2Are Prostitutes entitled to live a life of dignity?
3The Immoral Trafficking Prevention Act, ("ITPA"), the main statute dealing with sex work in India, does not criminalise prostitution or prostitutes per se, but mostly punishes acts by third parties facilitating prostitution like brothel keeping, living off earnings and procuring, even where sex work is not coerced
4Reasons behind the Act: Government of India in the year 1950 ratified an international convention for suppression of traffic in persons and of the exploitation of the prostitution of others.
5What the convention says Article 1The Parties to the present Convention agree to punish any person who, to gratify the passions of another:(1) Procures, entices or leads away, for purposes 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.
6Article 2 The Parties to the present Convention further agree 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 thereof for the purpose of the prostitution of others
7What constitution says:- Article 14 provides for equality in general.Article 15 Prohibits discrimination on the grounds of religious race, caste, sex or place of birth, or of any of them.Article 15 (3) provides for special protective discrimination in favour of women and child relieving them from the moribund of formal equality. It states that, “ nothing in this article shall prevent the state from making any special provision for women and children”Place of birth is imp at this context
8Article 16 (1) covers equality of opportunity in matters of public employment. Article 23 prohibits traffic inhuman beings and forced labour and makes it punishable under Suppression of Immoral Traffic in Woman and Girls Act 1956 which is renamed in 1986 as The Immoral Traffic (Prevention) Act.Article 24 prohibits employment of children in any hazardous employment or in any factory or mine unsuited to their age.Act 44 of 1986
9It basically says provide opportunities to make equal results. Article 38, enjoins the State to secure and protect as effectively as it may a social order in which justice – social, economic and political shall inform all the institutions of national life.It basically says provide opportunities to make equal results.
10Article 39 the state should direct its policy towards securing, among other things, a right to adequate means of livelihood for men and women equally and equal pay for equal work their age or strengthArticle 39 (f) provides that the children should be given opportunities and facilities to develop in a healthy manner and conditions of freedom and dignity: and that childhood should be protected against exploitation.
11Article 45 makes provision for free and compulsory education for children. Which is now well settled as a fundamental right to the children.Article 46 directs that state to promote the educational and economic interests of the women and weaker sections of the people and that it shall protect them from social injustice and all forms of exploitation.
12Universal Declaration of Human Rights Article 1, all Human beings are born free and equal in dignity and rights.Article 2, that everyone (which includes fallen women and their children,) is entitled to all the rights ad freedoms set forth in the Declaration without any distinction of any kind such as race. Colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
13Article 3, Right to life, liberty and security of person. Article 4, that no one shall be held in slavery or servitude: slavery and the slave trade shall be prohibited in all their forms. (The fallen victims in the flesh trade is no less than a slave trade. AIR 1997 SC See At page 3028 Para 6, line 16.)
14Article 5, no one shall be subject to torture or to cruel, inhuman or degrading treatment or punishment.(The fallen/trapped victims of flesh trade are subjected to cruel, inhuman and degrading treatment which are obnoxious, abominable and an affront to article 5 of the said declaration and also article 21 of Indian constitution. AIR SC See At page 3028 Para 6 last 4 lines of the said Para.)
15Article 6, Declares that everyone has the right to recognition everywhere as a person before the law.Read Para 7 at page 3028 of AIR 1997 SC 3021
16Article 7, that all are equal before that law and are entitled without discrimination, to equal protection of the law.(Denial of equality of the rights and opportunities and of dignity and of the rights of equal protection against any discrimination of fallen women is violation of Universal Declaration under Article 7 and as well as Article 14 of Indian constitution.)
17LAW Suppression of Immoral Traffic in Women and Girls Act-1956. Prevention of Immoral Traffic Act -1956The Immoral Traffic (Prevention) Act-1956
19It was proposed to change the name of the Act to “Immoral Traffic (Prevention) Act” in view of widening the scope of the Act to cover all persons, whether male or female, who are exploited sexually for commercial purposes:
20OBJECTIVE OF THE IMMORAL TRAFFICKING PREVENTION ACT,1956 (ITPA)?
21Objectives of the Act- Continuing PUNISH IMMORAL TRAFFICKINGPUNISH TRAFFICKERSPUNISH PERSONS LIVING EARNINGS OF THE WOMANWELFARE MEASURES DIRECTED TOWARDS REHABILITATION OF SEX WORKERS* The emphasis IS NOT on the sex worker but the clients/pimps/brothel owners etc.
22ContinuingLicensing authorities are being empowered to cancel licences of hotels where of hotels where children or minors are detected to be used for purposes of prostitution.Interrogation is don only by women police officers if not in the presence of a woman social worker.In case of seduction in custody, the punishment is sought to be enhanced to that laid down for rape in the Indian Penal Code:
23What is prostitution?2 (f) means the sexual exploitation or abuse of persons for commercial purposes, and the expression “prostitute” shall be construed accordingly.
24Section 2 (f) of the old Act: Prostitution means the act of a female offering her body for promiscuous sexual intercourse for hire, whether in money or in kind and whether offered immediately or otherwise and the expression prostitute will be construed accordingly
25Section 3: Punishment for keeping a brothel or allowing premises to be used as a brothel Not less then one year rigorous, not more than three years, and also with fine up to two thousand rupees. (in first convection)Not less then two years rigorous but not more than five years, also with fine up to two thousand rupees.
26Section 4: Punishment for living on the earning s of Prostitution Up to two year and fine of one thousand rupeesIf this earning is out of child or minor shall be punishable with imprisonment for a term of not less than seven years and not more than ten years.
27Section 5: Procuring, inducing or taking person for the sake of prostitution Punishment not les then 3 years, not more than seven years.If the offence under the sub-section is committed against the will of the person imprisonment for a term of seven years shall extent to fourteen years:If it is child not less than 7 years, but may extended to life;If it is minor, not less than 7 years, and not more than 14 years.
28Section 6: Detaining a person in premises where prostitution is carried on. Not less than 7 years but may be for life.(with or without consent)
29Section, 7 : Prostitution in or in the vicinity of public places: With the imprisonment for a term which may extend to three months.Where the offence is committed is in respect of a child or minor the person committing the offence shall be not 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:
30Section 8Seducing or soliciting for purpose of prostitution.
31Section 9 seduction of a person in custody. Any person who having the custody, charge or care of, or a position of authority over any person causes aid or abets the seduction for prostitution of that person shall be punishable upon conviction for a term which shall be not less than seven years but which may be for life or a term which may extend to 10 years and shall also be liable to fine
32Section 13 of the Act1.There shall be for each area to be specified by the State Government in this behalf a special police officer appointed by or on behalf of that Government for dealing with offences under this Act in that area.2.The special police officer shall not be below the rank of an inspector of police.
332(A) the District Magistrate may, if he considers it necessary or expedient so to do, confer upon any retired police or military officer all or any of the powers conferred by or under this Act on a special police officer, with respect to particular cases or classes of cases or to cases generally:Provided that no such power shall be conferred on-Retired police officer unless such officer, at the time of his retirement, was holding a post not below the rank of an Inspector.A retired military officer unless such officer at the time of his retirement was holding a post not below the rank of a commissioned officer
34For the efficient discharge of his functions in relation to offences under this Act- the special police officer of an area shall be assisted by such number of subordinate police officers (including women police officers where practicable) as the state Government may think fit: andthe state Government may associate with the special police officer a non-official advisory body consisting of not more than five leading social welfare workers of that area (including woman social welfare workers, wherever practicable) to advise him on questions of general importance regarding the working of this Act
35The Central Government may, for the purpose of investigating any offence under this act or under any other law for the time being in force dealing with sexual exploitation of persons and committed in more than one state, appoint such number of police officers as trafficking police officer and they shall exercise all the powers and discharge all the functions as are exercisable by special police officers under this Act with the modification that they shall exercise such powers and discharge such functions in relation to the whole of India
36Delhi High Court Mumtaj@Behri V. the state Para 3. The first and foremost challenge of learned counsel for the appellant was as to legality and validity of entire process of raid, arrest, investigation and prosecution of the appellant. Submission of learned counsel for the appellant was that Section 13 of the Act mandates State Government to appoint Special Police Officer for dealing with the offences under the Act
37Kerala High Court. Joseph v. sub inspector of Police Has repeated the Delhi and West Bengal High Court decisions. At para 4.
384. In Superintendent and Remembrancer of Legal Affairs on behalf of State of West Bengal v. Sardar Bhadur Singh and Ors. (1969) Crl. LJ ) the High Court of Calcutta held that the expressions "police duties" and "dealing with offences" are of the widest amplitude and necessarily connote all that the police has to do in connection with the offences under the Act including detection, prevention and investigation. In Delhi Administration v. Ram Singh (AIR 1962 SC 63) the Supreme Court held that the expression "dealing with offences" in Section 13(1) of Suppression of Immoral Traffic in Women and Girls Act will include any act which the police has to do in connection with the offences under the Act. The expression "function in relation to offences" in Section 13(3) also includes its functions connected with the investigation of the offences. What has to be understood in the light of what is said in the above decision is that the expression "dealing with offences under the Act" includes detection, registering of the crime and investigation of the crime. Section 13 provides for appointment of special police officer for each area to be specified by the State Government and in that section it is said that the appointment of special police officer is for dealing with offences under the Act.
39A plain reading of Section 13 would go to show that the detection, registering and investigation of the crime have to be done by the special police officer.
40Section 14,Offences to be cognizable- notwithstanding any thing contained in the code of Criminal Procedure, 1973 (2 of 1974), any offence punishable under this Act shall be deemed to be a cognizable offence with the meaning of that Code,Provided that, notwithstanding anything contained in that code-
41(i) Arrest without warrant maybe made only by the special police officer or under his direction or guidance, or subject to his prior approval: (ii) When the special police officer requires any officer subordinate to him to arrest without warrant otherwise that in his presence any person for an offence under this act, he shall give that subordinate officer an order in writing, specifying the person to be arrested and the offence for which the arrest is being made and the latter officer before arresting the person shall inform him of the substance of the order and, on being required by such person, show him the order:
42(iii) Any police officer not below the rank of sub- inspector specially authorized by the special police officer may, if he has reason to believe that on account of delay involved in obtaining the order of the special police officer, any valuable evidence relating to any offence under this act is likely tobe destroyed or concealed, or the person who has committed or is suspected to have committed the offence is likely to escape, or if the name and address of such a person is unknown or there is reason to suspect that a false name or address has been given, arrest the person concerned without such order, but in such a case he shall report, as soon as maybe, to the special police officer the arrest and the circumstances in which the arrest was made.
43The High Court of Kerala Sinu Sainudheen vs. sub inspector of police 5. Section 14 of the Act says that notwithstanding anything contained in the Code of Criminal Procedure, any offence punishable under the Act shall be deemed to be a cognizable offence within the meaning of that Code. The proviso to the above Section says that notwithstanding anything contained in the Criminal Procedure Code, arrest without warrants may be made only by the special police officer or under his direction or guidance or subject to his prior approval.
44The second proviso to the Section enjoins that when the Special Police Officer requires any Officer subordinate to him to arrest without warrant otherwise then in his presence any person for an offence under the Act, he shall give that subordinate officer an order in writing specifying the person to be arrested and the offence for which the arrest is being made.
45Para 7. What is said in the second proviso to Section 14 is that for the purpose of arresting any person, an order in writhing specifying the person to be arrested has to be given to the subordinate officer by the special police officer. Such an order in writing can be given by the special police officer specifying the person to be arrested only after seeing that a particular person has committed an offence. There is also provision in the proviso which says that in the order in writing given by the special police officer the offence for which the arrest is being made also has to be mentioned. That also would indicate that the special police officer can give an order in writing to a subordinate officer for arresting a person only after he is being convinced that there are reasons to believe that a particular person has committed an offence.
46Here the sanction govern by the Assistant Commissioner of Police who is the special police officer cannot at all be said to be a sanction given for effecting arrest by a subordinate officer as is said in the second proviso to Section 14 since the sanction order was made even before the raiding of the house of the first accused. For the reason it cannot be said that there was sufficient authorisation given by the special police officer to the Sub Inspector of Police for effecting arrest as mentioned in Section 14 of the Act.
47Section 15 search without warrant: In the case of T.Jacob v, state of Kerala
487. Before parting with the case, I like to point out that the Assistant Superintendent of Police, who conducted the raid in the instant case, was not justified in doing so without complying with the provisions of Section 15 (1) of the above Act. There was no ground stated in the charge or anywhere else why he did not call at least one woman witness of the locality to attend and witness the search. It is a mandatory provision. See the view expressed in Harnam Singh v. State, AIR 1964 Punj 436 at P Even apart from that, the conduct of the Police Officer in proceeding into the bed room of the revision petitioner and entering through the back door without the civility of a knock on the front door, which was locked inside or warning the revision petitioner for the intrusion would be a misuse of his powers in the instant case.
49Anyway, the Police Officer at least could have knocked at the front door and got it opened. The place of occurrence is a Room No. 10 of the Beach Hotel, Calicut, which is a reputable hotel in the locality. It is very strange that the Police should have gone to such a hotel and conducted a raid of this type and brought down the prestige of the hotel in the estimate of the public without any regard for decency or decorum. It is also surprising that the Police Officer had taken into custody all the moveables including the personal belongings under a mahazar. One of the articles was the button hole pin inscribed with "Rotary International", which has nothing to do with the commission of the crime.
50It would be seen that every article, whether belonged to him or not had been removed out of the room. There was absolutely no necessity for removal of all these articles unless they were required for the proof of the crime. Anyway, the charge having been found against I do not propose to take any further action in the matter.8. In the result, the revision petition is allowed. The revision petitioner is discrageed under Section 251-A (2), Criminal P. C. The moveables recovered from the revision petitioner will be handed over to him immediately.
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