In 1950 the Government of India ratified the International Convention for the Suppression of Immoral Traffic in Persons and the Exploitation of the Prostitution of others. In 1956 India passed the Suppression of Immoral Traffic in Women and Girls Act, 1956 (SITA). The Act was further amended and changed in 1986, resulting in the Immoral Traffic Prevention Act also known as PITA. PITA only discusses trafficking in relation to prostitution and not in relation to other purposes of trafficking such as domestic work, child labour, organ harvesting, etc. The following is an outline of the provisions in this law that pertains to children below the age of 18. The act defines child as any person who has completed eighteen years of age. The first section of the act has provisions that outline the illegality of prostitution and the punishment for owning a brothel or a similar establishment, or for living of earnings of prostitution as is in the case of a pimp. Section 5 of the Act states that if a person procures, induces or takes a child for the purpose of prostitution then the prison sentence is a minimum of seven years but can be extended to life. To ensure that the people in the chain of trafficking are also held responsible the act has a provision that states that any person involved in the recruiting, transporting, transferring, harbouring, or receiving of persons for the purpose of prostitution if guilty of trafficking. In addition any person attempting to commit trafficking or found in the brothel or visiting the brothel is punishable under this law.
If a person if found with a child it is assumed that he has detained that child there for the purpose of sexual intercourse and hence shall be punishable to seven year in prison up to life imprisonment, or a term which may extend to ten year and also a maximum fine of one lakh rupees. If a child is found in a brothel and after medical examination has been found to have been sexually abused, it is assumed that the child has been detained for the purpose of prostitution.
Any person committing prostitution in public with a child shall be punishable to seven year in prison up to life imprisonment, or a term which may extend to ten year and also a maximum fine of one lakh rupees. If prostitution of a child is being committed with knowledge of an establishment owner such as a hotel the license of the hotel is likely to be cancelled along with the given prison sentence and/or fines.
Any child found in a brothel or being abused for the purpose of prostitution can be placed in an institution for their safety by a magistrate. Landlords, leasers, owner, agent of the owner who unknowingly previously rented their property to a person found guilty of prostituting a child, must get approval from a magistrate before re-leasing their property for three years after the order is passed.
In 2006, the Ministry of Women and Child Development proposed an amendment bill that has yet to be passed. The amendment does not really concern any of the provisions related to the child but has many important consequences for the right of women sex workers.
DISCUSSION NOTE ON AMENDMENTS TO THE IMMORAL TRAFFIC (PREVENTION) ACT, 1956
One major point requiring discussion is whether in this Act, the focus should be on prevention of prostitution or on the prevention of trafficking in the larger sense of the term as covered in International Protocol on trafficking. In the present Act, Section 5, and in the proposed amendments Sections 5A and 5B also, deal with procuring and trafficking. Section 6 deals with detention of person in a brothel and Section 11 deals with notification of addresses of previously convicted offenders under Sections 363, 365, 366A, 366B, 367, 368, 370, 371, 372, 373 of IPC ; rest of the Act is focused on prostitutes and brothel owners .The new amendment Section 5C focuses on customers visiting brothels . Thus while in the original Act, the question of trafficking is not adequately addressed, except for 5A and 5B, the amendments also do not focus on trafficking in the larger sense of the term. It may be argued that it would be better to concentrate on one problem at a time; on the other hand we might think of a more comprehensive bill on trafficking, with some special provisions for trafficking for prostitution, because it must be admitted that this last creates very special problems in rescue and rehabilitation.
The second question is: who are the offenders to be punished? If we agree that the woman / child who is recruited to provide sexual services to the customer and whose earnings are largely extorted by procurers, pimps and brothel-owners, is as much a victim of the system as a domestic slave or a bonded labourer, then obviously the focus of the law should be on prevention, rescue and rehabilitation and on providing viable alternative livelihood for her; because otherwise she must serve or starve. There is no doubt that she is being exploited by traffickers/procurers, by pimps, by brothel-owners and also by customers. These are the offenders who should be punished. Neither the present Act nor the amendments, however, address the question of prevention of trafficking at the source or the question of economic or emotional rehabilitation of the victim. Moreover, the present Act has some provisions ( such as Sections 7, 8, 10, 10A, 18, 20 ) which in seeking to identify offenders in brothels inevitably lead to further harassment , torture, extortion, deprivation of livelihood etc. of the women constrained to provide sexual services in conditions of extreme exploitation . The amendments seek to remove some of these provisions (Sections 8 and 20). But it also introduces a new clause 5C, which in seeking to penalize the customer, in effect deals a blow on the livelihood of the woman who is not provided with any alternative. At this point, the Act may be more effective if, instead of criminalizing the customer, the process of apprehending, trying and convicting the traffickers, procurers, pimps and brothel-owners who receive trafficked women and children is strengthened.
The amendments revise the definition of a ‘child ’to include those between 16and 18 years thus making the category ‘minor’ irrelevant . This seems to be a good thing; but keeping in mind the severe physical and mental trauma that a trafficked and sexually abused child goes through, definite recommendations regarding their rescue, production as witnesses and rehabilitation should have been made part of the amendment Bill. Separate provisions for rescued children are needed .Whether in camera proceedings are most suitable for women and children as witnesses needs to be discussed.
There are provisions for correctional homes and protective homes. It should be discussed whether the concept of correctional homes in any way serves the purpose of rehabilitation. If it is just a place of detention from which release may be obtained after a time on condition of ‘good behaviour’, then it seems that the concept is born of a moralistic approach which does not even touch upon the real problems of the women. For them, we should rather think of protective homes where some opportunity of seeking an alternative livelihood may be provided to them and where they might be restored to a state of physical and mental well-being .On the other hand, all persons engaged in trafficking, pimping and otherwise making profit through sexual exploitation of women/ children should be severely penalized. There is no need to put them in correctional homes. Amendment of Section 10A to enhance the period of detention in a correctional home, therefore, needs to be discussed.
The other important point that has to be worked out in detail is the proposal for setting up Central and State Authorities for preventing and combating trafficking in persons. That such a separate agency is needed is something on which there is general agreement; but its constitution, powers and functions are points that need to be discussed in detail.