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Kerala HC Ruling on ITP Act of 1956

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January 06, 2024

Why in News?

Recently the Kerala High Court ruled that a customer in a brothel can be charged under the Immoral Traffic (Prevention) Act, 1956.

What is the Immoral Traffic (Prevention) Act, 1956?

  • Human trafficking – Forced or illegal transfer of people for the purpose of labour or other illegal activities.

Under Article 23 (1) of Indian constitution, trafficking in human beings or persons is prohibited in India.

  • Passed in – 1956, as All India Suppression of Immoral Traffic Act (SITA) in pursuance of the International Convention signed by India in 1950, for the prevention of immoral traffic.
  • Objective – To prevent the commercialisation of vices and the trafficking of females.
  • Amendment Act of 1986 – It has amended the title to ‘Immoral Traffic (Prevention) Act’ and replaced the words ‘Women and Girls’ with the word ‘Persons’.
  • It now prohibits traffic in human beings and not traffic in women and girls alone and a framework to inhibit or abolish commercialized traffic in persons.
  • It provides for rehabilitating those rescued from the vice.
  • Definition – Section 2 of the act defines both ‘brothel’ and ‘prostitution’.
  • Brothel – It includes any house, room, or place, or any portion of any house, room 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.
  • Prostitution – It is defined as the sexual exploitation, or abuse of persons, for commercial purposes.
  • Special police officer – There shall be for each area to be specified appointed by or on behalf of state government who shall not be below the rank of an Inspector of Police.
  • Protective home – An institution where people in need of care and protection are kept.
  • Corrective institution – An institution where a person in need of correction or reformation may be detained but no victim can be sent to a corrective institution against her wishes if she is an adult.
  • Punishment – It penalises acts such as
    • Keeping a brothel
    • Soliciting in a public place
    • Living off the earnings of sex work
    • Living with or habitually being in the company of a sex worker
  • Section 5 of the act deals with punishments.
    • For procuring or attempting to procure a person, with or without their consent, for prostitution purposes.
    • For inducing persons to go from any place, for prostitution purposes, to become inmates of, or frequent, a brothel.
  • Imprisonment – Inducing persons to engage in prostitution is punishable with rigorous imprisonment for 3–7 years, along with Rs 2,000 fine and if it is committed against their will, the maximum sentence can be extended to 14 years or life.

What is the current case?

  • Petitioner – A customer in a brothel, was arrested and accused of offences under the ITP Act’s different sections like
    • 3 – Keeping a brothel or allowing premises to be used as one.
    • 4 – Living on prostitution earnings
    • 5 – Procuring, inducing, or taking persons for prostitution
    • 7 – Punishing prostitution in or around public places
  • Petitioner’s plea – He shall not be implicated for any offence under the ITP Act.
    • Section 15(5) and 15(5A) mandate producing the offender before the magistrate, and their medical examination to determine age, sexually transmitted diseases (if any), and injuries caused due to sexual abuse.
  • District court ruling – It rejected the plea of petitioner and directed that charges be framed against him.
  • Kerala HC ruling – While the term “procure” isn’t defined in the 1956 Act, the court construed the word to mean those getting or obtaining “domain over a person” for prostitution.
  • It concluded that a consumer also comes within the purview of Section 5 and held that a customer can be charged under it.
  • However, the petitioner was discharged of offences under Sections 3, 4, and 7 by the High Court.
  • Significance of the ruling – By adding that a customer will be held liable in addition to pimps/brothel-keepers who hire persons for prostitution.

Prosecution of customers

  • Mathew vs the State of Kerala, 2022– A customer caught in a brothel can be prosecuted under the ITP Act.
  • Section 7(1) of the Act – It penalises
    • The person who carries on prostitution
    • The person with whom such prostitution is carried on
  • The HC also said that the act of immoral traffic cannot be perpetrated or carried on without a customer.

Against the prosecution of customers

  • The Andhra Pradesh and Karnataka HCs in Goenka Sajan Kumar vs The State of AP (2014) and Sri Sanaulla vs State Of Karnataka (2017) ruled against prosecuting brothel customers under sections 3-7 of the ITP Act.

 

References

  1. The Indian Express| Ruling of Kerala HC on ITP Act of 1956
  2. Ministry of WCD| The Immoral Traffic (Prevention) Act, 1956
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