AAWC

Legislation

Immoral Traffic (Prevention) Act

In 1950, the Government of India ratified the United Nations Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (pdf), which conflates prostitution and trafficking

Whereas prostitution and the accompanying evil of the traffic in persons for the purpose of prostitution are incompatible with the dignity and worth of the human person and endanger the welfare of the individual, the family and the community,…The 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.

In pursuance to the international convention, India enacted in 1956 the Suppression of Immoral Traffic in Women and Girls Act (SITA), which was later amended in 1986 to create the Immoral Traffic (Prevention) Act. Known commonly as ITPA (pdf), the act defines a trafficker as a person who

recruits, transports, transfers, harbours, or receives a person for the purpose of prostitution by means of,—

(a) threat or use of force or coercion, abduction, fraud, deception; or
(b) abuse of power or a position of vulnerability; or
(c) giving or receiving of payments or benefits to achieve the consent of such person having control over another person

Notably, lawmakers recognised the impracticality of banning prostitution without rehabilitating women in prostitution or addressing the root causes of poverty and gender inequality. As a result, ITPA sought to penalise activities incidental to prostitution but not prostitution itself, i.e., soliciting, practicing prostitution in public places or near police, living on the earnings of prostitution, owning a brothel, visiting a brothel, procuring or detaining for prostitution, and trafficking or attempted trafficking, especially of children. The punishment for trafficking varies from seven to fourteen years of imprisonment, or, in the case of child trafficking, from seven years to life.

In 2002, India ratified the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (pdf) to supplement the 2000 Convention against Transnational Organized Crime (Palermo Convention). In particular, the protocol defined the following:

(a) “Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;
(b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used;
(c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered “trafficking in persons” even if this does not involve any of the means set forth in subparagraph (a) of this article;
(d) “Child” shall mean any person under eighteen years of age.

Despite these legal measures, AAWC recognizes that the current legal framework on prostitution and trafficking is in urgent need of reform. While beneficial stipulations of ITPA are routinely ignored or insufficiently implemented, certain aspects of the law are commonly abused by law enforcement officers for their own interest or economic gain. Criticisms can be found here and here of both the original 1956 legislation and a proposed 2006 amendment (pdf) that failed to pass after sex workers organised large-scale protests.

Legislation Governing Child Rights in India

Protection of Children from Sexual Offences (POCSO) Act

The Protection of Children from Sexual Offences (POCSO) Act 2012 was introduced in order to effectively address sexual abuse and sexual exploitation of children in India. Known commonly as POCSO (pdf), the act defines provisions for steps to be taken in incidents of sexual offences towards children.

The Act recognizes various forms of sexual abuse such as penetrative and aggravated penetrative sexual assault as well as non-penetrative sexual assault such as sexual harassment and use of pornographic content. The POCSO Act directs effective punishment to offenders and provisions to be made for victims of sexual abuse.

Organizations in India have begun implementing the guidelines set by the POCSO Act to tackle cases of child sexual abuse.

Juvenile Justice Act: 2015 Amendment

In 2015, the 2002 Juvenile Justice Act was modified to allow some 16-18 year olds who are accused of committing heinous crimes to be tried as adults. The act was modified in order to discourage these youth from committing heinous crimes; for fear that a lighter punishment would not be a sufficient deterrent.

Heinous crimes are those punishable with a minimum of seven years jail time. In order for a juvenile to be tried as an adult, they must first be assessed by the Juvenile Justice Board. The Board’s aim is to determine, in the case of heinous crimes, if the person is mentally and physically mature enough to be held responsible for the crime. The Board does not decide whether the accused is innocent or guilty. Instead, they refer the person to either the child or adult court for trial.

(1) In case of a heinous offence alleged to have been committed by a child, who has completed or is above the age of sixteen years, the Board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence. … Preliminary assessment is not a trial, but is to assess the capacity of such child to commit and understand the consequences of the alleged offence. Chap. IV, 15.

The law mandates that one such board exist in every district. Each board consists of a magistrate and two social workers, at least one of whom must be a woman. Social workers are selected according to criteria specified by the law, including past experience with child rights. However, the board only requires that two of its three members be present in order for a decision to be made. The assessment itself is intended to be child-friendly and is conducted in an environment that is less intimidating than an adult court. A person who is being assessed for a crime that they committed as a minor will continue to be treated as a minor even if they turn eighteen years old whilst being assessed by the board.

(1) Any person, who has completed eighteen years of age, and is apprehended for committing an offence when he was below the age of eighteen years, then, such person shall, subject to the provisions of this section, be treated as a child during the process of inquiry. Chap. IV, 6.

If convicted, the minor is to stay in a Place of Safety until the age of twenty-one, at which point the minor is to be transferred to a jail (Chap. IV, 19. (3)). The JJ Act mandates that there be one place of safety in each state (Chap. IV, 49. (1)).

If a child is ‘is a mentally ill person or addicted to alcohol or other drugs which lead to behavioural changes in a person,’ they may be removed to a psychiatric hospital or psychiatric nursing home. (Chap. X, 93. (1)).

The Act also details crimes that can be committed against children:

No person, police, lawyer or journalist may disclose any information during legal proceedings which could lead to the child being identified.
No person who has charge of, or control over, a child may neglect them, abandon them, or leave them in a position where they may experience physical or mental suffering or abuse.
No person may employ or use a child for begging, or directly cause a child to beg. The due punishment is greater still for any person who amputates or maims a child for the purpose of begging.
No person may give, directly or indirectly, alcohol ‘any intoxicating liquor or any narcotic drug or tobacco products or psychotropic substance’ to any child, unless they are a duly qualified medical practitioner.
No person may use a child for ‘for vending, peddling, carrying, supplying or smuggling any intoxicating liquor, narcotic drug or psychotropic substance.’
No person may engage and keep a child in bondage for the purpose of employment or withhold the child’s earnings from them.
No person may offer, give, or receive an orphan, abandoned or surrendered child without following the provisions and procedures detailed in the Act. These procedures include ensuring that the child is in fact orphaned or abandoned and declaring through the Committee that the child is legally free for adoption.
No person may buy or sell a child.
No person may subject a child to corporal punishment with the aim of disciplining the child.
No ‘non-State, self-styled militant group or outfit declared as such by the Central Government’ may recruit a child.
No person may use children for illegal activities.
No person may kidnap or abduct a child.

The above crimes each have minimum punishments detailed by the law. They often are either a very large fine or several years in prison, and reflect the magnitude of committing a crime against a child. Any person who commits a crime against a disabled child (as verified by a medical practitioner) is liable to twice the normal penalty. (Chap. 9)

Apne Aap Women's Collective, 61-B, Room No. 6, Ground Floor, Shankarrao Pupala Marg, 11th Lane Kamathipura, opposite Pochammadevi Temple, Mumbai 400008, India
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Note: Apne Aap Women’s Collective (AAWC) is not in any way affiliated with Apne Aap Women Worldwide (AAWW).