Immoral Traffic (Prevention) Act, 1956 – An Overview

Introduction

The trafficking of humans, especially of women for the purpose of prostitution, is a form of organised crime which extends across borders. The Suppression of Immoral Traffic in Women and Children Act, 1956 was passed on 30th December 1956. This Act extends to the whole of India.

The United Nations Convention on for the ‘Suppression of Traffic in Persons and of the Exploitation of the Prostitution of Others, 1949, was signed in New York on 9th May 1950. India, being the member country, became the signatory to this convention in 1950 and in pursuance of the obligations under this convention enacted the Suppression of Immoral Traffic in Women and Girls Act in 1956. The Act aims at suppressing the evils of prostitution in women and girls and achieve a public purpose namely to rescue the women and girls and provide them such assistance to make them decent members of the society.

In 1986 the Act was retitled as Immoral Traffic Prevention Act, 1956 (hereinafter referred to as ITPA or as Act). The amending Act of 1986 deleted the words ‘suppression’ and ‘women and children’ from the title of the Act making the Act gender neutral[1]. For this, the key role was played by the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), 1979 to which India became the party in 1980.  This Act only includes trafficking for the purpose of prostitution in its ambit and excludes the other forms of trafficking.

Prostitution can be cited as an example of one of the oldest professions in the world. Humans have exchanged money and goods for sex for thousands of years. The society that begins to develop material wealth soon develops some or other forms of prostitution. Prostitution is considered as a crudest demonstration of society in which women are to sell their bodies as means of sustenance.

Section 2(f) of the Act defines “prostitution” as “the sexual exploitation or abuse of persons for commercial purpose or for consideration in money or in any other kind”. In simple words, prostitution is commercialised sex which involves a customer and a seller without normal motives of procreation and pleasure. This act is widely denounced and thus making a prostitute a disagreeable person in the eyes of public at large. The females were engaged in sexual activity with many males with whom she has no affinity, thus, capable of disrupting families.

Object of Immoral Traffic (Prevention) Act, 1956

There is no denial of the fact that prostitution is running soul in the body of civilization and destroys all moral values. The causes and evil effects of prostitution are many. The purpose of this Act is not to abolish prostitution. There is no provision in the Act which makes the prostitution a criminal offence per se or punishes a person because he indulges in prostitution. What is punishable under the Act is sexual exploitation or abuse of person for commercial purpose[2].

Analysis of the Act

On analysis of the Immoral Traffic (Prevention) Act, 1956 one can come across its merits and shortcomings which can be broadly laid down as follows.

1. The use of the term ‘immoral’ in the title of the Act creates doubt in one’s mind that there could be something known as ‘moral trafficking’. As we know that when it comes to trafficking it is always considered immoral. So, why there is the word ‘immoral’ before the word ‘trafficking’ in the title of the Act.

2. Through the 1986 amendment the term ‘persons’ was inserted in the definition of the term prostitution instead of terms ‘women and children’ making it gender-neutral to cover even male prostitutes. However, Section 10A deals with the detention of the female offenders in the corrective institutions in order to be rehabilitated. There is an irony as far as this provision is concerned, the Act calls itself gender-neutral but when it comes to corrective institutions the provision is gender-specific. It talks only about the correction of women prostitutes.

3. The Immoral Traffic (Prevention) Act, 1956 not only criminalises most forms of sex trafficking but also criminalises certain transactional phases of voluntary trafficking like soliciting.

4. Trafficking has been addressed only as an act related to prostitution and not as an explicit offence under the legislation. As stated earlier the enactment deals with trafficking only with respect to prostitution leaving the other intentions of trafficking such as child labour, slavery, bonded labourers, organ trading out of the legislative ambit.

5. As per the provisions of this Act the term prostitute means the person who sexually exploits others for monetary gain and the person who are exploited are the victims of prostitution who unfortunately are featured peripherally in the Act. After adopting the modified definition of prostitution, the enactment is completely ambiguous. What actually occurred here is blind exclusion of victims of prostitution, their rehabilitation and counselling to exploiters who are not qualified as prostitutes. Thus, this enactment focussed on the exploiters of prostitution who under the earlier enactment were abetters of the act of prostitutions.

6. This Act only prevents and regulates prostitution, it does not prohibit prostitution. Underlying legislative policy in the legislation is not abolition of prevention of prostitution but specifying certain activity which are associated with the commercialisation of sex.

7. The enactment is not completely penal but also the social welfare legislation. It requires for rehabilitation and correction of the offenders found culpable of the offence. Rehabilitative measures include creation of protection homes and corrective institutions for offenders.

In this context we have to refer Section 10A, it deals with the detention of female offenders in corrective institutions in order to be rehabilitated. The provision features her detention, if from her character physical, mental and overall health it appears that detention for a specified term under instruction and discipline are conducive to her correction[3].

However, there is an irony as far as this provision is concerned. The Act calls itself gender-neutral but when it comes to corrective institutions the provision is gender-specific. It talks about correction of only women prostitutes.

8. Section 17 states about appropriate care and protection, medical and psychiatric treatment, guardianship and education of rescued minor is also provided and this is provided under the Act. This minor in question must have been running a brothel or living on the earnings of prostitution. This also extends to persons carrying on or being made to carry on prostitution too, who on application to the magistrate may be moved to a protective home and provided care and protection by the court.[4]

9. Though a reformative measure without any rehabilitation initiative, the probability of a person detained in the protective home for a certain period of time to transfer in the reformed person is highly implausible. Moreover, the statute is silent on whether ones released from detention they were continued to be monitored. The focus remains only on the perpetrators i.e. exploiters of the prostitution and not on the actual victims of prostitution who deserves rehabilitation and counselling and above all monetary support in starting life afresh.

Acts which are penalised

Penalised acts are keeping of a brothel or allowing of premises to be used as brothels[5] and living on earnings of brothel[6] and procuring, inducing or taking of persons for the sake of prostitution and detaining a person in premises where prostitution is carried on.[7]

As we know that prostitution would not continue to exist unless and until there is a customer. However, this Act doesn’t punish the customers of prostitution.

Authorities formulated for the implementation of Traffic (Prevention) Act, 1956

Special Police Officers and Trafficking Police Officers

They have been provided as the implementation authorities of the Act. They are vested with special powers to conduct search even without warrant and rescue the victims of prostitution who are kept in an alleged brothel. However, it is highly doubtful as to how far such a post has been created in almost all states of India.

Special Courts

The Special Courts were established for the speedy disposal of cases which is to be presided by the judge not below the rank of Judicial First Class Magistrate or a Metropolitan Magistrate. These courts can be set by state governments as well as central government. It is highly doubtful whether any of such courts have ever been created or established within the country. All proceeding in these courts are to be held in camera and the judges are empowered to order for removal, rescue and eviction of prostitutes, direct custody of rescued persons as well as closing down of brothels[8].

Conclusion

There are certain aspects which are very positive as far as this legislation is concerned but majorly the chief drawback of legislature lies in the fact that it does not address the actual victims of the prostitution, in fact it lays lot of emphasis on perpetrators and provides them measures for reformation (it is not rehabilitation, just reformation). In this era of human rights and human rights for all, it is nothing but degrading to think of fellow human beings being engaged in the despicable trade of sex for money for their basic survival.

[1] Kiran Bhatty, The Review if the Immoral Traffic Prevention Act, 1986, CPRINDIA.ORG (30th April, 2021, 10.00 AM) Available at: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwjgxvjSlrDwAhU1wzgGHWEgDnoQFjANegQIFhAD&url=http%3A%2F%2Fwww.cprindia.org%2Fsystem%2Ftdf%2Fpolicy-briefs%2FA%2520Review%2520of%2520the%2520Immoral%2520Traffic%2520Prevention%2520Act%2C%25201986_Final%2520Edit.pdf%3Ffile%3D1%26type%3Dnode%26id%3D6590%26force%3D1&usg=AOvVaw0jCo59O-4hyM-ahWo7oWNj

[2] Devika Sharma, Bom HC | Is there any provision under law that makes prostitution per se a criminal offence or punishes a person for indulging into prostitution? HC expounds, SCCONLINE, (1st May, 2021, 5:00 PM), Available at https://www.scconline.com/blog/post/tag/immoral-traffic-prevention-act/.

[3] The Immoral Traffic Prevention Act, 1956.

[4] S. 19 of Immoral Traffic Prevention Act, 1956.

[5] S. 4 of Immoral Traffic Prevention Act, 1956.

[6] S. 5 of Immoral Traffic Prevention Act, 1956.

[7] S. 6 of Immoral Traffic Prevention Act, 1956.

[8] Shebin Saji, All you need to know about the Immoral Traffic (Prevention) Act, 1956, IPLEADERS, (2nd May, 2021, 8:00 pm), Available at https://blog.ipleaders.in/need-know-immoral-traffic-prevention-act-1956/.

This article has been written by Chetan Kumar, 3rd Year and B.A.LL.B. (H) at Central University Of South Bihar.

Also Read – Prostitution As Trafficked Profession

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