Critical analysis on Immoral Trafficking

A Project submitted to Indore Institute of Law, Indore

B.B.A.LL.B.(Hons.)

Under the guidance and supervision of

Assistant Prof. Jaidev Mahndra

Submitted By

Aditi Singh Parmar

Subject- Health Law

VIIIth Semester, IVth Year, B.B.A.LL.B.(Hons.)

2018- 2023

Indore Institute of Law, Indore

 CERTIFICATE

This is to certify that Ms. Aditi Singh Parmar B.B.A.LL.B.(Hons.) 2018-2023 has
submitted his project titled CRITICAL ANALYSIS ON IMMORAL TRAFFICK-
ING in partial completion of the requirement for the award of the degree of Laws to
the Indore Institute of law, Indore under my guidance and supervision. It is also af-
firmed that the project submitted by her is an original, bona-fide and genuine piece of
work.

Date: Assistant Prof.

Place: Indore Institute Of Law, Indore Jaidev Mahndra

 DECLARATION

I hereby declare that the work embodied in this project entitled “CRITICAL ANAL-
YSIS ON IMMORAL ANALYSIS “ researched and submitted by me to Indore Insti-
tute of Law, Indore in partial fulfilment of requirement for the award of the degree of
Laws, under the guidance of Assistant Prof. Jaidev Mahndra. , is an original and
bona-fide work carried out in academic interest. The views expressed in this work are
mine and do not represent any person, organization or community.

Ms. Aditi Singh Parmar

B.B.A.LL.B.(Hons.),

VIIIth Semester
 ACKNOWLEDGEMENT

I am thankful to God Almighty for his choicest blessings which he has abundantly
showered upon me. I express my sincere and heartfelt gratitude to my guide, Assis-
tant Prof. Jaidev Mahndra, Indore Institute of Law, Indore. The corrections and edi-
tions suggested by her have helped immensely into shaping my project into the form
it is today. She took interest in my work and has given shape to my ideas with her
rich and scholarly legal acumen and academic experience without which the comple-
tion of this project would not have been possible.

Thanking You

Ms. Aditi Singh Parmar

INTRODUCTION
Immoral trafficking is a violent assault on human security, and is shockingly widespread. Traffick-
ing of humans involves men, women and children from one place to another, often placing them in
conditions of forced labour. The practice commonly includes forced sex work, domestic servitude,
unsafe agricultural labour, sweatshop labour, construction of restaurant work and various forms of
modern day slavery, even male prostitution has become a new trend today.
Prostitution means sexual exploitation or abuse of persons for commercial purposes and domestic
purposes. Human trafficking has emerged as an important transnational, regional and national issue.
According to estimates, one to two million people are trafficked each and the majority meaning
women and children.

Human trafficking deprives or poses two dimensional threats:

1. Deprivation of human rights and freedoms: where the person who is being trafficked is ei-
ther involved in prostitution, forced marriages being a trend followed since ages. Organ traf-
ficking is another form of human trafficking where the organs of the person are removed il-
legally from his body and are sold off. We can see young boys being trafficked to the Gulf
region as camel jockeys and young girls are put into prostitution.

2. Global health and security: it is important to remember that women are twice vulnerable to
reproductive and other gender specific health problems in trafficking situations due to very
little or lack of access to proper health care.

We see the situation of human trafficking in India, and in our very town Siliguri, one can find that
every week 10- 12 children go missing and no one actually knows where they are taken. It may be
internationally that they are being transported, and where such things happen internationally it be-
comes really tough to get them back as it is not possible to look for them. There are several NGO`s
and different organizations who are working for the upliftment of women and children and are
working on rescue operation of trafficked women and children.
Recently, a young girl was found at a railway station and on being asked about her whereabouts she
was unable to explain the police officers, how she reached there. This is what is actually happening.
Young girls are being trafficked every now and then and the worst part is that they are unaware of
the fact that they are being trafficked.
India share its international border with four countries and the north eastern part is the most prone
area for trafficking as the border areas between India- Nepal, Indo-Bangladesh are so porous and
any one can enter into India and return back to their own country in the evening.

PITA

The Suppression of Immoral Traffic in Women and Children Act, 1956 was given assent on 30th
December 1956 and was made applicable to the whole of India. The act was made to suppress im-
moral traffic in women and children as India signed the United Nations International Convention
for the “Suppression of Women in Traffic in Persons and of the Exploitation in Others” in New
York on 9th May 1950. Subsequent amendments not only changed the nomenclature of the act but
even the preamble to The Immoral Traffic (Prevention) Act, 1956 (hereinafter referred to as PITA)
and an act made “for the prevention of immoral traffic” respectively. The PITA has undergone two
amendments in the year 1978 and 1986 respectively and it made the act more gender-neutral. This
legislation aims to stop immoral trafficking and prostitution in India and is divided into 25 sections
and one schedule. 

Apart from PITA, the Indian Penal Code, 1860, the Constitution of India, 1950, the Juvenile Justice
(Care and Protection of Children) Act, 2015 (JJA) and various state legislations also have been en-
acted to deal with the issue of prostitution and trafficking. The act does not make prostitution illegal
per se but it makes keeping and using of premises as a brothel, living on the income earned via
prostitution, pimping, soliciting, seducing a person for prostitution in custody or otherwise and
prostitution in a public area etc. an offence punishable under the act. It, thus, means if prostitution is
done independently or voluntarily then it won’t constitute an offence. This article highlights the dif-
ferent aspects and roles of institutions under the act. 

Meaning of brothel and prostitution

Before proceeding further, it is important to know the definitions of ‘brothel’ and ‘prostitution’
given under section 2(a) and section 2(f) respectively. 
A brothel includes “any: 
3. house or any portion of any house;
4. room or any portion of any room;
5. conveyance or portion of any conveyance;
6. place or portion of any place;

for purpose of:

• sexual exploitation or;

• abuse for the gain of another person or;
• for the mutual gain of two or more prostitutes.”
It is vital to prove whether such place is used for commercial exploitation or abuse. It is a question
of fact whether a single use of such a place can make it fall under the definition of the brothel. It
must be noted that it largely depends on the circumstances surrounding and the person keeping the
place. 
The criteria for declaring a person as a ‘prostitute’ is construed from the definition of prostitution. It
means “the sexual exploitation or abuse of persons for commercial purpose.” Accordingly, two
things to be remembered are:
7. the occurrence of exploitation or abuse of a person for sex, and 
8. such a person engaging in this activity does it for commercial gain.

SPECIAL POLICE OFFICER AND HIS POWERS

Special police officer (SPO) is a person appointed by the state government to discharge his police
duties for an area who shall be above the rank of a sub-inspector of police. The District Magistrate
(DM) may also appoint a retired police officer or a retired officer of the military above the rank of
sub-inspector or a commissioned officer, at the time of retirement, and vest them with the same
power as that of an SPO. The central government has been vested with the power to appoint ‘traf-
ficking police officers’ intended for dealing with offences related to sexual exploitation of persons.
They can investigate any offence relating to PITA or any other law for the time being in force
which is committed in more than one state. These officers can discharge functions and exercise
power like an SPO all over India. The powers entrusted to an SPO are as follows:
 • The act is a complete code in itself and an officer can arrest without warrant or can allow his
subordinate to arrest any person, provided it is given in writing, without a warrant. An arrest
under PITA cannot be made by regular police. However, it a settled principle of criminal
law that a trial shall not be vitiated merely because the investigation is not done by the au-
thorized investigation officer until prejudice is shown.
• SPO has been given the power to search any premises without a warrant under Section 15.
Such officer must have a reasonable ground to believe that securing a warrant from a Magis-
trate will cause undue delay and lead to the destruction of pieces of evidence. Therefore,
only on reasonable grounds a search can be made without a warrant and must not be used ar-
bitrarily. PITA being a special act its provisions need to be strictly followed and the investi-
gating agencies cannot show complete disregard to the provisions of Section 15 (1) and (2).
• While searching, he shall go with no less than two women officers and can call two or more
reputable resident of the neighbourhood (one shall be a woman) where the search is made
under Section 15(1). The inhabitants shall witness it and the SPO has the authority to take
any person found on the premises to an appropriate magistrate. 
• Next, a mandatory medical examination of such person shall be done. A woman detained
during a search will be interrogated by a woman officer or a woman from a recognised wel-
fare organisation.

MAGISTRATE AND HIS POWERS

Section 2 (c) defines a magistrate as “specified in the second column in a Schedule as being compe-
tent to exercise the powers conferred by section in which the expression occurs and which is speci-
fied in the first column of the Schedule”. A magistrate under this act is vested with wide powers
like:
• As mentioned above, DM may appoint a specified person to act as SPO under Section 13
(2A).
• A magistrate has the power to rescue a person under section 16 living or carrying on prosti-
tution in a brothel and for this an officer not below a sub-inspector shall be entrusted with
the task to enter and produce the person removed from such brothel before him. 

• The person removed or rescued who was not produced before an appropriate magistrate then
he can be taken to the nearest magistrate who shall pass an order for his safe custody. Once
appropriate magistrate gets cognizance of the matter then an inquiry shall be directed to the
 probation officer and an order under section 17 (2) of same nature mentioned above may be
passed.

• If the inquiry finds that the person needs care and protection then he can be sent for deten-
tion in a protective home for one year to three years. 

• A magistrate can take assistance from a panel of five respectable members to discharge
functions under section 17 (2) and can keep a list of social workers working to end immoral
traffic in the society. 

• The addition of section 17A has empowered the magistrate to see the genuineness of the
parent, guardian or husband of the person rescued under section 16 by investigating through
a recognised welfare organisation and accordingly pass appropriate order as per section 17. 

• A magistrate can issue a notice for show cause to the in-charge of premises or place,

• allegedly used as a brothel, located in a public place. Within seven days the in-charge has to
satisfy him as to why the property shouldn’t be attached for improper use and if the magis-
trate disagrees then he may pass an order either leading to the eviction of the occupier or di-
rect such landlord, lessor or owner of the place to get prior approval from the magistrate be-
fore letting it out. Provided that if it found that the owner, lessor or landlord are innocent
then the premises shall be given to them on the condition that it shall not be let out to person
using it for improper use. 
• A magistrate can remove any prostitute in his jurisdiction and may issue a notice to her and
show cause as to why she should not be prohibited from staying in his jurisdiction and re-en-
tering it. The magistrate after conducting an inquiry and hearing the person alleged to be a
prostitute may pass an order for her removal if he thinks it is best for the public. 

CASE LAWS

• Sahyog Mahila Mandal and Ors. v. State of Gujarat and Ors.: MANU/
GJ/0110/2004
“Even a woman or girl living in a brothel or who is carrying on or being made to carry on prostitu-
tion in a brothel and removed therefrom on the direction of Magistrate under Section 16(1) is re-
quired to be produced under Section 16(2) of the Act before the Magistrate issuing the order and is
required to be dealt with in accordance with Section 17 (2), (3), (4) and (5) for the purposes of safe
custody and rehabilitation.”

• Sangeeta and Ors. v. State and Ors.: MANU/DE/0613/1995

“A close scrutiny of the said Sub-sections leaves one in no doubt that every function of the learned
Magistrate whichever is to be performed by him is subject to the provisions of Sub-section (5) of
Section 17.”

• Prerana v. State of Maharashtra and Ors., 2003 (2) MhLj 105

“A Magistrate before whom persons rescued under the Immoral Traffic (Prevention) Act, 1956 or
found soliciting in a public place are produced, should, under Section 17(2) of the said Act, have
their ages ascertained the very first time they are produced before him. When such a person is found
to be under 18 years of age, the Magistrate must transfer the case to the Juvenile Justice Board if
such person is a Juvenile in conflict with law, or to the Child Welfare Committee if such person is a
child in need of care and protection.”

• Avijit Biswas v. The State of West Bengal and Ors.: MANU/WB/0386/2020

“It is notable that for exercise of powers under Section 20 of the IT Act, being the removal of a
prostitute from any place… powers have been granted inter alia on Executive Magistrates specially
empowered by the State Government as well.”

• State of U.P. v. Kaushailiya, (1964) 4 SCR 1002; AIR 1964 SC 416

“Section 20, in order to prevent moral decadence in a busy locality, seeks to restrict the movements
of the second category of prostitute and to deport such of them as the peculiar methods of their op-
eration in an area may demand.”
Punishments under PITA

The punishments imposed under the act are varied and can be found in sections 3-9, 11, 18, 20 and
21. The offences punishable are keeping and using of premises as a brothel, living on the income
earned via prostitution, pimping or else soliciting for prostitution, seducing a person in custody and
prostitution in a public area etc. an offence punishable under the act.

• Section 3 punishes any person with rigorous imprisonment who keeps or allows premises to
be used as a brothel. The manager of a brothel shall get a punishment between one year to
three years with a fine of Rs. 2000 on first conviction and for subsequent conviction the
punishment shall be between two to five years with the same amount of fine. As per sub-
section (2) an owner-tenant, lessor-lessee or landlord-occupier shall be punished with at
least two years with a fine of Rs. 2000 on first conviction and for subsequent conviction the
punishment may be enhanced to five years with a fine. A conviction from section 3 makes
the lease of the place invalid where brothel was run.

• As per section 4, a person living his life from the money made by a prostitute can be impris-
oned for two years or a fine of Rs. 1000 or both and if found such earning is made from
prostituting a child or a minor then it can go up to ten years no less than seven years of im-
prisonment shall be served. One requisite of this section is that a person should be above the
age of eighteen. Examples of section 4 are pimp, tout, a person habitually living with a pros-
titute etc. Section 3 and 4 do not apply to the customers of a prostitute.

• The Bombay High Court in Bindo Ganesh Patil v. The State of Maharashtra: MANU/MH/
2420/2018 has clearly said that “Section 5 of the PITA pertains to procuring, inducing or
taking [person] for the sake of prostitution. This offence is complete when a person procures
another person for prostitution or induces such person to go from any place with intent that
such person becomes the inmate of a brothel or to take such a person from one place to an-
other to carry on prostitution.” The punishment is rigorous imprisonment of 3 to 7 years
with Rs. 2000 fine. If it is done against a persons’ will or is minor then between seven to
fourteen years and if the same is done with a child then it is seven years to life imprison-
ment. 
• Section 6 allows the court to punish a person detained in any place used for prostitution for
seven to ten years imprisonment of either description along with fine. The court has to pro-
vide special reasons if the punishment of fewer than seven years has been given to the ac-
cused. No legal proceedings would lie against any woman who has been detained under
such premises by the detainer. There are certain presumptions in section 6 like:
◦ A child in a brothel found to have been sexually abused then she has been detained
for purpose of prostitution, or 
◦ It is presumed under sub-section (3) that a woman is detained for sex if a person
withholds her property like jewellery or induces her with the threat of legal proceed-
ings if she dares to take away her property.

• Section 7 (1) bars people to carry on prostitution within a specified area, violation of this
provision leads to the imprisonment of three months. However, the punishment changes to
seven to ten years with fine if prostitution is committed within such specified areas with a
child or a minor. Any punishment less than seven years shall be recorded with special rea-
sons in the judgement. 

• Section 7 (2) not only prohibits owner-tenant, lessor-lessee or landlord-occupier or agent but
even the keeper of a public place like hotels prostitution in public vicinity. For the first con-
viction, the punishment is three months with a fine of Rs. 200 and for subsequent convic-
tion, it is six months with a fine. The licence of the hotel where prostitution is carried can be
cancelled for a period not less than three months to one year. However, if a child or a minor
is found in such hotel for prostitution then the licence can be cancelled forever.

• Seduction or solicitation in public places whether from within a house or not amounts to an
imprisonment of six months with fine on first conviction which increases to one year for
subsequent conviction under section 8. The word ‘solicit’ has the essential import of an oral
entreaty or persuasion for prostitution.

• Custodial prostitution leads to the imprisonment of either description for a term of seven
years to life or ten years with fine as per section 9. Any punishment less than seven years
needs to be justified by giving special reasons. 

• If a previously convicted offender gets convicted committing an offence under PITA within
five years from his release then the court at the time of passing sentence can ask for the noti-
 fication of his residence as per section 23 for 5 years from the date his sentence has come to
an end. This order shall be rendered void if such conviction is overturned by a higher Court.

• When the directions passed under section 18 (1)(b) is flouted then the owner, landlord or
lessor can get a fine up to Rs. 500 and if the proviso of the abovementioned provision is not
adhered to then an offence is set to have been committed as per section 3 (2) (b) or section 7
(2) (c) of PITA. 

• Any prostitute removed from a place and defying the orders of magistrate passed under sec-
tion 20 shall be fined Rs. 200 and if it continues then she will be liable to a fine of Rs. 20
daily.

• A protective home or a corrective institution must adhere to the terms of its licence. A con-
travention of the same attracts a fine of Rs. 1000 for the first time and subsequent conviction
it is single year imprisonment or Rs. 2000 fine or even both.

Trial procedures
As per section 22, offences committed under section 3-8 shall be triable exclusively by a magistrate
not lower to a Metropolitan Magistrate or a First-Class Judicial Magistrate. Section 22A and section
22 AA provides power to the state and the central governments to establish special courts after con-
sultation with the High Court. They shall be set up with a purpose of speedy trial of offences lead-
ing to speedy justice. The state government can even direct the magistrates under section 22B to try
the cases summarily and in such cases section 262 to 265 of the Code of Criminal Procedure, 1973
shall apply. The power to imprison any offender tried summarily shall be of one year. Nevertheless,
if the magistrate feels that the case is of such a nature that it cannot be tried summarily then it can
recall any witnesses and can hear or rehear the case. 

Protective homes and corrective institutions

A protective home and a corrective institution are licenced under section 21. However, a protective
home is “an institution where people in need of care and protection are kept” in the umbrella shade
of technically qualified persons along with necessary equipment and other facilities required for the
institutions proper functioning. It. On the other hand, a corrective institution is “an institution where
a person in need of correction or reformation may be detained.” No victim under PITA can be sent
to a corrective institution against her wishes if she is an adult. It is also different in the sense that the
former does not include a corrective institution or a shelter where undertrials are kept and the latter
includes a shelter where undertrials are kept as per the act. 

Section 21 gives power to the state government to create numerous such homes and institutions as it
feels fit. These institutions have to work according to the norms laid down by the state government.
The procedures concerning a protective home or a corrective institution are as follows:

9. An application to the State Government must be sent by an individual or an authority like a

non-governmental organisation.
10. After its acceptance, a licence is issued to such individual or authority. This licence is made
as per the rules made under the act.
11. The management of such home or institution shall be preferred to give to a woman.
12. Before handing over the licence a full-fledged investigation shall be made by the state gov-
ernment.
13. No licence issued or renewed is transferrable.
14. The licence granted can be revoked if it found that the protective home or corrective institu-
tion is not working as per the rules or provisions of this act. However, the licence holder
shall be heard before any such action would be taken. The revocation will cease the func-
tioning of such home or institution.
15. The licence holder under shall be required to submit records and other documents as re-
quired by the court.

A magistrate after receiving an application from the trafficked person to send her to a protective
home or provided care and protection by the court shall inquire and can accept the demand of her
application for such period as specified. During this period, the trafficked person must be given pro-
tective care and vocational training so that she becomes self-sufficient and economically self-re-
liant.

A court under section 10A can send a female offender to the institution, guilty under the provisions
of section 7 or 8 if it deems fit that her detention under the institution would be beneficial to her.
The detention order can stay for a period of two to five years in lieu of a sentence of her imprison-
ment.

JJA and PITA

JJA and PITA are legislation that wants rehabilitation of young children who have fallen victims of

flesh trade. In Delhi High Court Legal Services Committee v. Union of India, the High Court while

considering these principles has been explicitly clear for such children and stated “they cannot be

treated as a child in conflict with the law and sent to Juvenile Justice Board and thus must be under

the protective umbrella of Child Welfare Committee as a child in need of care and protection.” 

In this regard, the two celebrated judgements of the Supreme Court, Gaurav Jain v. Union of India

and Vishal Jeet v. Union of India on commercial sexual exploitation and the rescue and rehabilita-

tion of children and women victim are also important to be looked upon. The former has stated

about the rights of the children of prostitutes and their rehabilitation and the later had pointed out

the obligation of the central and state governments to ensure the welfare of children and girls in-

volved in forced prostitution. 

Conclusion
The people involved in the flesh market are often those who are of poor economic strata, migrant
workers and who want extra income. These people are often lured into having a rosy future and per-
suaded by trickery or flattery. Once they enter the system it is hard for them to live a normal life.
The negative consequences of joining this field of work are not only borne by the prostitute but
even her children and her family. 

PITA is legislation formulated to curb the mischief and offences associated with immoral traffick-
ing but it seems that the act is more regressive than progressive in the sense that these fallen angels
of the flesh trade are subjected to evil treatment rather than as victims. The system seems to be cruel
to them by arresting them and not treating as victims of crime. Hence, an empathetic approach to-
wards fallen angels and strictest measures against the pimps, brothel keepers and immoral traffick-
ers needs to be ensured by the society and the system.