Need to Revisit Immoral Trafficking Act

A recent verdict of the High Court lays bare the paradox of how the Parliament has missed out on the most obvious aspect of effectively prohibiting prostitution in India. The law that governs the field is the Immoral Traffic (Prevention) Act.

Tucked away in not just the dark roads but even in cosy corridors is the tale of women forced into what is seen as the world’s oldest profession or Lady Warren’s profession. Our literature (read cinema) is full of stories of how women have been forced into the profession. The depiction however is arguably far from real. The rare exceptions being Sharmila Tagore in Gulzar’s ‘Mausam’ and more recently Shefali Chaya in Nagesh Kukunoor stomach churning ‘Lakshmi’.

The enactment itself is to provide in pursuance of the International Convention signed at New York for the prevention of immoral traffic. The statue defines prostitution as, “The sexual exploitation or abuse of persons for commercial purposes or for consideration in money or in any other kind and the expression “prostitute” shall be construed accordingly.”

While Section 3 of the Act provides for a punishment keeping a brothel or allowing premises to be used as a brothel, Section 4 provides punishment for living on the earnings of prostitution and Section 5 provides punishment for procuring, inducing or taking person for the sake of prostitution.

On the case in hand before Justice U Durga Prasad, the Banjara Hills Police Station in Hyderabad raided a premises in Jubilee Hills and found it being used for prostitution. Those arrayed as accused included the organisers of the brothel, the pimps and the customers.

One of the accused customers moved the court to quash the criminal case against him. He would mainly contend that none of the stated provisions describe a customer as an offender and therefore the prosecution of the petitioner was an abuse of process of law and hence the proceedings be quashed.

In yet another recent case Justice Raja Elango too of the court found the same lacuna in the law.Dealing with the present quash petition Justice Durga Parasad observed, “Section 3 of the Act deals with punishment for keeping a brothel or allowing premises to be used as a brothel.

Section 4 of the Act deals with punishment for living on the earnings of the prostitution. Obviously the allegation against the petitioner is not that of either running brothel house or procuring women for prostitution or that he is living by earning money on prostitution. He was booked along with other accused only as a customer of the flesh trade.

It is interesting to note that none of the other penal provisions in the Act either describe him as an offender.” It would be a moot point in the context if the issue would have been a tad different if the act of the customer would be one allegedly as a person who ‘causes or induces a person to carry on prostitution’ .

The judge however did not stop by just declaring that the customer petitioner cannot be prosecuted. He went on to state, “Law or literature cannot have more a noble aim than depicting evil of the society and suggesting the eradicative measures.

The judge referred to the famed work of Gurajada Appa Rao: Kanya Sulkam and Sri Sri’s Kavitha and said, “It is unwise to say that a customer who lurks in day and night in search of hidden avenues to quench his sexual lust is a hapless victim of a crime to place him out of reach of the tentacles of the law which is intended to eradicate the pernicious practice of immoral trafficking of women.

Such an unwarranted sympathy on a criminal will not help achieve desired results though aimed at high.” The judge within the parameters of judicial limitations left it for the Parliament to revisit the premise. Over to the Parliament.