as the case may be, is satisfied that the
larger public interest justifies the disclosure of such information:
(2) Notwithstanding anything in the Official Secrets Act, 1923 or any of

the exemptions permissible in accordance with sub-section (1), a public
authority may allow access to information, if public interest in disclosure
outweighs the harm to the protected interests.
102
103
Narrative The Right to Information Act, 2005 requires public authorities to make
summary information that is in their possession available to the public. Section 8
provides an exemption for information obtained in a doctor-patient
(fiduciary) relationship unless the authority i.e Public Information Officer
determines that it is necessary in the public interest. HIV-related
information may be considered personal under section (j) and an
unwarranted invasion of privacy unless the officer considers it necessary
to disclose for the larger public interest. Again, this will be subject to the
officer’s discretion in the absence of clear guidelines to the contrary.
Question for
practice
Citation Indian Medical Council (Professional conduct, Etiquette and Ethics)

Regulations, 2002, Regulation 1.3.2
Type of Regulation
provision
Text of law Regulation 1.3.2.—If any request is made for medical records either by
the patients / authorised attendant or legal authorities involved, the same
may be duly acknowledged and documents shall be issued within the
period of 72 hours.
Narrative The MCI regulations which governs allopathic medical practitioners
summary permits copies of medical records to be issued to legal authorities. It is
possible that under the regulations, records containing HIV-related
information may be accessible to legal authorities.
Question for
practice

Citation The Medical Officers of Health, Municipal Corporation of Hyderabad
(Duties) Rules, 1965
Type of Rules
provision
Text of law 6. The duties of the Medical Officer of Health shall be as follows:
(e) He shall cause inspection of cases of infectious diseases and
investigate the causes of the outbreaks of epidemic diseases and report
to the Commissioner. He shall exercise such powers as may be
delegated to him by the Commissioner under Sections 550, 551, 552,
554 and 555 of the Act, in order to control the epidemics and to prevent
such diseases from spreading beyond the limits of areas where they
103
104
occur,
(k) He shall cause statutory action to be taken against offences affecting

public health.
(n) He shall take such steps as are necessary about education and
propaganda in regard to public health matters.
Narrative This section provides discretionary authority to the Medical Officer of
summary Health to take steps to control epidemics. This section may be applied in
the context of HIV if the Medical Officer determines action is warranted.
Question for
practice

Citation National Blood Policy, National AIDS Control Organisation
Type of Policy
provision
Text of law 4.1.5 Each Blood Centre shall create and update a blood donor’s
directory which shall be kept confidential.
4.2 Enrolment of safe donors shall be ensured.
Narrative All blood centres are required to maintain a database of blood donors,
summary particularly those testing HIV negative. This is to ensure a safe blood
banking system.
Question for
practice

7.2.3 Is registry information also covered by general privacy laws collected in
domain 9, below?
Citation See Domain 9.

Type of See Domain 9.
provision
Text of law See Domain 9.
Narrative The registry information is also covered by General Privacy Laws
summary collected in domain 9.
Question for
practice
104
105
7.2.4 Are there penalties for improper use or disclosure?
Citation None identified.

Type of
provision
Text of law
Narrative
summary
Question for
practice
105
106
9.0 Privacy of medical information

9.0 Medical information generally
9.0.1 Does the law protect personally identifiable medical information?
9.0.2 Does the law define personally identifiable medical information?
9.0.3 When may a physician/health care worker disclose personally identifiable

health care information to others (such as)
- Health department
- Other health care workers involved in care
- Law enforcement officers who may have been exposed
- Institutional workers who may have been exposed
- Patient’s family
- Patient’s regular sex partners
- Patient’s casual sex partners
- Law enforcement / courts for use as evidence
- Other individuals at risk of infection/exposure
- Researchers
- Others (list)

Citation Constitution of India, 1950, Article 21
Francis Coralie Mullin v. Administrator, Union Territory of Delhi, AIR
1981 SC 746
R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632
Mr. X v. Hospital Z, (1998) 8 SCC 296 (annexed)
provision
Case Law
Text of law Article 21. Protection of life and personal liberty. —No person shall be
established by law.
Narrative The Constitution of India guarantees the fundamental right to life and
summary personal liberty, which has been interpreted by the Supreme Court of
India to include an individual’s right to live with dignity (See Francis
Coralie Mullin v. Administrator, Union Territory of Delhi) and to
safeguard her/his privacy (R. Rajagopal v. State of Tamil Nadu). In Mr. X
v. Hospital Z, the Supreme Court once again recognized the right to
privacy and confidentiality as a fundamental right under Article 21.
Implicitly, medical information of a person is protected under Article 21.
Question for
practice
106
107

Citation Right to Information Act, 2005, Sections 2 (f), 2(h), 8(1) (e) and 8 (1) (j)
Type of Statute (central)
provision
Text of law Section 2(f): “information” means any material in any form, including
records, documents, memos, e-mails, opinions, advices, press releases,
circulars, orders, logbooks, contracts, reports, papers, samples, models,
data material held in any electronic form and information relating to any
private body which can be accessed by a public authority under any law
for the time being in force;
Section 2(h): “public authority” means any authority or body or

institution of self-government established or constituted, -
(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature;
(d) by notification issued or order made by the appropriate
Government, and includes any –
(i) body owned, controlled or substantially financed;
(ii) non-Government Organisation substantially financed,
directly or indirectly by funds provided by the appropriate Government;
Section 8 (1): Notwithstanding anything contained in this Act, there shall

be no obligation to give any citizen, -
(e) Information available to a person in his fiduciary relationship, unless
the competent authority is satisfied that the larger public interest warrants
the disclosure
(j) Information which relates to personal information the disclosure of
which has not relationship to any public activity or interest, or which
would cause unwarranted invasion of the privacy of the individual unless
the Central Public Information Officer or the State Public Information
Officer or the appellate authority, as the case may be, is satisfied that the
larger public interest justifies the disclosure of such information:
Provided that the information, which cannot be denied to the Parliament
or a State Legislature, shall not be denied to any person.
Narrative Under the Right to Information Act, any citizen can access information
summary under the control of public authorities; except information described
under section 8 (1). Information revealed in a relationship of a fiduciary
nature or one based on trust, such as a doctor patient relationship is
exempt from disclosure under Section 8 (1) (e).
Personal information, unrelated to any public activity is protected under
Section 8 (1) (j) until the requisite authority concludes that disclosure of
such information is necessary in larger public interest.
107
108
The right to access information is limited to information available with

public authorities within the meaning of Section 2 (h).
Question for
practice

Citation Evidence Act, 1872, Section 131
provision
Text of law Section 131. Production of documents or electronic records which
another person having possession, could refuse to produce.̶No
one shall be compelled to produce documents in his possession or
electronic records under his control, which any other person would
be entitled to refuse to produce if they were in his possession or
control, unless such last-mentioned person consents to their
production.
Narrative This provision pertains to production of information (document or
summary electronic records generally) before the court in evidentiary proceedings.
According to section 131, a person cannot be compelled to produce
documents in his possession if any other person would be entitled to
withhold them if they were in his possession, unless the latter consents to
their production.
Question for
practice

Citation Indian Medical Council (Professional Conduct, Etiquette and Ethics)
Regulations, 2002, regulation 2.2
Type of Regulations
provision
Text of law The MCI regulations are applicable to medical practitioners, who
practise the allopathic system of medicine.
Regulation 2.2. Patience, Delicacy and Secrecy.—Patience and delicacy

should characterize the physician. Confidences concerning individual or
domestic life entrusted by patients to a physician and defects in the
disposition or character of patients observed during medical attendance
should never be revealed unless their revelation is required by the laws of
the State. Sometimes, however, a physician must determine whether his
duty to society requires him to employ knowledge, obtained through
confidence as a physician, to protect a healthy person against a
108
109
communicable disease to which he is about to be exposed. In such

instance, the physician should act as he would wish another to act toward
one of his own family in like circumstances.
Narrative These regulations guide professional conduct of healthcare workers.
summary
Medical practitioners are required to maintain secrecy regarding a
patient’s information and medical records.
Although personally identifiable medical information has not been

defined, all information regarding a patient’s personal life and
observations made by the physician about the patient is required to be
kept confidential.
Confidential information about a patient must be disclosed if required by

law. Additionally, in case of communicable diseases where there is a
threat to a third party, the medical practitioner has discretion to decide
whether to disclose information obtained through confidence as a
physician. It is not clear how and to whom the information is disclosed.
Question for
practice
9.0.2 Does the law define personally identifiable medical information?

Citation
Type of
provision
Text of law
Narrative The law does not define personally identifiable medical information.
summary
Question for
practice

health care information to others
Citation Medical Termination of Pregnancy Act, 1971, section 7(1)(b)–(c) and
section 7(2)
provision
Text of law Section 7. Power to make regulations.—The State Government may, by
regulations,—
…
(b) require any registered medical practitioner, who terminates a
pregnancy, to give intimation of such termination and such other
information relating to the termination as may be specified in such
regulations;
109
110
(c) prohibit the disclosure, except to such persons and for such purposes
as may be specified in such regulations, of intimations given or
information furnished in pursuance of such regulations.
(2) The intimation and information furnished in pursuance of regulations

made by virtue of clause (b) of sub-section (1) shall be given or
furnished, as the case maybe, to the Chief Medical Officer of the state.
(3) Any person who wilfully contravenes or wilfully fails to comply with
the requirements of any regulation made under sub-section (1) shall be
liable to be punished with fine which may extend to one thousand rupees.
Narrative The State government is empowered to make regulations requiring a

summary medical practitioner to give intimation of, and other information
regarding, termination of pregnancy in specified circumstances.
Section 7(2) provides the state government with the power to make
regulations for intimation of information furnished in previous clauses, to
be furnished to the Chief Medical Officer of the State.
However, no regulations have been framed which specifically mention

disclosure of medical information.
Question for
practice

Citation Code of Criminal Procedure, 1973, Section 161 (CrPC)
provision
Text of law Section 161. Examination of witnesses by police.—(1) Any police
officer making an investigation under this chapter, or any police officer
not below such rank as the state government may, by general or special
order, prescribe in this behalf, acting on the requisition of such officer,
may examine orally any person suppose to be acquainted with the facts
and circumstances of the case.
(2) Such person shall be bound to answer truly all questions relating to
such case put to him by such officer, other than questions the answers to
which would have a tendency to expose him to a criminal charge or to a
penalty or forfeiture.
Narrative Section 161 of CrPC provides that a person who is examined as a witness
summary by the police officers is compelled to answer all questions related to the
facts and circumstances of the case unless answering the questions has a
tendency to expose the witness to a criminal charge or penalty or
forfeiture.
110
111
This would imply that a doctor called in as a witness might have to

disclose confidential information (which may include personally
identifiable information) about a patient if that pertains to the facts and
circumstances of the case. Under the MCI regulations discussed earlier,
one of the exceptions to confidentiality is if disclosure is required by the
court of law.
Question for
practice

Citation The Evidence Act, 1872, Sections 132 and 147
provision
Text of law Section 132. Witness not excused from answering on ground that
answer will criminate.—A witness shall not be excused from answering
any question as to any matter relevant to the matter in issue in any suit or
in any civil or criminal proceeding, upon the ground that the answer to
such question will criminate, or tend directly or indirectly to criminate,
such witness, or that it will expose, or tend directly or indirectly to
expose, such witness to a penalty or forfeiture of any kind:
Proviso. Provided that no such answer, which a witness shall be

compelled to give, shall subject him to any arrest or prosecution, or be
proved against him in any criminal proceeding, except a prosecution for
giving false evidence by such answer.
Section147. When witness to be compelled to answer. —If any such

question relates to a matter relevant to the suit or proceeding, the
provisions of section 132 shall apply thereto.
Narrative In a court, a witness is required to disclose information, which is relevant
summary to the matter in issue in any suit or criminal proceedings. The safeguard
provided is that any information which the witnesses discloses cannot be
used to arrest or prosecute her/him or be proved against her/him in a
criminal proceeding. The only subsequent proceeding in which the
disclosure can be used is in perjury proceedings against the witness.
Thus, a health care worker who is called, as a witness cannot refuse to

answer questions related to the health of a patient. It is not clear whether
personally identifiable information is protected. However, the court
would adopt the balancing approach and ascertain whether any public
interest is served.
Question for
practice
111
112

Regulations, 2002, regulation 7.14
Type of Regulations
provision
Text of law Regulation 7.14. The registered medical practitioner shall not disclose
the secrets of a patient that have been learnt in the exercise of his / her
profession except—
i. in a court of law under orders of the Presiding Judge;
ii. in circumstances where there is a serious and identified risk to a
specific person and / or community; and
iii. notifiable diseases.
In case of communicable / notifiable diseases, concerned public health
authorities should be informed immediately
Narrative These regulations are applicable to allopathic medical practitioners.
summary
Regulation 7.14 falls under the head of acts or commission, which
constitute professional misconduct and renders the registered medical
practitioner liable for disciplinary action. It provides that a registered
medical practitioner shall not disclose ‘secrets’ of a patient learnt in the
exercise of his/her profession but may disclose information to (a) health
department (in case of a notifiable disease), (b) law enforcement/courts
for use as evidence, and (c) other identified individuals and or community
are at a serious risk
Under the third exception, it is unclear to whom the disclosure is required

to be made. In the HIV/AIDS context, it could imply, the patient’s
regular sex partners and other identified individuals who are at risk of
transmission. It is also not clear how the doctor will identify persons at
risk.
Disclosure in case of community at serious risk is even more ambiguous.

The regulations do not specify as to what constitutes risk to community
and to whom the disclosure should be made, in case of such risk.
These regulations are presently under challenge before the Supreme

Court of India in various public interest litigations (Sankalp
Rehabilitation Trust and others v. Union of India and others, Sahara
House and others v. Union of India and others) on the ground that they
are arbitrary and unconstitutional.
Question for
practice
112
113

Regulations, 2002, Regulations 1.3.2, 2.3, 3.1, 3.5 and 7.22
Type of Regulations
provision
Text of law B. Duties and responsibilities of the Physician in general
1.3 Maintenance of medical records

1.3.2. If any request is made for medical records either by the
patients / authorized attendant or legal authorities involved, the
same may be duly acknowledged and documents shall be issued
within the period of 72 hours.
2. Duties of Physicians to their patients

2.3 Prognosis.̶The physician should neither exaggerate nor
minimize the gravity of a patient’s condition. He should ensure
himself that the patient, his relatives or his responsible friends
have such knowledge of the patient’s condition as will serve the
best interests of the patient and the family.
3. Duties of physicians in consultation
3.1 Unnecessary consultations should be avoided.

3.1.1 However in case of serious illness and in doubtful or difficult
conditions, the physician should request consultation, but under
any circumstances such consultation should be justifiable and in
the interest of the patient only and not for any other consideration.
3.6 Patients Referred to Specialists: When a patient is referred to a

specialist by the attending physician, a case summary of the patient
should be given to the specialist, who should communicate his opinion in
writing to the attending physician.
113
114
7.22 Research: Clinical drug trials or other research involving

patients or volunteers as per the guidelines of ICMR can be
undertaken, provided ethical considerations are borne in mind.
Violation of existing ICMR guidelines in this regard shall constitute
misconduct. Consent taken from the patient for trial of drug or
therapy, which is not as per the guidelines, shall also be construed
as misconduct. [ICMR guidelines, which have been referred to
here, are the Ethical Guidelines for Biomedical Research on
Human Subjects, 2000. These guidelines have been discussed
separately at the end of this module.]
Narrative A. Law enforcement/ courts for use as evidence
summary Under the regulations, a doctor is required to maintain records of his/her
indoor patients for a period of three years from the date of
commencement of treatment. Regulation 1.3.2 of the MCI Regulations
requires a doctor to provide medical records within 72 hours, if a request
is made by the patient, authorized attendant of the patient or any legal
authorities.
B. Patients family
Regulation 2.3 provides that a doctor should ensure that patient/relatives
or friends have proper information about the condition of the patient to
serve the best interests of the patient and patient’s family. This might
require the doctor to divulge medical information to the patient’s family
if he/she thinks necessary and in the interest of the patient, without the
patient’s consent.
C. Other healthcare workers involved in care

Regulation 3.1 states that though unnecessary consultation be avoided but
in case of serious illness, or in doubtful or difficult situation, the
physician should consult other doctors in the interest of the patient. This
may again require divulging of medical and other information regarding
the patient to the consultant. The physician cannot undertake a
consultation for any other reason.
Regulation 3.6 requires that the case summary of the patient should be
sent to the specialist when the patient is referred to the specialist. This
may be without the specific consent of the patient.
D. Researchers
Under Regulation 7.22, a doctor can take part in research relating to
clinical drug trials or other research involving patients or volunteers.
114
115
However, the research has to be conducted strictly in accordance with the

Ethical Guidelines for Biomedical Research on Human Subjects, 2000
issued by the Indian Council of Medical Research. The guidelines
provide that the essential information, which ought to be given prior to
taking the informed consent of a prospective subject, includes
information about the extent to which confidentiality will be maintained.
Obtaining consent without complying with this requirement would
amount to misconduct. In case confidentiality is assured to a subject and
is subsequently breached, the subject would have a cause of action
against the doctor.

Citation Practitioners of Indian Medicine (Standards of Professional Conduct,
Etiquette and Code of Ethics) Regulations, 1982, regulations 7, 8, 13, 16,
17, 23 and 32
Type of Regulations
provision
Text of law 7. Patience, delicacy and secrecy.—Patience and delicacy shall
characterise the practitioner of Indian medicine. Confidence concerning
individuals or domestic life entrusted by patients to a practitioner of
Indian medicine and defects in the disposition or character of patients
observed during medical attendance shall never be revealed unless their
revelation is required by law. Sometimes, however, a practitioner must
determine whether his duties to society require him to employ knowledge
obtained through confidences to him as such practitioner to protect a
healthy person against a communicable disease to which he is about to be
exposed. In such instances, the practitioners of Indian medicine shall act
as he would desire another to act towards one of his own family in like
circumstances.
8. Prognosis.— A practitioner of Indian medicine shall neither

exaggerate nor minimise the gravity of a patient's condition and shall
assure himself that the patients, his relatives or his responsible friends
have such knowledge of the patient's condition as will serve the best
interests of the patient and the family.
13. Public Health.—A practitioner of Indian medicine especially

engaged in public health work, shall enlighten the public concerning
measures for the prevention of epidemics and communicable diseases. At
all times, the practitioner shall notify the constituted public health
authorities of every case of communicable disease under his care, in
accordance with the laws, rules and regulations of the health authorities.
When an epidemic prevails, he shall continue his labour without regard to
the risk of his own health.
115
116
16. Consultation to be encouraged.—In case of serious illness,

especially in doubtful or difficult conditions, a practitioner may request
consultation.
17. Consultation for patients benefit.—In every consultation, the benefit

to the patient is of first importance. All practitioners interested in the case
shall be candid with the patient, a member of his family or responsible
friend.
23. Patient referred to specialists.—When a patient is referred to a

specialist by the attending practitioner, a statement of the case shall be
given to the specialist who shall communicate his opinion in writing in a
closed cover direct to the attending practitioner.
32. (1) The Central Council desires to bring the notice of the practitioners
of Indian Medicine the following list of offences which constitute
professional misconduct and may warrant disciplinary action against
them under the Act or under any law for the time being in force in any
State regulating the registration of such practitioners.
LIST
…
(viii) Do not disclose the secrets of a patient that have been learnt in the
exercise of the profession. Those may be disclosed only in a Court of
Law under orders of the Presiding Judge.
…
(xi) The photographs or case reports of patients shall not be published in
any medical or other journal in a manner by which their identity could be
made out without their permission. Should the identity be not disclosed
his consent is not needed.
Narrative These regulations are applicable to medical practitioners, who practise
summary Indian systems of medicine, i.e Ayurveda, Siddha and Unani systems of
medicine.
The regulations are similar to the MCI regulations with some differences.
(a) A practitioner of Indian medicine is required not to publish
photographs or case reports of patients, which would lead to their
identity being revealed, without the permission of the patient
concerned.
(b) The regulations do not contain provisions regarding research.
Question for
practice

Citation Homoeopathic Practitioners (Professional Conduct, Etiquette and
116
117
Code of Ethics) Regulations, 1982, regulations 15, 16, 21, 26, 28,
29, 36 and 39
Type of Regulations
provision
Text of law 15. Prognosis̶
(1) The practitioner of Homoeopathy shall neither exaggerate nor
minimize the gravity of a patient's condition. He shall ensure that
the patient, his relatives or responsible friends have such
knowledge of the patient's condition as will serve the best interest
of the patient and his family.
(2) In cases of dangerous manifestations, he shall not fail to give
timely notice to the family or friends of the patient and also to the
patient when necessary.
16. Patience, Delicacy and Secrecy̶Patience and delicacy shall

characterize the attitude of a practitioner of Homoeopathy.
Confidences concerning individual or domestic life entrusted by
patients to a practitioner and defects in the disposition or character
of patients observed during the medical attendance shall not be
revealed by him, to anyone unless their revelation is required by
the laws of the State.
21. Appointment of Substitutes̶

Whenever a practitioner of Homoeopathy requests another to
attend to his patients during his temporary absence from practice,
professional courtesy requires the acceptance of such
appointment by the latter, if it is consistent with his other duties.
'The practitioner of Homoeopathy acting under such an
appointment shall give the utmost consideration to the interests
and reputation of the absent practitioner. He shall not charge
either the patient or the absent practitioner of Homoeopathy for his
117
118
services, except in the case of a special arrangement between

them. All such patients shall be restored to the care of the absent
practitioner of Homoeopathy upon his return.
26. Consultation shall be Encouraged̶

In cases of serious illness, especially in doubtful or difficult
conditions the practitioner of Homoeopathy shall request
consultation. He shall also do so in perplexing illness, in
therapeutic abortions, in the treatment of a woman who had
procured criminal abortion, in suspected cases of poisoning, or
when desired by the patient or his representative.
28. Patient referred to another Physician̶

When a patient is referred to another practitioner of
Homoeopathy by the attending practitioner of Homoeopathy, a
statement of the case shall be given to the latter practitioner of
Homoeopathy. The latter practitioner of Homoeopathy shall
communicate his opinion in writing in a closed cover direct to the
attending practitioner of Homoeopathy.
29. Consultation for Patient's Benefit̶

In every consultation, the benefit to the patient shall be of first
importance. All practitioners of Homoeopathy interested in the
case shall be candid with a member of the patient's family or
responsible friends.
36. Public Health̶

Practitioners of Homoeopathy engaged in public health work,
shall enlighten the public concerning quarantine regulations and
measures for the prevention of epidemic and communicable
diseases. At all times the practitioners shall notify the constituted
118
119
public health authorities of every case of communicable disease

under their care, in accordance with the laws, rules and
regulations of the health authorities. When an epidemic prevails,
the practitioner of Homoeopathy shall continue his labours without
regard to the risk to his own health.
39. The following actions shall constitute professional misconduct

…
(9) Disclosing the secrets of a patient that have been learnt in the
exercise of profession, except in a Court of law under orders of the
presiding judge.
(10) Publishing photographs or case-reports of patients in any
medical or other journal in a manner by which their identity could
be made out without their permission, provided that if the identity
of patients is not disclosed, their consent is not necessary;
…
Narrative These regulations are applicable to medical practitioners, who practice
summary homeopathic system of medicine.
The regulations are substantially similar to the MCI regulations and the
Practitioners of Indian Medicine Regulations.
A provision, which does not appear in either the MCI Regulations or the
Practitioners of Indian Medicine Regulations, is that of appointment of
substitutes (Regulation 21). A practitioner of homeopathy, who appoints
a substitute, would necessarily have to disclose otherwise confidential
information to the substitute doctor.
Question for
practice
9.1. HIV/AIDS information
9.1.1. Identify any law specifically protecting HIV/AIDS information.
9.1.2 Is there a penalty for unauthorized disclosure?
9.1.3 Determine whether and under what circumstances HIV/AIDS information

may be disclosed to the health department, health workers involved in care, or law
enforcement officers or institutional workers who may have been exposed to
infected blood or body fluids.
119
120

may be disclosed to the patient’s families, the patients regular or casual sex
partners, or other individuals at risk of infection or exposure.

may be disclosed to law enforcement agents or courts for use as evidence.

may be disclosed to researchers.
9.1.7 Identify any other person or agency entitled to receive HIV/AIDS

information and the circumstances under which such information may be
disclosed to them.
9.1.1 There are no specific provisions protecting HIV/AIDS information
9.1 Protection of HIV/AIDS information

Citation X v. Y, [1988] 2 ALL ER 648
Type of Common law
provision
Text of law Text of the Judgment annexed
Narrative In this case, a health authority provided information regarding two HIV
summary positive persons to a newspaper agency and the persons affected filed an
injunction suit, seeking a prohibition against such disclosure. The court
held that the identity of an HIV-positive person has to be kept
confidential and the public interest in preserving confidentiality of
hospital records identifying actual or potential AIDS sufferers
outweighed the public interest in freedom of the press to publish such
information.
Question for
practice
9.1.3 Determine whether and under what circumstances HIV/AIDS

information may be disclosed to the health department, health workers
involved in care, or law enforcement officers or institutional workers
who may have been exposed to infected blood or body fluids.
Citation Post Exposure Prophylaxis Guidelines for Occupational Exposure
Type of NACO guidelines
provision
Text of law 9. Steps to be undertaken by the infection control officer on receiving
information about exposure.
All needle-stick/sharp injuries should be reported to the state AIDS
control societies giving the Exposure Code and the HIV Status Code.
120
121
Narrative An occupational exposure that may place a worker at risk of HIV

summary infection can occur by needle stick injuries, cuts from other sharps, etc.
All instances of occupational exposure have to be reported to the State
AIDS Control Societies. Since the reporting is done by giving only the
Exposure Code and the HIV status code, identity of the individual is
therefore kept confidential.
It is not clear from the PEP guidelines of NACO whether the guidelines
are only limited to occupational exposure at healthcare settings or
whether they are applicable to other occupational settings too. The
predominant thrust of these guidelines, however, is the health care
setting.
Question for
practice

information may be disclosed to the patient’s families, the patient’s
regular or casual sex partners, or other individuals at risk of infection or
exposure.
Citation Mr X v. Hospital Z, (1998) 8 SCC 296
Type of Common law
provision
Text of law “Right of Privacy may, apart from contract, also arise out of a particular
specific relationship, which may be commercial, matrimonial, or even
political. As already discussed above, Doctor-patient relationship, though
basically commercial, is, professionally, a matter of confidence and,
therefore, Doctors are morally and ethically bound to maintain
confidentiality. In such a situation, public disclosure of even true private
facts may amount to an invasion of the Rights of Privacy which may
sometimes lead to the clash of one person’s "right to be alone" with
another person’s right to be informed
The right, however, is not absolute and may be lawfully restricted for the
prevention of crime, disorder or protection of health or morals or
protection of rights and freedom of others,
Having regard to the fact that the appellant was found to be HIV(+), its
disclosure would not be violate of either the rule of confidentiality of the
appellant’s Right of Privacy as Ms. ‘Y’ with whom the appellant was
likely to be married was saved in time by such disclosure, or else, she
took would have been infected with the dreadful disease if marriage had
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taken place and consummated”

Narrative In this case, X proposed marriage to, who accepted it. X later tested HIV-
summary positive at Hospital Z, who immediately disclosed this to family
members of Y. Due to this, the marriage was called off. The Supreme
Court observed that when an immediately identifiable healthy person is at
risk, disclosure of the medical information to that person would not be
breach of confidentiality and the right to healthy life of the other person
to whom the information is disclosed would outweigh the right to privacy
of the patient. However, the judgment applies only to the facts of the case
as neither did the court pass a blanket order for disclosure nor did it lay
down any protocols to be observed. The discretion still lies with the
healthcare authorities whether to disclose or not.
Question for
practice

information may be disclosed to the patient’s families, the patient’s
regular or casual sex partners, or other individuals at risk of infection or
exposure.
Citation NACO programme on voluntary counselling and testing for HIV
Type of NACO guidelines
provision
Text of law Voluntary HIV counselling and testing is the process by which an
individual undergoes counselling enabling him or her to make an
informed choice about being tested for HIV. This decision must be the
choice of the individual and he or she must be assured that the process
will be confidential. However, in concurrence with the Supreme Court
decision, Partner notification is necessary and this makes it imperative
for the attending physician to disclose the HIV status to the spouse or
sexual partner of the person. Inspite of this all efforts must be made to
counsel the person for disclosure of HIV status to the spouse or sexual
partner.
Confidentiality—Confidentiality may be defined is as a protection of

personal data and test results to ensure the rights and welfare of the
individual from whom such data are collected. This information is not to
be furnished under any circumstances to any other person without the
individuals explicit consent. However, as stated earlier, this information
should be disclosed to the spouse of the person.
The VCT services should always preserve individuals’ records for

confidentiality.
Narrative These are the guidelines for testing at the VCT Centres.
summary
The test results and personal data of the individual have to be kept
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absolutely confidential. The only exception to this disclosure is

disclosing to the spouse of the person.
Question for
practice

information may be disclosed to researchers.
Citation Ethical Guidelines for Biomedical Research on Human Subjects, 2000
Type of Guidelines
provision
Text of law Principles of privacy and confidentiality whereby, the identity and
records of the human subjects of the research or experiment are as far as
possible kept confidential; and that no details about identity, are
disclosed without valid scientific and legal reasons which may be
essential for the purposes of therapeutics or other interventions, without
the specific consent in writing of the human subject concerned, or
someone authorised on their behalf; and after ensuring that the said
human subject does not suffer from any form of hardship, discrimination
or stigmatisation as a consequence of having participated in research or
experiment.
Narrative The Ethical Guidelines for Biomedical Research on Human Subjects,
summary 2000 are not legally enforceable.
These guidelines apply to all bio-medical research, which would include

research done on HIV/AIDS.
According to these guidelines, records of a human subject of a research

or experiment have to be kept confidential. However, the identity of the
human subject can be disclosed if there are valid scientific and legal
reasons that may be essential for the purposes of therapeutics and other
interventions. But the disclosure requires the written consent of the
human subject and the consent has to be taken after ensuring that the said
person would not suffer any form of hardship as a consequence of having
participated in the research.
But what exactly is meant by valid scientific and legal reasons is not
clear as it has not been discussed anywhere in the guidelines. All the
research proposals are reviewed by the institutional Ethics Committee
(IEC) for ethical and scientific scrutiny.
Question for
practice
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10.0 Anti-discrimination provisions
10. Specific anti-discrimination protection for people with HIV/AIDS
10.1.Does the law specifically prohibit discrimination against persons with

HIV/AIDS?
There is no law that specifically prohibits discrimination against persons with
HIV/AIDS.
10.2 Describe the forms of discrimination prohibited (e.g., employment, public

programs, professional services)
10.0.3 What are the enforcement mechanisms and remedies (money damages,
fines, etc)?
10.1 Discrimination based on disability
10.1.1 Identify any law prohibiting discrimination based on disability.
10.1.2 Describe the forms of discrimination prohibited (e.g., employment, public

programs, professional services)
fines, etc)?
10.1.4 Does the definition of disability encompass HIV/AIDS or drug addiction?
10.1 Discrimination based on disability

Citation Persons with Disabilities (Equal Opportunities, Protection of Rights and
Full Participation) Act, 1995 (PDA)

provision
Text of law See statute annexed hereto, sections 2 (definitions); 26-31 (education);
32-41 (employment); 44-47 (non-discrimination); 66-68 (social security)
Narrative The definition of “disability” under the PDA is narrow, covering only
summary persons with visual or hearing impairment, leprosy cured, locomotor
disability, and mental retardation or illness. It does not include HIV
infection or AIDS or drug addiction within the meaning of disability.
The PDA prohibits discrimination against people with disabilities and

provides reservation in government employment and public transport.
With respect to the private sector, the Act provides incentives to
employers who ensure that 5% of their workforce comprises people with
disabilities.
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In addition, special measures must be taken for persons with disabilities

such as establishment of special schools, insurance for government
employees with disabilities and unemployment allowances for disabled
persons who are unemployed for two years or more.
The Act creates Coordination Committees at the Central and State levels
for policy making and for protection of interests of persons with
disabilities. Complaints of discrimination or other rights violations are
handled by Commissioners for Persons with Disabilities. They
investigate and forward the complaint to the relevant government
authority charged with discrimination.
Question for
practice
10.2 Other anti-discrimination laws
10.2.1 Identify any other anti-discrimination laws that are or could in the future be
construed to provide protection to people with HIV, sex workers or drug users
against discrimination in housing, access to public services/facilities, access to
private services/facilities employment or other areas.
fines, etc)?

Citation Constitution of India, 1950
Type of Constitution, fundamental rights
provision
Text of law Article 14. Equality before law.-
The State shall not deny to any person equality before the law or the equal protection of
the laws within the territory of India.
Article 15. Prohibition of discrimination on grounds of religion, race, caste, sex or place
of birth.-
(1) The State shall not discriminate against any citizen on grounds only of religion, race,
caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of
them, be subject to any disability, liability, restriction or condition with regard to-
(a) access to shops, public restaurants, hotels and palaces of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained
wholly or partly out of State funds or dedicated to the use of the general public.
(3) Nothing in this article shall prevent the State from making any special provision for
women and children.
(4) Nothing in this article or in clause (2) of Article 29 shall prevent the State from
making any special provision for the advancement of any socially and educationally
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backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
Article 16. Equality of opportunity in matters of public employment.-

(1) There shall be equality of opportunity for all citizens in matters relating to
employment or appointment to any office under the State.
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth,
residence or any of them, be ineligible for, or discriminated against in respect or, any
employment or office under the State.
(3) Nothing in this article shall prevent Parliament from making any law prescribing, in
regard to a class or classes of employment or appointment to an office under the
Government of, or any local or other authority within, a State or Union territory, any
requirement as to residence within that State or Union territory] prior to such
employment or appointment.
(4) Nothing in this article shall prevent the State from making any provision for the
reservation of appointments or posts in favor of any backward class of citizens which, in
the opinion of the State, is not adequately represented in the services under the State.
(5) Nothing in this article shall affect the operation of any law which provides that the
incumbent of an office in connection with the affairs of any religious or denominational
institution or any member of the governing body thereof shall be a person professing a
particular religion or belonging to a particular denomination.
Article 32. Remedies for enforcement of rights conferred by this Part.-

(1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and
certiorari, whichever may be appropriate, for the enforcement of any of the rights
conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clause (1) and
(2), Parliament may by law empower any other court to exercise within the local limits
of its jurisdiction all or any of the powers exercisable by the Supreme Court under
clause (2).
(4) The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution.
226.Power of High Courts to issue certain writs.-

(1) Notwithstanding anything in Article 32 every High Court shall have powers,
throughout the territories in relation to which it exercise jurisdiction, to issue to any
person or authority, including in appropriate cases, any Government, within those
territories directions, orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibitions, quo warranto and certiorari, or any of them, for the
enforcement of any of the rights conferred by Part III and for any other purpose.
(2) The power conferred by clause (1) to issue directions, orders or writs to any
Government, authority or person may also be exercised by any High Court exercising
jurisdiction in relation to the territories within which the cause of action , wholly or in
part, arises for the exercise of such power, notwithstanding that the seat of such
Government or authority or the residence of such person is not within those territories.
(3) Where any party against whom an interim order, whether by way of injunction or
stay or in any other manner, is made on, or in any proceedings relating to, a petition
under clause (1), without-
(a) furnishing to such party copies of such petition and all documents in support of the
plea for such interim order; and
(b) giving such party an opportunity of being heard, makes an application to the High
Court for the vacation of such order and furnishes a copy of such application to the
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party in whose favour such order has been made or the counsel of such party, the High
Court shall dispose of the application within a period of two weeks from the date on
which it is received or from the date on which the copy of such application is so
furnished, whichever is later, or where the High Court is closed on the last day of that
period, before the expiry of the next day afterwards on which the High Court is open;
and if the application is not so disposed of, the interim order shall, on the expiry of that
period, or , as the case may be, the expiry of the aid next day, stand vacated.
(4) The power conferred on a High Court by this article shall not be in derogation of the
power conferred on the Supreme court by clause (2) of Article 32.
Narrative The Constitution prohibits discrimination on various grounds, with HIV

summary not specifically listed. All people must be treated equally under the law,
and are entitled to have the law apply equally to them if they are similarly
placed (Satish Chandra v Union of India AIR 1953 SC 250 at 252).
Conversely, unequals should be treated differently to the extent of their
difference (St Stephen’s College v University of Delhi (1992) 1 SCC
558). There are therefore types of classifications that are permitted in
legislation, provided (i) the classification is based on intelligible
differentia and (ii) it has a a rational nexus to the object sought to be
achieved. (Royappa v State of Tamil Nadu AIR 1974 SC 555).
However, only the “State” is bound by the provisions. Under article 12,
the “State” is defined as the central and state governments and
legislatures, as well as local authorities and other bodies under the control
of the government. In recent times, private bodies carrying on public
functions in place of the government have been deemed to be part of the
“State” and bound by constitutional provisions. (See, for example,
Prakash Rewadama Gupta v. Lonavla Municipal Council 2002 (3) LJ
SOFT 94). Thus, for example, the right to non-discrimination in the
education setting is enforceable even against private education
institutions. The Supreme Court has held that education is a public
function and that any institution fulfilling such function is bound by the
Constitution. (Unni Krishna J.P. v State of A.P. (1993) 1 SCC 645, AIR
1993 SC 2178 and T.M.A Pai Foundation v State of Karnataka (1993) 4
SCC 276)
Citizens are given broader protection against discrimination including

being allowed access to public facilities and some privately owned ones
(restaurants, shops, hotels and places of public entertainment).
Citizens cannot be barred from appointment or employment by the state
on grounds set out in the Constitution. However, discrimination by
private parties is not regulated and is therefore allowed.
These anti-discrimination principles have been extended to government

facilities and services that are otherwise openly available, including
access to education and healthcare. Access to healthcare includes a right
of access to medical services. Public hospitals are never entitled to refuse
admission to patients. Private hospitals cannot refuse to treat in case of
emergencies (Parmanand Kataria v. Union of India (1989) 4 SCC 286).
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Hospitals that refuse treatment for discriminatory reasons violate the

right to equality as well as the right to life, and may be negligent. This
may give rise to both constitutional remedies and suit for damages on the
basis of negligence. (See further Module 6).
With respect to HIV status, the Bombay High Court and various other
courts have held that it is arbitrary and unjustifiable discrimination to
deny work to a person solely on their HIV status, where they are
otherwise medically fit and do not pose a significant risk to their co-
workers or customers (MX v ZY AIR 1997 Bombay 406, R.M. v S Pvt.
Ltd., unreported, Industrial Court of Mumbai, Complaint No. (ULP) No.
864/99, C.S.S. v. State of Gujarat, unreported, Gujarat High Court,
Special Civil Application No. 1766 of 2000, RR v. Superintendent of
Police & others [Unreported (2005) Karnataka Administrative Tribunal]
and X v. The Chairman, State Level Police Recruitment Board & Others
[Unreported (2006) High Court of Andhra Pradesh]). The dignity of HIV
positive persons must be respected, and on this basis it is permitted for
litigation to take place under an assumed name. It is unlawful to
terminate employment on the basis of HIV status without providing
alternative employment (Ex Const. B.S. v. Union of India and anr,
unreported CWP No. 388 of 2000, X v. State Bank of India) or to refuse
to hire on the basis of HIV status (C.S.S v. State of Gujarat, unreported,
Special Civil Application No. 11766 of 2000). Similarly, a widow
cannot be denied compassionate employment based on her or her
husband’s HIV status, and must be granted a post immediately, even
where one is not presently available. (S v. Director General of Police
[Unreported (2004) High Court of Bombay; G v. New India Assurance
Company [Unreported (2004) High Court of Bombay]).
The Constitution guarantees the right of access to the Supreme Court for
the enforcement of rights (article 32). A petitioner must approach the
Court through “appropriate” proceedings, but a broad interpretation is
given: any proceedings relating directly to enforcement of a fundamental
right will be sufficient, regardless of how informal (Bandhua Mukti
Morcha v. Union of India (1984) 3 SCC 161; AIR 1984 SC 802 at 813-
4). Both the Supreme Court and the High Courts in each of the territories
are empowered to issue directions, orders or writs of mandamus, habeas
corpus or prohibition against the person or government involved (articles
32 and 226 respectively). The Supreme Court retains a broad discretion
to issue any kind of remedy it thinks appropriate, including broad writs
that have not specifically been prayed for. (Kanu Sanyal v. Distt.
Magistrate, Darjeeling (1973) 2 SCC 674 at 687; AIR 1973 SC 2684;
Chiranjit Lala Chowdhury v. Union of India AIR 1951 SC 41 at 53). It
also has the power to order compensatory and exemplary costs (e.g.
Rudul Sul v. State of Bihar (1983) 4 SCC 141; AIR 1983 SC 1086;
Sebastian M. Hongray v Union of India (1984 3 SCC 82; AIR 1984 SC
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129
1026). The High Court has similarly broad powers, but is likely to
exercise them more circumspectly (Shitla Pd. Shukla v. State of U.P.
1986 Supp SCC 185; AIR 1986 SC 1859).
Although the High Court and Supreme Court have concurrent

jurisdiction, petitioner is not obliged to approach the High Court first
(Romesh Thappar v. State of Madras AIR 1950 SC 124). A party may
not be blocked from invoking constitutional remedies, although all other
remedial avenues must be exhausted before constitutional remedies are
pursued. High Court jurisdiction is based on where the cause of action
arises, and, once jurisdiction is established, High Courts are empowered
to issue orders against parties even if they are outside the territory of the
court.
Question for
practice
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130
Citation Constitution of the Republic of India, 1950

Type of Constitution, directive principles
Provision
Text of Law 38. State to secure a social order for the promotion of welfare of the people.-
(1) The State shall strive to promote the welfare of the people by securing and
protecting as effectively as it may a social order in which justice, social, economic and
political, shall inform all the institutions of the national life.
(2) The State shall, in particular, strive to minimize the inequalities in income, and
endeavor to eliminate inequalities in status, facilities and opportunities, not only
amongst individuals but also amongst groups of people residing in different areas or
engaged in different vocations.
39. Certain principles of policy to be followed by the State:-

The State shall, in particular, direct its policy towards securing-
(a) that the citizens, men and women equally, have the right to an adequate means to
livelihood;
(b) that the ownership and control of the material resources of the community are so
distributed as best to subserve the common good;
(c) that the operation of the economic system does not result in the concentration of
wealth and means of production to the common detriment;
(d) that there is equal pay for equal work for both men and women;
(e) that the health and strength of workers, men and women, and the tender age of
children are not abused and that citizens are not forced by economic necessity to enter
avocations unsuited to their age or strength;
(f) that children are 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.
46. Promotion of educational and economic interests of Scheduled

Castes, Scheduled Tribes and other weaker sections.-
The State shall promote with special care the educational and economic interests of the
weaker sections of the people, and, in particular, of the Scheduled Castes and the
Scheduled Tribes, and shall protect them from social injustice and all forms of
exploitation.
Narrative Directive principles are not enforceable per se. They must be read along
Summary with fundamental rights to guide the formation of legislation. Article 39
has been construed as creating a welfare state (See Srinivasa v. State of
Karnataka AIR 1987 SC 1518; Keshavananda Bharati v. State of Kerala
(1973) 4 SC 228; State of T.N. v Abu AIR 1984 SC 326).
Question for
practice
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131
Citation Protection of Civil Rights Act, 1955

Provision
Text of Law See Act annexed hereto, sections 1 to 11.
Narrative The Civil Rights Act prohibits discrimination on the basis of
Summary “untouchability”, including restrictions on involvement in religious
activities, access to public facilities, hospitals, amenities, professions,
residence, and other unjustified differential treatment. Importantly, the
Act can be used against private persons, and therefore extends
constitutional protection. Punishment for commission of offences is
generally one to six months’ imprisonment, and a fine of one to five
hundred rupees. It may include cancellation of any professional, trading,
or employment license or any government grant that the offender holds.
Punishment increases with repeat offences.
Though the Act extends to the private sector, in practice, its protection is
narrowly directed to discrimination on the ground of untouchability.
Applicability will depend on the caste of commercial sex workers in the
region and the discrimination they experience as a result.
Question for
practice

Citation The Scheduled Castes and Tribes List (Modification) Order, 1956
Type of Executive Order
Provision
Text of Law See attached provisions
Narrative The Order modifies the constitutional list of Scheduled Castes and
Summary Tribes, allowing for specific castes and tribes in different states to be
included. Those listed are entitled to reservations and protection by the
Commission for Scheduled Castes and Tribes.
Question for
practice
131
132
132
133

Regulations, 2002
Type of Regulations
Provision
Text of Law Chapter 2: Duties of Physicians to their Patients
2.1.1 No physician shall arbitrarily refuse treatment to a patient.
Chapter 5: Duties of Physician to the Public and to the Paramedical Profession
5.2 Public and Community Health : When an epidemic occurs a physician should not
abandon his duty for fear or contracting the disease himself.
Chapter 7: Misconduct
7.1 Violation of the Regulations : If he/she commits any violation of these Regulations.
Chapter 8: Punishment and Disciplinary Action

8.2 It is made clear that any complaint with regard to professional misconduct can be
brought before the appropriate Medical Council for Disciplinary action. Upon receipt of
any complaint of professional misconduct, the appropriate Medical Council would hold
an enquiry and give opportunity to the registered medical practitioner to be heard in
person or by pleader. If the medical practitioner is found to be guilty of committing
professional misconduct, the appropriate Medical Council may award such punishment
as deemed necessary or may direct the removal altogether or for a specified period,
from the register of the name of the delinquent registered practitioner. Deletion from the
Register shall be widely publicized in local press as well as in the publications of
different Medical Associations/ Societies/Bodies.
8.3 In case the punishment of removal from the register is for a limited period, the
appropriate Council may also direct that the name so removed shall be restored in the
register after the expiry of the period for which the name was ordered to be removed.
8.4 Decision on complaint against delinquent physician shall be taken within a time
limit of 6 months.
8.5 During the pendency of the complaint the appropriate Council may restrain the
physician from performing the procedure or practice which is under scrutiny.
8.6 Professional incompetence shall be judged by peer group as per guidelines
prescribed by Medical Council of India.
Narrative In relation to epidemics, physicians are not entitled to refuse treatment

Summary because of a fear of contracting a communicable disease. This amounts
to protection against discriminatory treatment by medical professionals
for HIV positive persons. Discriminatory treatment would constitute a
violation of the regulations and would have to be considered by the
Medical Council of India, or the State Medical Council. The Medical
Council has broad powers to order appropriate punishment, which may
include deregistering a medical practitioner.
Question for
practice
133
134
Citation Andhra Pradesh Devadasi (Prohibition of Dedication) Act, 1988

Provision
Text of Law 3. Dedication of devadasis to be unlawful:-
(1) The dedication of a woman as a Devadasi, whether before or after the
commencement of this Act and whether she has consented to such
dedication or not, is hereby declared unlawful and void; and any
woman so dedicated shall not thereby be deemed to have become
incapable of entering into a valid marriage.
4. Marriage of Devadasi
No marriage contracted by a woman in accordance with any law, custom,
or usage shall be invalid and no child of such marriage shall be
considered as illegitimate by reason only of such woman being a
Devadasi.
Narrative The Act bans the system of dedicating a women to the service of a Hindu
Summary deity or temple and the sex work that accompanies it, regardless of the
name applied to the practice. It further provides that women who have
been dedicated as Devadasis, Jogini, Basavi, etc cannot be barred from
marrying, and that the marriage of a Devadasi, if otherwise validly
conducted, is legally valid. As a result, children born to a married
woman cannot be considered illegitimate solely on the basis of her being
a Devadasi, Jogini, etc.
Question for
practice
134
135
Citation Andhra Pradesh Education Act, 1982

Provision
Text of Law 7. School Education
(1)(a) The Government shall endeavour to provide free and compulsory
education for all children until they complete the age of fourteen years
and to promote school education in the State by securing and maintaining
the universal enrolment therefor of such children. The Government may
also progressively provide for the medical inspection and care of children
in the pre-primary and primary schools.
Narrative Under the Act, the State Government has a duty to attempt to provide
Summary free education to all children. Implicitly, education must be provided to
children in a non-discriminatory manner, and certain children should not
be barred on arbitrary grounds.
Question for
practice
135
136
Citation Andhra Pradesh Admission of Students into Colleges of Education Rules,

1985
Type of Regulations (State, passed in accordance with state statute)
Provision
Text of Law 3. Method of Admission
(a) Admission into all colleges of Education . . . shall be made on the
basis of ranking assigned in B.Ed. Common Entrance Test conducted
for such admission.
(c) The selection of candidates and allotment of colleges and method of

teaching school subjects, shall be solely on the basis of merit as adjudged
by the rank obtained at the Common Entrance Test subject to the
condition that the candidates should have passed the qualifying
examination.
Narrative Entrance into colleges is governed purely by merit. Implicitly, students

Summary may not be barred from colleges on discriminatory grounds, including
HIV status.
Similar rules requiring admission on the basis of merit only apply to
engineering education institutions, institutions of law, B.Ed. courses,
polytechnic and state-wide institutions, teacher training institutions,
colleges of physical education, advanced technology courses in
engineering and technology, medicine and ayurvedic medicine colleges.
However, some of these institutions allow reservations for members of
Scheduled Tribes and Backward Castes or for local candidates.
Question for
practice

Citation National AIDS Prevention and Control Policy, 2002
Type of Policy (non-enforceable)

provision
Text of law 5.8 Care and support for People Living With HIV/AIDS (PLWHAs)
5.8.1 With the spread of the infection across the country, there will be a sharp
increase in the number of HIV-infected persons in the society who may belong
to different social and economic strata. Apart from providing counselling
before declaring the HIV status, the Government would try to ensure the social
and economic well being of these people by ensuring (a) protection of their
right to privacy and other human rights, and (b) proper care and support in the
hospitals and in the community.
5.8.2 The HIV-positive person should be guaranteed equal rights to education

and employment as other members of the society. HIV status of a person
should be kept confidential and should not in any way affect the rights of the
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person to employment, his or her position at the workplace, marital relationship

and other fundamental rights.
5.8.3 HIV-positive women should have complete choice in making decisions

regarding pregnancy and childbirth. There should be no forcible abortion or
even sterilisation on the ground of HIV status of women. Proper counselling
should be given to the pregnant women for enabling her to take an appropriate
decision either to go ahead with or terminate the pregnancy. The prophylaxis
for prevention of mother to child transmission will be introduced to cover all
infected mothers as a part of the National programme. This facility will be
entirely voluntary on the basis of informed consent.
5.8.6 Government has initiated intensive advocacy and sensitisation among

doctors, nurses and other paramedical workers so that PLWHAs are not
discriminated, stigmatised or denied of services. Government expresses serious
concern at instances of denial of medical treatment by doctors in their clinics,
nursing homes and in hospitals which causes enhanced stigmatisation to the
PLWHAs. With updated knowledge available on the risks or absence of risk of
HIV transmission, such denial of medical care to needy victims is
inappropriate and regrettable. The Government would expect the health service
sector to display necessary concern for the welfare of the community of
PLWHAs and ensure proper medical care and attention. The professional
organisations of medical and paramedical health workers should disseminate
information about HIV/AIDS to their members up to the field level. Training
of health care personnel in diagnosis, rational treatment and for follow up of
HIV-related illness should continue with greater vigour.
6. HIV/AIDS and human rights
The wide spread abuse of human rights and fundamental freedom associated with
HIV/AIDS has emerged as a serious issue in all parts of the world in the wake of the
epidemic. Discrimination against people living with HIV/AIDS denies their rights to
access health care, information and other social and economic rights granted by the
constitution to its citizen.
...
(ii) Government will strengthen anti-discrimination and other protective laws that
protect vulnerable groups, people living with HIV/AIDS and people with disabilities
from discrimination in both the public and private sectors, ensure privacy,
confidentiality and ethics in research involving human subjects, emphasize education
and conciliation and provide for speedy and effective administrative and civil remedies.
...
(vi) Government in collaboration with and through the community will promote a
supportive and enabling environment for women, children and other vulnerable groups
by addressing underlying prejudices and inequalities through community dialogue,
specially designed social and health services and support to community groups.
Narrative The policy commits the government to ensure that people living with
summary HIV/AIDS are not discriminated in hospitals by undertaking sensitisation
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of health care workers. It advocates equal rights to privacy, education,

employment and reproductive choice for persons with HIV/AIDS. It also
commits to the provision of care, counselling and essential drugs for
opportunistic infections.
Government also commits to tackling discrimination and stigmatisation

though legal reform and social awareness and counselling programs. It
particularly notes the need to tackle laws affecting socially vulnerable
groups. However, such law review and reform does not seem to have
taken place.
Question for
practice
10.3 Government agencies enforcing anti-discrimination provisions
10.3.1 Determine whether there is a government agency or body to oversee or

enforce anti-discrimination provisions.
10.3.2 Does this agency or body also interpret the law related to anti-
discrimination?

Citation Protection of Human Rights Act, 10 of 1994
provision
Text of law See Act annexed hereto
Narrative The Act creates a National Human Rights Commission, comprising
summary members of the National Commissions for Minorities, for Scheduled
Castes, and for Women. It also creates State Human Rights
Commissions. The National Commission has broad powers to promote
human rights through inquiring into complaints of violation or neglect of
rights, intervening in relevant court proceedings, visiting jails and other
state institutions, reviewing and researching rights and obstacles to their
achievement. For these purposes, the Commission is empowered to act
as a judicial body and use civil court powers and procedures. State
commissions also have broad powers but do not have jurisdiction over
matters that a national commission is already inquiring into.
The Commissions can and do take up issues relating to the abuse of sex
workers, drug users and other vulnerable persons by the police, and to
violations of human rights of HIV positive people.
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139
The Act also grants the state the power to create a human rights court
with a special public prosecutor for the efficient resolution of human
rights cases. Both the commission and the court have power to interpret
law and apply antidiscrimination provisions.
Question for
practice

Citation National Commission for Backward Classes Act, 1993;
A.P. Commission for Backward Classes Act, 1993 (and Rules pursuant
thereto)
Type of Statue (Central and State, and Rules pursuant thereto)
Provision
Text of Law See Act annexed hereto, sections 9-11;

See Act annexed hereto
Narrative The National Act creates a commission to designate classes of citizens as

Summary backward classes, thereby making them eligible for reservations. The
Commission also receives complaints over under- or over-inclusion of
some classes on the list. The Commission has all the powers of an
ordinary civil court.
The A.P. Act deals with the creation, composition and rules of the
commission at state level. Powers and functions are the same at both
levels.
Question for
practice

Citation National Commission for Minority Educational Institutes Act, 2004
Type of Statue (Central)
Provision
Text of Law See Act annexed hereto, sections 10-12
Narrative The Act establishes a National Commission for Minority Educational
Summary Institutions, to protect the rights of minority institutions (i.e. one owned
or catering to a person or group of persons belonging to a minority) and
to investigate complaints of violation. A minority is a community
notified as such by the Central government.
In performing its functions, the Commission is given the same range of

powers as a civil court.
Question for
practice
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140
Citation National Commission for Minorities Act, 1992

A.P. State Minorities Commission Act, 1998
Type of Statute (Central and State)
Provision
Text of Law See Act annexed hereto, section 9
See Act annexed hereto
Narrative The Act creates a National Commission for Minorities to safeguard the
Summary progress and development of minorities i.e. communities notified as
minorities by the central government. The Commission is empowered
with the powers of a civil court to investigate complaints of rights abuses
by minority groups, and to research and make recommendations for their
advancement. Such recommendations must be placed before both houses
Parliament by the central government with a memo of action taken, or
the reason for not following the recommendations.
The State Act lays down the composition, rules and powers of a State
Commission. The Commission is empowered to perform the same
functions as the National Commission.
Question for
practice

Citation National Commission for Women Act, 1990
Provision
Text of Law See Act annexed hereto, section 10
Narrative The National Commission of Women (and its state level counterparts) is
Summary constituted to examine safeguards for women, review laws affecting
women and report to central government at least annually on safeguards
and their efficacy. It is also required to investigate and take up
complaints and violations of the rights of women, as well as educate and
research on women’s rights. Reports by the Commission must be given
to both houses of Parliament as well as a description of action taken or
reasons for not following the recommendations of the Commission.
For the purposes of investigation and carrying out of its mandate, the
Commission is given full powers of a civil court.
The Commissions can and look into issues relating to sex work.
The Andhra Pradesh State Commission for Women is located at

Secunderabad.
Question for
practice
140
141

Citation A.P. State Commission for Scheduled Castes and Scheduled Tribes Act,
2003
Provision
Text of Law See Act attached hereto
Narrative This Act establishes the composition and rules of a State Commission to
Summary protect the interests and rights of the Scheduled Castes and Tribes. The
Commission is empowered to inquire into violations of the rights of
members of such tribes or castes, and to recommend or institute
disciplinary action against responsible public servants. It also oversees
and safeguards fair practices and civil rights to improve social progress,
literacy and welfare of Scheduled castes and tribes.
Question for
practice
141
142
11.0 International human rights treaties and national law

11.0 Identify international human rights conventions and treaties to which the
country is a signatory.
11.1 Determine whether the country has participated in any bilateral or

multilateral agreements on trafficking and describe any agreements.
11.2 Identify the provision of law that govern the status of international human
rights treaties and conventions in relation to national laws.
11.3 Determine to what extent, under these provisions, international human

rights conventions take priority over national or local laws, and whether
the conventions are enforceable or binding.
Citation Universal Declaration of Human Rights 78 U.N.T.S. 277, entered into

force 12 January 1951
Type of International convention
provision
Text of law Annexed
Narrative The Universal Declaration of Human Rights was adopted by the United
summary Nations General Assembly as a common standard of achievement for all
peoples and all nations. The preamble to the convention recognized that
inherent dignity, equal and inalienable rights of humans are the
foundation of freedom, justice and peace in the world.
Some important features of the convention are right to life, liberty and
security of person; prohibition of slavery or servitude; equality before
law; right to freedom of movement; right to nationality; right to work;
right to education, etc.
Question for
practice
Citation International Covenant on Economic, Social and Cultural Rights, 993

U.N.T.S. 3, entered into force 3 January 1976, acceded to by India 10
July 1979 (ICESCR)
Type of International convention/treaty
provision
Text of law Annexed
142
143
Narrative The states parties to this covenant, in accordance with the universal
summary declaration of human rights, and recognizing that human beings can
enjoy freedom from fear and want only when their economic, social and
cultural rights are protected, agreed upon articles of the convention.
Inter alia, the covenant recognizes the right to self-determination and

free disposal of natural wealth and resources of all people. State parties to
the covenant shall promote the realization of the right of self-
determination.
The states parties undertake to guarantee that the rights enunciated in this
covenant will be exercised without discrimination of any kind.
The states parties recognize the right to work, which includes the right of
every person to gain his living by work freely chosen or accepted. Other
rights recognized by the states parties are right to social security, right to
an adequate standard of living and continuous improvement of living
conditions, right to enjoyment of the highest attainable standard of
physical and mental health, right to education, right to take part in
cultural life and to enjoy benefits of scientific progress and its
applications, etc.
Question for
practice
Citation International Covenant on Civil and Political Rights, 999 U.N.T.S. 171,
entered into force 23 March 1976, acceded to by India 10 July 1979
(ICCPR)
provision
Text of law Annexed
Narrative Following again the Universal Declaration of Human Rights, the States
summary parties to this convention recognized the inherent dignity and the equal
and inalienable rights of all human beings and agreed upon the articles of
this Convention.
The States parties to this Convention undertake to ensure equal rights of

men and women to the enjoyment of all civil and political rights set forth
in it.
The States parties recognize the inherent right to life and agree that no
one shall be arbitrarily deprived of his life. Slavery and slave trade is
prohibited in all forms. No one shall be subjected to arbitrary arrest or
detention. Every person shall have the right to liberty of movement and
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144
freedom to choose his residence. All persons shall be equal before courts
and tribunals.
Other rights recognized are right to privacy and right to protection of the
law against interference or attacks, right to freedom of thought,
conscience and religion, right to hold opinion without interference, etc.
Signatories also agreed to prohibit any propaganda for war by law.
Article 28 provides for establishing a human rights committee, which

shall consist of eighteen members to carry out functions set out in the
Convention.
Question for
practice
Citation International Convention against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment, 1465 U.N.T.S. 112, entered into
force 26 June 1987, signed by India 14 October 1997 (CAT)
provision
Text of law Annexed
Narrative This is a Convention aimed at creating a more effective framework
summary against torture and other cruel, inhuman or degrading treatment or
punishment through out the world in the background of the provisions
contained in the Universal Declaration of Human Rights, International
Covenant on the Civil and Political Rights and the Declaration on the
Protection of All persons from being Subjected to torture and other
Cruel, Inhuman or Degrading Treatment or Punishment.
Article 1 of the Convention defines ‘torture’ as the intentional

infliction of severe pain or suffering on a person or even a third
person by or at the instigation of or with the acquiescence of a public
official or other person acting in official capacity. The Article also
covers in its ambit infliction of pain or suffering for any reason based
on discrimination of any kind. The Convention calls upon the
signatory States to bring the acts of torture, its attempt and
abetment within the purview of Criminal Law as penal offences.
The Convention also provides for taking into custody of persons

alleged to have committed an offence under the Convention and
preliminary inquiry of facts. The offences are to be extraditable
under every Extradition Treaty between States parties. The
Convention calls upon signatories to ensure that prohibition against
torture is incorporated within the training of authorities that address
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custody, interrogation or treatment of individual subjected to any

form of arrest, detention or imprisonment.
The Convention provides for the establishment of a ‘Committee Against

Torture’ to further the abatement of torture.
Question for
practice
Citation International Convention on the Elimination of all Forms of Racial

Discrimination (CERD), 660 U.N.T.S. 211, entered into force 4 January
1969, ratified by India 4 January 1969
provision
Text of law Annexed.
Relevant provisions
Article 22
Any dispute between two or more States Parties with respect to the
interpretation or application of this Convention, which is not settled by
negotiation or by the procedures expressly provided for in this
Convention, shall, at the request of any of the parties to the dispute, be
referred to the International Court of Justice for decision, unless the
disputants agree to another mode of settlement.
Narrative This Convention was adopted considering the United Nations Charter,
summary which is based on principles of dignity and equality inherent in all human
beings.
Racial discrimination in this convention means any distinction,
exclusion, restriction or preference based on race, colour, descent, or
national or ethnic origin.
It does not apply to distinctions, exclusions, restrictions or preferences
made by a state party to this convention between citizens and non-
citizens.
The Government of India has made the following reservation to the

Convention: “The Government of India declare that for reference of any
dispute to the International Court of Justice for decision in terms of
Article 22 of the International Convention on the Elimination of all
Forms of Racial Discrimination, the consent of all parties to the dispute
is necessary in each individual case.”
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146
Question for
practice
Citation Convention on the Rights of the Child (CRC), 1577 U.N.T.S. 43, entered
into force 2 September 1990, acceded to by India 11 January 1993
provision
Text of law Annexed
Narrative The CRC follows the Universal Declaration of Human Rights and was
summary entered into by States to specifically ensure protection of rights of
children.
A ‘child’ for the purpose of the CRC is every human being below the age
of eighteen years.
States parties to the CRC are bound to ensure protection for the child as
is necessary for his/her well-being. Signatories recognize that every
child has a right to life and are required to ensure survival and
development of the child to the maximum extent possible.
Article 11 of the convention requires State parties to take measures to
combat the illicit transfer and non-return of children abroad and to this
end, promote bilateral and multilateral agreements.
The Juvenile Justice Act, 2000 and Rules thereunder were enacted by the
Indian Parliament to honour CRC obligations.
Question for
practice
Citation Convention on the Elimination of all Forms of Discrimination against

Women, 1249 U.N.T.S. 13, entered into force 3 September 1981, ratified
by India 8 August 1993 (CEDAW)
provision
Text of law Annexed
Relevant provisions
Article 5
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147
States Parties shall take all appropriate measures:

(a) To modify the social and cultural patterns of conduct of men and
women, with a view to achieving the elimination of prejudices and
customary and all other practices which are based on the idea of the
inferiority or the superiority of either of the sexes or on stereotyped roles
for men and women;
(b) To ensure that family education includes a proper
understanding of maternity as a social function and the recognition
of the common responsibility of men and women in the upbringing
and development of their children, it being understood that the
interest of the children is the primordial consideration in all cases.
Article 16
1. States Parties shall take all appropriate measures to eliminate
discrimination against women in all matters relating to marriage and
family relations and in particular shall ensure, on a basis of equality of
men and women:
(a) The same right to enter into marriage;
(b) The same right freely to choose a spouse and to enter into
marriage only with their free and full consent;
(c) The same rights and responsibilities during marriage and at its
dissolution;
(d) The same rights and responsibilities as parents, irrespective of
their marital status, in matters relating to their children; in all cases
the interests of the children shall be paramount;
(e) The same rights to decide freely and responsibly on the
number and spacing of their children and to have access to the
information, education and means to enable them to exercise
these rights;
(f) The same rights and responsibilities with regard to
guardianship, wardship, trusteeship and adoption of children, or
similar institutions where these concepts exist in national
legislation; in all cases the interests of the children shall be
paramount;
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(g) The same personal rights as husband and wife, including the
right to choose a family name, a profession and an occupation;
(h) The same rights for both spouses in respect of the ownership,
acquisition, management, administration, enjoyment and
disposition of property, whether free of charge or for a valuable
consideration.
2. The betrothal and the marriage of a child shall have no legal effect, and
all necessary action, including legislation, shall be taken to specify a
minimum age for marriage and to make the registration of marriages in
an official registry compulsory.
Article 29
1. Any dispute between two or more States Parties concerning the
interpretation or application of the present Convention which is not
settled by negotiation shall, at the request of one of them, be submitted to
arbitration. If within six months from the date of the request for
arbitration the parties are unable to agree on the organization of the
arbitration, any one of those parties may refer the dispute to the
International Court of Justice by request in conformity with the Statute of
the Court.
2. Each State Party may at the time of signature or ratification of
the present Convention or accession thereto declare that it does
not consider itself bound by paragraph I of this article. The other
States Parties shall not be bound by that paragraph with respect to
any State Party which has made such a reservation.
3. Any State Party which has made a reservation in accordance
with paragraph 2 of this article may at any time withdraw that
reservation by notification to the Secretary-General of the United
Nations.
Narrative The states parties to CEDAW agree to condemn discrimination against
summary women in all its forms and to pursue a policy of eliminating
discrimination against women by all appropriate means.
Article 6 of the convention requires states parties to take appropriate
measures, including legislation, to suppress all forms of traffic in women
and exploitation of prostitution of women.
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149
While signing the Convention, India made the following

declarations regarding the convention:
"i) With regard to articles 5 (a) and 16 (1) of the Convention on the
Elimination of All Forms of Discrimination Against Women, the
Government of the Republic of India declares that it shall abide by
and ensure these provisions in conformity with its policy of non-
interference in the personal affairs of any Community without its
initiative and consent.
"ii) With regard to article 16 (2) of the Convention on the
Elimination of All Forms of Discrimination Against Women, the
Government of the Republic of India declares that though in
principle it fully supports the principle of compulsory registration of
marriages, it is not practical in a vast country like India with its
variety of customs, religions and level of literacy.
"With regard to article 29 of the Convention on the Elimination of All
Forms of Discrimination Against Women, the Government of the
Republic of India declares that it does not consider itself bound by
paragraph 1 of this article.”
Question for
practice

Citation Convention for the Suppression of the Traffic in Persons and of the
Exploitation of the Prostitution of Others, 96 U.N.T.S. 271, entered into
force 25 July 1951, signed by India 9 May 1950, ratified by India 9
January 1953
provision
Text of law Annexed
Narrative The Convention bases itself on the view that prostitution and the
summary accompanying evil of traffic in persons for the purpose of prostitution are
incompatible with the dignity and worth of human persons and endanger
the welfare of the individual, the family and the community.
State parties are required to punish persons who facilitate prostitution of
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others even with the consent of that person, keeping or managing of

brothels, etc. Article 1 & 2 of the convention spell out activities that the
convention requires states parties to outlaw.
Article 1 of the convention mandates signatories to punish any person

who, to gratify the passions of another;
(1) procures, entices or leads away, for the purpose of prostitution,
another person, even with the consent of that person;
(2) exploits the prostitution of another person, even with the consent
of that person.
Under Article 2, state parties are bound to punish any person who:
(1) keeps or manages, or knowingly finances or takes part in the
financing of a brothel;
(2) knowingly lets or rents a building or other place or any part
threreof for the purpose of the prostitution of others.
The Immoral Traffic (Prevention) Act, 1956 (previously Suppression of

Traffic in Women and Girls Act) was enacted to give effect to India’s
obligations under this convention.
Question for
practice

Citation Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women
and Children, Supplementing the UN Convention against Transnational Organised
Crime, 2000, G.A. Res. 25, annex II, U.N. GAOR, 55th Sess., Supp. No. 49, at 60, U.N.
Doc. A/45/49 (Vol. I) (2001), entered into force 25 December 2003
provision
Text of law Annexed
Narrative This protocol supplements the United Nations Convention against
summary Transnational Organized Crime and is to be interpreted together with the
convention. The objectives of the protocol are to prevent and combat
trafficking in persons, particularly women and children; to protect and
assist the victims of such trafficking, with full respect for their human
rights; and to promote cooperation among state parties in order to meet
these objectives. (Article 2)
Question for
practice

150
151
Citation SAARC Convention on Preventing and Combating Trafficking in Women

and Children for Prostitution, 2002, entered into force 15 November
2005
Type of Multilateral convention
provision
Text of law Annexed
Narrative On 5 January 2002, the South Asian Association for Regional
summary Cooperation (SAARC) adopted the Convention on Preventing and
Combating Trafficking in Women and Children for Prostitution. The
SAARC countries comprise of Bangladesh, Bhutan, India, Maldives,
Nepal, Pakistan and Sri Lanka.
The Convention defines trafficking as "the moving, selling or buying of

women and children for prostitution within and outside a country for
monetary or other considerations with or without the consent of the
person subjected to trafficking."
It provides that "State Parties to the Convention, in their respective

territories, shall provide for punishment of any person who keeps,
maintains or manages or knowingly finances or takes part in the
financing of a place used for the purpose of trafficking and knowingly
lets or rents a building or other place or any part thereof for the purpose
of trafficking." (Article III)
In trying offences under the Convention, "judicial authorities in Member

States shall ensure that the confidentiality of the child and women
victims is maintained and that they are provided appropriate counselling
and legal assistance." (Article V)
The Convention also requires member States to ensure prevention, care,

treatment, rehabilitation and repatriation of victims.
Question for
practice
11.2 Identify the provision of law that govern the status of international human
rights treaties and conventions in relation to national laws.
Citation Constitution of India, Article 51 and Article 253

provision
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152
Text of law Article 51. Promotion of international peace and security.—The state
shall endeavour to –
(a) promote international peace and security;
(b) maintain just and honourable relations between nations;
(c) foster respect for international law and treaty obligations in the
dealings of organized people with one another; and
(d) encourage settlement of international dispute by arbitration
Article 253. Legislation for giving effect to international agreements.—

Notwithstanding anything in the forgoing provisions of this chapter,
parliament has power to make any law for the whole or any part of the
territory of India for implementing any treaty agreement or convention
with any other country or countries or any decision made at any
international conference, association or other body.
Narrative With regards to treaties, the Indian practice in respect of international law
summary has been a dualist approach. International conventions do not become
binding domestic law automatically. They have to be incorporated into
the domestic legal system by appropriate law in order to bring it into
effect.
Article 51 embodies India’s commitment to give due effect and relevance

to international law. But it does not lay down that international treaties or
agreements entered into by India shall have the force of municipal law
without appropriate legislation (Varghese v. Bank of Cochin, AIR 1980 SC
470, Civil Rights Committee v. Union of India AIR 1983 Kant 85).
Under the Constitution of India, the power to legislate on different

subjects has been divided between the Union Legislature, i.e. Parliament,
and State Legislatures. The Union List (List I of Schedule VII of the
Constitution of India) enumerates the subjects on which Parliament alone
can legislate. The State List (List II of Schedule VII of the Constitution of
India) enumerates the subjects on which State Legislatures alone can
legislate. The Concurrent List (List III of Schedule VII of the Constitution
of India) enumerates the subjects on which both Parliament and State
Legislatures can legislate.
The power to implement treaties has been exclusively given to Parliament

under Article 253 of the Constitution of India read with Entries 14 and 15
of List I, Schedule VII of the Constitution of India. Therefore, despite the
fact that a particular subject may fall in the State List, Parliament alone is
competent to legislate on matters included in the state list, in so far as the
same may be necessary for the implementation of treaties or international
agreements (See Maganbhai v. Union of India, AIR 1969 SC 785).
Question for
practice
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153
11.3 Determine to what extent, under these provisions, international human

rights conventions take priority over national or local laws, and whether
the conventions are enforceable or binding.
Citation Vishaka v. State of Rajasthan, (1997) 6 SCC 241

Type of Case law
provision
Text of law
Narrative International conventions are not binding unless a legislation has been
summary enacted to implement the convention. However, national courts generally
interpret statutes so as to maintain harmony with rules of international
law. In the absence of contrary legislation, national courts would respect
rules of international law (Gramaphone Co. v. Birendra, AIR 1984 SC
667), but if there is an express legislation contrary to a rule of
international law. Indian courts are bound to give effect to the Indian law
(Ali Akbar v. U.A.R, AIR 1966 SC 230, Moti Lal v. U.P., AIR 1951 All.
257, Maganbhai v. Union of India, AIR 1969 SC 785)
In Vishaka, the court held that any international convention not

inconsistent with the fundamental rights and in harmony with its spirit
must be read into these provisions to enlarge the meaning and content
thereof, to promote the object and harmony of the constitutional
guarantee.
But if the international law is contrary to the domestic law, the latter will
prevail.
Question for
practice
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154
13.0 Relevant law applicable to minors
13.0 Relevant law applicable to minors in the health care system.
13.0.1 Who as the authority to consent to health care for minors?
Note:
Under Indian law, consent for diagnosis and treatment of children is generally taken from
the parents or adult next friend of the child. Therefore, it is relevant to look at the laws
related to guardianship and custody in India. India does not have a uniform family law
applicable to all its citizens. The law applicable to an individual depends on the religion
that the individual follows. It is commonly known as personal law. The table below lists
out the various personal laws applicable to different communities and the person who is
recognised as guardian of the person of a minor.
It is important to note that while appointing a guardian for a minor, the considerations
before the Court is the paramount interest and the best interest and welfare of the minor.
Act/Personal Law Applicable to Guardian in Law
Hindu Minority and Hindus  Section 6 states that the father is the
Guardianship Act, natural guardian of a Hindu male minor
1956 and unmarried female minor.
 In case of illegitimate children, the mother
is the natural guardian.
 In case of a married minor girl, her
husband is the guardian.
Guardians and Wards Secular law  Section 7 empowers the Court to appoint
Act, 1890 a guardian for a minor.
 Section 8 states that any person desirous
of being guardian of a minor, a relative or
even the Collector may apply for
guardianship.
 Section 15 empowers the court to appoint
joint guardians for the minor or separate
guardians for the person and property of
the minor.
The Muslim Personal Muslims In case of boys below 7 years of age and
Law (Shariat) unmarried girls before puberty, the mother is
Application Act, entitled to the care and custody of such
1937 minors
The Parsi Marriage Parsis Section 49 provides that the Court may make
and Divorce Act, orders regarding the custody of children of
1936 parties whose marriage is subject of suit
under the Act.
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155
Act/Personal Law Applicable to Guardian in Law
The Divorce Act, Christians Section 41 and 43 provides that the Court to
1869 make orders of custody of children whose
parents are parties under this Act and may
place the minor under protection of the Court.
Our research has not yielded any reported judgments on the issue of minors consenting to
healthcare in India. Therefore, some leading case laws from common law countries are
cited. Common law is applicable in India.
A child sufficiently mature to be capable of making a reasonable assessment of the

advantages and disadvantages of the proposed treatment is considered to be capable of
consenting to medical treatment. Lack of parental consent would not render the doctor’s
conduct unlawful. [See Gillick vs. West Nortfolk and Wisbech Area Health Authority and
Anr. [1984) 1 QB 581]
Although due weight must be given to the decision of the parents not to go ahead with the
operation of their child, the paramount consideration is the welfare of the child, and if an
operation would help the child live a normal life, then it should be allowed. [See Re B (a
minor) 1990 3 All ER]
The court should determine the matter keeping in mind the child’s best interests; the
ascertainable wishes and feelings of the child (considered in the light of his age and
understanding); his physical, emotional and educational needs; the likely effect on
her/him and of any change in her/his circumstances; her/his age, sex, background and any
characteristic of her/her which the court considers relevant; any harm which s/he has
suffered or is at the risk of suffering; how capable each of her/his parents (and any other
person in relation to whom the court considers the question to be relevant) is of meeting
her/his needs, and the range of powers of the court. [See W (a minor) (1992) 4 All ER
627] This standard is applied even in India.
13.0.1 Who has the authority to consent to health care for minors?
Citation The Juvenile Justice (Care and Protection of Children) Act, 2000,
sections 2(d), (f), (g), (k), 11, 31, 48, and 58
provision
requires,—
(d) “child in need of care and protection” means a child,—
(i) who is found without any home or settled place or abode and
without any ostensible means of subsistence,
(ii) who resides with a person (whether a guardian of the child or
not) and such person-
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a. has threatened to kill or injure the child and there is a

reasonable likelihood of the threat being carried out, or
b. has killed, abused or neglected some other child or children
and there is a reasonable likelihood of the child in question
being killed, abused or neglected by that person,
(iii) who is mentally or physically challenged or ill children or
children suffering from terminal diseases or incurable diseases
having no one to support or look after,
(iv) who has a parent or guardian and such parent or guardian is
unfit or incapacitated to exercise control over the child,
(v) who does not have parent and no one is willing to take care of
or whose parents have abandoned him or who is missing and
run away child and whose parents cannot be found after
reasonable injury,
(vi) who is being or is likely to be grossly abused, tortured or
exploited for the purpose of sexual abuse or illegal acts,
(vii) who is found vulnerable and is likely to be inducted into drug
abuse or trafficking,
(viii) who is being or is likely to be abused for unconscionable gains,
(ix) who is victim of any armed conflict, civil commotion or natural
calamity;
…
(f) “Committee” means a Child Welfare Committee constituted under

section 29;
(g) “competent authority” means in relation to children in need of care

and protection a Committee and in relation to juveniles in conflict with
law a Board;
(k) “juvenile” or “child” means a person who has not completed

eighteenth year of age;”
…
Section 11. Control of custodian over juvenile.—Any person in whose

charge a juvenile is placed in pursuance of this Act shall, while the order
is in force have the control over the juvenile as he would have if he were
his parents, and shall be responsible for his maintenance, and the juvenile
shall continue in his charge for the period stated by competent authority,
notwithstanding that he is claimed by his parents or any other person.
Section 31. Powers of the Committee.—(1) The Committee shall have
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the final authority to dispose of cases for the care, protection, treatment,
development and rehabilitation of the children as well as to provide for
their basic needs and protection of human rights.
(2) Where a Committee has been constituted for any area, such
Committee shall, notwithstanding anything contained in any other law for
the time being in force but save as otherwise expressly provided in this
Act, have the power to deal exclusively with all proceedings under this
Act relating to children in need of care and protection.
Section 48. Committal to approved place of juvenile or child suffering

from dangerous diseases and his future disposal.—
(1) When a juvenile or the child who has been brought before a
competent authority under this Act, is found to be suffering from a
disease requiring prolonged medical treatment or physical or mental
complaint that will respond to treatment, the competent authority may
send the juvenile or the child to any place recognised to be an approved
place in accordance with the rules made under this Act for such period as
it may think necessary for the required treatment.
(2) Where a juvenile or the child is found to be suffering from leprosy,
sexually transmitted disease, Hepatitis B, open cases of Tuberculosis and
such other diseases or is of unsound mind, he shall be dealt with
separately through various specialised referral services or under the
relevant laws as such.
Section 58. Transfer of juvenile or child of unsound mind or suffering

from leprosy or addicted to drugs.—Where it appears to the competent
authority that any juvenile or the child kept in a special home or a
children’s home or shelter home or in an institution in pursuance of this
Act, is suffering from leprosy or is of unsound mind or is addicted to any
narcotic drug or psychotropic substance, the competent authority may
order his removal to a leper asylum or mental hospital or treatment centre
for drug addicts or to a place of safety for being kept there for such
period not exceeding the period for which he is required to be kept under
the order of the competent authority for such further periods as may be
certified by the medical officer necessary for the proper treatment of the
juvenile or the child.
Narrative Where a child in need of care of protection or a juvenile is placed in the

summary custody of a person, such a person has overriding control over the child
or juvenile. This power operates even over claims by parents or any other
person.
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The Child Welfare Committee is empowered to dispose of cases for, inter

alia, the treatment of children.
Further, the competent authority (i.e. the Child Welfare Committee in

case of children in need of care and protection and the Juvenile Board in
case of juveniles in conflict with law) can pass orders sending the child to
places for treatment. In case of children institutionalised under the Act,
the competent authority can also order the removal of children who suffer
from leprosy, or are of unsound mind or are drug addicts from the
institution for their treatment.
Thus, while the law does not explicitly state that the competent authority
can consent for the health care of the minor, it implicitly empowers the
competent authority to send children for treatment. It is unclear whether
the treating doctor would consider obtaining consent from the minor for
the proposed treatment.
Question for Who consents to health care for minors who are institutionalised under
practice the Juvenile Justice Act?
Citation Medical Termination of Pregnancy Act, 1971, section 3

provision
Text of law Section 3. When pregnancies may be terminated by registered medical
practitioners.—
…
(4) (a) No pregnancy of a woman who has not attained the age of
eighteen years, is a lunatic, shall be terminated except with the consent in
writing of her guardian.
(b) Save as otherwise provided in clause (a), no pregnancy shall be
terminated except with the consent of the pregnant woman.
Narrative If the pregnant woman happens to be a minor, the registered medical

summary practitioner who is approached for terminating pregnancy must take care
to get the consent of the guardian of the minor in writing. Section 3(4)(a)
of the Medical Termination of Pregnancy Act cannot be understood as
dispensing with the consent of the pregnant woman if she is below 18
years of age. [See (1994) 1 Mad LW 89]
Question for Have sex workers been refused medical termination of pregnancies on
practice the ground that they are minors, either actually or perceived to be minors
by the health care worker?
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159
Citation The Mental Health Act, 1987, sections 16–18

provision
Text of law Section 16. Request by guardian for admission of a ward.—Where the
guardian of a minor considers such minor to be mentally ill person and
desires to admit such minor in any psychiatric hospital or psychiatric
nursing home for treatment, he may request the medical officer in charge
for admitting such minor as a voluntary patient.
Section 17. Admission of and regulation with respect to, voluntary

patients.—
(1) On receipt of a request under section 15 or section 16, the medical
officer in charge shall make such inquiry as he may deem fit within a
period not exceeding twenty four hours and if satisfied that the
Applicant or, as the case may be, the minor requires treatment as an
inpatient in the psychiatric hospital or psychiatric nursing home, he
may admit therein such Applicant, or as the case may be, minor as
voluntary patient.
(2) Every voluntary patient admitted to a psychiatric hospital or
psychiatric nursing home shall be bound to abide by such regulations
as may be made by the medical officer in charge or the licensee of the
psychiatric hospital or psychiatric nursing home.
Section 18. Discharge of voluntary patients.—

(1) The medical officer in charge of a psychiatric hospital or psychiatric
nursing home shall, on a request made in that behalf,—
a. by any voluntary patient; and
b. by the guardian of the patient, if he is a minor voluntary
patient,
discharge, subject to the provisions of sub-section (3) and within
twenty-four hours of the receipt of such request, the patient, from the
psychiatric hospital or psychiatric nursing home.
(2) Where a minor voluntary patient who is admitted as an inpatient in

any psychiatric hospital or psychiatric nursing home attains majority,
the medical officer in charge of such hospital or nursing home shall,
as soon as may be, intimate the patient that he has attained majority
and that unless request for his continuance as an inpatient is made by
him within a period of one month of such intimation, he shall be
discharged, and if, before the expiry of the said period, no request is
made to the medical officer in charge for his continuance as an
inpatient, he shall, subject to the provisions of sub-section (3),
discharged on the expiry of the said period.
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(3) Notwithstanding anything contained in sub-section (1) or sub-section

(2), where the medical officer in charge of psychiatric hospital or
psychiatric nursing home is satisfied that the discharge of a voluntary
patient under sub-section (1) or sub-section (2) will not be in the
interest of such voluntary patient he shall, within seventy-two hours
of the receipt of a request under sub section (1), or , if no request
under sub section (2) has been made by the voluntary patient before
the expiry of the period mentioned in that sub-section, within seventy
two hours of such expiry constitute a Board consisting of two medical
officers and seek its opinion as to whether such voluntary patient
needs further treatment and if the Board is of the opinion that such
voluntary patient needs further treatment in the psychiatric hospital or
psychiatric nursing home, the medical officer shall not discharge the
voluntary patient, but continue his treatment for a period not
exceeding ninety days at a time.
Narrative A guardian can seek admission to and discharge from a psychiatric
summary hospital or psychiatric nursing home on behalf of a minor ward. On
attaining majority, the minor her/himself is capable of applying for
discharge. It again is not clear whether the treating doctor would seek
consent.
Question for
practice
Citation The Andhra Pradesh Children Act, 1979, sections 3(i) and 3(o), 20, 79
and 85
Type of Statute (State law)
provision
(i) “competent authority” means in relation to neglected child, a Board
constituted under Section 6 and in relation to juvenile offender a juvenile
constituted under Section 7 and where no such Board or juvenile court
has been constituted includes any court empowered under sub-section (2)
of Section 9 to exercise the powers conferred on a juvenile court.
(o) “guardian” in relation to a child or juvenile offender includes any

person who, in the opinion of the court having cognisance of any
proceeding in relation to the child or juvenile offender, has for the time
being the actual charge of, or control over, the said child or juvenile
offender.
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161
Section 20. Child suffering from dangerous disease to be committed to

approved place.—
(1) When a child brought before a competent authority under any of the
provisions of this Act, is found to be suffering, from a disease
requiring prolonged medical treatment or from a physical or mental
disease that will respond to the treatment, the competent authority
may send the child to an observation home or to any other place
recognised in the manner prescribed, to be an approved place, for
such period as it may think necessary for the required treatment.
(2) Where a child is found to be suffering from leprosy or is of unsound

mind, he shall be dealt with under the provisions of the Andhra
Pradesh Leprosy Act, 1953, or the Indian Lunacy Act, 1912, as the
case may be.
Section 79. Transfer of children of unsound mind or suffering from

leprosy.—
(1) Where it appears to the Government that any child detained in a
children’s home, certified school or fit person institution under any
order of a competent authority is of unsound mind or a leper, the
Government may, by an order setting for the grounds, of belief that
the child is of unsound mind or a leper, order his removal to a mental
hospital or leper asylum or other place of safe custody, for being kept
there for the remainder of the term for which he has to be detained
under the orders of the competent authority or for such further period
as may be certified by a medical officer to be necessary for the proper
treatment of the child.
(2) Where it appears to the Government that the child is cured of

unsoundness of mind, or of leprosy, the Government may, if the child
is still liable to be kept in custody by another direct the person having
charge of the child to send him back to the children’s home, certified
school or fit person institution from which he was removed, or if the
child is no longer liable to be kept in custody, order him to be
discharged.
(3) Subject to the provisions of sub-section (2), the provisions of Section

31 of the India Lunacy Act, 1912 or Section 14 of the Andhra
Pradesh Leprosy Act, 1953 shall apply to every child confined in a
mental hospital or leper asylum under sub section (1) after the
expiration of the period for which he was ordered to be detained and
the time during which a child is confined in a mental hospital or leper
asylum under that sub-section shall be reckoned as part of the period
for which he may have been ordered by the competent authority to be
detained:
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Provided that where the removal of a child due to the unsoundness or

mind or leprosy is immediately necessary it shall be open to the
authorities of the institution in which the child is detained to [sic] a
court having jurisdiction under the Indian Lunacy Act, 1912 or the
Andhra Pradesh Leprosy Act, 1953 as the case may be for an
immediate order of committal to a mental hospital or a leper asylum
unto such time as the orders of the Government can be obtained in the
matter.
85. Control of custodian over child.—

(1) Any person to whose care a child is committed under the provisions
of this Act shall, while the order is in force, have a like control over
the child as if he were his parent, and shall be responsible for his
maintenance, and the child shall continue in his care for the period
stated by the competent authority notwithstanding that he is claimed
by his parent or any other person.
(2) The Chief Inspector shall have the power under the Guardian and
Wards Act, 1890 to be an ex-officio guardian within the meaning of
the Act in respect of the children under his care, and shall have the
right to apply to the competent authority for directions as to the
administration of the property of the child.
Narrative The Competent Authority is authorised by the State law to transfer

summary children of unsound mind or leprosy to a mental hospital or leper asylum
for their treatment. However, the law does not specifically authorise
anyone to consent for treatment of such institutionalised minor.
Question for
practice
Citation Andhra Pradesh Children Rules, 1986, rules 58 and 77

Type of Rules (State)
provision
Text of law Rule 58.—The Medical Officer shall ordinarily correspond with the
Chief Inspector of Certified Schools through the Superintendent of the
Institution. The duties of the Medical Officer embrace every matter
connected with the health of the children, their treatment when they are
sick and the hygiene of the Institution. The Medical Officer shall be
present at the time of inspection and visits of Chief Inspector.
Rule 77. Admission of pupils in outside Hospitals.—As and when the

Institution Doctor feels that the admission of a sick pupil in an outside
hospital, for further observation and treatment is necessary, he shall
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report the fact immediately to the Superintendent. The Superintendent

shall arrange for the pupil to be sent to such outside hospital along with a
brief report from the Institution Doctor as to the nature of the disease and
treatment given. When the pupil is admitted for treatment in any outside
hospital, the Superintendent shall at once intimate the fact to the Chief
Inspector. He shall also intimate the parents of the pupil about such
admission under intimation to the Probation Officer concerned.
Narrative In case of institutionalised children, the Medical Officer and the

summary Institution Doctor are responsible for ensuring health care of the children.
The provisions do not indicate from whom consent is taken for health
care of the minors.
Question for
practice
Citation Rules Governing The Administration of Children Homes (Bala Sadans),

1974, rules 33–34
Type of Rules (State)
provision
Text of law Duties of the Matron.—
Rule 33.—The Matron shall personally attend to the treatment of inmates
who may be sick at the Hospital. She shall attend to the admission into
the hospitals of inmates who may be sick at the hospitals of inmates who
may need admissions and she shall be responsible to look to their needs
while in the hospital.
Rule 34.—It shall be the responsibility of the Matron to safeguard the

health and hygiene of the inmates in the sadan.
Narrative In case of children homes, the matron is responsible for ensuring the
summary health of the minors. However, the provisions do indicate from whom
consent is taken for the treatment.
Question for
practice
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164
13.0.2. May minors provide legal consent to care for HIV/STD or drug addiction?
13.0. 2 May minors provide legal consent to care for HIV/STD or drug
addiction?
sections 31 and 58
provision
Text of law Section 31. Committal to approved place of child suffering from
dangerous disease and its future disposal.—
(1) When a child who has been brought before a competent authority
under this Act is found to be suffering from a disease requiring
prolonged medical treatment or physical or mental complaint that will
respond to treatment, the competent authority may send the child to
any place recognised to be an approved place in accordance with the
rules made under this Act for such period as it may think necessary
for the required treatment.
(2) Where a child is found to be suffering from leprosy or is of unsound

mind, he shall be dealt with under the provisions of the Lepers Act,
1898 (3 of 1898) or the Indian Lunacy Act, 1912 (4 of 1912), as the
case may be.
(3) Where a competent authority has taken action under sub-section (1)
in the case of a child suffering from an infectious or contagious
disease, the competent authority before restoring the said child to his
partner in marriage, if there has been such, or to the guardian, as the
case may be, shall where it is satisfied that such action will be in the
interest of the said child call upon his partner in marriage or the
guardian, as the case may be, to satisfy the court by submitting to
medical examination that such partner or guardian will not re-infect
the child in respect of whom the order has been passed.
Section 58. Transfer of juvenile or child of unsound mind or suffering

from leprosy or addicted to drugs.—Where it appears to the competent
authority that any juvenile or the child kept in a special home or a
children’s home or shelter home or in an institution in pursuance of this
Act, is suffering from leprosy or is of unsound mind or is addicted to any
narcotic drug or psychotropic substance, the competent authority may
order his removal to a leper asylum or mental hospital or treatment centre
for drug addicts or to a place of safety for being kept there for such
period not exceeding the period for which he is required to be kept under
the order of the competent authority for such further periods as may be
certified by the medical officer necessary for the proper treatment of the
Narrative The provisions cited above indicate that the competent authority can
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summary order the removal of a child to an institution for treatment of diseases

requiring prolonged medical treatment or on drug addiction. However,
the law does not clearly state as to who can consent to care for HIV/STD
or drug addiction of a minor.
Question for
practice
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166
13.1 Relevant law applicable to minors in the criminal justice system
13.1.1 Are minors subject to special procedures for:

Arrest or detention?
Trial?
Punishment?
13.1.1 Are minors subject to special procedures for arrest or detention?

Citation Code of Criminal Procedure, 1973, sections 117 and 448
provision
Text of law Section 117. Order to give security.—
If, upon such inquiry, it is proved that it is necessary for keeping the
peace or maintaining good behaviour, as the case may be, that the person
in respect of whom the inquiry is made should execute a bond with or
without sureties, the magistrate shall make an order accordingly:
Provided that—
…
(c) when the person in respect of whom the inquiry is made is a minor,
the bond shall be executed only by his sureties.
Section 448. Bond required from minor.—When the person required by

any Court, or officer to execute a bond is a minor, such Court or offer
may accept, in lieu thereof, a bond executed by a surety or sureties only.
Narrative Under the Code of Criminal Procedure, 1973, a Magistrate is empowered

summary to direct a person to execute a bond with or without sureties whereby s/he
undertakes to keep the peace or maintain good behaviour. However, in
case the person is a minor, the court is given the discretion of accepting a
bond executed by sureties only and to dispense with the personal bond of
such minor.
Question for
practice

sections 2(c), (k), (l), 4, 10, 12, 13, 50 and 65
provision
requires, —
(c) “Board” means a Juvenile Justice Board constituted under section 4;
(k) “juvenile” or “child” means a person who has not completed

eighteenth year of age;
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167
(l) “juvenile in conflict with law” means a juvenile who is alleged to have
committed an offence;
Section 4. Juvenile Justice Board.—

1) Notwithstanding anything contained in the Code of Criminal
Procedure, 1973, the State Government may, by notification the
Official Gazette, constitute for a district or a group of districts
specified in the notification, one or more Juvenile Justice Boards for
exercising the powers and discharging the duties conferred or
imposed on such Boards in relation to juveniles in conflict with law
under this Act.
2) A Board shall consist of a Metropolitan Magistrate or a Judicial
Magistrate of the first class, as the case may be, and two social
workers of whom atleast one shall be a woman, forming a Bench and
every such Bench shall have the powers conferred by the Code of
Criminal Procedure, 1973, on a Metropolitan Magistrate or, as the
case may be, a Judicial Magistrate of the first class and the Magistrate
on the Board shall be designated as the principal Magistrate.
…
Section 10 . Apprehension of juvenile in conflict with law.—

1) As soon as a juvenile in conflict with law is apprehended by police,
he shall be placed under the charge of the special juvenile police unit
or the designated police officer who shall immediately report the
matter to a member of the Board.
2) The State Government may make rules consistent with this Act,—
(i) to provide for persons through whom (including registered
voluntary organisations) any juvenile in conflict with law may be
produced before the Board;
(ii) to provide the manner in which such juvenile may be sent to an
observation home.
Section 12. Bail of juvenile.—

(1) When any person accused of a bailable or non-bailable offence,
and apparently a juvenile, is arrested or detained or appears or is
brought before a Board, such person shall, notwithstanding
anything contained in the Code of Criminal Procedure, 1973 or in
any other law for the time being in force, be released on bail with
or without surety but he shall not be released if there appear
reasonable grounds for believing that the release is likely to bring
him into association with any known criminal or expose him to
moral, physical or psychological danger or that his release would
defeat the ends of justice.
(2) When such person having been arrested is not released on bail
under sub-section (1) by the officer in-charge of the police
station, such officer shall cause him to be kept only in an
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observation home in the prescribed manner until he can be

brought before a Board.
(3) When such person is not released on bail under sub-section (1) by
the Board it shall, instead of committing him to prison, make an
order sending him to an observation home or a place of safety for
such period during the pendency of the inquiry regarding him as
may be specified in the order.
Section 13. Information to parent, guardian or probation officer.—

Where a juvenile is arrested, the officer incharge of the police station or
the special juvenile police unit to which the juvenile is brought shall, as
soon as may be after the arrest, inform—
(a) the parent or guardian of the juvenile, if he can be found, of such
arrest and direct him to be present at the Board before which the
juvenile will appear; and
(b) the probation officer of such arrest to enable him to obtain
information regarding the antecedents and family background of the
juvenile and other material circumstances likely to be of assistance to
the Board for making the inquiry.
Section 50. Sending a juvenile or child outside jurisdiction.—In the

case of a juvenile or the child, whose ordinary place of residence lies
outside the jurisdiction of the competent authority before which he is
brought, the competent authority may, if satisfied after due inquiry that it
is expedient so to do, send the juvenile or the child back to a relative or
other person who is fit and willing to receive him at his ordinary place of
residence and exercise proper care and control over him, notwithstanding
that such place of residence is outside the jurisdiction of the competent
authority; and the competent authority exercising jurisdiction over the
place to which the juvenile or the child is sent shall in respect of any
matter arising subsequently have the same powers in relation to the
juvenile or the child as if the original order had been passed by itself.
Section 65. Procedure in respect of bonds.—Provisions of Chapter

XXXIII of the Code of Criminal Procedure, 1973 (2 of 1974) shall, as far
as may be, apply to bonds taken under this Act.
Narrative The law sets out the following provisions to be followed in case of a
summary minor’s arrest.
Information to parent/guardian and probation officer

On a minor’s arrest, information of such arrest is to be provided to a
parent or guardian and also to the probation officer so that s/he can obtain
information relating to the antecedents and family background of the
minor.
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169
Where minor is from outside the jurisdiction of the Board

Where the ordinary place of residence of an apprehended minor is
outside the jurisdiction of the Board, the Board may send the minor to
relative or other fit person who is wiling to receive the minor can
exercise proper care and control over the minor.
Release on bail
When a minor who is suspected of having committed an offence is
arrested, he is to be produced before the Juvenile Justice Board (Board).
The law requires the Board to direct the release of the minor on bail
unless there are reasonable grounds for believing that the release would
bring the minor in association with any known criminal or expose him to
moral, physical or psychological damage or that the release would defeat
the ends of justice.
Bond
The provisions of the Code of Criminal Procedure relating to bonds
which have been set out above apply to bonds taken under this Act. So a
personal bond of the minor may be dispensed with.
If no bail  observation home / place of safety

If the minor is not released on bail, he is to be sent to an observation
home or a place of safety. The Board is specifically injuncted from
sending such minor to a prison.
Question for
practice

sections 2(d), (f), 32 and 33
provision
requires, —
(d) “child in need of care and protection” means a child,—
(x) who is found without any home or settled place or abode and
without any ostensible means of subsistence,
(xi) who resides with a person (whether a guardian of the child or
not) and such person-
a. has threatened to kill or injure the child and there is a
reasonable likelihood of the threat being carried out, or
b. has killed, abused or neglected some other child or children
and there is a reasonable likelihood of the child in question
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170
being killed, abused or neglected by that person,

(xii) who is mentally or physically challenged or ill children or
children suffering from terminal diseases or incurable diseases
having no one to support or look after,
(xiii) who has a parent or guardian and such parent or guardian is
unfit or incapacitated to exercise control over the child,
(xiv) who does not have parent and no one is willing to take care of
or whose parents have abandoned him or who is missing and
run away child and whose parents cannot be found after
reasonable injury,
(xv) who is being or is likely to be grossly abused, tortured or
exploited for the purpose of sexual abuse or illegal acts,
(xvi) who is found vulnerable and is likely to be inducted into drug
abuse or trafficking,
(xvii) who is being or is likely to be abused for unconscionable gains,
(xviii) who is victim of any armed conflict, civil commotion or natural
calamity;
…
(f) “Committee” means a Child Welfare Committee constituted under

section 29;
Section 32. Production before Committee.—

(1) Any child in need of care and protection may be produced before the
Committee by one of the following persons—
(i) any police officer or special juvenile police unit or a
designated police officer;
(ii) any public servant;
(iii) childline, a registered voluntary organisation or by such other
voluntary organisation or an agency as may be recognised by
the State Government;
(iv) any social worker or a public spirited citizen authorised by the
State Government; or
(v) by the child himself.
(2) The State Government may make rules consistent with this Act to
provide for the manner of making the report to the police and to the
Committee and the manner of sending and entrusting the child to
children’s home pending the inquiry.
Section 33. Inquiry.—

(1) On receipt of a report under section 32, the Committee or any police
officer or special juvenile police unit or the designated police officer
shall hold an inquiry in the prescribed manner and the Committee, on
its own or on the report from any person or agency as mentioned in
sub-section (1) of section 32, may pass an order to send the child to
the children’s home for speedy inquiry by a social worker or child
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welfare officer.
(2) The inquiry under this section shall be completed within four months
of the receipt of the order or within such shorter period as may be
fixed by the Committee:
Provided that the time for the submission of the inquiry report
may be extended by such period as the Committee may, having
regard to the circumstances and for the reasons recorded in writing,
determine.
(3) After the completion of the inquiry if the Committee is of the opinion
that the said child has no family or ostensible support, it may allow
the child to remain in the children’s home or shelter home till suitable
rehabilitation is found for him or till he attains the age of eighteen
years.
Narrative Section 32 of the Juvenile Justice (Care and Protection of Children) Act
summary allows authorised persons to produce a child in need of care and
protection before the Child Welfare Committee.
If the Committee decides that an inquiry needs to be conducted, it may

pass an order for a speedy inquiry, which is to be completed within four
months. During the pendency of the inquiry, the minor may be sent to a
children’s home.
Question for
practice

Citation The Juvenile Justice (Care and Protection of Children) Act, 2000, section
22
provision
Text of law Section 22. Provision in respect of escaped juvenile.—
Notwithstanding anything to the contrary contained in any other law for
the time being in force, any police officer may take charge without
warrant of a juvenile in conflict with law who has escaped from a special
home or an observation home or from the care of a person under whom
he was placed under this Act, and shall be sent back to the special home
or observation home or that person, as the case may be; and no
proceeding shall be instituted in respect of the juvenile by reason of such
escape, but the special home, or the observation home or the person may,
after giving the information to the Board which passed the order in
respect of the juvenile, take such steps in respect of the juvenile as may
be deemed necessary under the provisions of this Act.
Narrative A juvenile in conflict with law who escapes from custody can be arrested
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172
summary without a warrant.

Question for
practice

Citation Andhra Pradesh Children Act, 1979, sections 3(q), 7, 9, 62, 63, 86
provision
(q) ‘Juvenile offender’ means any child who has been found to have
committed an offence;
Section 7. Constitution of Juvenile Courts.—

(1) The Government may, by notification, constitute one or more
juvenile courts, for any area specified in the notification.
(2) A juvenile court shall be presided over by a single Magistrate or by
such bench of Magistrates consisting of two or more Magistrates as
the Government may, after consultation with the High Court, think fit
to appoint, and where a bench is constituted one of the Magistrates
shall be designated as the principal Magistrate and one atleast of them
shall be a woman.
(3) A juvenile court, where it is presided over by a bench of Magistrates,
may function even if one Magistrate is present and no order made by
the bench shall be invalid by reason only of the absence of any
Magistrate during any stage of the hearing of the proceeding.
(4) Every juvenile court shall be assisted by a panel of two honorary
social workers possessing such qualification as may be prescribed, of
whom atleast one shall be a woman and such panel shall be appointed
by the government.
(5) No person shall be appointed to preside over a juvenile court unless
he is a Magistrate of First Class.
Section 9. Powers of Juvenile Courts and other Courts.—

(1) Where a Board or juvenile court has been constituted for any area,
such Board or court shall, notwithstanding anything in any other law
for the time being in force, but save as otherwise provided in this Act,
have power to deal exclusively with all proceedings or try all case
under this Act but shall not have power to try any case in which an
adult is charged with an offence under Chapter VI of this Act:
Provided that a Board or juvenile court may, if it is of opinion
that it is necessary so to do having regard to the circumstances of that
case, transfer any proceedings to any juvenile court or Board, as the
case may be.
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Provided further that where there is any difference of opinion

between a Board and a juvenile court regarding the transfer of any
proceedings under the first proviso, it shall be referred to the Chief
Metropolitan Magistrate or, as the case may be, the Chief Judicial
Magistrate for decision and in a case where the District Magistrate is
functioning as a Board or a juvenile court, such difference of opinion
shall be referred to the court of Session, and the decision of the Chief
Metropolitan Magistrate or Chief Judicial Magistrate or, as the case
may be, the Court of Session on such reference shall be final.
(2) Where no Board or juvenile court has been constituted for any area,
the powers conferred on the Board or juvenile court by or under this
Act shall be exercised in that area, only by the following, namely:
(a) the court of the District Magistrate; or
(b) the court of any Metropolitan Magistrate or Judicial Magistrate of
the first class, as the case may be.
(3) The powers conferred on the Board or juvenile court by or under this
Act, may also be exercised by the High Court and court of Session,
when the proceeding comes before it in appeal, revision or otherwise.
Section 62. Bail and custody of children arrested.—

(1) Where a person who is apparently a child, is arrested or detained or
appears or is brought before a juvenile court, on a charge of a bailable
or non-bailable offence, such person shall notwithstanding in the
Code of Criminal Procedure, 1973, or in any other law for the time
being in force, be released on bail with or without sureties, but he
shall not be so released if there are reasonable grounds for believing
that the release is likely to bring him into association with any
notorious criminal or expose him to moral danger or where his
release would defeat the ends of justice.
(2) When such person having been arrested is not released on bail under
sub-section (1), the officer in-charge of the police station shall keep
the child arrested by him in a place of safety, not being a police
station, and shall produce him before the juvenile court or the nearest
Magistrate within a period of twenty-four hours of his arrest,
excluding the time necessary for the journey from the place of arrest
to the court or the Magistrate.
(3) Where such person is not released on bail under sub-section (1) by
the juvenile court, it shall instead of committing him to prison, make
an order sending him to an observation home for such period during
the pendency of the enquiry regarding him as may be specified in the
order.
Section 63. Information to parent or guardian or probation officer.—

Where a child is arrested, the officer in-charge of the police station to
which the child is brought shall, as soon as may be, after the arrest
inform—
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(a) the parent or guardian of the child, if he can be found on such

arrest and direct him to be present at the juvenile court before
which the child will appear; and
(b) the probation officer and the officer in-charge of an observation
home, of such arrest in order to enable the Probation Officer and
the Officer in-charge of the observation home to proceed
forthwith to obtain information regarding the antecedents and
family history of the child and other material circumstances
likely to assist the competent court in making the inquiry
regarding the child.
Section 86. Bonds taken under the Act.—

The provisions of Chapter XXIII of the Code of Criminal Procedure,
1973, shall, far as may be, apply to bonds taken under this Act.
Narrative The Andhra Pradesh Children’s Act, 1979 is a state law that preceded the
summary Juvenile Justice Act. Its provisions are similar to those of the Juvenile
Justice Act.
The major difference is that the law applies to boys who are under the
age of sixteen years and to girls under the age of eighteen years.
Question for
practice

Citation Andhra Pradesh Children Act, 1979, r/w s. 9
provision
(r) ‘neglected child’ means a child who—
(i) is found without having any home or settled place of abode or
any ostensible means of subsistence or is found destitute,
whether he is an orphan or not; or
(ii) has a parent or guardian who is unable or unfit to exercise or
does not exercise proper care and control over the child; or
(iii) lives in a brothel or with a prostitute or frequently goes to any
place used for the purpose of prostitution, or is found to
associate with any prostitute or any person who leads an
immoral, drunken or depraved life; or
(iv) is otherwise likely to fall into bad association or to be exposed
to moral dangers or to enter upon a life of crime; or
(v) is found begging.
Section 6. Constitution of Child Welfare Boards.—

(1) The Government may, by notification, constitute for any area
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specified in the notification one or more Child Welfare Boards

for exercising the powers and discharging the duties conferred or
imposed on such Board in relating to neglected children under
this Act.
(2) The Board shall consist of a Chairman and such other members
as the Government may think fit to appoint of whom not less than
one shall be a woman and every such member shall be vested
with the powers of a Magistrate under the Code of Criminal
Procedure, 1973.
(3) No person shall be appointed as a member of the Board unless he
has, in the opinion of the Government, special knowledge of
child psychology and child welfare.
(4) The Board shall function as Bench of Magistrates and shall have
the powers conferred by the Code of Criminal Procedure, 1973
on a Metropolitan Magistrate or, as the case may be, a Judicial
Magistrate of the First Class.
Section 41. Production of neglected children before the Board.—

(1) If any police officer or other person authorised by the Government in
this behalf by general or special order, (hereafter in this Chapter
referred to as ‘the authorised person’) is of opinion that a person is
apparently a neglected child, such police officer or authorised person
may take charge of that child for bringing him before a Board.
(2) When information is given to an officer in charge of a police station
about any neglected child found within the limits of such station, he
shall enter in a book to be kept for the purpose, the substance of such
information and take such action thereon as he deems fit and if such
officer does not propose to take charge of the child, he shall forward a
copy of the entry made and a report of the action taken to the Board.
(3) Every child taken charge of under sub-section (1) shall, unless he is
kept with his parent or guardian, be sent to a place of safety, not
being a police station, until he can be brought before the Board.
Section 42. Special procedure in case the neglected child has parent.—
(1) If a person, who in the opinion of the police officer or the
authorised person is a neglected child, has a parent or guardian,
who has the actual charge of the child, but who is unable or unfit
to exercise proper control over the child, the police officer or the
authorised person may, instead of taking charge of the child,
make a report to the Board for initiating an inquiry regarding the
child.
(2) On receipt of a report under sub-section (1) the Board may call
upon the parent or guardian to produce the child before it and to
show cause why the said child shall not be dealt with as a
neglected child under the provisions of this Act, and if it appears
to the Board that he child is likely to be removed from its
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jurisdiction or to be concealed, it may immediately issue a

warrant authorising any police officer to search for the child and
to take him to a place of safety, not being a police station to be
detained therein until he can be brought before the Board.
Section 43. Inquiry by Competent Court regarding neglected child.—

(1) When a person alleged to be a neglected child is produced before a
Board it shall examine the police officer or the authorised person,
who brought the child or made the report and record the substance of
such examination and hold the inquiry in the prescribed manner.
(2) Where on such inquiry the Board is satisfied that a child is a
neglected child, the Board may make an order directing the child to
be committed to a children’s home or to the care of fit person
institution named by the Board for a period of not less than two years,
but not, in any case, extending beyond the period when the child will,
in the opinion of the Board complete the age of sixteen years in the
case of a boy or eighteen years in the case of a girl.
(3) During the pendency of any inquiry regarding a child, the child shall
unless he is kept with his parent or guardian, be sent to observation
home for such period as may be specified in the order of the Board.
Section 44. Power to commit neglected children to suitable custody.—

(1) If the Board so thinks fit, it may instead of making an order under
sub-section (2) of Section 43 for sending the neglected child to a
children’s home or a fit person institution, make an order placing the
child under the care of a parent or guardian or other person, executing
a bond with or without sureties in such manner as the Board may
require, to be responsible for the good behaviour and well-being of
the child and for the observance of such other conditions as the Board
may impose for securing that the child may lead an honest and
industrious life.
(2) The Board, which makes an order committing a neglected child to the
care of parent, guardian or other person under this section may, in
addition, order that he be placed under the supervision of the
probation officer for any period not exceeding three years.
(3) Notwithstanding anything in sub-section (1) or sub-section (2) if at
anytime it appears to the Board on receiving a report from the
probation officer or otherwise that there has been a breach of any of
the conditions imposed by it in respect of the child, it may after
making such enquiry as it deems fit, order the child to be sent to a
children’s home.
Section 45. Sending a child having place of residence outside

jurisdiction.—
If the case of a neglected child whose ordinary place of residence lies
outside the jurisdiction of the Board before which it is brought, the Board
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177
may, if satisfied after due inquiry that it is expedient so to do, send such
child back to a relative or other person, who is fit and willing to receive
him at his place of residence and exercise proper care and control over
him.
Section 46. Uncontrollable children.—

Where the parent or guardian of a child complains to the Board that he is
not able to control the child and that he desires the child to be sent to a
children’s home or a fit person institution, the Board, if satisfied on
inquiry that it is expedient so to deal with the child and the parent or
guardian understands the results which will follow may order, the child to
be committed to a children’s home or a fit person institution.
Section 58. Detention of victimised children in place of safety.—

(1) Where any police officer not below the rank of a sub-inspector or any
other officer authorised in this behalf in the prescribed manner has
reasonable ground to believe that an offence under this Act or under
the Suppression of Immoral Traffic in Women and Girls Act, 1956
has been committed or is likely to be committed in respect of any
child, he may take such child to a place of safety to be detained
therein and shall produce such child before a competent authority
within a period of twenty-four hours of such detention excluding the
time necessary for the journey from the place of detention to the
competent authority and no such child shall be detained in a place of
safety beyond the said period without the authority of the competent
authority.
(2) If it appears to a competent authority from information given by any
person on oath or solemn affirmation that an offence as stated in sub-
section (1) has been or is being committed or, unless immediate steps
are taken, will be committed in respect of any child, the competent
authority may issue a warrant authorising any police officer to search
for such child and to take him to a place of safety to be detained
therein or until he can be brought before it.
(3) Where any child is brought before a competent authority under sub-
section (1) or sub-section (2), if the competent authority is satisfied
that an offence as stated in sub-section (1) has been committed or is
likely to be committed in respect of such child, the competent
authority may by order,—
(a) commit the child to a children’s home, or
(b) commit the child to the care of any fit person whether a relative or
not, who is willing to undertake the care of him, or
(c) direct his parent or guardian to enter a recognisance to exercise
proper care and guardianship for such time as the competent
authority deems fit but in no case beyond the time when the child
completes the age of sixteen years in the case of a boy or eighteen
years in the case of a girl.
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(4) The competent authority passing an order under clause (b) or clause
(c) of sub-section (3), may, in addition, order the child to be placed
under supervision:
Provided that if, on receiving a report from the probation officer or
otherwise, it appears to the competent authority that the fit person,
parent or guardian to whose care the child has been committed, has
failed to exercise proper care or guardianship it may after such
enquiry as it deems fit order the child to be detained in a children’s
home.
Section 59. Victimised child to be sent to competent authority.—

Any court, by which a person is convicted of having committed in
respect of a child, an offence mentioned in sub-section (1) of Section 58,
or before which a person is brought for trial for any such offence or by
which a person is bound over to keep peace on account of his committing
an offence in respect of a child, may direct that the child be produced
before a competent authority for making such order as may be proper
under sub-section (3) of Section 58.
Narrative Taking charge of neglected child

summary Under the state law, authorised persons can take charge of a minor who,
in their opinion, is a neglected child and bring her/him before the Board.
If the minor is not kept with her/his parents/guardian, the minor is to be
sent to a place of safety, during their detention, prior to being brought
before the Board.
Inquiry where charge of child is not taken by authorised officer

Where the authorised person does not take charge of a minor who has
parents, but is of the opinion that the minor is a neglected child, the
authorised person may make a report to the Board to initiate an inquiry.
In order to prevent the child from being taken out of the jurisdiction or
being concealed, the Board is authorised issue a warrant to search for the
child and take the child to a place of safety.
Detention pending-inquiry
After the child is brought before the Board, it may pass an order sending
the child to a children’s home or fit person institute, or place the child
under the care of parent, guardian or other person, provided that the
person to whom the care of the child is entrusted executes a bond as per
the Board’s direction. A further order may be made placing the child
under the supervision of a probation officer for a period not exceeding
three years.
Detention post-inquiry
If the competent authority finds that a minor is a neglected child, the
Board may make an order sending the child to a children’s home or to the
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care of a fit person institution for a period of at least two years. However,
no order is to be made for a period beyond which the child would attain
the following ages:
(a) sixteen years of age in case of a boy, and
(b) eighteen years of age in case of a girl.
Where minor is from outside the jurisdiction of the Board

Where the ordinary place of residence of an apprehended minor is
outside the jurisdiction of the Board, the Board may send the minor to
relative or other fit person who is wiling to receive the minor can
exercise proper care and control over the minor.
Uncontrollable children
A parent or guardian of an uncontrollable child may also approach the
Board and express her/his desire to have the child sent to a children’s
home or fit person institution.
Detention of victimised children (Sections 58 and 59)

Any police officer not below the rank of a sub-inspector of police or
other authorised officer may take a child, in respect of whom he suspects
an offence under the Andhra Pradesh Children’s Act or Suppression of
Immoral Traffic Act (now Immoral Traffic (Prevention) Act) has been or
is likely to be committed, to a place of safety. The child is to be produced
before a competent authority within 24 hours of detention.
Alternatively if it appears to a competent authority from information

(received on oath or solemn affirmation) that an offence under the
Andhra Pradesh Children’s Act or Suppression of Immoral Traffic Act
(now Immoral Traffic (Prevention) Act) has been or is likely to be
committed against a child, it may issue a warrant authorising any police
office to search for the child and take him to a place of safety.
Once such child is brought before the competent authority, it may send
the child to a children’s home, or to the care of a fit person or direct the
parent or guardian to enter a recognisance to exercise proper care and
guardianship over the child. The child could also be placed under
supervision.
Any court, while trying or convicting a person of having committed an

offence under the Andhra Pradesh Children’s Act or Suppression of
Immoral Traffic Act (now Immoral Traffic (Prevention) Act) in respect
of a child, may direct such child to be produced before the competent
authority.
Question for
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180
practice

Citation Andhra Pradesh Children Act, 1979,
provision
Text of law Section 72. Action by police regarding escaped children.—
Notwithstanding anything to the contrary in any law for the time being in
force, any police officer may arrest without a warrant a child who has
escaped from a children’s home, certified school or a fit person
institution or from the supervision of a society or a person under whose
supervision he was directed to remain and shall send the child back to the
home, school, institution, society or the person without registering any
offence or prosecuting the child and the said child shall not be deemed to
have committed any offence by reason of such escape, but he shall be
dealt with by the authorities of the home, school, institution or society or
the person concerned in such manner as they think fit, provided such
authorities or person shall at the same time inform the action taken to the
competent authority from which the child was originally sent.
Narrative A child who escapes from a children’s home, certified school or a fit
summary person institution or from the supervision of a society or a person under
whose supervision he was directed to remain can be arrested without
warrant by any police officer and returned to the custody of the person
from whom he escaped..
Question for
practice
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181
13.1.1 Are minors subject to special procedures for trial?

Citation The Code of Criminal Procedure, 1973, section 27

provision
Text of law Section 27. Jurisdiction in the case of juveniles.—Any offence not
punishable with death or imprisonment for life, committed by any person
who at the date when he appears or is brought before the Court is under
the age of sixteen years, may be tried by the Court of a Chief Judicial
Magistrate, or by any Court specially empowered under the Children Act,
1960 (60 of 1960), or any other law for the time being in force providing
for the treatment, training and rehabilitation of youthful offenders.
Narrative The Code of Criminal Procedure, 1973 provides that when a person
summary under the age of 16 years is brought before a court and accused of an
offence not punishable with death or imprisonment for life, he may be
tried by the Court of a Chief Judicial Magistrate, or by any Court
specially empowered under a law which provides for the treatment,
training and rehabilitation of youthful offenders.
Therefore, the Andhra Pradesh Children Act, 1979 and the Juvenile
Justice (Care and Protection of Children) Act, 2000, would regulate the
trial of children.
Question for
practice

Citation The Juvenile Justice (Care and Protection of Children) Act, 2000, section
3
provision
Text of law Section 3. Continuation of inquiry in respect of juvenile who has
ceased to be a juvenile.—Where an inquiry has been initiated against a
juvenile in conflict with law or a child in need of care and protection and
during the course of such inquiry the juvenile or the child ceases to be
such, then, notwithstanding anything contained in this Act or in
any other law for the time being in force, the inquiry may be continued
and orders may be made in respect of such person as if such person had
continued to be a juvenile or a child.
Narrative The central law provides that where during the course of an inquiry of a
summary juvenile in conflict with law or a child in need of care and protection,
such child attains 18 years of age, the Board or Child Welfare Committee
may proceed with the inquiry and make orders in respect of the person, as
if such person continued to remain a juvenile or child under the law.
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The language used in the law is “may”, which indicates that the
discretion lies with the Board or Child Welfare Committee whether or
not to continue the inquiry under the Act.
Please refer to similar provision under the Andhra Pradesh Children’s

Act, 1979, which is referred to below. The language used in the state law
makes it mandatory for the trial to be continued and orders made under
the state law. Relevantly, the law applies to boys under the age of 16
years and girls under the age of 18 years.
Question for
practice

sections 4, 7, 14, 18, 20, 46, 47, 48, 49 and 52
provision
Text of law Section 4. Juvenile Justice Board.—
(1) Notwithstanding anything contained in the Code of Criminal
Procedure, 1973, the State Government may, by notification the
Official Gazette, constitute for a district or a group of districts
specified in the notification, one or more Juvenile Justice Boards for
exercising the powers and discharging the duties conferred or
imposed on such Boards in relation to juveniles in conflict with law
under this Act.
(2) A Board shall consist of a Metropolitan Magistrate or a Judicial
Magistrate of the first class, as the case may be, and two social
workers of whom atleast one shall be a woman, forming a Bench and
every such Bench shall have the powers conferred by the Code of
Criminal Procedure, 1973, on a Metropolitan Magistrate or, as the
case may be, a Judicial Magistrate of the first class and the Magistrate
on the Board shall be designated as the principal Magistrate.
…
Section 7. Procedure to be followed by a Magistrate not empowered

under the Act.—
(1) When any Magistrate not empowered to exercise the powers of a
Board under this Act is of the opinion that a person brought before
him under any of the provisions of this Act (other than for the
purpose of giving evidence), is a juvenile or the child, he shall
without any delay record such opinion and forward the juvenile or the
child and the record of the proceeding to the competent authority
having jurisdiction over the proceeding.
(2) The competent authority to which the proceeding is forwarded under
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sub-section (1) shall hold the inquiry as if the juvenile or the child
had originally been brought before it.
Section 14. Inquiry by Board regarding juvenile.—

Where a juvenile having been charged with the offence is produced
before a Board, the Board shall hold the inquiry in accordance with the
provisions of this Act and may make such order in relation to the juvenile
as it deems fit:
Provided that an inquiry under this section shall be completed
within a period of four months from the date of its commencement,
unless the period is extended by the Board having regard to the
circumstances of the case and in special cases after recording the reasons
in writing for such extension.
Section 18. No joint proceeding of juvenile and person not a juvenile.—

(1) Notwithstanding anything contained in section 223 of the Code of
Criminal Procedure, 1973 or in any other law for the time being in
force, no juvenile shall be charged with or tried for any offence
together with a person who is not a juvenile.
(2) If a juvenile is accused of an offence for which under section 223 of
the Code of Criminal Procedure, 1973 or any other law for the time
being in force, such juvenile and any person who is not a juvenile
would, but for the prohibition contained in sub-section (1), have been
charged and tried together, the Board taking cognizance of that
offence shall direct separate trials of the juvenile and the other
person.
Section 20. Special provision in respect of pending cases.—

Notwithstanding anything contained in this Act, all proceedings in
respect of a juvenile pending in any court in any area on the date on
which this Act comes into force in that area, shall be continued n that
court as if this Act had not been passed and if the court finds that the
juvenile has committed an offence, it shall record such finding and
instead of passing any sentence in respect of the juvenile, forward the
juvenile to the Board which shall pass orders in respect of that juvenile in
accordance with the provisions of this Act as if it had been satisfied on
inquiry under this Act that a juvenile has committed the offence.
Section 22. Provision in respect of escaped juvenile.—

Notwithstanding anything to the contrary contained in any other law for
the time being in force, any police officer may take charge without
warrant of a juvenile in conflict with law who has escaped from a special
home or an observation home or from the care of a person under whom
he was placed under this Act, and shall be sent back to the special home
or observation home or that person, as the case may be; and no
proceeding shall be instituted in respect of the juvenile by reason of such
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escape, but the special home, or the observation home or the person may,
after giving the information to the Board which passed the order in
respect of the juvenile, take such steps in respect of the juvenile as may
be deemed necessary under the provisions of this Act.
Section 46 . Attendance of parent or guardian of juvenile or child.—

Any competent authority before which a juvenile or the child is brought
under any of the provisions of this Act, may, whenever it so thinks fit,
require any parent or guardian having the actual charge of or control over
the juvenile or the child to be present at any proceeding in respect of the
Section 47. Dispensing with attendance of juvenile or child.—

If, at any stage during the course of an inquiry, a competent authority is
satisfied that the attendance of the juvenile or the child is not essential for
the purpose of inquiry, the competent authority may dispense with his
attendance and proceed with the inquiry in the absence of the juvenile or
the child.
Section 49. Presumption and determination of age.—

(1) Where it appears to a competent authority that person brought before
it under any of the provisions of this Act (otherwise than for the
purpose of giving evidence) is a juvenile or the child, the competent
authority shall make due inquiry so as to the age of that person and
for that purpose shall take such evidence as may be necessary (but not
an affidavit) and shall record a finding whether the person is a
juvenile or the child or not, stating his age as nearly as may be.
(2) No order of a competent authority shall be deemed to have become
invalid merely by any subsequent proof that the person in respect of
whom the order has been made is not a juvenile or the child, and the
age recorded by the competent authority to be the age of person so
brought before it, shall for the purpose of this Act, be deemed to be
the true age of that person.
Section 52. Appeals.—

(1) Subject to the provisions of this section, any person aggrieved by an
order made by a competent authority under this Act may, within
thirty days from the date of such order, prefer an appeal to the Court
of Session:
Provided that the Court of Session may entertain the appeal
after the expiry of the said period of thirty days if it is satisfied that
the appellant was prevented by sufficient cause from filing the appeal
in time.
(2) No appeal shall lie from—
(a) any order of acquittal made by the Board in respect of a juvenile
alleged to have committed an offence; or
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(b) any order made by a Committee in respect of a finding that a

person is not a neglected juvenile.
(3) No second appeal shall lie from any order of the Court of Session
passed in appeal under this section.
Narrative Children who are accused of having committed offences, i.e. juvenile in
summary conflict with law, are to be tried by the Juvenile Justice Board, which is
constituted under the Act. The Board is to consist of a magistrate, two
social workers, of whom at least one is a woman.
The law specifically prohibits the trial of a minor with an adult co-
accused. In case a juvenile who has escaped is apprehended, no
proceeding is to be initiated against him for having escaped.
Where a case was pending against a juvenile in any court on the date of
coming into force, the court could continue with the trial. If the court
were to come to finding that the juvenile had committed an offence, the
minor is to be forwarded to the Board so that it could pass an order.
The inquiry is to be completed within four months from commencement.

In special cases, the Board may extend the period of inquiry, after
recording the reasons in writing.
During an inquiry, the Board may require the parent or guardian to be

present at the proceeding. The personal attendance of the minor may also
be dispensed with if the Board feels that the attendance of the minor is
not necessary.
In cases where it appears to the competent authority that person brought

before it is a juvenile or child, the competent authority shall make inquiry
about he age of that person and take necessary evidence in this behalf.
The competent authority then records a finding whether the person is a
juvenile or child and states the age of the child as nearly as can be. Even
if the determination is wrong, the age determined by the competent
authority is considered to be the true age of that person for the purposes
of the Juvenile Justice (Care and Protection of Children) Act, 2000.
Any person aggrieved by an order can appeal to the Court of Session.

The decision of the Court of Session in appeal cannot be appealed
against. However, no appeal can be filed against an order of acquittal of a
minor by the Board.
These provisions apply to a competent authority, i.e. either a Board or a

Child Welfare Committee. The latter is the authority under the law which
inquires into “children in need of care and protection” who are brought
before it.
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186
Question for Has a Juvenile Justice Board been set up for the district?
practice Are minors tried solely by the Juvenile Justice Board?

Citation Andhra Pradesh Children Act, 1979, section 4
provision
Text of law Section 4. Continuance of proceedings against child on attaining
specified age.—
For the purposes of this Act, a person shall be deemed to be a child if at
the time of initiation of any proceedings against him under this Act or at
the time of his arrest in connection with which any proceedings are
initiated against him under this Act, such person has not completed the
age of sixteen years in the case of a boy or eighteen years in the case of a
girl:
Provided that, if during the course of the proceedings under this Act, such
person completes the age of sixteen years in the case of a boy or eighteen
years in the case of a girl, the proceedings already commenced shall be
continued and orders may be passed in respect of such person under this
Act, as if such person was a child notwithstanding anything contrary in
this Act.
Narrative This provision of the State law differs slightly from the central law.
summary
A person is deemed to be a child under the state law, if at the time of
her/his arrest or at the time of initiation of proceedings against her/him,
such person has not completed the specified ages. These ages differ
according to the gender of the person, i.e. 16 years in the case of a boy
and 18 years in the case of a girl.
Even if the person attains the ages specified, the proceedings shall be
continued under the Act. An order may also be passed under the Act as if
the person continued to be a child.
Question for Do you know of any minor who has obtained the advantage of continuing
practice to be treated as a minor under the law, despite having attained the age of
majority?
Do authorities use this discretion to the advantage of minors?

Citation Andhra Pradesh Children Act, 1979, section 5
provision
Text of law Section 5. Certain provisions of the Code of Criminal Procedure, 1973,
etc. not to apply.—
Section 27 of the Code of Criminal Procedure, 1973 and the provisions of
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187
the Reformatory Schools Act, 1897, shall upon the commencement of

this Act, cease to apply to this State.
Narrative The state law expressly excludes the application of the Reformatory
summary Schools Act and Section 27 of the Code of Criminal Procedure to the
state.
One effect of this is that the Andhra Pradesh Children Act, 1979 applies
to girls under the age of 18 years despite Section 27 of the Code of
Criminal Procedure allowing special procedures under any state law to be
followed for persons under the age of 16 years.
Question for
practice

Citation Andhra Pradesh Children Act, 1979, sections 7, 8, 10–19, 64, 72, 74 and
82
provision
Text of law Section 7. Constitution of Juvenile Courts.—
(1) The Government may, by notification, constitute one or more
juvenile courts, for any area specified in the notification.
(2) A juvenile court shall be presided over by a single Magistrate or by
such bench of Magistrates consisting of two or more Magistrates as
the Government may, after consultation with the High Court, think fit
to appoint, and where a bench is constituted one of the Magistrates
shall be designated as the principal Magistrate and one atleast of them
shall be a woman.
(3) A juvenile court, where it is presided over by a bench of Magistrates,
may function even if one Magistrate is present and no order made by
the bench shall be invalid by reason only of the absence of any
Magistrate during any stage of the hearing of the proceeding.
(4) Every juvenile court shall be assisted by a panel of two honorary
social workers possessing such qualification as may be prescribed, of
whom atleast one shall be a woman and such panel shall be appointed
by the government.
(5) No person shall be appointed to preside over a juvenile court unless
he is a Magistrate of First Class.
Section 8. Procedure etc. in relation to Boards and Juvenile Court.—

In the event of any difference of opinion among the members of a Board
or among the Magistrates constituting a bench, the opinion of the
majority shall prevail but where there is no such majority, the opinion of
the Chairman or of the principal Magistrate, as the case may be, shall
prevail.
Section 10. Procedure to be followed by the court of a Magistrate not
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empowered under the Act.—

(1) When any court of a Magistrate not empowered to exercise the
powers of a juvenile court under this Act, is of opinion that a person
brought before it is a child, it shall record such opinion and forward
the child and the record of the proceeding to the court having
jurisdiction under this Act, to deal with and dispose of the
proceeding.
(2) The court to which the proceeding is forwarded under sub-section (1)
shall hold the inquiry as if the child has originally been brought
before it.
Section 11. No joint trial of child and adult.—

(1) Notwithstanding anything in Section 223 of the Code of Criminal
Procedure, 1973, or any other law for the time being in force, no child
shall be charged with or tried for any offence other than an offence
punishable either under Section 302 or Section 304 or Section 392 or
Section 395 or Section 396 of the Indian Penal Code, 1860 together
with an adult.
(2) If a child is accused of an offence for which under Section 223 of the
Code of Criminal Procedure, 1973, or any other law for the time
being in force, such child and the adult would, but for the provisions
of sub-section (1), have been charged and tried together, the Court
taking cognisance of that offence shall direct separate trials of the
child and the adult.
Section 12. Procedure in inquiries and trial.—

Save as otherwise expressly provided by or under this Act, a competent
court, while holding an inquiry into and in the trial of cases and the
conduct of proceedings under this Act, shall subject to such procedure as
may be prescribed follow as far as may be the procedure laid down for
trial in summons cases in the Code of Criminal Procedure, 1973.
Section 13. Sittings, etc. of Juvenile Courts or Boards.—

(1) A Board or Juvenile Court shall hold its sittings at such place on such
days and in such manner as may be prescribed.
(2) In the inquiry into or trial of a case in which a child is charged with
an offence, the court of a Magistrate empowered to exercise the
powers of a Board or, as the case may be, a juvenile court under
Section 9, shall, as far as practicable, sit in a different building or
room from that in which the ordinary sittings of the Court or held or
on different days or at different times from those at which the
ordinary sittings of the court are held.
Section 14. Special provision in respect of pending cases.—

Notwithstanding anything in this Act, all proceedings in respect of a child
pending in a court on the date on which this Act comes into force shall be
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189
continued in that court, as if this Act had not been passed and if such
court finds that the child has committed an offence, it shall record such
finding and, instead of passing any sentence in respect of the child
forward the child to the competent court under this Act, which shall pass
orders in respect of that child in accordance with the provisions of this
Act, as if it has been satisfied on inquiry under this Act that the child has
committed the offence.
Section 15. Presence of persons in competent authority.—

(1) Save as otherwise provided in this Act, no person shall be present in
any sitting of a competent authority, except—
(a) the members and officers of a competent authority,
(b) the parties to the case before competent authority, the parent or
guardian of the child and other persons directly concerned in
the case, including the police officer and legal practitioner, and
(c) such other persons as competent authority may permit to be
present.
(2) No legal practitioner shall be entitled to appear before a Board in any
case or proceedings before it, except with the special permission of
that Board.
Section 16. Withdrawal of persons.—

If, at any stage, during the course of a trial of a case or proceeding, a
competent authority considers it expedient in the interests of the child or
on grounds of decency or morality, to direct any person including the
police officers, the parent, guardian, or the child himself to withdraw, the
competent authority shall (sic) entitled to give such direction and
thereupon such persons shall withdraw. If any person refuses to
withdraw, the competent authority may have him removed and may for
this purpose, cause to be used such force as may be necessary.
Section 17. Dispensing with attendance of child.—

If at any stage during the course of a trial of a case or proceeding, a
competent authority is satisfied that the attendance of a child is not
essential for purposes of the hearing of the case or proceeding, the
competent authority may dispense with his attendance and proceed with
the trial of the case or proceeding in the absence of the child.
Section 18. Withdrawal of persons from competent authority when

child is examined as witness.—
If, at any stage during the course of a trial of a case or proceeding in
relation to an offence against, or any conduct contrary to decency, or
morality, a child is examined as a witness, the competent authority trying
the case or holding the proceedings may direct such persons as it thinks
fit, not being parties to the case proceeding, to withdraw, the competent
authority may have him removed, and may for this purpose, cause to be
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190
used such force as may be necessary.
Section 19. Attendance of parent or guardian of the child charged with

an offence.—
(1) Where a child brought before a competent authority under this Act
has a parent or guardian such parent or guardian, may, in any case,
and shall, if he can be found and if he resides within a reasonable
distance from the competent authority, be required to attend the court
unless the competent authority is satisfied that it will be unreasonable
to require his attendance.
(2) The parent or guardian whose attendance is required under this
section shall be the parent or guardian having the actual charge of or
control over the child:
Provided that if such parent or guardian is not the father, the
attendance of the father may also be required.
(3) The attendance of the parent of the child shall not be required under
this section in any case, where the child was before the institution of
the proceedings, removed from the custody or charge of his parent by
an order of a court.
Section 64. Inquiry by juvenile court regarding juvenile offenders.—

Where a child having been charged with an offence appears or is
produced before a juvenile court, the court shall hold the inquiry in
accordance with the provisions of Section 12.
Section 74. Appeal.—

(1) Subject to the provisions of this section, any person aggrieved by an
order made by a competent authority under this Act, may, within
thirty days from the date of communication of such order, prefer an
appeal to the Court of Session;
Provided that the Court of Session may entertain the appeal
after the expiry of the said period of thirty days, if it is satisfied that
the appellant was prevented by sufficient cause from filing the appeal
in time.
(2) No appeal shall lie from—
(a) any order of acquittal made by the juvenile court in respect of a
juvenile alleged to have committed an offence; or
(b) any order made by a Board in respect of a finding that a person is
not a neglected child.
(3) No second appeal shall lie from any order of the Court of Session
passed in appeal under this section.
Section 82. Presumption and determination of age.—

(1) Where it appears to a competent authority that a person brought
before it under any of the provisions of this Act, otherwise than for
the purpose of giving evidence, is a child, the competent authority
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191
shall hold an inquiry as to the age of that person and for that purpose
shall obtain medical opinion and take such other evidence as may be
forthcoming and shall record a finding whether the person is a child
or not, stating his age, as nearly as may be.
(2) No order of a competent authority shall be deemed to have become
invalid merely by any subsequent proof that the person in respect of
whom the order has been made is not a child, and the age recorded by
the competent authority to be the age of the person so brought before
it, shall, for the purposes of this Act, be deemed to be the true age of
that person.
Narrative Under the state law, children who are accused of having committed
summary offences are to be tried by the Juvenile Courts, which are constituted
under the Act. The Board is to consist of a magistrate and two social
workers, of whom at least one is a woman.
The law specifically prohibits the trial of a minor with an adult co-
accused. In case a juvenile who has escaped is apprehended, no
proceeding is to be initiated against him for having escaped. (section 72)
Where a case was pending against a juvenile in any court on the date of
coming into force, the court could continue with the trial. If the court
were to come to finding that the juvenile had committed an offence, the
minor is to be forwarded to the competent court so that it could pass an
order.
The court, while holding an inquiry under the Act, is required to follow
the procedure for summons cases, which is laid out in sections 251 to 259
of the Code of Criminal Procedure, 1973. This involves the authority
stating to the minor the particulars of the offence he is charged with. The
minor may plead guilty or not guilty. If the minor pleads not guilty, the
competent court hears the prosecution and evidence on behalf of the
prosecution and then hears the accused and evidence on behalf of the
accused. The competent court then records acquittal or conviction. If the
complainant does not appear on a date for which the matter is fixed or on
the complainant’s death, the competent court may acquit the accused. The
competent court may also permit the complainant to withdraw the
complaint and thereafter acquit the accused.
The state law is more particular about ensuring that the proceedings are
held in a child-friendly manner. The law requires that the juvenile court
should, as far as practicable, conduct proceedings in a different building
or room from where the court ordinarily sits or on different days or times
from the ordinary sittings of the court. Further, only members of the
competent authority, the parties to the case, the parents or guardians,
persons directly connected with the case and other persons permitted by
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192
the competent authority to be present can be present in any sitting of the

competent authority. The competent authority can also direct the removal
of persons from the sitting if it considers expedient in the interests of the
child or on grounds of decency or morality. It may also dispense with the
attendance of the child. While the child is being examined as witness, the
competent authority may direct non-parties to withdraw from the room.
During an inquiry, the competent authority may require the parent or
guardian to be present at the proceeding. In matters relating to neglected
children, a lawyer can appear only with the previous sanction of the
Board.
In cases where it appears to the competent authority that person brought

before it is a child, the competent authority shall make inquiry about the
age of that person, obtain a medical opinion and take necessary evidence
in this behalf. The competent authority then records a finding whether the
person is a child and states the age of the child as nearly as can be. Even
if the determination is wrong, the age determined by the competent
authority is considered to be the true age of that person for the purposes
of the Act.
Any person aggrieved by an order can appeal to the Court of Session.

The decision of the Court of Session in appeal cannot be appealed
against. However, no appeal can be filed against an order of acquittal of a
minor by the Court.
Question for Is the procedure laid down for trial followed by the Courts?
practice
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193
13.1.1 Are minors subject to special procedures for punishment?

Citation The Probation of Offenders Act, 1958, sections 3, 4 and 6
provision
Text of law Section 3. Power of Court to release certain offenders after
admonition.—
When any person is found guilty of having committed an offence
punishable under section 379 or section 380 or section 381 or section 404
or section 420 of the Indian Penal Code or any offence punishable with
imprisonment for not more than two years, or with fine, or with both,
under the Indian Penal Code or any other law, and no previous conviction
is proved against him and the court by which the person is found guilty is
of opinion that, having regard to the circumstances of the case including
the nature of the offence and the character of the offender, it is expedient
so to do, then notwithstanding anything contained in any other law for
the time being in force, the court may, instead of sentencing him to any
punishment or releasing him on probation of good conduct under section
4, release him after due admonition.
Explanation.—For the purposes of this section, previous conviction
against a person shall include any previous order made against him under
this section or section 4.
Section 4. Power of Court to release certain offenders on probation of

good conduct.—
(1) When any person is found guilty of having committed an offence not
punishable with death or imprisonment for life and the court by
which the person is found guilty is of opinion that, having regard to
the circumstances of the case including the nature of the offence and
the character of the offender, it is expedient to release him on
probation of good conduct, then, notwithstanding anything contained
in any other law for the time being in force, the court may, instead of
sentencing him at once to any punishment direct that he be released
on his entering into a bond, with or without sureties, to appear and
receive sentence when called upon during such period, not exceeding
three years, as the court may direct and in the meantime to keep the
peace and be of good behaviour:
Provided that the court shall not direct such release of an
offender unless it is satisfied that the offender or his surety, if any,
has a fixed place of abode or regular occupation in the place over
which the court exercises jurisdiction or in which the offender is
likely to live during the period for which he enters into the bond.
(2) Before making any order under sub-section (1), the court shall take
into consideration the report, if any, of the probation officer
concerned in relation to the case.
(3) When an order under sub-section (1) is made, the court may, if it is of
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194
opinion that in the interests of the offender and of the public it is

expedient so to do, in addition pass a supervision order directing that
the offender shall remain under the supervision of a probation officer
named in the order during such period, not being less than one year,
as may be specified therein, and may in such supervision order
impose such conditions as it deems necessary for the due supervision
of the offender.
(4) The court making a supervision order under sub-section (3) shall
require the offender, before he is released, to enter into a bond, with
or without sureties, to observe the conditions specified in such order
and such additional conditions with respect to residence, abstention
from intoxicants or any other matter as the court may, having regard
to the particular circumstances, consider fit to impose for preventing
a repetition of the same offence or a commission of other offences by
the offender.
(5) The court making a supervision order under sub-section (3) shall
explain to the offender the terms and conditions of the order and shall
forthwith furnish one copy of the supervision order to each of the
offenders, the sureties, if any, and the probation officer concerned.
Section 6. Restriction on imprisonment of offenders under twenty-one

years of age.—
(1) When any person under twenty-one years of age is found guilty of
having committed an offence punishable with imprisonment (but not
with imprisonment for life), the Court by which the person is found
guilty shall not sentence him to imprisonment unless it is satisfied
that, having regard to the circumstances of the case including the
nature of the offence and the character of the offender, it should not
be desirable to deal with him under section 3 or section 4, and if the
Court passes any sentence of imprisonment on the offender, it shall
record its reasons for doing so.
(2) For the purpose of satisfying itself whether it would not be desirable
to deal under section 3 or section 4 with an offender referred to in
sub-section (1) the Court shall call for a report from the probation
officer and consider the report, if any, and any other information
available to it relating to the character and physical and mental
condition of the offender.
Narrative When a person under 21 years of age is found guilty of having committed
summary an offence that is punishable with imprisonment (but not imprisonment
for life), the Court should generally deal with the person under section 3
(release after admonition) or section 4 (release on probation of good
conduct). The Court, if it decides to imprison the person, has to record its
reasons for doing so.
Question for
practice
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195

Citation The Code of Criminal Procedure, 1973, sections 360 and 361

provision
Text of law Section 360. Order to release on probation of good conduct or after
admonition.—
(1) When any person not under twenty-one years of age is convicted of
an offence punishable with fine only or with imprisonment for a term
of seven years or less, or when any person under twenty-one years
of age or any woman is convicted of an offence not punishable with
death or imprisonment for life, and no previous conviction is proved
against the offender, if it appears to the Court before which he is
convicted, regard being had to the age, character or antecedents of
the offender, and to the circumstances in which the offence was
committed, that it is expedient that the offender should be released
on probation of good conduct, the Court may, instead of sentencing
him at once to any punishment, direct that he be released on his
entering into a bond with or without sureties, to appear and receive
sentence when called upon during such period (not exceeding three
years) as the Court may direct and in the meantime to keep the peace
and be of good behaviour:
(2) …
(3) In any case in which a person is convicted of theft, theft in a
building, dishonest misappropriation, cheating or any offence under
the Indian Penal Code(45 of 1860), punishable with not more than
two years’ imprisonment or any offence punishable with fine only
and no previous conviction is proved against him, the Court before
which he is so convicted may, if it thinks fit, having regard to the
age, character, antecedents or physical or mental condition of the
offender and to the trivial nature of the offence or any
extenuating circumstances under which the offence was
committed, instead of sentencing him to any punishment, release
him after due admonition.
…
(10) Nothing in this section shall affect the provisions of the Probation of
Offenders Act, 1958 or the Children Act, 1960, or any other law for
the time being in force for the treatment, training or rehabilitation of
youthful offenders.
Section 361. Special reasons to be recorded in certain cases.—

Where in any case the Court could have dealt with,—
(a) an accused person under section 360 or under the provisions of the
Probation of Offenders Act, 1958, or
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196
(b) a youthful offender under the Children Act, 1960, or any other law
for the time being in force for the treatment, training or rehabilitation
of youthful offenders,
but has not done so, it shall record in its judgment the special reasons
for not having done so.
Narrative The Code of Criminal Procedure too lays down that a first time offender,
summary under the age of 21 years, who is convicted of an offence not punishable
with death or imprisonment for life, may be released on probation of
good conduct. Reasons for not applying this provision or the Probation of
Offenders Act or other law relating to children are to be recorded in
writing.
Thus, the law provides that in case of first-time offenders under the age
of 21 years may be released on probation of good conduct, due regard
being had to the circumstances of the case. Orders for imprisoning
minors have to be supported with written reasons.
Question for
practice

sections 15, 16, 17, 19, 50, 56, 59 and 64
provision
Text of law Section 15. Order that may be passed regarding juvenile.—
(1) Where a Board is satisfied on inquiry that a juvenile has committed
an offence, then, notwithstanding anything to the contrary contained
in any other law for the time being in force, the Board may, if it
thinks so fit,—
(a) allow the juvenile to go home after advice or admonition
following appropriate inquiry against and counselling to the
parent or the guardian and the juvenile;
(b) direct the juvenile to participate in group counselling and similar
activities;
(c) order the juvenile to perform community services;
(d) order the parent of the juvenile or the juvenile himself to pay a
fine, if he is over fourteen years of age and earns money;
(e) direct the juvenile to be released on probation of good conduct
and placed under the care of any parent, guardian or other fit
person, on such parent, guardian or other fit person executing a
bond, with or without surety, as the Board may require, for the
good behaviour and well-being of the juvenile for any period not
exceeding three years;
(f) direct the juvenile to be released on probation of good conduct
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and placed under the care of any fit institution for the good
behaviour and well-being of the juvenile for any period not
exceeding three years;
(g) make an order directing the juvenile to be sent to a special
home,—
(i) in the case of juvenile, over seventeen years but less than
eighteen years of age for a period of not less than two years:
(ii) in case of any other juvenile for the period until he ceases to
be a juvenile:
Provided that the Board may, if it is satisfied that having
regard to the nature of the offence and the circumstances of
the case it is expedient so to do, for reasons to be recorded,
reduce the period of stay to such period as it thinks fit.
(2) The Board shall obtain the social investigation report on juvenile
either through a probation officer or a recognised voluntary
organisation or otherwise, and shall take into consideration the
findings of such report before passing an order.
(3) Where an order under clause (d), clause (e) or clause (f) of sub-
section (1) is made, the Board may, if it is of opinion that in the
interests of the juvenile and of the public, it is expedient so to do, in
addition make an order that the juvenile in conflict with law shall
remain under the supervision of a probation officer named in the
order during such period, not exceeding three years as may be
specified therein, and may in such supervision order impose such
conditions as it deems necessary for the due supervision of the
juvenile in conflict with law:
Provided that if at any time afterwards it appears to the Board on
receiving a report from the probation officer or otherwise, that the
juvenile in conflict with law has not been of good behaviour during
the period of supervision or that the fit institution under whose care
the juvenile was placed is no longer able or willing to ensure the good
behaviour and well-being of the juvenile it may, after making such
inquiry as it deems fit, order the juvenile in conflict with law to be
sent to a special home.
(4) The Board shall while making a supervision order under sub-section
(3), explain to the juvenile and the parent, guardian or other fit person
or fit institution, as the case may be, under whose care the juvenile
has been placed, the terms and conditions of the order and shall
forthwith furnish one copy of the supervision order to the juvenile,
the parent, guardian or other fit person or fit institution, as the case
may be, the sureties, if any, and the probation officer.
Section 16. Order that may not be passed against juvenile.—

(1) Notwithstanding anything to the contrary contained in any other law
for the time being in force, no juvenile in conflict with law shall be
sentenced to death or life imprisonment, or committed to prison in
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default of payment of fine or in default of furnishing security:

Provided that where a juvenile who has attained the age of sixteen
years has committed an offence and the Board is satisfied that the
offence committed is of so serious in nature or that his conduct and
behaviour have been such that it would not be in his interest or in the
interest of other juvenile in a special home to send him to such
special home and that none of the other measures provided under this
Act is suitable or sufficient, the Board may order the juvenile in
conflict with law to be kept in such place of safety and in such
manner as it thinks fit and shall report the case for the order of the
State Government.
(2) On receipt of a report from a Board under sub-section (1), the State
Government may make such arrangement in respect of the juvenile as
it deems proper and may order such juvenile to be kept under
protective custody at such place and on such conditions as it thinks
fit:
Provided that the period of detention so ordered shall not exceed
the maximum period of imprisonment to which the juvenile could
have been sentenced for the offence committed.
Section 17. Proceeding under Chapter VIII of the Code of Criminal

Procedure not competent against juvenile.—
Notwithstanding anything to the contrary contained in the Code of
Criminal Procedure, 1973, no proceeding shall be instituted and no order
shall be passed against the juvenile under Chapter VIII of the said Code.
Section 19. Removal of disqualification attaching to conviction.—

(1) Notwithstanding anything contained in any other law, a juvenile who
has committed an offence and has been dealt with under the
provisions of this Act shall not suffer disqualification, if any,
attaching to a conviction of an offence under such law.
(2) The Board shall make an order directing that the relevant records of
such conviction shall be removed after the expiry of the period of
appeal or a reasonable period as prescribed under the rules, as the
case may be.
Section 50. Sending a juvenile or a child outside jurisdiction.—

In the case of a juvenile or the child, whose ordinary place of residence
lies outside the jurisdiction of the competent authority before which he is
brought, the competent authority may, if satisfied after due inquiry that it
is expedient so to do, send the juvenile or the child back to a relative or
other person who is fit and willing to receive him at his ordinary place of
residence and exercise proper care and control over him, notwithstanding
that such place of residence is outside the jurisdiction of the competent
authority; and the competent authority exercising jurisdiction over the
place to which the juvenile or the child is sent shall in respect of any
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matter arising subsequently have the same powers in relation to the

juvenile or the child as if the original order had been passed by itself.
Section 56.Power of competent authority to discharge and transfer

juvenile or child.—The competent authority or the local authority may,
notwithstanding anything contained in this Act, at any time, order a child
in need of care and protection or a juvenile in conflict with law to be
discharged or transferred from one children’s home or special home to
another, as the case may be, keeping in view the best interest of the child
or the juvenile, and his natural place of stay, either absolutely or on such
condition as it may think fit to impose:
Provided that the total period of stay of the juvenile or the child in a
children’s home or a special home or a fit institution or under a fit person
shall not be increased by such transfer.
Section 59. Release and absence of juvenile or child on placement.—

(1) When a juvenile or the child is kept in a children’s home or special
home and on a report of a probation officer or social worker or of
Government or a voluntary organisation, as the case may be, the
competent authority may consider, the release of such juvenile or the
child permitting him to live with his parent or guardian or under the
supervision of any authorised person named in the order, willing to
receive and take charge of the juvenile or the child to educate and
train him for some useful trade or calling or to look after him for
rehabilitation.
(2) The competent authority may also permit leave of absence to any
juvenile or the child, to allow him, on special occasions like
examination, marriage of relatives, death of kith and kin or the
accident or serious illness of parent or any emergency of like nature,
to go on leave under supervision, for maximum seven days, excluding
the time taken in journey.
(3) Where a permission has been revoked or forfeited and the juvenile or
the child refuses or fails to return to the home concerned or juvenile
to which he was directed so to return, the Board may, if necessary,
cause him to be taken charge of and to be taken back to the concerned
home.
(4) The time during which a juvenile or the child is absent from a
concerned home in pursuance of such permission granted under this
section shall be deemed to be part of the time for which he is liable to
be kept in the special home:
Provided that when a juvenile has failed to return to the special
home on the permission being revoked or forfeited, the time which
elapses after his failure so to return shall be excluded in computing
the time during which he is liable to be kept in the institution.
Section 64. Juvenile in conflict with law undergoing sentence at
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commencement of this Act.—In any area in which this Act is brought

into force, the State Government or the local authority may direct that a
juvenile in conflict with law who is undergoing any sentence of
imprisonment at the commencement of this Act, shall, in lieu of
undergoing such sentence, be sent to a special home or be kept in fit
institution in such manner as the State Government or the local authority
thinks fit for the remainder of the period of the sentence; and the
provisions of this Act shall apply to the juvenile as if he had been ordered
by the Board to be sent to such special home or institution or, as the case
may be, ordered to be kept under protective care under sub-section (2) of
section 16 of this Act.
Narrative The law treats minors differently as compared to adults with regard to
summary punishment.
A minor may not be sentenced to death or imprisonment for life or

committed to prison for default in payment of fine or in furnishing
security (see section 16). The law sets out the different alternatives to
imprisonment; for example, release after advice or admonition, group
counselling, community services, fine, release on probation of good
conduct, or committal to a special home (see section 15). A minor who
has been placed in a special home may be released or granted a leave of
absence on the report of a probation officer, social worker, government
or voluntary organisation (see section 59).
Where a minor has committed a serious offence such that it would not be
in the interest of the minor and others at a special home, the competent
authority may order that the minor should be kept in a place of safety.
The State Government is then required to arrange a suitable place to keep
the minor (see section 16).
Further, a minor is not to suffer any disqualification as a result of

conviction (see section 19).
Question for
practice

Citation Andhra Pradesh Children Act, 1979, sections 3(e), 21, 24, 65, 66, 68,
72, 83, and 84
provision
Text of law Section 3. Definition.—
(e) ‘certified school’ means a certified school established by the
Government or any other school or institution declared by the
200
201
Government as a certified school, under section 24.
Section 21. Factors to be taken into consideration in making orders

under this Act.—
For the purposes of any order, which a competent authority has to pass
under this Act, the competent authority shall have regard to the following
factors—
(a) the character, religious persuation (sic) and age of the child;
(b) the circumstances in which the child is living;
(c) the reports, if any, made by the probation officer, under Section 63;
and
(d) such other matters as may, in the opinion of the competent authority,
required to be taken into consideration in the interest of the child;
Provided that in the case of a juvenile offender the above factor shall
be taken into consideration after the competent authority has recorded a
finding against such offender that he has committed the offences:
Provided further that if no report of the probation officer is received
within three months of his being informed under Section 63, it shall be
open to the competent authority to proceed without it.
Section 24. Establishment and certification of children’s homes and

certified schools.—
(1) The Government may establish and maintain as many children’s
homes as may be necessary for the reception of neglected children
and as many certified schools as may be necessary for the reception
of juvenile offenders.
(2) Where the Government are of the opinion that any institution not
established under sub-section (1) is fit for the reception of the
neglected children or juvenile offenders to be sent there under this
Act, it may declare such institution as children’s home or as the case
may be a certified school for the purposes of this Act and issue a
certificate to that effect.
Section 65. Orders that may be passed regarding juvenile offenders.—

(1) Where a juvenile court is satisfied on inquiry that a child has
committed an offence, the juvenile court, may, notwithstanding
anything to the contrary in any other law for the time being in force,
and if it thinks fit,—
(a) allow the child to go home after advice or admonition;
(b) direct that child to be released on probation of good conduct and
placed under the care of its parent or guardian or other person
executing such bond, with or without sureties, as the juvenile
court may require, to be responsible for the good behaviour and
well being of the juvenile offender for any period not exceeding
three years:
Provided that the juvenile court may, in the case of a juvenile
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202
offender in respect of whom an order under clause (b) is made,

make a further order that the juvenile offender shall remain under
the supervision of a probation officer named in such order during
such period not exceeding three years as may be specified therein;
Provided further that if at any time afterwards it appears to the
juvenile court on receiving a report from the probation officer or
otherwise that the juvenile offender has not been of good
behaviour during the period of supervision it may after such
inquiry as it thinks fit order the juvenile offender to be sent to a
certified school;
(c) make an order directing the child to be sent to a certified school—
(i) in the case of a boy over fifteen years of age or a girl over
seventeen years of age for a period of one year.
(ii) in the case of any other child, for a period of not less than
two years but not in any case extending beyond the period
when the child will, in the opinion of the court, complete
the age of sixteen years in the case of a boy or eighteen
years in the case of a girl.
(2) (a) Where the offence committed by the juvenile offender is
punishable with fine and the juvenile court is of opinion that the
case would be best met by the imposition of a fine, whether with
or without any other punishment, the court shall, after giving the
parent or guardian an opportunity of being heard, order that the
fine be paid by the parent or guardian of the child unless the court
is satisfied that the parent or guardian cannot be found or that he
has not conducted to the commission of the offence by neglecting
to exercise due care of the child.
(b) An order under clause (a) may be made against the parent or
guardian who having been required to attend has failed to do so.
(c) Whether a parent or guardian is directed to pay a fine under this
section, the amount may be recovered in accordance with the
provisions of the Code of Criminal Procedure, 1973.
Section 66. Orders that may not be passed against juvenile offenders.—
(1) Notwithstanding anything to the contrary in any other law for the
time being in force, no juvenile offender shall be sentenced to death
or imprisonment or committed to prison in default of furnishing
security.
(2) When a child is found to have committed an offence of so serious
nature that the juvenile court is of opinion that no punishment, which
under the provisions of this Act, it is authorised to inflict, is sufficient
or when the juvenile court is satisfied that the child is of so depraved
a character that he cannot be committed to a certified school of (sic)
detained in a place of safety, and that none of the other methods in
which the case may be legally dealt with is suitable, the court shall
order the child to be kept in safe custody in such place or manner as it
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203
thinks fit and shall report the case for the orders of the Government.
(3) On receipt of a report from a juvenile court under sub-section (2), the
Government may make such arrangements in respect of the child as
they deem proper and may order such child to be detained at such
place and on such as they think fit,
Provided that the period of detention so ordered shall not exceed
the maximum period of imprisonment specified for the offence
committed.
Section 68. Repatriation.—

In case of a juvenile offender, whose ordinary place of residence lies
outside the jurisdiction of the juvenile court before which he is brought if
the Court is satisfied after due inquiry that it is expedient so to do, the
Court may send the juvenile offender back to a relative or other person,
who is willing to receive him at his place of residence and exercise
proper care and control over him, notwithstanding the fact that the
juvenile offender has to be sent to a place outside the State.
Section 72. Action by police regarding escaped children.—

Notwithstanding anything to the contrary in any law for the time being in
force, any police officer may arrest without a warrant a child who has
escaped from a children’s home, certified school or a fit person
institution or from the supervision of a society or a person under whose
supervision he was directed to remain and shall send the child back to the
home, school, institution, society or the person without registering any
offence or prosecuting the child and the said child shall not be deemed to
have committed any offence by reason of such escape, but he shall be
dealt with by the authorities of the home, school, institution or society or
the person concerned in such manner as they think fit, provided such
authorities or person shall at the same time inform the action taken to the
competent authority from which the child was originally sent.
Section 83. Removal of disqualification attaching to convictions.—

When a juvenile offender is found to have committed any offence, the
fact that he has been so found shall not have any effect under Section 75
of the Indian Penal Code, 1860, or operate as a disqualification for office
or any employment or election under any law.
Section 84. Power to amend orders.—

(1) Without prejudice to the powers of courts of appeal and revision, any
custody order, supervision order of probation order, may be amended
by the competent authority which made such order in respect of the
person named as custodian supervisor or probation officer and such
other details as may be deemed necessary.
Provided that in the case of an order committing a child to an
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204
institution, no such order shall be amended except in relation to the

period of duration, such amendment being by way of extension on the
period only;
Provided further that in case of emergency and for immediate
necessity a committal order may be varied by way of charge in the
institution to which the order relates, such variation being subject to
conformation by the Chief Inspector.
…
Narrative The law lays down certain factors that are to be considered by the
summary competent authority before passing an order.
A minor may not be sentenced to death or imprisonment or committed to

prison for default in furnishing security (see section 66).
The state law too sets out the different alternatives to imprisonment; for
example, release after advice or admonition, fine, release on probation of
good conduct, or committal to a certified school (see section 65).
Where a minor has committed a serious offence such that it would not be
in the interest of the minor and others at a certified school, the competent
authority may order that the minor should be kept in a place of safety.
The State Government is then required to arrange a suitable place to keep
the minor (see section 66).
A minor whose ordinary place of residence is outside the jurisdiction of

the juvenile court may be repatriated to a relative or other person, wiling
to receive the minor and exercise proper care and control over the minor
(see section 68).
The act of a minor who has escaped from custody and has subsequently
been apprehended is deemed not to be an offence (see section 72).
Further, no minor convicted of an offence is to suffer any disqualification

as a result of conviction (see section 83).
Question for
practice
204
205
13.1.2 Does the law require that minors be placed in separate facilities for detention
before trial or after conviction?
13.1.2. Does the law require that the minors be placed in separate facilities for
detention before trial or after conviction?
sections 2(e), (h), (i), (o), (q), (u), (v), 9, 34, 37 and 44
provision
requires,—
(e) “children’s home” means an institution established by a State
Government or a voluntary organisation and certified by that
Government under section 34;
(h) “fit institution” means a government or a registered non-

governmental organisation or a voluntary organisation prepared to
own the responsibility of a child and such organisation is found fit
by the competent authority;
(i) “fit person” means a person, being a social worker or any other
person, who is prepared to own the responsibility of a child and is
found fit by the competent authority to receive and take care of
the child;
(o) “observation home” means a home established by a State

Government or by a voluntary organisation and certified by that
State Government under section 8 as an observation home for the
juvenile in conflict with law;
(q) “place of safety” means any place or institution (not being a

police lock-up or jail), the person in charge of which is willing
temporarily to receive and take care of the juvenile and which, in
the opinion of the competent authority, may be a place of safety
for the juvenile;
(u) “shelter home” means a home or a drop-in centre set up under

section 37;
(v) “special home” means an institution established by a State

Government or by a voluntary organisation and certified by that
Government under section 9;
205
206
Section 8. Observation homes.—

(1) Any State Government may establish and maintain either by itself or
under an agreement with voluntary organisations, observation homes
in every district or a group of districts, as may be required for the
temporary reception of any juvenile in conflict with law during the
pendency of any inquiry regarding them under this Act.
(2) Where the State Government is of opinion that any institution other
than a home established or maintained under sub-section (1), is fit for
the temporary reception of juvenile in conflict with law during the
pendency of any inquiry regarding them under this Act, it may certify
such institution as an observation home for the purposes of this Act.
(3) The State Government may, by rules made under this Act, provide for
the management of observation homes, including the standards and
various types of services to be provided by them for rehabilitation
and social integration of a juvenile, and the circumstances under
which, and the manner in which, the certification of an observation
home may be granted or withdrawn.
(4) Every juvenile who is not placed under the charge of a parent or
guardian and is sent to an observation home shall be initially kept in a
reception unit of the observation home for preliminary inquiries, care
and classification for juveniles according to his age group, such as
seven to twelve years, twelve to sixteen years and sixteen to eighteen
years, giving due considerations to physical and mental status and
degree of the offence committed, for further induction into
observation home.
Section 9. Special homes.—

(1) Any State Government may establish and maintain either by itself or
under an agreement with voluntary organisations, special homes in
every district or a group of districts, as may be required for reception
and rehabilitation of juvenile in conflict with law under this Act.
(2) Where the State Government is of opinion that any institution other
than a home established or maintained under sub-section (1), is fit for
the reception of juvenile in conflict with law to be sent there under
this Act, it may certify such institution as a special home for the
purposes of this Act.
the management of special homes, including the standards and
various types of services to be provided by them which are necessary
for re-socialisation of a juvenile, and the circumstances under which,
and the manner in which, the certification of a special home may be
granted or withdrawn.
(4) The rules made under sub-section (3) may also provide for the
classification and separation of juvenile in conflict with law on the
basis of age and the nature of offences committed by them and his
mental and physical status.
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207
Section 34. Children’s homes.—

(1) The State Government may establish and maintain either by itself or
in association with the voluntary organisations, children’s homes, in
every district or group of districts, as the case may be, for the
reception of child in need of care and protection during the pendency
of any inquiry and subsequently for their care, treatment, education,
training, development and rehabilitation.
the management of children’s homes including the standards and the
nature of services to be provided by them, and the circumstances
under which, and the manner in which, the certification of a
children’s home or recognition to a voluntary organisation may be
granted or withdrawn.
Section 37. Shelter homes.—

(1) The State Government may recognise, reputed and capable voluntary
organisations and provide them assistance to set up and administer as
many shelter homes for juveniles or children as may be required.
(2) The shelter homes referred in sub-section (1) shall function as drop-
in-centres for the children in the need of urgent support who have
been brought to such homes through such persons as are referred to in
sub-section (1) of section 32.
(3) As far as possible, the shelter homes shall have such facilities as may
be prescribed by the rules.
Section 44. After-care organisations.—The State Government may, by

rules, made under this Act, provide—
(a) for the establishment or recognition of after-care organisations and
the functions that may be performed by them under this Act;
(b) for a scheme of after-care programme to be followed by such after-
care organisations for the purpose of taking care of juveniles or the
children after they leave special homes, children homes and for the
purpose of enabling them to lead an honest, industrious and useful
life;
(c) for the preparation or submission of a report by the probation officer
or any other officer appointed by that Government in respect of each
juvenile or the child prior to his discharge from a special home,
children’s home, regarding the necessity and nature of after-care of
such juvenile or of a child, the period of such after-care, supervision
thereof and for the submission of report by the probation officer or
any other officer appointed for the purpose, on the progress of each
juvenile or the child;
(d) for the standards and the nature of services to be maintained by such
after-care organisations;
(e) for such other matters as may be necessary for the purpose of
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208
carrying out the scheme of after-care programme for the juvenile or

the child:
Provided that any rule made under this section shall not provide
for such juvenile or child to stay in the after-care organisation for more
than three years:
Provided further that a juvenile or child over seventeen years of
age but less than eighteen years of age would stay in the after-care
organisation till he attains the age of twenty years.
Narrative The State Government is required to set up observation homes (for the
summary temporary reception of juveniles in conflict with law), special homes (for
the reception and rehabilitation of juveniles in conflict with law),
children’s homes (for the reception, care, treatment, education, training,
development and rehabilitation of children in need of care and
protection), shelter homes (to function as drop-in centres for children in
need of urgent support) and after-care organisations (for taking care of
children once they leave the institution)
Question for
practice
Citation The Immoral Traffic (Prevention) Act, 1956, sections 2(aa), (cb) , 17 and
17A
provision
requires,—
(aa) “child’ means a person who has not completed the age of sixteen
years;
…
(cb) “minor” means a person who has completed the age of sixteen
years but has not completed the age of eighteen years;
…
(g) “protective home” means an institution by whatever name called
(being an institution established or licensed as such under section
21, in which persons, who are in need of care and protection, may
be kept under this Act and where appropriate technically qualified
persons, equipment and other facilities have been provided], but
does not include—
(i) a shelter where undertrials may be kept in pursuance
of this Act, or
(ii) a corrective institution;
208
209
Section 17. Intermediate custody of persons removed under section 15

or rescued under section 16.—
(1) When the special police officer removing a person under sub-
section (4) of section 15 or a police officer rescuing a person
under sub-section (1) of section 16, is for any reason unable to
produce him before the appropriate magistrate as required by
sub-section (5) of section 15, or before the magistrate issuing
the order under sub-section (2) of section 16, he shall forthwith
produce him before the nearest magistrate of any class, who
shall pass such orders as he deems proper for his safe custody
until he is produced before the appropriate magistrate, or, as
the case may be, the magistrate issuing the order:
Provided that no person shall be̶
(i) detained in custody under this sub-section for a
period exceeding ten days from the date of the
order under this sub-section; or
(ii) restored to or placed in the custody of a person
who may exercise a harmful influence over him.
(2) When the person is produced before the appropriate
magistrate under sub-section (5) of section 15 or the
magistrate under sub-section (2) of section 16, he shall, after
giving him an opportunity of being heard, cause an inquiry to
be made as to the correctness of the information received
under sub-section (1) of section 16, the age, character and
antecedents of the person and suitability of his parents,
guardian or husband for taking charge of him and the nature of
the influence which the conditions in his home are likely to
have on him if he is sent home, and, for this purpose, he may
direct a probation officer appointed under the Probation of
Offenders Act, 1958, to inquire into the above circumstances
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210
and into the personality of the person and the prospects of his
rehabilitation.
(3) The magistrate may, while an inquiry is made into a case under
sub-section (2), pass such orders as he deems proper for the
safe custody of the person:
Provided that where a person rescued under section 16 is a
child or minor, it shall be open to the magistrate to place such
child or minor in any institution established or recognised under
any Children Act for the time being in force in any State for the
safe custody of children:
Provided further that no person shall be kept in custody for
this purpose for a period exceeding three weeks from the date
of such an order, and no person shall be kept in the custody of
a person likely to have a harmful influence over him.
(4) Where the Magistrate is satisfied, after making an inquiry as
required under sub-section (2),̶
(a) that the information received is correct; and
(b) that he is in need of care and protection,
he may, subject to the provisions of sub-section (5), make an
order that such person be detained for such period, being not
less than one year and not more than three, as may be
specified in the order, in a protective home, or in such other
custody, as he shall, for reasons to be recorded in writing,
consider suitable:
Provided that such custody shall not be that of a person or
body of persons of a religious persuasion different from that of
the person, and that those entrusted with the custody of the
person, including the persons in charge of a protective home;
may be required to enter into a bond which may, where
necessary and feasible, contain undertakings based on
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211
directions relating to the proper care, guardianship, education,

training and medical and psychiatric treatment of the person as
well as supervision by a person appointed by the Court, which
will be in force for a period not exceeding three years.
…
Section 17A. Conditions to be observed before placing persons rescued

under section 16 to parents or guardians.—
Notwithstanding anything contained in sub-section (2) of section 17, the
magistrate making an inquiry under section 17 may, before passing an
order for handing over any person rescued under section 16 to the
parents, guardian or husband, satisfy himself about the capacity or
genuineness of the parents, guardian or husband to keep such person by
causing an investigation to be made by a recognised welfare institution or
organisation.
Narrative When a person removed from premises after a search under section 15 or
summary when a person rescued under section 16 of Immoral Traffic (Prevention)
Act, 1956 is a child (under 16 years of age) or a minor (between 16 and
18 years) and the person is brought before the Magistrate, the Magistrate
can direct that the child or minor be placed in an institution recognised
under the state law relating to children.
If the Magistrate determines that the person removed under section 15 or

rescued under section 16 of Immoral Traffic (Prevention) Act, 1956 is in
need of care and protection, he may direct that the person be detained in a
protective home or in some other suitable custody.
[Question: Once a minor is removed under s. 15 or rescued under s. 16,

would not the provisions of JJA and the state children Act apply and
not section 17(4)?]
Question for
practice
13.1.2 Does the law require that the minors be placed in separate facilities for
Citation The Reformatory Schools Act, 1897, sections 4(a) and 8
provision
(a) “youthful offender” means any boy who has been convicted of
any offence punishable with transportation or imprisonment and
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212
who, at the time of such conviction, was under the age of fifteen
years
Section 8. Power to Courts to direct youthful offenders to be sent to

Reformatory Schools.—
(1) Whenever any youthful offender is sentenced to transportation or
imprisonment, and is, in the judgment of the Court by which he is
sentenced, a proper person to be an inmate of a Reformatory School,
the Court may, subject to any rules made by the State Government,
direct that, instead of undergoing his sentence, he shall be sent to
such a school, and be there detained for a period which shall be not
less than three or more than seven years.
(2) The powers so conferred on the Court by this section shall be
exercised only by (a) the High Court, (b) a Court of Session, (c) a
District Magistrate, and (d) any Magistrate specially empowered by
the State Government in this behalf, and may be exercised by such
Courts whether the case comes before them originally or on appeal.
(3) The State Government may make rules for—
(a) defining what youthful offenders should be sent to Reformatory
Schools, having regard to the nature of their offences or other
considerations, and
(b) regulating the periods for which youthful offenders may be sent to
such schools according to their ages or other considerations.
Narrative The Reformatory Schools Act is an old law, that still continues on the
summary statute book. Under this, the Magistrate can commit youthful offenders,
i.e. boys under 15 years of age, to a reformatory school instead of a
sentence of transportation or imprisonment. This is however redundant in
light of the provisions of the Juvenile Justice (Care and Protection of
Children) Act, 2000 and the Andhra Pradesh Children Act, 1979,
whereby minors cannot be sentenced to imprisonment.
Question for
practice
Citation Andhra Pradesh Children Act, 1979, sections 3(e), (h), (m), (t), (u), (y),
24 and 26
provision
Text of law Section 3. Definition.—
(e) ‘certified school’ means a certified school established by the
Government or any other school or institution declared by the
Government as a certified school, under Section 24;
212
213
(h) ‘children’s home’ means a children’s home established by the

Government or any institution declared by the Government as a
children’s home, under Section 24;
…
(m) ‘fit person institution’ in relation to the care of any child, means any
association or body of individuals, whether incorporated or not,
established for or having for its object, the reception or protection of
children or the prevention of cruelty to children and which undertakes
to bring up or to give facilities for bringing up any child entrusted to
its care in conformity with the religion of child’s birth;
…
(t) ‘observation home’ means any institution established, recognised as
such under Section 26/19;
(u) ‘place of safety’ includes an observation home or any other suitable

place or institution (not being a police station or jail) the occupier or
manager of which is willing temporarily to receive a child, and take
care of child and which in the opinion of the competent authority may
be a place of safety for the child;
…
(y) ‘voluntary home’ means any place for the reception of children
maintained wholly or partially by voluntary contributions.
Section 24. Establishment and certification of children’s homes and

certified schools.—
(1) The Government may establish and maintain as many children’s
homes as may be necessary for the reception of neglected children
and as many certified schools as may be necessary for the reception
of juvenile offenders.
(2) Where the Government are of opinion that any institution not
established under sub-section (1) is fit for the reception of the
neglected children or juvenile offenders to be sent there under this
Act, it may declare such institution as children’s homes or, as the
case may be, a certified school for the purposes of this Act and issue
a certificate to that effect.
Section 26. Observation homes.—

(1) The Government may establish and maintain as many observation
homes as may be necessary for the temporary reception of children
during the pendency of any inquiry, trial or other proceeding
regarding them under this Act and such observation home shall be
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214
maintained in such manner as may be prescribed.

(2) Where the Government are of opinion that any place or institution
other than those established under sub-section (1) is fit for the
temporary reception of children during the pendency of any inquiry,
trial or other proceeding regarding them under this Act, they may
recognise such place or institution as an observation home for the
purposes of this Act, and may after giving notice withdraw
recognition on such grounds as may be prescribed.
Narrative The law requires the government to set up separate homes, viz. children’s
summary homes (for reception of neglected children), certified schools (for
reception of juvenile offenders) and observation homes (temporary
reception of children during pendency of inquiry, trial or other
proceeding under the Act).
Question for
practice
214
215
13.1.3 Do minors have a right to an attorney paid for by the government?

Citation Constitution of India, article 21
provision
Text of law Article 21. Protection of life and personal liberty.—
No person shall be deprived of his life or personal liberty except
according to procedure established by law.
Narrative The right to life and personal liberty has been interpreted by the Supreme
summary Court to include the right to free legal aid for an accused person who
cannot afford to engage an advocate [See Hussainara Khatun v. State of
Bihar, AIR 1979 SC 1369 and Suk Das v Arunchal Pradesh, AIR 1986
SC 99 holding that a trial held without offering free legal aid to an
indigent accused at State cost would be vitiated and a conviction at such
trial would be set aside].
There is no legal provision in the India specifically for the right to free
legal aid for minors. However, the same can be read with the above
provision as applicable to all persons including minors.
Question for
practice

Citation The Legal Services Authorities Act, 1987, sections 12 and 13
provision
Text of law Section 12. Criteria for giving legal services.—
Every person who has to file or defend a case shall be entitled to legal
services under this Act if that person, is—
(a) a member of a Scheduled Caste or Scheduled Tribe;
(b) a victim of trafficking in human beings or beggar as referred to in
Article 23 of the Constitution;
(c) a women or a child;
(d) mentally ill or otherwise disabled person;
(e) a person under circumstances of undeserved want such as being a
victim of a mass disaster, ethnic violence, caste atrocity, flood,
drought, earthquake or industrial disaster; or
(f) an industrial workman;
(g) in custody, including custody in a protective home within the
meaning of clause (g) of section 2 of the Immoral Traffic
(Prevention) Act, 1956 (104 of 1956), or in a juvenile home within
the meaning of clause (j) of section 2 of the Juvenile Justice Act,
1986 (53 of 1986), or in a psychiatric hospital or psychiatric nursing
home within the meaning of clause (g) of section 2 of the Mental
Health Act, 1987 (14 of 1987); or
215
216
(h) in receipt of annual income less than rupees nine thousand or such
other higher amount as may be prescribed by the State Government,
if the case is before a court other than the Supreme Court, and less
than rupees twelve thousand or such other higher amount as may be
prescribed by the Central Government, if the case is before the
Supreme Court.
Section 13. Entitlement to legal services.—

(1) Person who satisfy all or any of the criteria specified in section 12
shall be entitled to receive legal services provided that the concerned
Authority is satisfied that such person has a prima facie case to
prosecute or to defend.
(2) An affidavit made by a person as to his income may be regarded as
sufficient for making him eligible to the entitlement of legal services
under this Act unless the concerned authority has reason to disbelieve
such affidavit.
Narrative Under the Legal Services Authorities Act, a child is entitled to legal
summary services provided that the concerned authority is satisfied that the child
has a prima facie case to prosecute or defend.
Question for
practice
216
217
13.1.4 Are minors’ identities protected or their criminal records treated any differently
than adults?
13.1.4 Are minors’ identities protected or their criminal records treated

any differently than adults?
Citation The Probation of Offenders Act, 1958, section 7
provision
Text of law Section 7. Report of probation officer to be confidential.—
The report of a probation officer referred to in sub-section (2) of section
4 or sub-section (2) of section 6 shall be treated as confidential:
Provided that the Court may, if it so thinks fit, communicate the
substance thereof to the offender and may give him an opportunity of
producing such evidence as may be relevant to the matter stated in the
report.
Narrative The Probation of Offenders Act, 1958, under which a special provision is
summary made for minors, mandates that the report of probation officers be kept
confidential. This provision applies to all reports prepared by the
probation officer, whether or not the subject of the report is a minor.
Question for
practice

sections 21 and 51
provision
Text of law Section 21. Prohibition of publication of name, etc. of juvenile involved
in any proceeding under the Act.—
(1) No report in any newspaper, magazine, newssheet or visual media of
any inquiry regarding a juvenile in conflict with law under this Act
shall disclose the name, address or school or any other particulars
calculated to lead to the identification of the juvenile nor shall any
picture of any such juvenile be published:
Provided that for reasons to be recorded in writing the authority
holding the inquiry may permit such disclosure, if in its opinion such
disclosure is in the interest of the juvenile.
(2) Any person contravening the provisions of sub-section (1) shall be
punishable with fine, which may extend to one thousand rupees.
Section 51. Reports to be treated as confidential.—

The report of the probation officer or social worker considered by the
competent authority shall be treated as confidential:
Provided that the competent authority may, if it so thinks fit,
217
218
communicate the substance thereof to the juvenile or the child or his

parent or guardian and may give such juvenile or the child, parent or
guardian an opportunity of producing such evidence as may be relevant
to the matter stated in the report.
Narrative The Juvenile Justice (Care and Protection of Children) Act, 2000
summary prohibits the publication of name, address, picture or school or
publication of any matter identifying a juvenile. Such matter can only be
published with the prior permission of the authority holding the inquiry.
Further, the law requires reports prepared by a probation officer or social

worker to be kept confidential.
Question for
practice

Citation Andhra Pradesh Children Act, 1979, sections 22, 23 and 57
provision
Text of law Section 22. Reports of Probation Officers and other reports to be
treated as confidential.—
The report of the probation officer or any other matter considered by the
competent authority under Section 21 shall be treated as confidential:
Provided that, if such report or matter relates to the character,
health or conduct of, or the circumstances in which the child, the parent
or guardian is living, the competent court may, if thinks expedient,
communicate the substance thereof to the child and the parent or
guardian as the case may be.
Section 23. Prohibition of publication of names, etc. of children

involved in the cases of proceedings under this Act.—
No report in any newspaper, magazine, or news sheet of any inquiry or
investigation of any case or proceeding before any competent authority in
which a child is involved shall disclose the name, address or school or
any other particulars calculated to lead to the identification of any such
child, nor shall any picture of any such child be published:
Provided that for reasons to be recorded in writing, the authority trying
the case or holding the proceeding may permit the disclosure of any such
report if in its opinion, such disclosure is in the interests of child’s
welfare and it is not likely to effect (sic) adversely the interests of the
child concerned.
Section 57. Penalty for publication of report or pictures relating to

children.—
Whoever publishes any report or picture in contravention of the provision
218
219
of Section 23 shall on conviction, be punished with imprisonment for a

term which may extend to three months or with fine which may extend to
five hundred rupees or with both.
Narrative The state law too requires reports of probation officers to be treated as
summary confidential. The law also prohibits the publication of name, address,
picture or school or publication of any matter identifying a juvenile. Such
matter can only be published with the prior permission of the authority
holding the inquiry.
Question for
practice
219
220
13.1.5 Are minors eligible for substance abuse treatment or other alternatives to
incarceration available to other drug users?
Please Note: There is no law, which specifically dealing with minors being eligible for
substance abuse treatment or other alternatives to incarceration available to other drug
users.
13.1.5 Are minors eligible for substance abuse treatment or other

alternatives to incarceration available to other drug users
Citation
Type of
provision
Text of law
Narrative
summary
Question for
practice
220
221
14.0 Other laws identified by qualitative research or otherwise that influence risk or
stigma among sex workers
14.0 Access to Social Services
14.0.1 Identify any provision that bars or limits sex workers’ access to credit on
an equal basis to others.
14.0.2 Identify any provision that bars or limits sex workers’ or their children’s’
access to public education.
14.0.3 Identify any provision that bars or limits sex workers’ access to welfare
services, including the ability to obtain a ration card.
14.0.4 Identify any provision that bars or limits sex workers’ access to publicly
funded medical care or health insurance.

14.0.1 Identify any provision that bars or limits sex workers’ access to
credit on an equal basis to others.
Citation
Type of
provision
Text of law
Narrative None identified. Despite this, a practice of discrimination might exist.
summary
Question for
practice

14.0.2 Identify any provision that bars or limits sex workers’ or their
children’s’ access to public education.
Citation
Type of
provision
Text of law
summary
Question for
practice
221
222

14.0.3 Identify any provision that bars or limits sex workers’ access to welfare
services, including the ability to obtain a ration card.
Citation
Type of
provision
Text of law
summary
Question for
practice

14.0.4 Identify any provision that bars or limits sex workers’ access to publicly
funded medical care or health insurance.
Citation
Type of
provision
Text of law
summary
Question for
practice

Citation The Public Distribution System (Control) Order, 2001
Type of Government order issued under section 3 of the Essential
provision
Commodities Act, 1955 (10 of 1955)
Text of law 2. Ration Cards:
(1) State Governments shall ensure that no eligible
applicant is denied a ration card under the Public
Distribution System.
(2) The ration card holder shall be entitled to draw essential
commodities from a fair price shop on weekly basis.
(3) State Government shall issue distinctive ration cards to
APL, BPL and Antyodaya families.
(4) The designated authority shall issue a ration card within
one month of the date of receipt of the application after
222
223
necessary checks and verification.

(5) State Governments shall specify a timeframe for making
additions or alterations in the ration card. In case this
time limit is not adhered to, the reasons therefor shall be
intimated to the applicant in writing.
(6) State Government shall conduct periodical checking of
ration cards to weed out ineligible and bogus ration
cards and bogus units in ration cards.
(7) A ration card shall be valid for a specified period. A
ration card shall be issued afresh or renewed after fresh
verification of antecedents and such other checks as
may be prescribed by the State Governments in this
regard.
(8) Elimination of bogus ration cards as well as bogus units
in the ration cards shall be a continuous exercise by the
State Governments to check diversion of essential
commodities.
(9) Ration cards shall not be used as documents of identity.
Narrative The Order issued by the Central Government does not bar or restrict sex
summary workers from applying for or obtaining a ration card.
Section 4(1)(b)(iii) of the Right to Information Act, 2005 requires public

authorities to publish the procedure followed in decision making process
including channels of supervision and accountability.
The Chief Commissioner of Land Administration, Government of

Andhra Pradesh, has published information relating to the procedure
following in case of issue and transfer of ration cards. This information is
set out below.
“6. Issue and Transfer of Ration Card:
Whenever the Government announces issue of new ration cards, the

individuals seeking cards should apply to the MRO concerned along with the
particulars of annual income and members of family etc. Those who have
annual income of less than Rs. 25,000/- will be eligible to get white ration cards
on which subsidized rice, sugar, kerosene etc are provided every month. Those
223
224
who have more than Rs. 25, 000/- income, will be provided with Pink Ration
cards on which at present no commodities are being supplied from FP shop.
Whenever the persons are transferred from one place to other, the concerned
MRO will endorse on the ration card itself about transfer of to new place. The
card holder should handover the ration card along with the application to the
MRO concerned in the new station for allotment of FP shop duly registering his
entries in the records. The MRO will allot FP shop where the card holder
resides, duly enquiring after enrollment of particulars in the cards register.”
N.B.: ‘MRO’ is the Mandal Revenue Officer. FP = fair price.
This information too does not set out any restriction on sex workers to
apply for ration cards.
Question for Do any requirements in the application form for ration cards somehow
practice disentitle sex workers from being allocated ration cards?
14.1 Housing
14.1.1 Identify laws governing the rental or leasing of residential and commercial
property.
14.1.2 Identify any provisions stating the grounds or procedures for eviction of a tenant
of residential or commercial property.
14.1.3 Identify any provision of housing or other law that specifically requires or
authorizes eviction of a tenant operating or allowing the operation of a brothel or
other commercial sex business.
14.1.4 Identify any other provision of law that bars or limits sex workers’ access to rental
housing or commercial space.
14.1 Housing
14.1.1 Identify laws governing the rental or leasing of residential and
commercial property.
Citation The Indian Contract Act, 1872, Section 23
provision
Text of law Section 23. What considerations and objects are lawful and what are
not.—The consideration or object of an agreement is lawful, unless
it is forbidden by law; or
it is of such a nature that, if permitted, it would defeat the
provisions of any law; or
is fraudulent; or
involves or implies injury to the person or property of another, or
the Court regards it as immoral, or opposed to public policy.
In each of these cases, the consideration or object of an agreement is said
224
225
to be unlawful. Every agreement of which the object or consideration is

unlawful is void.
Narrative Renting or leasing of property necessarily involves an agreement
summary between parties. All agreements entered into India are governed by the
Indian Contract Act, 1872 which lays down if the object of an agreement
is considered by a court to be immoral or opposed to public policy, the
agreement would be void, i.e. of no effect at all.
Earlier judgments have held that a lease of a house for running a brothel
and letting houses to sex workers with the object of allowing her to carry
on sex work in those premises are void agreements.
In Pranballav Saha v. Sm. Tulsibala Dassi, AIR 1958 Cal 713, it was
held that a lease of a house for running a brothel is not only an act
forbidden by statute but also an immoral act under Section 6(h)(2) of the
Transfer of Property Act read with Section 23 of the Contract Act.
It has been held that knowingly letting a house to a prostitute with the
object of her carrying on therein prostitution is immoral and contrary to
public policy. [See (1909) 31 All 58 (DB) and AIR 1921 Cal 486]
Question for
practice
14.1 Housing
14.1.1 Identify laws governing the rental or leasing of residential and
commercial property.
Citation The Transfer of Property Act, 1882, section 6(h)
provision
Text of law 6. What may be transferred.—Property of any kind may be transferred,
except as otherwise provided by this Act or by any other law for the time
being in force.
(a) The chance of an heir-apparent succeeding to an estate, the
chance of a relation obtaining a legacy on the death of a kinsman,
or any other mere possibility of a like nature, cannot be
transferred.
(b) A mere right of re-entry for breach of a condition subsequent
cannot be transferred to any one except the owner of the property
affected thereby.
(c) An easement cannot be transferred apart from the dominant
heritage.
(d) An interest in property restricted in its enjoyment to the owner
personally cannot be transferred by him.
(dd) A right to future maintenance, in whatsoever manner arising,
secured or determined, cannot be transferred.
(e) A mere right to sue cannot be transferred.
225
226
(f) A public office cannot be transferred, nor can the salary of a

public officer, whether before or after it has become payable.
(g) Stipends allowed to military, naval, air-force and civil pensioners
of Government and political pensions cannot be transferred.
(h) No transfer can be made (1) in so far as it is opposed to the nature
of the interest affected thereby, or (2) for an unlawful object or
consideration within the meaning of section 23 of the Indian
Contract Act, 1872 (9 of 1872), or (3) to a person legally
disqualified to be transferee.
(i) Nothing in this section shall be deemed to authorize a tenant
having an untransferrable right of occupancy, the farmer of an
estate in respect of which default has been made in paying
revenue, or the lessee of an estate under the management of a
Court of Wards to assign his interest as such tenant, farmer or
lessee.
Narrative Again, the Transfer of Property Act, 1882 does not recognize transfers
summary for an unlawful object or consideration. As state above, renting or leasing
of houses to sex workers has been recognized by courts to be for an
unlawful object.
Question for
practice
14.1 Housing
14.1.2 Identify any provisions stating the grounds or procedures for
eviction of a tenant of residential or commercial property.
Citation Andhra Pradesh Buildings (Lease Rent and Eviction) Control Act, 1960,
section 10(2)(4)
provision
Text of law Section 10. Eviction of tenants:—
(1) A tenant shall not be evicted whether in execution of a decree or
otherwise except in accordance with the provisions of this section
or sections 12 and 13.
Provided that where the tenant, denies the title of the
landlord or claims right of permanent tenancy, the Controller shall
decide whether the denial or claim is bona fide and if he records a
finding to that effect, the landlord shall be entitled to sue for
eviction of the tenant in a Civil Court and the Court may pass a
decree for eviction on any of the grounds mentioned in the said
section, notwithstanding that the Court finds that such denial does
not involve forfeiture of the lease or that the claim is unfounded.
(2) A land-lord who seeks to evict his tenant shall apply to the
Controller for a direction in that behalf. If the Controller, after
giving the tenant a reasonable opportunity of showing cause
226
227
against the application, is satisfied—

(i) that the tenant not paid or tendered the rent due by him
in respect of the time fixed in the agreement of
tenancy with his landlord or in the absence of any such
agreement, by the last day of the month next following
that for which the rent is payable, or
(ii) that the tenant has, in the Andhra area, after the 23rd
day of October, 1945, and in the Telangana area after
the commencement of the Hyderabad House Rent
Controller Order of 1353 Fasli, without the written
consent of the landlord–
(a) transferred his right under the lease or sub-let the
entire building or any portion thereof if the lease
does not confer on him any right to do so; or
(b) used the building for a purpose other than that
for which it was leased, or
(iii) that the tenant has committed such acts of waste as are
likely to impair materially the value or utility of the
building, or
(iv) that the tenant has been guilty of such acts and conduct
which are a nuisance to the occupiers of other portions
in the same building or buildings in the
neighbourhood, or
(v) that the tenant has secured alternative building or
ceased to occupy the building for a continuous period
of four months without reasonable cause, or
(vi) that the tenant has denied the title of the landlord or
claimed a right of permanent tenancy and that such
denial or claim was not bona fide.
The Controller shall make an order directing the tenant to put
the landlord in possession of the building and if the Controller
is not so satisfied, he shall make an order rejecting the
application;
Provided that in any case falling under clause (i), if, the
Controller is satisfied that the tenant's default to pay or tender
rent was not willful, he may, notwithstanding any thing in
Section 11, give the tenant a reasonable time, not exceeding
fifteen days to pay or tender the rent due by him to the
landlord up to the date of such payment or tender and on such
payment or tender, the application shall be rejected.
(3) (a) A landlord may subject to the provisions of clause (d),

apply to the Controller for an order directing the tenant to put the
landlord in possession of the building–
(i) in case it is a residential building—
(a) if the landlord is not occupying a
227
228
residential building of his own in the city,

town or village concerned and he requires
it for his own occupation;
(b) if the landlord who has more buildings than
one in the city, town or village concerned is
in occupation of one such building and he
bona fide requires another building instead,
for his own occupation;
(ii) in case it is a non-residential building which is
used for the purpose of keeping a vehicle or
adapted for such use, if the landlord requires it is
for his own use and if he is not occupying any such
building in the city, town or village concerned
which is his own or to the possession of which he
is entitled whether under this Act or otherwise;
(iii) in case it is any other non-residential building, if
the landlord is not occupying a non-residential
building in the city, town or village concerned
which is his own or to the possession of which he
is entitled whether under this Act or otherwise—
(a) for the purpose of a business which he is
carrying on, on the date of the application, or
(b) for the purpose of a business which in the
opinion of the Controller, the landlord bona
fide proposes to commence;
Provided that a person who
becomes a landlord after the
commencement of the tenancy by an
instrument interviews shall not be entitled
to apply under this clause before the expiry
of three months from the date on which the
instrument was registered;
Provided further that where a
landlord has obtained possession of a
building under this clause he shall not be
entitled to apply again under this clause—
(i) in case he has obtained
possession of a
residential building, for
possession of another
residential building of his
own;
(ii) in case he has obtained
possession of a non-
residential building, for
possession of another
228
229
non-residential building
of his own.
(b) Where the landlord of a building, whether residential or
non-residential, is a religious, charitable, educational or
other public institution, it may, if the building is required
for the purposes of the institution, apply to the Controller,
subject to the provisions of clause (a) for an order
directing the tenant to put the institution in possession of
the building;
(c) a landlord who is occupying only a part of a building,

whether residential or non-residential, may,
notwithstanding anything in clause (a), apply to the
Controller for an order directing any tenant occupying the
whole or any portion of the remaining part of the building
to put the landlord in possession thereof, if he requires
additional accommodation for residential purposes or for
the purpose of a business which he is carrying on, as the
case may be.
(d) Where the tenancy is for a specified period agreed upon

between the landlord and the tenant, the landlord shall not
be entitled to apply under this subsection before the expiry
of such period.
(e) The Controller, shall, if he is satisfied that the claim of the

landlord is bona fide, makes an order directing the tenant to
put the landlord in possession of the building on such dates as
may be specified by the Controller and if the Controller is not
satisfied, he shall make an order rejecting the application.
Provided that, in the case of an application under (c), the
Controller shall reject the application if he is satisfied that
the hardship which may be caused to the tenant by
granting will outweigh the advantage to landlord;
Provided further that the Controller may give the
tenant a reasonable time for putting the landlord in
possession of the building and may extend such time so as
not to exceed three months in the aggregate.
(4) No order for eviction shall be passed under sub- sec. (3)
(i) against any tenant who is engaged in any employment or
class of employment notified by the Government as an
essential service for the purposes of this sub-section
unless the land-lord is himself engaged in any
employment or class of employment which has been so
229
230
notified; or
(ii) in respect of any building which has been left for use as an
educational institution and is actually being used as such,
provided that the institution has been recognized by the
Government or any authority empowered by them in this
behalf, so long as such recognition continues.
(5) (a) Where a land-lord who has obtained possession of a

building in pursuance of an order under sub-section (3) does not
himself occupy it and for the purpose specified in the order within
one month of the date of obtaining possession, or having so
occupied it, vacates it without reasonable cause within six months
of such date, the tenant who has been evicted may apply to the
Controller for an order directing that he shall be restored to
possession of the building and the Controller shall make an order
accordingly notwithstanding anything in Sec.3.
(b) Where a tenant who is entitled to apply for possession under

clause (a) fails to do within one month from the date on
which the right to make the application accrued to him, the
Government or the authorized officer shall have power, if the
building is required for any of the purposes, or for occupation
by any of the officers specified in sub-section (3) of that the
building is so required, and thereupon the provisions of sub-
sections (6) and (8) of Section 3 shall apply to the building;
Provided that this clause shall not apply to a residential

building the monthly rent of which does not exceed twenty-
five rupees or to a non-residential building the monthly rent
of which does not exceed fifty rupees.
(6) Where the Controller is satisfied that any application made by a

landlord for the eviction of a tenant is frivolous or vexatious, the
Controller may direct that compensation, not exceeding fifty
rupees be paid by such land-lord or the tenant.
(7) When an application under sub-section (2) or sub-section (3) for
evicting a tenant has been rejected by the Controller, the tenancy
shall, subject to the provisions of this Act be deemed to continue
on the same terms and conditions as before and shall not be
terminable by the land-lord except on one or more of the grounds
mentioned in sub-section (2) or sub-section (3).
(8) Notwithstanding anything in this section, no person who is
receiving or is entitled to receive the rent of a building merely as
an agent of the land-lord shall, except with previous written
consent of the land-lord, be entitled to apply for the eviction of a
tenant.
230
231
Narrative The Andhra Pradesh Buildings (Lease Rent and Eviction) Control Act,
summary 1960 is a state law that regulates tenancies.
A tenant can be evicted during the subsistence of the agreement of

tenancy only in accordance with the procedure established by law. The
landlord has to apply to the Controller for a direction of eviction of tenant
on the enumerated grounds, which includes the ground that ‘the tenant
has been guilty of such acts and conduct which are a nuisance to the
occupiers of other portions in the same building or buildings in the
neighbourhood’.
We have not found any judgment of the Andhra Pradesh High Court
interpreting ‘nuisance’ to include carrying on of a brothel or sex work.
[Please note, however, that a combined reading of the tenancy law with
Section 3 of the Immoral Traffic (Prevention) Act, 1956, which penalises
a person for keeping a brothel or allowing premises to be used as a
brothel would allow eviction of brothel-based sex workers.]
However, a decision of the Calcutta High Court in Kanchanmala Dass v.

Kilabaet Debi, AIR 1951 Cal 164 under the West Bengal Premises Rent
Control (Temporary Provisions) Act, 1948 that allows eviction of
tenants, inter alia for using the premises or allowing the premises to be
used for immoral or illegal purposes or where the tenant had been guilty
of conduct which is a nuisance or annoyance to occupiers of adjoining or
neighbouring premises, held that a brothel may or may not create
nuisance, but that if it did, it was objectionable in law. Respectable
persons of the locality complained to the police that a brothel in
consideration was a nuisance ‘with drunken brawls, pimps, shots,
disturbances, people under the influence of liquor coming at all odd hours
during the night and going away in the early hours of the morning’. The
Court held that the state of affairs was a nuisance to the people in the
locality and also a cause of annoyance to the occupiers of adjoining or
neighbouring premises.
Question for
practice
14.1 Housing
14.1.3 Identify any provision of housing or other law that specifically requires
or authorizes eviction of a tenant operating or allowing the operation of a
brothel or other commercial sex business.
Citation
Type of
provision
Text of law
Narrative None identified. Renting and leasing of premises is governed by State
231
232
summary law. The relevant provisions of the Andhra Pradesh law have been
described above in 14.1.2.
Question for
practice
14.1 Housing
14.1.4 Identify any other provision of law that bars or limits sex workers’ access
to rental housing or commercial space.
Citation
Type of
provision
Text of law
Narrative None identified. Renting and leasing of premises is governed by State
summary law. The relevant provisions of the Andhra Pradesh law have been
described above in 14.1.2.
Question for
practice
14.3 Other relevant provisions
14.3 Document any other laws identified by qualitative research that are applied
to target groups in way that influences their risk of HIV or the stigma of HIV or
sex work in a significant way.
14.3 Other laws that influence risk or stigma among sex workers
Citation
Type of
provision
Text of law
Narrative None identified.
summary
Question for
practice
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RAPID POLICY ASSESSMENT & RESPONSE

Overview and Law on the

Rapid Policy Assessment and Response (RPAR)

Figure 1: Rapid Policy Assessment and Response

Evaluation ongoing collection of process measures Evaluation

Module I guides the organization of the RPAR, including preliminary

Module V is an ethics module, designed to help the local research team

Figure 2: Analytic Steps in the RPAR

What are the policy obstacles to

What are the

1) It emphasizes the link between formal policies and actual practices.

2) It highlights the importance of and enables bottom-up change at the local

4) It offers a means to mobilize communities to increase their participation

For more information, contact

James E. Beasley Professor of Law

Department of Social Medicine

University of Connecticut Health Center

2.0 Commercial sex work and trafficking

2.0 Commercial sex work and trafficking

2.0.1 Identify any law prohibiting participating in or profiting from

Citation The Immoral Traffic Prevention Act, 1956, Section 7

(1-A) Where an offence committed under sub-section (1) is in respect of

(2) Any person who:

(4) Where the notification is issued under Sub-section (3) in respect of

(5) No such notification shall be issued so as to have effect from a date

2.0 Commercial sex work and trafficking

2.0.1 Identify any law prohibiting participating in or profiting from

- offering sex for money

Provided that where an offence under this Section is committed by a man

2.0 Commercial sex work and trafficking

2.0.1 Identify any law prohibiting participating in or profiting from

Type of Administrative instructions

DT: 19-4-2003. C. No. 21DIG/WPC/CID/2003. CIRCULAR MEMO

Sub: Trafficking of women and children – Certain instructions – Reg

In the meeting of the State Co-ordination Committee on Trafficking of

Hence, all the Supdts. Of Police and Commissioners of police are

workers or victims of sexual exploitation.

2.0 Commercial sex work and trafficking

2.0.1 Identify any law prohibiting participating in or profiting from

Provided that where the person referred to in this section is a parent or

Provided further that the woman who is dedicated in such ceremony or

2.0 Commercial sex work and trafficking

2.0.1 Identify any law prohibiting participating in or profiting from

Section 3. Punishment for keeping a brothel or allowing premises to be

Section 3(2) criminalises persons in possession of and persons who own

2.0 Commercial sex work and trafficking

2.0.1 Identify any law prohibiting participating in or profiting from

2.0 Commercial sex work and trafficking

2.0.1 Identify any law prohibiting participating in or profiting from

2.0 Commercial sex work and trafficking

2.0.1 Identify any law prohibiting participating in or profiting from

Narrative Section 5 of ITPA penalises procuring persons for prostitution. Procuring

2.0 Commercial sex work and trafficking

2.0.1 Identify any law prohibiting participating in or profiting from

2.0 Commercial sex work and trafficking

2.0.1 Identify any law prohibiting participating in or profiting from

Type of Administrative Instructions (State Police)

2.0 Commercial sex work and trafficking

2.0.1 Identify any law prohibiting participating in or profiting from

Citation The Immoral Traffic Prevention Act, 1956, Section 7

2.0 Commercial sex work and trafficking

2.0.1 Identify any law prohibiting participating in or profiting from

2.0 Commercial sex work and trafficking