The Supression Of Immoral Traffic In Women And Girls Act, 1956

[Cites 119, Cited by 0]

Law Commission Report

The Supression Of Immoral Traffic In Women And Girls Act, 1956

 

LAW COMMISSION OF INDIA
SIXTY-- FOURTH REPORT

ON

THE SUPPRESSION OF IMMORAL
TRAFFIC IN WOMAN AND GIRLS
ACT, 1956

MARCH, 1975



D.O. No. F.2(2).'74~L.C.

P. B. Gajendragadkar, Sliastri Bhawan,
'A' Wing, 7th Floor,

New Delhi-110001
Mrtrch 7, 1975

My dear Minister,

I have great pleasure in forwarding herewith the Sixty--fourth Report
of the Law Commission on the Suppression of Immoral Traﬂic in
Women and Girls Act, l956. The opening paragraph of the Report will
explain the circumstances under which the Commission took up this Act

for study.

This is the third Report of the Commission after it was reconstitu-
ted on the lst of October, 1974.

Having regard to the nature of the subject and its importance, the
Commission tirst made a preliminary study o[ the subject, and framed a
Questionnaire in order to elicit views. This Questionnaire was sent to
the Ministries concerned, the State Governments, the High Courts, Bar
Associations, and other interested persons and bodies, including the
Central Bureau of Correctional Services. The replies received in response
to this Questionnaire were carefully considered by the Commission. A
draft Report was then prepared by the Member-Secretary, P. M. Bakshi,
for discussion; it was duly circulated to the Members and, after full
discussion the Commission decided to make its recommendations for the
amendment of several provisions of the Act. Accordingly, the draft was
ﬁnalised incorporating the agreed recommendations. That is how the
Report has taken its present form.

I may point out that the provisions of the Act operate within a
limited sphere. They do not purport to penalise prostitution in general,
but deal with commercial or open prostitution. .In "fact, this limited scope
of the Act is consistent with the international Convention on the subject
in pursuance of which the Act was passed. The preamble to the Act,
makes this position clear.

When we took up this subject for our study, we considered two
main issues at the outset. The first was whether, in revising the Act, an
attempt should be made to cover a wider ﬁeld dealing with prostitution
in general, and the second was whether the proposed revision should
bring within its purview male participants in the act of prostitution.

'After examining in depth the pros and cons in respect of both these

questions. we decided to limit our recommendations in regard to the
L[P(D)I2llIofLJ&('-A--2



(ii)

revision of the existing provisions, keeping in tact the limited scope of
the Act. Our reasons for coming to this conclusion are explained in our

Report.

I would, however, like to add that, even within the limited scope
of the Act, we have made recomniendations which we trust may
rationalise the scheme of the Act and help its effective implementation.
With that object, we have recommended a revised definition of "prosti-
tution" as well as of "protective homes" and "corrective institutions".
Consequent upon the redeﬁnition of the two latter expressions. radical
changes have been recommended by us; in the operative provisions of
the Act.

As you are aware, the present year (1975) has been declared by the
United Nations as the International Women's Year. It seems to us that
the present Report can well be regarded as appropriate, because it seeks
to rescue and rehabilitate girls and women who, owing I10 circumstances
over which they have no control, have fatten in the trap of prostitution.
That, in our view, is an important aspect of the work which our nation
is expected to undertake during this year for the belterrnent of the
wornerfs position in general.

Before I conclude, l would like to invite your attention to the fact
that, in our Report. we have incidentally referred to another collateral
but important matter which needs immediate attention. In discussing
the question about revising the Act, one of the problems which we
incidentally considered was in relation to the children born to the prosti-
tutes. It is hardly necessary to emphasise that taking care of such child-
ren is an urgent and important problem which should occupy place of
high priority in our national effort for social reform. Since this aspect of
the matter falls outside the scope of our present inquiry, we could not
make any positive recommendations in regard to it. However, we
thought it necessary to draw the attention of the Government to this
problem and have very broadly indicated the line of approach which
may he adopted in dealing with it.

Yours sincerely.

[SCH P. B. GAJENDRAGADKAR

The Hon'ble Mr. H. R. Gokhale,

Minister of Law, Justice and Company Affairs,
Govermnent of India,

Shastri Bhavan,

New Delhi.



Ciuapt-=:1' N0.

1

Appendix I

Appcmlix 2

REPORT ON THE SUPPRESSION OF
IMMORAL TRAFFIC ACT, 1956

UONT1'IN1'"»'t§
-'iubject
Int-11'>rl11L'-H011
}i1'stnrica.1 Bs.ckg1'o'un(1
Scope of the Act . . _ . . .
Comparative Posificvu
Dcﬁnitinm;
Olfenees . , . . . . . .

Pruccdural Prnvisiunt-1

Miscel[a.ncoun

Implexnerutasiov. nf Lhe Ac7u----H mm L 21991 curb ]'<J£r2t._c

»*.;11In:nu.,1'y of rccc-nIn1enn:1a.tinm; . . . . . , , ,
A1'PF_-N IJICICS

(}'0mpa,I'u.l.ivr: Position as to pI'oSl.itl'--tim1 in «:tJw1- cn1u1tr.io::'

List of ﬁcntions conluinillg thu n.-:pr'::=_=%:ir=|1 "-.'.'o1n1un" or "girJ"', m-

buth the expresainns

(iii)

'1 HI . 1-:

BL

L":



REPORT
ON

THE SUPPRESSION OF IMMORAL TRAFFIC IN
'WOMEN AND GIRLS ACT, 1956

CHAPTER l
INTRODUCTION

1.

1. Scope and genesis of the .Report----This Report deals with the Suppression of [moral Trafﬁc in Women and Girls Act, 1956. This Act will hereafter be referred to as "the Act". The Commission has taken up the subject, in Vlﬁ'W of the importance of the Act as a measure of preventing the exploitation of women and girls foe immoral purposes.' The Commission thought that the social importance of the Act justiﬁed its consideration. It may also be mentioned that a Committee' was ap- pointed to suggest amendments in the Act some time ago by the Govern- ment of India. We shall give our comments on the proposals of the Committee' at the appropriate place.

1.2. Scope of the revision --As we shall indicate later'. the present Act is limited in its scope, but we have also considered the question' whether its scope should be expanded.

1.3. Evil of prosn'mn'on--Prostitution is. beyond doubt, a social evil. It has been an obnoxious feature of every society. It has been observed in recent study" of prostitution that' "in a theoretically good society, where sexual fulﬁlment ought to be possible as are other kinds of personal satisfaction, no one would be a prostitute or a client. . .". Despite the attempts made from time to time to check it. the evil of prostitution persists. The Act is one such attempt to check the evil.

Prostitution is also thought of as a threat to the marriagefami-ly institution". "Law-makers are afraid that the delicate threads which bind society together will be broken if people are free to engage in sexual activity for pleasure. Laws, it i.s stated. are often not enforced adequately because the police have too many other things to do. Judges also know that jail will not rehabilitate a prostitute. Nevertheless. laws exist to emphasise that prostitution is not a socially acceptable form of behavi- our."

1 See Para 1- 4, 2'-nfm.

' Para. 3-9, infra.

' It will be mferrerl in as "the fflomrnitia-tars".

' 'Para 3-! and 3-2 info.

I £'a.m 3-4 to 3-3. emu.

" Charles Willick, author of the book "The Lively Commerce" (Qunrdrutglo. Fii'!l). " Publishers weekly £24 May, 1971). Vol. 199, No. 21, page 53.

' Charles Whtick, as quoted in the Publishers weekly (24 May, I971), Vol. I I .-, Na. 2 ] page 53.

Thus, being a threat to the family as an institution, and a means of exploitation of females, prostitution is a social evil which leads to social injustice.

1.4.-Constitutional .provi'si'0n--~lt may be mentionedthat article 23(1) of the Constitution prohibits traffic in human beings. It also pro- vides that any contravention of this provision shall be an offence punish- able in accordance with law. Then, article 35(a)(ii} of the Constitution confers on Parliament exclusive power to prescribe punishment for those acts "which are declared to be offences under this Part of the Constitution (Which i'ncludes'article 23). Article 35(a} also provides that Parliament shall, as soon. as may be, after the cornmencernet of the Constitution, make laws for prescribing punishment for the acts which are declared to be offencesunder this Part of the Constitution.

Finally, article 39(f) of the Constitution provides that the State shall, inparticul-ar, direct its policy towards securing that childhood and youth are protected against exploitation and against moral and material aban- donment. It is. therefore, gratifying to note that soon after the com- tnencement of the Constitution, the Act with which we are now con- cerned, made provisions which seek to carry out the constitutional provisions referred" to above, although the Act purports to have been made in pursuance of an Int-cmational Convention.' 1.5. The institution of prostitution is the external manifestation of the failure of man to control his animal will within the limits set by the institution of marriage. The view of Westermarck and many other scholars is that the institution of marriage has existed in human Society since time immemorial. This is the generally accepted view. In no period of recorded human history has any civilised society existed," without the institution of marriage in some foriri or another. With the help of this institution, man has tried to tame and control his. brutal instincl.s and impulses. In this attempt. there has been a fair amount of success, but not full and complete success, because man has not always remained satisﬁed with the company of his wife and has sometimes sought the pleasures of the ﬂesh by straying beyond the limits of the marital wed- lock, with the result that institutions like prostitution arid concubinage have existed side b.y side with marriage since times immemorial. For the greater good of the family and society, 111311 has tolerated these 'institu- tions as necessary social evils. In ancient India, concubinage and prosti- tution were not unknown. In the Rig Veda Samhita, there is reference to the [am (paramour) and his concubine. There were heavenly prostitutes also. They were known as apsizrras and urrasfu'.s'. Quite often they were sent by the king of gods (Indra) and other gods too to entice human being who were engaged in the practice of austere penances for gaining knowledge of the.Si.ipren1e Reality.

1 l'a.1'a 2- l, 1'-nfrrr. __ _ _ 2 [ail Hoehol, Ant-hi'opolo;_r_y (1966), page Sill.

(ii) 'II=i'qlmuso. l'[ii'.tl.'-3 in Plvnlutirin (|9'iTl. win. 50 I354.

The prostitute was known as ganika and veshya, etc. Chanakya 533/5. "sala1_ja ganrkah nastah" (Shy prostitutes are no good). In the drama "MI1chha Katika", it is stated':

"Like the pond, creeper or the boat. you, who are a 'prosti- tute, yet: (should) adore every person."

1.6. R0me----The late Professor W- W. Buckland" has, in his famous book on Roman law, state.d:--

"Concubinatus was a recognised connection short; of marri- age, which seems to owe its legal recognition to the restrictive legislation of the early Empire on marriage......... It was en- couraged hy the immorality of Roman women of high rank; men preferred to contract this union with women of lower class but higher character ....... -. .

1.7. Attempts to Stop prostitution not successful--Any attempt to stop prostitution by legislation or by any other means of social control has always proved abortive. Prostitution has, therefore, been tolerated as a necessary evil. No country in the world has been able to stop this institution successfully. Even if the law stops it, then, in some other insidious and subtle form, it is bound to reappear in society' and that may have greater potentiality of destroying the peace in family life and also in society. The recent institution of call girls seems to he an instance in point.

Hence, instead of banning it totally, the law in every country has tried to regulate it so that it may be kept within its legitimate bounds without unduly encroaching upon the institution of marriage and the family.

1 (Mrichhn Kabikal.

seq arrufm one Fﬁﬁa =?1a:=nFe set not we I 3 Bnckland, Roman Law frurn Augustus to -Ilistininn. (1953), page 129. 5 See also, para. 3-3. «infra.

CHAPTER 2 HISTORICAL BACKGROUND

2.1. Brief history of the Act«--The Suppression of Immoral Traﬂ-lc Act is the first Central Act dealing with comrnercialised vice in a com- prehensive manner, and has taken the place of several Provincial or State Acts' that were operative on the subject in the various States. Occasion for passing a Central Act on the subject arose when the Inter- national convention dealing with immoral traffic in women and girls was signed in 1950. But, even in the absence of such 21 Convention, uniformity in this respect would have been desirable; and it is, there- fore, convenient that the law is now contained in a Central Act.

2.2. Early efforts at regulation/During the days of the East India Company, the Company had regulations dealing with sex offences." In I668, the Company Authorities issued regulations against prostitution. These were known as "Company Commandments", and compliance with those regulations was strictly required. During the years 1669 and 1677, Governor Anguri issued orders for the control of brothels and for the prevention of soldiers from keeping wenches and loose women. This was the first time that brothels came under the purview of law in the British period. Before the year 1860, there were only a few Regulations on the subject.

In I860, the Indian Penal Code was enacted, and sections 372 and 373 of the Code were intended to prevent the inducting in prostitution of women under a certain age and against their wish. The Contagious Diseases Act, [868 aimed. at compulsory examination of common prostitutes and their detention in hospitals_ till they were cured. This law proved irksome, and was repealed in 1888. The Presidency Town Police Acts and District Police Acts made certain acts pertaining to prostitution penal.

-2.3. Developments in the latter half of 19th century----lt was during the latter half of the 19th century that the Government of India took notice of the evil of prostitution. This was primarily because the Govern- ment was concerned about the health of the British soldiers who indulg- ed in the vice. The problem was looked upon more or less as a public health problem, and also as a law and order problem_ In I892. the British House of Commons appointed a Committee to enquire into the practice of prostitution in India and also into the spread of venereal diseases. It was found that special arrangements were made for the supply of women. Medical check up and segregation till the women were cured, was the usual practice. All these etlorts were. however. not considered adequate. More vigorous steps were, therefore felt neces- sary.

1 See para 2-2 and 2-3, infra.

2 Based on Encyelotmeriin. of Social W'ork. U970}, Vol. 2, pages 102-103.

D An Act aimed at discontinuance of brothels, known as the East Bengal and Assam Disorderly Houses Act, 1907, was passed in 1907. That Act was applicable to certain areas of East Bengal and Assam, and provided for the prosecution of the brothel keepers with the sanction of the District Magistrate or on a report of the Chairman of Municipality or on a complaint of three or more persons living in the neighbourhood. For verifying facts, the police ofﬁcers were empowered to inspect such houses. For some years after this Act, no action of great signiﬁcance was taken in relation to this subject.

2.4. Local legislation since 1923--ln 1923, the Calcutta Suppression of Immoral Trafﬁc. and the Bombay Prevention of Prostitution Act were passed. The Calcutta Act was replaced by the Bengal Suppression of Immoral Trafﬁc Act, 1930- In 1923, the Province of UP. enacted legislation for the suppression of immoral trafﬁc in women and girls. Punjab followed in 1935, and Mysore in 1936.

Heavy penalties were provided by these Acts for living; on the earn- ings of prostitution, for keeping a brothel, for allowing premises to be used as brothel, for procuration, for unlawful detention for prostitution, for importing a female for prostitution and for encouraging or assisting in prostitution.

Legislation dealing with speeilic aspects of prostitution may also be noted at this stage. For example, the U.P. Nail: Girls Protection Act and the Bombay Devadasis Act were passed in 1929 and 1934. respectively. The Children Act passed in Bombay. Madras and Bengal gave some protection to boys and girls in moral danger.

2.5. Prostitrrrion in ancient cfvifisatirirtx-«AS is shown by the dis- cussion in Chamber's Encyclopaedia,' religious prostitution was a feature of many ancient civilisations, including those of Persia, Babylonia. Assyria, Egypt and Phoenicia. Among most of these peoples the priests and priestesses were a special class of prostitutes. In Babylonia, however, a compulsory single act of prostitution was required of every woman as part of the Worship of the goddess Mylitta. The most plausible explana- tion of religious prostitution is the belief of the ancients that beneﬁts would be conferred on any one who had intercourse with a god or with one of the god's servitors."

2.6. First rescue home--Theodora, wife of Justinian. established the ﬁrst rescue home 'for women. Edward Gibbon' attributes Justinian's action to his desire to marry Theodora. whose life had been notorious; but, though, no doubt, she inﬂuenced him in the matter, Gibbon con- cedes her virtue after marriage, and gives her credit for "the most bene- volent institution" of Justinian's r€gl0I1_.--lhe rescue home for fallen women in Constantinople. Though this institution did not succeed, it marks a turning point in the treatment of a class which had never met with public sympathy before.

1 Chambers Eneyelopaedia, {I961}, Vol. II, page 257.

3 Chambers Eneyclopnedia, (1961), Vol. II. page 257.

3 Gibbon, Rise and Fall of the Roman Empire, cited in Eneyelopaedia. Britannica, (1965) Vol. 18, page 598.

CHAPTER 3 SCOPE OF THE ACT 3.1. .5corpe of the Act----Ihree broad categories off 0_ﬂ'el':ces----A few observations about the scope of the Act may be made. It is a. common misconception amongst laymen,--and sometimes even amongst lawyers---- that lhe Act is intended to prohibit prostitution. The Act. in fact, does not go so far. it deals with prohibition only in some of its aspects. In the first place, if a person promotes prostitution by another person, and derives a monetary beneﬁt therefrom, the Act applies.' Again. if a per- son exploits women and girls and makes them lead a life of vice, the Act is attracted? Finally, if a person solicits customers for prostitution in the specific circumstances, he is punished under the Act." Under sec- tion 7, for example, prostitution in the vicinity of public places is punish- ed. In short,'-

(i) proﬁting by the prostitution of another person, or

(ii) exploiting another person for prostitution, or

(iii) soliciting in a public place etc.. are the broad categories of the main otlences created by the Act. But a woman or girl who offers her body for hire. without soliciting or doing any of the other acts mentioned in the penal so-cI.ions_. is not guilty of an offence under the Act. The Act, thus, stops short of banning prostitution absolutely, and deals with only cer-

tain speciﬁed and concrete forms of immoral conduct. The ultimate object is, no doubt, to check prostitution, but the methods adopted are limited in their scope. The philosophy reﬂected in the Act is that the law should stop only where the vice either assumes a commercialised form, so that public policy requires its suppression, or appears in a public place, so that it constitutes a public nuisance. In the absence of Such Special features, the more immoral conduct which is known as "prostitutior1"_.----and which is deﬁned in the Act :+lso."--is not treated' as criminal.

3.2. Reasons for narrow scope of the Act-One could think of many reasons that account for the present narrow scope of the Act.

The corresponding law in England----previously. the Vagrancy Acts imd the common law as to bawdy houses, and now the Sexual Offences Act. 1956 and the Street Offences Act. l959----has always been narrowly 1 Sections 3 and 4.

3 Sections 5 and 6.

3 Fl:-etinna 7 and S. ' For do'-Etaileil analysis nF' Offeiiees see Chapter Pi, iiaf-rig-..

-" ."~'eetir_in 2tf)ﬁ"prnsi.it.iition".

h drawn. The common law punished, as a public nuisance, the keeaprug of bawdy houses, and the letting of premises on hire for prostituttﬂn. and some olfences were added by the statutes mentioned above. But the criminal law in England always steered clear of a total ban on prostitu- tion. Even the Act of 1959 does not go so far. Secondly, it must have been presumed by the legislature that a total ban on prostitution may not be effective Thirdly, the International Convention on the subject did not go: so far, and as we have already noted, it is on the Interna- tional Convention that the Act is based.' Lastly. the pre-existing provin- cial or State Acts were also narrow in their scope.

3.3. Abolition not prrrc1icab!e--éThere is, however, a deeper reason also. Prostitution, though an evil, has been regarded in' almost all socie- ties as an unfortunate but a necessary evil. and Indian society is no exception." Various measures have been adopted from time to time to check the evil effects of prostitution and to control its undesirable aspects, but the inarticulate assumption that the law cannot abolish it effectively, has been the basis of legislation in India as well as in many other countries Down from 1837, when the Penal Code was taken up on the anvil,' to 1956, when the present Act was passed, it has not been considered necessary to go beyond the provisions which we ﬁnd in the Act.

The Act is, therefore, concerned not with prostitution itself. but with the manner in which the activities of prostitutes and of those asso- ciated with them which offend against. public order and decency, expose the ordinary citizen to what is oﬁensive or injurious, or involves the exnloit.ation of others.

3.4. Quesf:'on of total prohr'bi1r'on »Theorctically, the question why prostitution should not be totally prohibited. or restricted more inten~ sively than at present, could certainly be raised.

Such a question has, in fact, been raised outside India more than once. This and similar proposals raise vital questions as to how far the law ought to go in regard to interference with the freedom of an indivrl dual to act in the sphere of sex. As a general rule. only behaviour which causes harm to the individual or to the community should be prohibited by the criminal law. There is. however_ no universal agreement as to what acts cause such harm. That the true obiect of the neural law is to provide punishment when iniurv has been inﬂicted.----iordinnrilv with the requisite me?-is rm. ais not denied. But the qtrestion to be asked in making out the bounds of criminalifv would be. what constitutes sulﬁ- cient iniurv, and when is the imposition of nunishment for causing that iniury justiﬁed. The question. therefore that arises again and again is:

What conduct ought to be declared as a crime?

1 Para 2-l_. sugprn, ' Fire. Para. 1- '7. dnq'M'o..

3 The ]'c*I-ni ('ode was amnfnlljv pa=.s'o:l in l.'WE".

3.5. Two views as to drawing the line-T11is necessarily takes us to the well-known Controversy whether all behaviour which is deemed' to be morally undesirable ought to be punished by the Criminal law. That a line must be drawnbetween the demands of sexual morality and the requirements of the Penal Code, is not in dispute. But two views prevail in the matterrwtliat is to say, with reference to the question where precisely the line ought to be drawn. According to the narrower view, the law should reach only acts Causing positive harm. According to the wider. view, the law should also punish behaviour which, though not causing positive harm to the individual, may damage the cherished moral fabric of the society, and destroy vaiues which are considered worth preserving at all costs. The usual testing ground of this controversy has been the subject of criminal sanctions 'for certain indecent acts between males; but the controversy is of :1 recurring natur-e_ In the West, Lord Devlin and Professor Hart have been the chief exponents of these two ideas.' 3.6. W ider view not rer.'(m1mer1de(i'--It appears to us that so far as prostitution is concerned, the adoption of a wider view should not be recommended,----in any case at this stage. Conduct of a particular type may be-

(i) approved by law;

(ii) permitted without approval or disapproval by law;

(iii) disapproved but not prohibited by law;

(iv) prohibited by law.

Prostitution falls partly within category (iii) and partly within cate- _gory (iv) above." The fact that certain types of prostitution are not totally prohibited by law. does not necessarily imply that they are npprovcrl i:«;.-' the law.

We think that, in principle, in the absence of very strong public opinion to the contrary. the present legislative approach as regards prosti- tution is. broadly speaking. satisfactory. Prostitution, in so far as it consists of secret acts of consenting individuals without exploitation, and in private, is not appropriate for penal sanctions. and the fact that the pleasure derived from such Prostitution is one which is socially disap- proved, is not in itself a suﬂicient ground for the imposition of criminal sanctions.

1 (ct) H.L.A. Hart, T.a.w Liberty and 3*Iorality {I963}. (II) R. Dworkin, "Lorrl Devlin and the Enllureeinent of morals", (1966) 75 ynlc L. J. 986. (6) Hart "Social Solidarity and the Enforcement of Morality", (I967) 35 U. CHI. L- Rev. (:1) Katlisli, "The Crisis of Ov-*1 crimin:1lisati:-11" (T967) 2374 An|1a,l5' of the Anjerican Anarlomy' of Political F-lciences 157.

(6) Stephen, Liberty, Eqllaliby, Fraternity, in Ra-dcliFFc {Edi Limits of Liberty) (1988) p. 435.

ff) Rolf, Fiarhorius. "F.'nf'oreen1ent of Morality " (I97l) SI yale L. ._T: 891. (gr) Loueh, "E-'xiii and Clrime" (I968) 43 Philospliy 38, -15. U1) Ro.'s'f:oW, "The Enforcement of M'urgris" (1960) Cambridge L..T. I74.

2 Pa.I'n. 3-1 to 3-4 supr.:t._ 9 3:7. Moreover, it appears to us that where the law deals with sexual behaviour between consenting parties in private, its enforcement would be difficult. Laws which prohibit sexual acts when committed in private

----aSSumIng that the acts are considered appropriate for penal sanctions' "Call, for 0bVlO1]S reasons, be enforced only to a limited extent, however much the conduct may be, the subject of moral condemnation.' 3.8. Views expressed on the subject of nzoraiity and law-----While we are dealing with this aspect, we may refer to the opinion expressed by the Street Offences Committee--"

"As a general proposition it will be universally accepted that the law is not concerned with private morals or with ethical sanc- tions. On the other hand, the law is plainly concerned with the outward conduct of citizens in so far as that conduct injuriously affects the rights of other citizens. Certain forms of conduct it has always been thought right to bring within the scope of the criminal law on account of the injury which they occasion to the public in general. It is within this category of offences, -if any- where, that public Solicitation for immoral purposes ﬁnds an ap- propriate place."

Secondly, as has been observed," "the immorality of an act should never be the decisive factor in making it illegal, since the appropriateness of a moral sanction does not entail the appropriateness of a legal sanc- tion. What is grist to the ﬁne mill of morality, may well escape the clumsy engine of the law or be mangled by it. But any attempt to ex- clude the immorality of an act as a relevant factor in deciding whether to make it illegal, is both dangerous and futile. [t is dangerous, because it leads to the illusion that a legal system can function without the foundation and the frame of reference of a moral system, and it is futile because moral values have a way of inﬁltrating into even the most anti-

septic legal system."

3.9. Report of earlier Committee in India---Bcfore we part with this topic, we may note that in 1968. the Government of India appointed a Committee to consider various suggestions that had been received regarding amendment of the Act? The Committee, in due course sub- mitted its Report." Though the recommendations have not been forward- ed to us formally, we have had the opportunity of going through them. Recommendations made by the Committee in matters of detail will be 1 Para. 3-6, supra.

9 See also para. 3- 16, irtfm.

3 Report ofthe Street Offences Ccmmi1.tee (ISIQH), (Tinrl. 3231, quoted in tJ'e I{Bp0t'l of the Committee on Homo-sexual offences and I'rostit-ution [195'7), (lmcl. 247, page 80, para 2'-_'-7.

' ILA. Same}-r, "Enforcement of Morals", (May, 197].) 49 Canadian B.R. 188, 221.

5 Government of India, Department-rof Social Wclfare, Memorandum No. .l4f4}65, F. No. 5, dated 30th March, 1968.

" Report. of the Committee on Amendments to the Suppression of Immaral Traffic in Women and Girls Acts, 1968 (Hereinafter referred to as 'the Committee').

considered at the proper place. but we may state here that the Com- mittee' was of the opinion that the objective of the Act is the suppres- sion of Immoral Traflic in women and girls in form of cron1mcrciaIt'5ed promiruttori, and the amendments of the Act should be related to that objective.

3.10. Professiorr of ml1--gir-'l.s'----'We should note, however, that the Committee' expressed its concern over the increasing problem of "call- girls and clandestine forms of prostitution". The Committee stressed that it is "only through an integrated programme of public education and community organisation that the moral and social health of the people in general could be ensured". In this connection, the role of the voluntary organisations in creating the necessary social climate for tackling the intricate problem of human degeneration was also emphasised.

The relevant paragraph of the Report, however, ends with the following recommendationsﬂ Recommendation N0. 19 "The terms 'prostitute' and 'prostitution' should be made comprehensive so: as to cover all forms of clandestine prostitu- tion including call--girls."

3.11. Amendment re3a.r'dr'ng call-girls not recommended We have given careful thought to this recommendation. It' the intention is that 'call-girls', i.e. girls who are available for prostitution on a telephonic or other message being sent to them, should not be allowed to practise their profession if it is carried' on for the gain of another person" or for the mutual gain of two or more persons.' then the amendment would he merely clariﬁcatory, and we shall assume, for the moment, that such a clariﬁcation is needed. But, if the intention is that there should be a total ban on call-girls, we are afraid that it would go beyond the general scope of the Act. As we have pointed out alsovef' and as indeed was noted by the Committee also," the scope of the Act is narrow. The Act does not abolish prostitution as such. The main acti- vities which it punishes are prostitution of another person for proﬁt of oneself, or promoting prostitution by letting out a house, -exploiting girls for prostitution in speciﬁed places and the like.

The fact that the appointment with a girl is made on telephone, or that she is requisitioned to otter her services at the residence of the customer who sends the requisition, would not, in our view, in itself.

' .Hepo1't of tho U0111t11il.t:eu on A_t11enLlmc11t,S to the ?_*L1;J[)I'eHH]'t)n of lnunnrnl Trnﬂir in Women and Girls Act, paragraph No. 5- 2. :5 lid Reeonimemlation No. I. " Report of the Committee on Aniemlnientri to the >'§t'l[Jp['eSHl\'J[i oi" ln: nioral --l'r'aiﬁ1o in Women and Girls Act, para 5- 7, and I'eGOI1]Il'l('lI(lttll()1'| No. I9.

" Ofsection 2(a), definition of 'brothel'.

1 See also pawn 1}-12, 1'itfr'r.'..

3 l'rtragra.ph .'l-6, .m,am.

" l':tr'riuI'a§ili I3-ll .-.u.girr.

ll justify a departure from the general scheme of the Act, if the call-girl does not parade her charms in the public, or indulge in soliciting or in any of the other prohibited acts. If prostitution is practised in a manner which is offensive to a neighbour. then a civil remedy for nuisance is also available, as Such acts Cause undue and ur1rcason-- able interference with the comfortable and convenient enjoyment of the neighbours premises,' and the whole character of the street might change for the worse} But, so long as prostitution itself is not a crime, the individual act of a girl who otters her services on phone cannot be prohibited. It is hardly necessary to emphasise that these observations are made in the light of the narrow scope of the Act.

3.12. CaIl--girl establishmentsV--Call-girl establishmenl:s-----i.e. houses or ﬂats to which men go and to which prostitutes are summoned by telephone message or some other arrangement/stand in a ditferent category. In most cases, they would satisfy the existing deﬁnition" of "brothel", or attract the penal provision relating to living on the earn- ings of prostitution.

3.13. Position in some other c(mnm'e.5'--We are not unaware that in some of the other countries, prostitution when carried on as a busi- ness has been prohibited, and the relevant statutory provisions appear in a wider form than in India.

3.14. Statutes in some States in the U.S.A.-For example, in the U.S.A., some modern statutes generally enlarge upon the common law basis.' The following extract from one of the statutes in force in Iowa will give some idea of the general pattern adopted by States which go beyond the common law, although the statutes differs substantially in the different states:

"if any person, for purpose of prostitution or lewdness. resorts to. uses, occupies or inhabits utly house of ill-fame or place kept for such purpose, or if any person be found at any hotel, boarding house, cigar store, or other place leading a life of prostitution or lewdness. such person shall be imprisoned in the penitentiary for not more than five years."

3.15. The Model lg-'enal Code of the American Law Institute"

recommends the following provision:---

"Section 251.2. Prostitution and Related Oﬂences.

(1) Prostitution. A person is guilty of prostitution, a petty misdemeanor, if he or she:

"(a) is an inmate of a house of prostitution or otherwise engages in sexual activity as a business.' or

(b) loiters in or within view of any public place for the purpose of being hired to engage in sexual activity .......

' Tlwmpson Scfttmb V. Costakti, (1966) l VV.T..l§l. 355; (I956) 1 All E.'Fi. 552.

" Flee also Chapter 4-, infra.

3 Section 2(a); see para. 4-2, infra.

' Perki.ns, Criminal Law (1957), page 335.

5 luwa Code Annotated, article 724-1, cited in l-'erkius, Criminal Law (1957). page 3.'i.'»_ ' Model Penal Code, proposed l')ﬁim'rtl Dr-a.ft._ (I962), S(GtIl0l1 25!-2. ' lo '.1 3.16. Effective enforcement not pi-acn'cable--We are not, however, satisﬁed that a wise provision which punishes not only the inmate of a house of prostitution but also a person who "otherwise: engages in sexual activity as a business"; can be effectively enforced?

3.17. Prostimrian a social problem--In our view, prostitution like many other evils, is a social problem, and the eradication of such evils cannot be achieved by legislation alone, as it requires the cooperation of every individual citizen as well.

In the dialogue between King Ashvvapali and the six Brah1nins* in one of the Upanishads, there occurs this passage:

"In my kingdom, there is no thief, no person indulging in dirty and bad actions, no drunkard, no Brahmin who does not keep and worship the Fire, no person who is not learned, no man of loose 1norals----from where will come any woman of loose morale?"

When the general moral level of the community rises to this exalted idealistic level, prostitution also can be brought down or more effect- tively reduced. But, as rcalists, we are not prepared to recommended such radical changes, because we [car than legislation based on such idea- lism may prove to be an exercise in futility. Besides this, it may go beyond the scope of the Act. The Act, as is shown by the title, is conﬁned to "suppression" of immoral traﬂic. and a measure prohibiting prostitution would travel far beyond its present scope.

1 Para 315, 3'ti'.19?'G. " pee . lso para. 3-7, sufmr.

3 Ululiaclngyopariisluici, 5l.h Chapter, llth I'a.rt.

CHAPTER 3A _ COMPARATIVE POSITION 3A.l. Prostitution being a world-wide phenomenon, it may not be out of place to make a brief comparative survey' of the legal position in respect of the problem. It appears that countries of the world can, with reference to the legal attitude towards prostitution. be classiﬁed into four broad categories:--

(a) total prohibition;

(bl regulation;

(cl) total toleration.

Countries in category ta) regard prostitution as illegal in all cases. In these countries prostitution per se is a crime. Hence. even clandestine misconduct is punishable. Countries in category (bl regulate prostitution by licensing or other measures, but do not prohibit it totally.

Under the traditional system of regulation. licensed brothels are allowed, and the inmates of the brothels are issued cards and may ply their trade subject to certain rules laid down by law. There is also what has been called' the "neo--regulationist system". under which brothels are prohibited, but prostitutes hold cards and are supervised by health authorities.

Countries in category (clam-to which India belo'ngs--repre:;s prosti- tution by "forbidding its blatant manifestations; while those in category id) impose no prohibitions or restrictions on prostitution.

3A.2. Repressive measures why hampered--lt has been stated" that repressive measures" against prostitution are hampered by three main considerations: the persist.ent demand for exclusive physical satisfac- tion 'which the prostitute offers; the existence of :1 type of women who is drawn to prostitution her psycho-neutrotic make up; and the social attitude towards Sex. The modern view' is that the underlying causes of prostitution today are not economic but psychological, though this does not apply to the period of religious prostitution. or to the Phriod when prostitution was generally condoned, or when no other means of livelihood was open to indigent women. Socio-economic factors are still important in borderline cases. But. with a few exception.' prosti- tutes show an anti--masculine attitude so strong as to be psychcneurotic ' For a detailed snrvav of the laws of other eoiintries. see Appendix. ' Chambers Encyclopaorlia. (1961). Vol. II, pages 258-259.

3 Para 3 A 1 (.5), supra.

4 Chambers Encryulopaf'-rliu (1961), Vol. 11, pages 258-259. Chambers Encyelopaedia (1961), Vol. 11, page 259.

l 3 Lfl'(T)ll 2\'[0fLJ¢I5UA--3 14 and, for tllem, the performance of the love act for payment Constitutes se.lt'-assertion, while at the same time they derive satisfaction from the Lttliq-'.lC 'iudepenctence' of their profession. This inner c0:::'e:ion applies equally to the so-called while slave trade, in which the 's.1aw:s:' are generally free agents. Sjgniﬁcaiitly,' a survey of 100 prostitutes reveal- ed that married men constituted 70-- 80 515. of their clients. It is, there- fore, possible to conclude that today prostitution is a necessary evil largely because of an unlightenecl social atliltldl; resulting in a general lack of understanding of the true place of sex in marriage and in life.

3A.3. AppemYi.x--We have, in an Appendix to this Report." set out In detail the comparative position in other countries, and we need riot reprrrcluce in this chapter all that, is contained in the Appendix.

1 L'-l1a;:11l-cr,=3 J;][lG::u"ClﬁTY'~O'jiil. (L951), Vt-L ll. [In-£3 1359-

" ﬂee App-e-Dali : :9 t.l1'.s RF'-}TIl)|'l.

' CHAPTER 4 DEFINITIONS 4.1. Sections of the Act c0n.s'idered----We now proceed to consider the Act section by section.

4.2. Section 2--Section 2 of the Act contains several deﬁnitions. The first of these is in clause (a), deﬁning "brothel" as follows:-----~ "(a)Secn'oII 2{a)--"brothei"--'brothel' includes any house, room or place or any portion of any house. room or place which is used for purposes of prostitution for the gain of another person or for the mutual gain of two or more prostitutes."

For properly appreciating this deﬁnition, it is desirable to refer to the common law.

4.3. Position at common law----ln ccmmon law, a "bro?.'hel" is a place' where people of opposite sexes are allowed to resort for illicit intercourse, whether the women are common prostitutes or not'"'; and keeping a bawdy house" is a nuisance at common law (see 3 Co. inst.

204) as well as a statutory ollence {Sexual Offences Act, 1956. section 33}. Indeed a statute over two hundred years old stipulates that any two local inhabitants may g__1iv'e notice of it to a constable of the parish who after talkiiig certain steps, is bound to prosecute on pain of for- feiting £20 to each of them ("Disorderly Houses Act, 1751, section 7'). Besides. on Conviction, each oi." them is entitled to receive on demand a reward of £10 from the overseers, who, if they fail to pay it. would forfeit double than sum. (Disorderly Houses Act. 1751, section 5). More- over, a person licensed to seli liquor who knowingly permits his pre- mises to be a brothel is liable to the forfeiture of his licence as well as to a ﬁne, and the house must be closed.' 80 strict is the law on this point that it applies in this context the principle of absolute responsi- bility. Accordingly the knowledge of a servant in charge is imputed to the master." and an absentee co-licensee is liable for the acts of his co- liccnsee to whom he has delegated responsibility for controlling the business."

1 Note "Criminal L:1.w", (1959) Vol. 223 Law Times. page l3!'I. I37. 2 Winter 7. wmlfzv, (I931) 1 K.Fl. 5/IQ.

3' See also Chapter 3, para 3- ll, -5'H.j')f'ﬂ';.

4 Licensing Act, I953,sectio11 lrlO_ 5 Allen \'. Whitehsrsd, (1930) l I-{.13. 211.

"' Ltivtm'-it V. <U'etr0p0lP'frm Potion (?am1n.£s.sioner. (194-Iii I All l'I.!'.. ."-RH.

l 5 16 The law is not less technical tow=.irCls property owners, for a block of ﬂats inhabited by dilferent women and used by them for prostitution has been condemned as a brothel;' though two ﬂats in one building separately let to prostitution, it has been held do not constitute a brothel? Generally. it is an offence for any lessor or landlord or his agent to let premises with the knowledge that any part thereof is to be used as a brothel, or to tolerates such user." The same applies to a tenant or occupier who knowingly permits any part ol his premises to be used as a brothel or for the purposes of habitual prostitution; while a convic- tron puts the lease or contract of tenancy in jeopardy.' Finally, notice from a person of credit to a landlord that his house is used as £1 brothel seems to be suﬂicient to make him liable, unless he forthwith takes effective steps to stop such user.

_ The deﬁnition in our Act is conﬁned to prostitution, but the policy is substantially the same.

4.4. Reconirnc>nrt'atfon regarding 'broI!m."--VVe now consider the stiggestioiis relevant to the deﬁnition. There is 21 suggestion' to add the word "con'~/eyance" in the deﬁnition of 'brolhel'." The rea,so.n given is that dilﬁculties have been experienced by police ofﬁeers dealing with cases in which taxies are regularly used as a brothel for the purposes of prostitution. This situation may also arise in some places where boats may be used for similar purposes. It is also pointed out', that within the meaning of the Act, a 'public place" includes a public conveyance.

We agree with the suggestion. as we think that the reasons given above are sound.

4.5. Recommemlatiorz to anicrirl (2'<{firii'rirm of 'brothel'--- We. tl':»cre- fore, recommend the following re-draf I of section 2, Clﬂufte (all which deﬁnes the expression 'brothel':--ﬁ "(a} 'brothel' includes any house, room, crmveyanr.-cr or place or any portion of any house. room, conveyance or place which is used for purposes of prostitution For the gain of an- other person or for the mutual gain of two or more prostitutes."

4.6. Question of pI'€SLli'npT'f0}'i to be drawn from corwi-ion agmc}.= co:m'dc:-m' /The Committee" made a recommendation for adding' a presumption to the effect that when two or more prostitutes 8SSO"1E]tC under a common agency or link, they do so for their mutual gain or for 1 Dwrose V. ll'ELs0ii, l'l'.l|J7} 96 L.T. Rep. 64:3. i5't-razfir. V. i"'nzrm, (1955) it All ]'l.]'€. 398. F§exi1a.t 0tT'e-noes Act, 1956, Scrrtion 3-1.

Soxiiul Oflvnees Act, 1956, section 35.

ta ta 'at Siiggestiun of the ('Cntral Bureau of (_'oI'r0t-tinll Ll »'i<'I'vir'r\'$. '-" Para 4- 2, 3't£jt99"li.

'7 Section 20:), 'puhl1'e pl 'G8'.

3 Report of the tlnniinitiee on nmenalinents in tin' .'3'iippros.sii n of Immoral '.l'I'aflii" .-let, ixuru 5' 3.

l 7 the gain of another person. The object of the suggestion is to facilitate etlectivc prosecution, by shifting the onus of proving to the contrary on the accused. The Committee also Stated that. the question whether such a presumption could be extended to one prostitute or not, may also be examined. The suggestion is relevant to the deﬁnition. oi' 'brothel"

given in section 2(3).

We have carefully considered the suggestion. We do not, liowever, see the need for inserting any such presumption: It may be true that when two or more prostitutes associate under a corninon agency or link, it. is more likely than not that they do so either for mutual gain or for the gain of a third person. But it tip[)€tlI'S to be uiinecessary to insert presumptions on so many matters of detail in this Act, or, for that matter, in any other similar Act, L|t1.lL1.:..'5 practical ditticulties. disclosed by the reported (iecisiom or otlie-i'\vist:. necessitate the drawing of such presurnptions. Moreover. section H4 01' the Indian Evidence Act is wide enough to empower the court to d1';1vv ri presumption. having regard to the various considerations mentioned in that section. A host of inferences are daily drawn by the court about various malters._ too numerous to be mentioned here conveniently. The substzmtive law need not, in the absence of compelling reasons, he made replete with pre- sumptions.

4.7. Recommendation to ir1.s'ei't dceﬁm'I."rm of 'c0rrect'ivc= iristitrrrfrart'

---We now come to a point which involves the addition of a new deﬁni- tion. We have. later in this Chapter." discussed the question of revising the deﬁnition of 'protective home'. The scheme which we contemplate in this connection will be evident from that discussion. At this stage, we may mention that according to our scheme. the two kinds of insti- tutions should be kept separate. in cascs where protection the primary need, the girl will be sent to a protective irstitution. CorI'ective.institu- tions will be reserved for women who need corrective training, and who are criminals rather than victims. In order that this scheme may [ind a place in the legislative frame-work. a definition of "corrective institu- tion" is needed.

We, therefore. recommend that the following deﬁnition of "correc- tive institution" should be inscrted in section Erﬂ Revised deﬁrirlfio.-1 "taai 'corrective institution' means an institution, by what- ever name called, in which women and girls. who are in need of correction, may be detained under this Act, being an institu- tion established or licensed' as such under section 2!, and includes a Shelter where female under trials may be kept in pursuance of this Act."

1 Para 4- 9, Supra, '-' Rev p+ir'.-1,-'l-- 33. infra I'Pi-iutoolivm lmrnoi.

4.8. Section 2th}, 'gfrl'----Section Ztbl deﬁnes ''girl'' as a female under the age 01' 21 years.

There is a suggestion that' there does not appear to be any rational justitication, in the present stage of social development, in not t'l"£:t'.i'.Itrtg tr girl who has carnptered the age 0}' 18 years as a woman. It has, there- fore, been suggested that section lib} may be amended by dctining "girl" as a female who has not completed the age of 18 years. This will require a consequential amendment of section 2(j), and section Ztjl may be arnended to describe "worna1'1" as :1 female who has completed the age of 18 years.

We have considered the sogggestion carefully. but are not inclined to accept it, as girls between 18 and 21 years also require protection. We may also not that the distinction between "wo:7nan"' and "girl" becomes material" only in sections 1514), 16(1) and Hit), which are conﬁned to "girls". The other sections use both the expressions.

The question whether the age should be reduced to 18 years, as has been suggested, is one of policy. Before making the change, the Con- vention in pursuance of which the Act was passed also may have to be stuClicd_ Hence, we are of the view that the matter should be left to the "Department.

There is no provision in the Act using only the expression "woman", except the definition of "'woman'". The provisions containing only the expression "girl" are quoted bclow:----

"lii(4l The special police cﬂiccr entering any premises under sub- section (1) shall be entitled to remove therefrom any girl. if in his opinion she is under the age of twentoone years and is carrying on or is being made. to carry on, or ::lte1r.u_:Jts are being made to make her c:arr_s,v on. prostitution."

"16t1) Where a magistrate has reason to believe. from information rcceivcrl from the police or otherwise, that a girl apparently under the age of twenty--one years, is living, or is Carrying on, or is being made to carry on prostitution, i11 at brothel, he rnay direct the special police oliicer to enter such brothel, and to remove therefrom such girl and produce her before him."

"l7(ll When the special police officer removing it girl under sub- section (4) of section 15 or resetting a girld under sub--sec.tior1 (ll of section lﬁ, fails to produce her immediately before the magistrate as rcquirecl by subsection (5) of section if? or subsection (2) of section 15, he shall forthwith produce her before the nearest magistrate of any class, who shall pass such orders as he deems proper for her safe custody until she is proclucecl before the appropriate magistrate."

1 kl. No. 45 (15th October, 1974) (Suggestion of the lkpartment of Social Welfare). 2 ;'w'ee_- Jtppenrlix 19 It may also be stated that when section 366A--B, l.P.C., was en- acted by Act 20 of 1923, to give ellect to certain Articles of the litter- national Convention for the Suppression of Tratﬁc in Women and Children and signed by various nations at Paris on May 4, l9lO, a peiervatlon was made. The material articles of the Convention ran as o ows:--

"Article 1--Whoever_. in order to gratify the passions of another person, has procured, enticed. or led away, even with her consent, a woman or girl under-age, for immoral purposes, shall be punished, not- withstanding that the various acts constituting the offence may have been committed in different countries.

Article 2----Whoever, in order to gratify the passions of another person, has, by fraud, or by means of violence, threats, abuse of autho- rity, or any other method of compulsion, procured, enticed, or led away a womtm or girl average, for immoral purposes, shall also be punished no-twithstanding that the various acts constituting the ollence may have been committed in ditterent countries.

Arricrle 3----The contracting parties whose legislation may not at present be suﬂicient to deal with offences contemplated by the two preceding Articles engage to take or to propose to their respective l€gi5-- latures the necessary steps to punish these offences according to their gravity."

The Statement of Objects and Reasons for the Bill which led to the amendment Act runs as under:~» "The principles in this International Convention were endorsed in the International Convention regarding the Traffic in Women and Children which was adopted by the Second Assembly of the League of Nations. In Article I of this Convention it is provided that the High Contracting Parties, iii the event of their not being alreidy parties to the International Convention of May 4, 1910, shall transmit with the least possible delay their ratifrcations of. or adhesions to, that in:_-'tr:.s- ment in the manner laid down therein. Fi.n'tiiei', the tern: "irrrrt'¢°i'-ripe"

which did mean under 20 coinplefed )-'t2(tt'.\' of age, accwrliiig In ;;-mo graph B of the final Protocol of the (honvmrrion of 1910 is now fitter- prcred as tneaning under 21 completed years of age by vii-I.-to of the provisions of Article 5 of the International Convention, adopted by the second Assembly of the League of Nations.

"In view of the resolutions adopted by the Council of State on January 31, 1922, and by the Legislative Assembly on February 7. I923. "the International Convention adopted by the Second Assembly of the League of Nations was signed at Geneva on behalf of the Govenment Of India by His Majesty's Minister at Berne on March 218, 1922, with the following reservation:

' Gazette of India for 1922, Part V, page 31-17%.

£30 "lnid reserves the right of its discretion to su..b.s-rirure the age of .u'.rteen years or any greater age that may be subsequently decided upon for the age limit prescribed in paragraph B of the final Protocol of the Convention of May 4, 1910, and in Article 5 of the present Conven- tl0n.'"

It is not -known whether a similar reservation was made in regard to the Convention of 1950.

4.9. Section 2t'c)--- "Mngi.s~Irrm>" --The deﬁnition of "Ma,gistrale" in clause (c) of section 2, is as follows:- --

"(ct "Magistrate" means a District Magistrate. a Sub-Divi« sional Magistrate, a Presidency Magistrate or a Magistrate ol' the first class specially empowered by the State Government by notiﬁcation in the Otﬁcial Gazette to exercise jurisdiction under this Act."

The terminology now adopted in the new Criminal Procedure C7ode~' in respect of Magistrates in Presidency towns is 'Metropolitan Maigistrates'. which should, therefore, be substituted in this Act also. Several other amendments are also required".

4.10. Suggestion to delete not accapted- Powers of Magistrates enuiiee:'arect--»--lt has been suggested,' that section Etc), which we have quoted above," should be deleted.

The reason given is that the restriction is unnecessary. It creates ditticulties in the matter of rescue work, searches and arrests.

The suggestion does not. unfortunately, take account of the detail- ed provision as to various powers of Magistrates. It appears to us that the matter will require examination with reference to each section in View of separation of judiciary.

The expression "Magistrate" occurs in the following sections of the Suppression of Immoral Traﬂic Act.

Sect-ion Gist of the section 7(1) . . . . . . I't:nst.ir=_it.ion in or in the 'ric.initv;.' of public -I,-l:-.es%spnlul.re place to be notified by District. '.-"rla;,rist.1'ate.

l'l(-5-_1 .. .. .. Trial for breach of the rcquiremcnu to tlrrbify I1.(|rlr'e:s.s by 5 prrviuuraly couvictcrl offerlder.

12(4) . . . . . . Sccririty for good bFhu.\ri0tt1' from huhitrual O[7'endr.'rn'.

15{5} . . . . . . Search without wrirmrit.

lb' . . . . . . Rescue of girl.

[7 .. .. .. Int.ermediat.e at-ustody of girls I"€l11l7V'0i,'| under st,-crinn 15 or rescued nr_-dcr sot'-tin ltj.

|3(l',vi,'-':3 and (43 . . .. .. L'-insure oi" brothels and eviction of otferulcrs friirn pre- mises.

lg _ _ _ _ _ _ Applig-.atio:1 for being kept in .1. pF'<'_it(.-Ct-irle ilL'JlIll'. 20(1) mud (3) .. .. .. Removal of' prosr-itufss fmru any place. '*0 Trials.

1 Gazette of lndia for 1922, part V, page 343.

*1 See the (Jude of C1-jinirirti Procedure, 1973 (Central P-ct. 2 of 1974). 5 Para 4-12, in. ms.

* .-$uggest»ion of the Central Bureau of ('urn-ctional Sci Vices.

5' Para. 4-'.23, .5'-M.-t'rr.

4.1 1. .Recomr-nendmion as to mr:'rm.s' powers in View of scparai-Eon in view of separation of the judiciary from the executive, our recom mendations with reference to each of the powers of Magistrates, as enumerated above, are as follows:

(i) Power under section 7(1) is, at present. conﬁned to "District

(ii)

(iii) Ma istrate", and ma continue in that form, not being a . .5. 3' ~ ]llCl1Cl2ll power.

As regards the power under section 11(4), it pertains to trial, and should be Conlined to judicial Magistrates--i.e.. Magistrates of the ﬁrst class or Metropolitan Magistrates who would be Judicial Magistrates.

The power to require security under section 12(4) is analo- gous to. the power under section 110. (Tr.P,(.'. in 1898 and the corresponding provision in the new Code. in the new Cr.P.C., the power under the provision' corresponding to section 110 has been given to Magistrates of the ﬁrst class. and it would be proper to give the power under section 1214! also to a Magistrate of the ﬁrst class, or Metropolitan Magistrates,----who would be judicial Magistrates.

(iv) As regards the power to make orders for custody under sections 15(5) read with section 17(1) and the power to issue orders for rescue of a girl under section 16, these are similar to the power under sections 100 and 552 of the Cr.P.C. 1898. In the new Criminal Procedure Coclei, powers under the corresponding provision are given to the District Magistrate and Sub-Divisional Magistrate (who are Exectr tive Magistrates), as well as to Magistrates of the ﬁrst class or "Metropolitan Magistrates (who are judicial Magistratcsl. Powers under section 15(5) read with section 17 and powers under section 16 read with section 17 of the Suppression of Immoral Traffic Act may, therefore, also be given to the same Magistrates. i.e_ concurrently to both judicial and executive Magistrates.

(iva) Powers under section 18 (closure of brothels and eviction from premises) may be given to Executive Magistrates, be-- ing somewhat analogouns' to the power under section 20. The powers may be given to District Magistrates and Su.b-- Divisional Magistrates.

(v) The reasoning applicable to_ section 16 applies' to powers under section 19 of the Act, relating to applications by women for being kept in a protective home. The power may, therefore, be given to both classes of Magistrates.

1 Section 110, Criminal Procedure. Code, 1974 (old section 110}.

3 Code of Criminal Procedure 1974-. section 97-924 told sections 100 and 552}. 9 See below as to 'powers untlc-.r' Section 20.

' See 3lJlTl'€Al'ﬂ('0HHY]Bfl("lﬂ.l»lClT'l reliating to powers under ssentinn 15.

(vi) The power under section 20 is analogous to that under sec- 'tion 133, Ur.P.C., 1898 (prohibition of public nuisances). Under the new Criminal Procedure Code', the power under the corresponding provision is given to District Magistrates, Sub-Divisional Magistrates, and Executive Magistrates specially empowered by the State Government, and the power under, section 20 may also be given to them.

(vii) Section 22 provides that "No court inferior to that of a Magistrate as deﬁned in clause (0) of section 2 shall try an oﬂfence under section section 5, section 6, section 7 or section 8." As this is a. judicial power, the power should now be transferred to :1 Magistrate of the first class or a Metropolitan Magistratc--who are judicial Magistrates.

4.12. Deﬁizitiori of "Magistrate" to be revr'sed, and sc.'.2nri'z.rl'e of powers to be insert.-9d--We, therefore, recommend that the deﬁnition of "Magistrate" should be revised so as to give effect to our above recom- mendations. For carrying out the substance of our recommendation, several drafting devices are open. We think that the most suitable device would be to annex a schedulei, listing the magistrates competent to exercise the powers under each section. The deﬁnition of "MagEstra1c" in section 2c will refer to this schedule". The substantive section would, in general, merely speak of the "Magistrate", without qualifying words.' 4.13. R,ecommem:iati'on as to section 2(c)--~So- far as the deﬁnition of "Magistrate" in section 2(c) is concerned, it should be revised as under:--

"(cl 'Magistrate', means the Magistrate speciﬁed in the Schedule as competent to exercise the powers conferred by the section in which the expression occurs."

4_14_ Section 2(d)--'prcscribzmfesection 2(d), which deﬁnes the ex- pression 'prescribed', needs no change.

4.15. Section 2(e)»--'pro.in'tute'-----Section 2(6) deﬁnes a 'pr0St_itU-t6' as meaning "a female who otters her body 'for promiscuous sexual inter» course for hire, whether in money or in kind". The observations II1L*.C'.E2 in the Report of the Committee was that the term should be deﬁnedt more precisely and clearly, so as to check all possible avenues being used by the anti--socia.l elements indulging in the vice. The recommendation of the Committee was that a proviso Silt)'-_!.iti be added to indicate that when a female offers her body for piwomiscuous sexual intercourse. it may be presumed that the act _is motivated: by the exp<:c1.atioii_o_f revvaid in form of money or kind. It is stated that the suggested provision will make prosecution easier, by shifting the burden of proof to the accused."

Code of Criminal P1'occdLi1'€'= 1974. Seftiﬁn 133 (UM 5iF?0i-1'0" 133)-

The definition oF "Magist.rate" Wii], 'hillin mere]_v rr-fore to the Hchi-dule.

See para. 4-13,-in.'«"-I. Section 7(1),11(4}'12(4].15{5)!16,17,18(1),l8(3),18(4), 19, 20(1). 20(3), 22 to he amenried whvreever iiecessai'_v for the above puI'p0St?.

in-non»-4 23 We do not, however, think that it would be desirable to have the suggested presumption. Though discretionary, it is bound to be applied either in all cases or in none at all. There is no evidence that any serious diﬂieulty has been experienced in proving the requirement about hire. 1f prostitution is carried on as a business,r~with the continuity which a "business" implie-s,--such a presumption will certainly be drawn, even without an express provision. But where there is no element of business, it is not proper to draw a presumption. it is hardly necessary to add that our reluctance as to incorporating such a presulhptioii does not mean that there is any sympathy with a woman indulging in promiscuity. The reluctance is based on the consideration of impropriety which we" have just now mentioned. It is also based on an apprehension that such a presumption may be abused, and niay unduly widen the present scope of the Act, and we are not inclined to accept the suggestion. We have al- ready stated that at least for the present we are reluctant to recommend widening of the Act.

4.16. Suggestion to add "indiscriminate Iewdness" in the deﬁrrftion of prostitute--Then, there is a suggestion' to re-draft section 2(6) as follows:--

"prostitute" means a female who offers her body for indiscri- minate Icwdness for hire whether in money or in kind offered immediately or otherwise."

The reason given for suggesting the above amendment is that dith- culties are experienced in establishing actual sexual intercourse. It is stated that the word "promiscuous" makes it necessary to prove more than one such case which makes it still more ditiicult to establish that a woman is a "prostitute" before action under section 3 or section 4 can be taken. It also becomes difficult to prove that immediate payment of money has been made. Organised commercial vice develops ways of indirect payment. it is urged that the change suggested is on the lines of the Children Act of Bombay, and a U.S. judicial decision.' It is added that the proposed criterion of "indiscriminateness," would prove the case even when a single client happens to be involved. "Lewdness" may be established even when a woman is within closed doors with total strangers. At the same time, this deﬁnition would not aifect a woman giving her favours to one man who is wcll--l<nown to her, nor would it affect a. woman who is promiscuous without reward in cash or kind. Thus, the suggested amendment will help he prosecution without enlarg- ing the scope of the Act. A similar change for adding "'lewdness" has been suggested also with reference to the deﬁnition of "prostit.ution"_" We propose to deal with this point while discussing the deﬁnition of "prostitution".

1 Suggestion of the Central Burerui of Correctional Snwvioos. ' Kelly v. Static, 14 S0. 2nd 599 [cited in the suggestion). 5' Section 20') Para. -1-13. infra.

the i§'t§3'c£iiiii"-i;'éiii"£i§'T "i-'if""'* zit?" *0 'if "at that of 'Prostitution' T'h' 0 "Iii '1ip'i:lme deﬁmuon of prostitute with whenafer the gm: 3 I 1S vii auoi the need for amending the one r is amended. Accordingly, we recommend' that. at ;:cnd_ of the deﬁnition of 'prostitution', the following words ghguld be i 1 'Land the expression 'prostitute' shall be construed accord- ng y .

This will take the place of the existing deﬁnition of "prostitute".

4.13. Section 2(f)-----'prt:-srirtitiitin'~----Section 2(fi deﬁnes "prostiLution" as meaning 'the act of a female offering her body for promiscuous sexual intercourse for hire, whether in money or in kind. The Conimitteei recommended the insertion of a presumption in this clause also, to the effect that where a female offers her body for promiscuous sexual inter- course, it may be presumed that she does so with the expectation of a reward in form of money orlrind. Our comments with reference to sec- tion Ziel" apply to this suggestion of the Committee also.

There is another suggestion in which the following re-draft of clause

(g) of section 2 has been suggested" :--~ " 'prostitution' means the act of a female offering her body for indiscriminate iewdness for hire, whether in money or in kind oﬁered immediately or otherwise, arid includes the indulgence of a male in such an offer."

The reason given in support of the suggestion is, that immediate payment (which is required by the present deﬁnition) or promiscuous intercourse, is difficult to prove. Hence, it should be provided that the pay- ment may be offered immediately or otherwise. A fresh criterion, viz. that of the indulgence of the male, has also been proposed to be added. It is stated that logically, there can be no prostitution if there is merely an oﬁer- Even in common parlance the term 'prostitution' signiﬁes both the offer and the participation in the same, and involves the male as well as the female- This change will, it is stated. have a significant effect in helping the prosecution. At present, there may be circuinstaritial proof of indulgence in prostitution \=v'th the client on the spot, but the prosecution finds it diﬁicult to establish such intention, if the woman involved has . disappeared. This kind of circumstancial evidence, it is stated, is very necessary for the effective implementation of the Act.

1 Sea recommendation as in section 2{f}-deﬁriition of 'prostitutioii'. para 4-26 -Irijm.

5 Report of the Committee on amenclmiant-3 to the Shippceasi-on etc. Act, paragraph 5» 3 Recommendation No. 3. -

3 See iiiscuasion as to section 2[ci, para 4'15, siiprri.

' Siiggeiﬂiisn of the Central Bureaii of Correctional i'-it-.i'vioc.~i 25 4.19. Change needed in deﬁriition of 'pi'ostitution'--Several points arise out of this suggestion.' T-he separate suggestion? to deﬁne the ex- pression "purpose of prostitution", has also to be considered. Finally, it is also necessary to carry out what has been previously stated" regarding linking up the deﬁnition of "prostitute" and "prostitution". The various points are considered below, one by one.

4.20. Suggestion to subsi't'trite "indiscriminate lewdrmss" not accept- ed-------First. the suggestion' t.hat the words "indiscriminate lewduess"

should be substituted in place of the words "promiscuous sexual inter- course", does not appear to be a sound one. We apprehend that the ex- pression "lewdness" may prove to be too wide a test, in this context.

It would be of interest. in this connection, to trace the 0il'lgll'| of the expression "indiscriminate lewdness". In England, causing or encourag- ing a woman to become a common prostitute is an offence under section ?.2t_l.l of the Sexual Offence Act, 1956. Under section 23(1) of the same Act, it is an offence for a person to procure a woman to become a common prostitute. Under section 30, it is an oﬂence for a man know- ingly to live wholly or in part on the earnings of prostitution. it has been held by the Court of Criminal Appeal*" that the words "common prosti- tute" and "prostitution" are not conﬁned to normal" sexual intercourse. Mr. Justice .Darling's judgment" of 1918, where "prostitution" was taken to mean the offering by a woman of her body for purposes amounting to common lewdness for payment, was, in substance, approved by the Court of Criminal Appeal, and it was pointed out that Darling J. might well have taken these words from the dictionary meaning--Shorter Oxford English Dictionary~--whereunder the ﬁrst meaning; given to "prostitution" is the "offering of the body to indiscriminate lewclness for hire".

4.21. Pomfioii in the U.S.A. as to "lcwdne.s's"---ln an American study of sexual behaviour and the lawi, the position as to prostitution in the U.S.A. has been brieﬂy stated thus "The sexual act committed by a prostitute is directly punish- able under statutes (i) which prohibit 'the commission of prostitu- ti_on' without other deﬁnition, (ii) which provides various broad legislation to reach such activities as 'indiscriminate sexual intercourse or any act of deviate sexual " 'conduct for money', 'the oﬁcring or receiving of the body for sexual intercourse for hire or ....... ..without hire'. or (iii) other con- duct which may or may not be limited to 'normal' heterosexual intercourse or to compensated intercourse. The terms 'lewdness' and 'assignation' are commonly used as 'alternatives to 'prostitu-

1 Para 4-18, supra.

4 '27 and 4 '28 infra 5 See discussion regarding section 2-New dei1'nitinn of "purposes of p1'ns1.it-11tion"', para 4 -27 an 1 4 -28 infra.

3 See discussion regarding section 2(9) deﬁnition of "'pr-ostit-Lite", pum 4- 17, ﬁ"itj??'£l. '- Para 4-18, an-pm. 5 R. v Webb, (1963) 3 All ER. 177 fC.C.A.).

3 R. b. D. Munk, (1918-1919) All E.R. [Ea-print) 499 [Darling J.). 7 Solvanlro, Sexual Beha-viour and the Law {l9li'-3}, Dagﬂ 543- 536 tion',_ primarily t0_avoid 'the possibility of unduly restrictive ]_u(ilCla_i interpretation which might hold the term 'prostitution' lnappllcnble to what to a layman, would be a clear case 01 com- rrretelahsecl vice."

' As_we have already indicated', the word 'lewd' is vague. And, in vlevv of its vagueness, we do not recommend its addition in the deﬁnition of 'prostitution'.

4.22. Payment need not be r'mmrdiate----So far as the question of payment for prostitution is concerned, we agree that a clariﬁcation to the eifect that payment for the intercourse need not be immediate, could be usefully made, for the reasons given by the Committee."

4.23. Indulgence of the maie~----As regards indulgence of a male in prostitution," the question of punishing it raises controversial questions as to what ought to be scope of the Act. In our view, it would not be correct to acid such indulgence as a branch of 'prostitution'. The question whether the acquiescence of the male in the prostitution should be punished could, if desirable, be separately considered. But such conduct on the part of the male cannot be clubbed with "prosljtutic-n", and not- withstanding any evidentiary difﬁculties that may arise, it would not be appropriate to do so.

4.24. Person hiring prort.-'rule whether to be prmi'shea' The questior is--mShould a person who hires a prostitute. be punished? In other words should the patron of a prostitute be punished? It must be pointed out that such an amendment would go much beyond the present scope of the Act, and mark a radical departure. What the Act punishes, is not "prostitution" in the abstract, but prostitution under certain circum- stances. A girl who offers her body for indiscriminate sexual intercourse for hire. may be a prostitute. but, being a prostitute is not, in itself an offence.' The expression "prostitution" is deﬁned for the purposes of the Act, but the penal sections: do not punish prostitution per 55'.

Whatever view one may hold as to how far a particular society should put up with prostitution, and even if puritanism may impel a diﬁicult to accept the proposition that the law should puriish it as H particular society' to regard prostitution as deserving condemnation, it is crime on the part' of the mole patron.

The trend of legislation--whether one may like it or not--is to- wards leaving out of the sphere of criminal law conduct which takes place between consenting hdults in private. In any case, it is hardly appropriate to add to the law a new provision which will punish the male patron, and we do not recommend any such change.

1 Para 4- 18, €"l.£].'!'i'ﬂ».

2 Para 4- 20, sugar.-2.

'3 Para. 4- 18, supra.

' Chapter 3, a-aprrr.

4.25. Deﬁnition of "_prostitiite" to be linked up with definiton of "pr0st:'rnrion"A~The deﬁnition of 'prostitute' should be linked up with that of "prostitution", as already recommended.' 4.26. Recommendation to revise section 2(f)~ln the light of the above discussion, we recommend that the deﬁnition of "prostitution" should be revised as fol1ows:----

"(f} 'prostitution' means the act of 1! female offering her body for promiscuous sexual intercourse for hire, whether in money or in kind, and whether offered imntediorely or otherwt'.s'e, and the e.rpres.rion 'prostitt:re' s/':.m,'I he con.strn.:*(t' accordingly.

4.27. Section 2--new deﬁnition of 'purposes of prostit.>uion'--~.s'ug- gesrion considered but not occeptea'----lt has'been suggested2 that a new deﬁnition of the expression "purposes of prostitution", should be insert- ed as followszw-~ "Purposes of prostitution" includes activities and circum- stances in furtherance of or ancillary to prostitution.

The reason given in support of the suggestion is that ordinarily, police olﬁcers investigating a case ﬁnd only circumstantial evidence, and cannot establish either that -.1 woman is a 'prostitute' as deﬁned at pre- sent in the Act, or that an act of "prostitution" has been committed. The Act, it is stated, has used the expression "purposes of prostitution", in several places. It the expression is explained so as to cover such Cir. cumstantial evidence which implicates the accused, then it would help to establish cases against third parties.

4.28. Change not recon-zmended--We have carefully considered the suggestion, but have ultimately come to the conclusion that it is not desirable to make the suggested amendment. Taking note of the diffi- culty said to have been felt." we made an attempt to provide for such cases, but it appeared to us that it would create complications. The concept out "incidental" acts would be very vague. Moreover, since. even under the suggested amendment it would be necessary to establish :1 connection of the incidental acts with prostitution in the narrower sense, it seems that its practical utility would be almost nil. It is for these reasons that we are not recommending any such change.

4.29. Section 2(g)--"protective home"/Recommendation to amend w-~We now take up section 2(gl, which deﬁnes a "protective home". The Committee' recommended that the deﬁnition of "protective home"

should include an institution for the care and protection of rescued women and girls, by whatever name called. which is so declared. We agree that the clause may be amended to that eﬁect in substance.

' See reomnmetitlatiort an to S6(\Lin]1 2(5), supra.

1' Sltggeslirsrl of' the Cientrul Ruietttt ofCnrroct.ionn.l Sorviucft.

3 ['a.t'.'1 do 97, 8t:§rr.t'«i-.

R-apart of tho Co1urnit.l.ce': on u'nen:'ln1ents to tile Hilpprcrs-_=int1 etc. Act, p.'J,l'Ll 5-4. B90011}- incndation No. 9.

1 28

p 4.30. We may also note that the present deﬁnition is defective. Inasmuch as it makes no reference to section 21, under which the estab- lishment and licensing of protective homes is speciﬁcally regulated. The deﬁnition of "protective home" should refer to that section.

4.31. In one suggestion' relating to the deﬁnition of "protective home". the following re-draft of the deﬁnition has been suggested:--

"Protective home"_means an institution. by whatever name called. 111 which glrls may be kept in pursuance of section 17."

The reason given in support of the suggested amendment is, that one of the most unsatisfactory features of this Act is that girls who are rescued under the Act are required to be kept in the same institutions in which common prostitutes convicted under the Act for various oﬁences are to be kept. It is stated that even if the institutional arrange- ments are perfect enough to avoid contamination and to provide adequate training, it would be difficult tor create the same conﬁdence in the girl, if she is kept in the same institution as prostitutes. The "protec- tive" homes should be entirely protective. These should be specialised training institutions, working for the rehabilitation of rescued girls. We are in broad agreement with this approach.

4.32. As regards under-trial females mentioned in the present deﬁni- tion of "protective home", it is urged in the same suggestion" that, on practical considerations, one has to be reconciled to the idea that the court would have to use the female wards of jails for keeping under--- trials. If such wards are good enough 'for being used even for political and security prisoners and fo.r all other types of female under--trials, then, there is no reason why they should be considered unsuitable for purposes of the Act.

We are not, however, inclined to accept this view. In our opinion. it is undesirable to keep together under-trials and girls rescued under the Act. Out of the former, some may be criminals. while out of the latter. most would be victims. In dealing with this problem, the character and category of rescued girls and the object of rescue should be borne in mind.

4.33. Rec0mmendaa'ion---In view of what is stated above, it would be better to deﬁne the expression "protective home" as excluding a corrective institution. We. therefore, recommend the [following revised deﬁnition of "protective home".

Re vised deﬁnition "(g) 'protective home' means an institution, by whatever name called, in which women and girls, who are in need of care and protection, 1 Suggestion of the Central Bureau of Correctional Services. 9 T'arn. 4-31, mprrt.

may be kept under this Act, being an institution established or licensed as such under section 21, but does not include (i} a shelter where female under-trials may be kept in pursu- ance of this Act, or

(ii) a corrective institution."

4.34. Exclusion of 'corrective in.s'titLtti0n' from the definixion of pro- tective home---T he expression "corrective institution", should be reserved' for institutions where women and girls who are not rescued but are themselves guilty of olfences should be kept. The basic object in .

keeping 'protective homes' separate from corrective institution is that the former are really meant for women and girls who are victims of circumstances, while the latter are meant for women who have reached a stage of c1'imin;'lity, though it is hoped that they can be reformed by suitable treatment. That is why we are excluding corrective institutions from protective homes?

4.35. :wcrion"(h)u~--"Public plnce"--No change recommended--~-- Section 2(h) provides that a 'public place' means any place intended for use by or accessible to the public, and includes any conveyance. A recommendation was made by the Committee" to the effect that the term 'public place' should include a thoroughfare. We do not, however, accept the suggestion, because there can hardly be any doubt that a thoroughfare is a "place accessible to the public", and would, therefore, fall within the present deﬁnition. We see no need for any amendment.

4.36. .?ection3(i)~4ection 2(i) defines the expression "special police ofﬁcer", and needs no change.

' Para 4- 7. -swprcr.

3 Para 4333, supm.

" Report of the C0mmitt.ee to reeomnrnd amendments to the Siippi-ession 91'-e. Act.

r.,*1=a:n1I2n fLJ&CA-4 CHAPTER 5 OFFENCES 5.1. Section 3(1)--Having, dealt with the deﬁnitions contained in the Act, we now proceed to take up the offences. Section 3(1) punishes the act of keeping or managing a brothel, or acting or assisting in the keep- Enlgl or management of a brothel. The punishment for the offence is as o ows:~-- s . ta} on first conviction--rigorous imprisonment for a term of not less than one year and not more than three years, and ﬁne which may extend -to two thousand rupees;

lb} on second or subsequent conviction--.--.»rigorous imprison- ment for not less than two years and not more than ﬁve years, and also ﬁne which may extend to two thousand rupees.

i The section needs no change.

5.2. Section 3(2)--Section 3(2), punishes a person who allows pre- mises to be used as a brothel. Here also, no change is needed.

5.3-. Section 3l3i----Under section 3(3), on conviction under section 3(2) in respect of any premises, any lease or agreement under which such premises have been leased out or are held or occupied_._at the time of clciinmission of the offence shall become void. The sub-s'e'cti'on needs no is ange.

5.4. Section 4--Amn'_vsi.s'--That takes us to section 4, which punishes a person over 18 years who knowingly lives on the earnings of prostitution, This is one of the important sections of the Act. It consists of two sub-sections and a proviso. Suh--sectior1 (1) is the operative part of the section. and provides that the offence falling under it shall be punishable with imprisonment for a term which may extend to two years, or with ﬁne which may extend to one thousand rupees. or with both. There are two ingredtients of the offence prescribed by this subsection. The ﬁrst is that the offender must be_a_ _erson above the age of 18 years. and the second that he must knowing y live, wholly or in part, on the earnings of prostitution of a woman or giri, When these two ingredients are prcwed, the oﬁence is committed and the offender is liable to be punished as prescribed.

Subsection (2) of section 4 lays down a rule of evidence under which a rebuttable presumption can be drawn by the Court that persons falling under clauses (a). {bi or (c) of subsection (2) shall be presumed to be knowingly living on the earnings of prostitution of another person within the meaning of subsection (1); in other words, where any person falls under one or the other of the three categories prescribed by clause 31"» 31

(a). (hi and (cl of subsection (2). a rebuttable presomption'ean be drawn against him that he satisﬁes the second essential ingredient of subsection 1 .

5.5. Section 4(2). proviso--Sorne minor points concerhing section 4i2)(b} and section 4t2)(c) will be dealt with later.' But a question arises concerning theproviso to section 4(2). The proviso is quoted--below:--

"Provided that no such presumption shall beidrawn. in me case ot a son or daughter of a prostitute, if the son or daughter is below the age of eighteen years." ' The question to be considered is whether this proviso is needed at all."

5.6. Charncrer of circumstances giving rise to presum'pt'z'otn--I't would be useful to refer to clause (a) of subsection (2) to illustrate the character of circumstances from which the presumption under an: sub-section can be drawn. Clause (21) provides that where a person is proved to be living with. or to be habitually in the company of. a prostitute. he .shall be presumed to be knowingly living on the earnings of prostitution within the meaning of subsection (11. It will thus be clear that more proof of the fact that a person lives with, or is habitually in t11e"company of, a prostitute raises the statutory rebuttable presumption thathe is doing so knowingly to live on_ the earnings of prostitution.

5.7. "Essential link between subsection (1) and subs-secn'.an (2)._The scheme of section 4 shows that sub-section (2) has to be read alongwith subisection (1); and when sub-section (2) refers to "any person", it 'must, on a fair construction of the two sub-sections read together, refer to any person over the age of 18 years. It isclear that, heforethe Court pro-- cee[_Is.to-.d_cal.with the evidence relevant. under an3r.of;.t|Ie;t=tShree clauses (al..,?Jib).,or- (C) of subsections (2) for determining whetI1Ierna,~prcsun1ption-_ can "be drawn;-against a person, it must be proved that he is a person

--above._the;age of' 318; years, because it is only. persons Wh0;are shown to be, hove:-thgrage;gfg;13 -years" who can be prosecuted.-under section 4(1):-

a ytltegzhvcarn,-be.)g-onvicted after the-other essential- ingredient of the 0 {tie proved';_.it is _n. respect of this latter ingredient that a -"rule of evidence enablingthe. Court to draw a rebuttablepresumption is prescribed -by _, gikpowinglsgr live-on the earnings «of epnostitution\js also * = sols)-§egtig;;;1(@lﬁl§I{he§9_Iqge,,-.in\ our. opinion; though: s_,u~h-section (21 --refers~-~ toﬁfanyr person". it-.applies.onIy' to a person above -the age of-18 years;

because a person below the age of 18 years cannot fall within the chief of section 4(1). and hence there can be no question of applying; sub-section (2) of section 4 to such a person. The rebuttable presumption. . will be drawn only against a person who is above 18 years and who is, is therefore, interested in rebutting that presumption.

5-8. Proviso to secriort 4(2) snpe:'f?trrms--If that be the true position'.

the question which needs to be considered is: does the proviso to section 3 Para 5 ' 1-; and 5- 15, -infra.

4(2) serve any useful purpose? The proviso lays down that no "such presumption", meaning the presumption which can be drawn under sub-section (2).--shall be drawn in the case of a son or daughter of a prostitute if the son or daughter is below the age of eighteen years. The diﬁiculty in accepting the view that this proviso serves any purpose is that cases covered lay the proviso cannot fall under section 4(1), and there can, therefore, be no question of considering whether such a per- son knowingly lives 'Wholly or in part on the earnings of prostitution. We are inclined to think that, in enacting the proviso, this aspect of the matter has apparently not been properly appreciated by the legislature.

5.9. It is possible that a person prosecuted under section 4(1) may plead that he is below the age of 18 years and, in such a case, the Court will have to try, as a preliminary issue, the question about the age of the alleged offender, whether the alleged offender is a son or daughter of a prostitute or any other person living with her; and it is only if it is found that the said person is above the age of [8 years that the stage to require the prosecution to prove that he lives on the earnings of prosti- tution will be reached. At this stage, sub--section (2) will step in; and, if the case is shown to fall under any of the three clauses (a), (b) or (C) of sub-section (2), a rebuttable presumption will be drawn against that person and he will be required to lead evidence in rebuttal.

It must be borne in mind that the order in which the two ingredients of the offence are mentioned indicates the logical sequence of the issues which call for decision while applying section 4(1). If that be the true position, it would follow that the proviso to section 4(2) really serves no purpose. It may be that the proviso has been added as a matter of abun- dant caution; but, in view of our conclusion that it is superﬂuous, We recommend that this proviso should be deleted.

5.10. Possible arguments considered-It may be argued that though, on a fair and reasonable construction, sub-section (2) of section 4 applies only to persons above the age of 18 years. the proviso might have been deliberately inserted to make an express provision limited. to the cases of sons and daughters of prostitutes, in order to emphasise the fact that such sons or daughters should not be exposed to the risk of moral stigma by being prosecuted under section 4(1) even though they are below I8 years. As we have indicateed' unless the prosecution acts in- advertently or deliberately, a person who is below the age of 18 years, including a son or daughter below that age, cannot be prosecuted under section 4(_])._ In fact, when a person is charged under section 4(1), the relevant facts pertaining to the two ingredients prescribed by that sub- section? will' have to be speciﬁcally alleged. and that means that the pro- secution will have to state that the accused. is above the age of l8. and lives knowingly on the earnings of prostiuttion. Therefore, the suggestion that, though the proviso may apparently be unnecessary and superﬂuous. the legislature might have intended to emphasise the special case of sons 1 See paragraph 5- 9, supra.

5 Para. 537, supra.

or daughters of the prostitute, does not appear to us to justify its retention. The possibility that a son or daughter of a prosti- tute below 18 years may be inadvertently or deliberately exposed to the stigma of being prosecuted under section 4(1) cannot be avoided by attempting to strength the plain provision of sub-section 4(1) by adding the proviso in question.

5.11. Question of increase in the age under section 4(2) provi.m----« There is another "incidental question which may arise out of the proviso

-_narne.!y, whether, in regard to a son or daughter of a prostitute, a

-speciﬁc provision should be made that no presumption should be drawn against him--;or her if he or she is shown to be below 21 years of age. It is urged in support of this view that a son or daughter of a prostitute, who may be living with the mother, should be given additional protec-- tion in view of the fact that he or she would inevitably have to stay with the mother, and it would not be unfair or unreasonable to assume that he or she continues to be immature until he or she completes 21 years o"r' age, because, normally, a boy or a girl in that position may not be mature at the age of 18. Pi-Ema fncie, there is some force in this view; but, on the other hand, if the argument of immaturity is regarded as relevant, then, its application cannot be reasonably excluded even in regard to other relatives. of the prostitute who are below 2], because, even in their cases. it may, with equal justiﬁcation, be urged that they are living with the prostitute as a matter of economic necessity and because of near relationship (for instance, sister, nephew, niece. ﬁrst . cousin), and their immaturity upto the age of 21 should also aitord them a shield of protection.

-. 5.12. Recommendation 10 rieiety the prov"iso to secﬁirm 4-(2l--We have carefully considered the pros and cons of this problem. and we are satisﬁed that the acceptance of the suggestion' would, in a sense, lead to its extension to all persons staying with a prostitute who are below 21, and that would, in effect. amount to a substantial amendment of section 4(1). In our opinion, the adoption of such a course would not be either expedient or justiﬁed. Our recommendation, therefore, is that the proviso to section 4(2) should be deleted.

5.13. Recommriniiarion to amemt' section 4(2), main paragrapizw Having dealt with the co-ntrovcrsyt-created by the proviso to section 4(2), we would also record our view that it is desirable to avoid all future debate as to the scope of section 4i.2l. To avoid further controversy, therefore, we recommend_ that in section 4(2), opening Line, after the words "any person", the words "over the age of eighteen years" should be inserted.

5.14. Section 4t2)(b)~--Vv'c now resume consideration of the main paragraph of section illlllbl. With reference to section 4{2)(bl- it has been suggﬁsted" that the words; "t'.1c movetuents of" should be rernovecil. The 1 Para 5- ll. supra.

9 Sriggestinn of the C-r~nt1'a:l Burea.u of Urwreotinnal Services.

reason given in support of the suggestion is that there is no street-walking in this country. The existing provision, it is stated. is practically mean- ingles_s._ The proposed amendment will bring, under the purview-ofnlaw, devious method of control, direction, and inﬂuence exercised by orga- nised commercial vice over prostitutes or over women under their sway, and will make the purposes of the Act more effective. We do not, how-- ever, accept the suggestion, as, in our view, the word "movement" is wide «enough to serve the purpose. Moreover, pimps are covered by existing section 4{2)(c)'. No change is. therefore recommendfed. i _, 5.15. Section 4(2)(c)--As to section 4(2)(c), it has been suggested' that the words "on behalf _of a prostitute" should be replaced by the words "for purposes of prostitution", and the sub-clause may be revised to read---

"toibe acting as a tout or pimp for purposes of prostitution".

__ 5.16. The reason given to support the suggestion is that it is not necessary to relate a tout or pimp to one particular prostitute. He may be acting for a large number of them, and his activities may often take the shape of maintaining registers, or olfering membership of'certain type _of_ clubs, and other activities for the purposes of prostitution-. We are, however, of the view that the suggested amendment is unnecessary, because the word "prostitute" is not, in our opinion. co-nﬁned to the singular. _ _Secti0ra 4(2_)--h0w to be rcvised----In the light of the above discussion, we recommend that section 4(2) should be revised as fol- lows:--

"(2) Where any person over the age of eighteen years is proved---- ,

(a) to be living with, or to be habitually in the company ..of, a prostitute; or ' i i (b) to have exercised control, direction or inﬂuence over ' the movements of a prostitute in such a manner as to show that such person is aiding, abetting or compelling her prostitu- tion; or

(c) to be acting as a tout or pimp "on behalf of a prosti-

tute, -

'it shall bepresumed, until thecontrary is proved. that such per- son is knowingly living on the earnings of prostitution of another person within the meaning of subsection (l)."

SF 3|! it (Proviso omitted) 1 Pm. 5- 1s_,'infm.

3 Suggestion of the Central Bureau of Correctional Services.

3.5 5.18. Section.5(1) and section 5(2)----Under section St-l), procuring, inducing or taking a (woman or girl_f0r_prostitut.i0n- is punishable with the speciﬁed; period of imprisonment and the speciﬁed amount of ﬁne. It needs no change. -Section 5(2) deals with subsequent conviction and needs no change. ~ 5.19.» Section 5{3)'--Section 5(3) provides that an otfence' under sec-

' tion 5(1) or 5(2) shall be triable in the place from which the woman or girl is procured, induced, etc. or the place to which she may have gone as a result -of theinducement. It needs nochange. ' 5.20. Section 5--Suggestion' to add 'purchase isiiie of girls'----It has been suggested', that a new sub-clause should be added in section 5 as follows---

"purchases, sells or aids or abets in the purchase or sale of a woman or a g1rl."

The reason given in support of the suggestion is that there have been cases noticed in which the purchase and sale of adult girls could not be prevented, as the "existing provisions of the law'? relate either to minors or sale for, purposes of slavery. Presumably, sections 372 and 373 of the Indian Penal Code are "the existing provisions of the law"

which the suggestion has in mind. -

5.21. Recommendation to amend sections 372, 373, Penn! Code-- We have carefully considered the suggestion. We agree with the principle of the suggestion. In our view, however, it would be more appropriate to amend those sections of the Penal Code, as the subject matter of mere purchase of girls or woman falls outside the Suppression of Immoral Traffic Act--except where the purchase is for prostitution. In this con- nection, we may re'fer to two sections of the Penal Code, dealing with selling and buying minors for the purposes of prostitution, etc.----sections 372 and 373. A person who sells, lets to hire, or otherwise disposes of. any person under the age of 18 years with intent that such person shall at any age be employed for the purposes of prostitution or illicit inter- course with any person or for any unlawful and immoral purpose or with the knowledge that such person will be so employed, is punishableunder section 372. Buying such a person is punishable under section 373.

I The material part of section 372 of. the Indian Penal'Cocle is quofécl below:---- ' . - - ---.-~_«- ' ' ' "372. Whoever sells, lets to hire, or otherwise disposes of any person under the age of eighteen years with intent that such person shall at any age be employed or used for the purposes of prostitution or illicit intercourse with any person or 'for any un- lawful and immoral purpose, or knowing it to beilikely thatsuch person will at any age be employed or used for any such purpose, shall be punished with imprisonment of either description for a term which may extend! to ten years, and shall also be liable to ﬁne." _J._ I '_ \_: J I .,a.[ 1 1 Suggestion of the CGI]'l}'l'I-1 Bureau of C'orrect.ionai Services.

The First. Explanation to the sectirin provides as follows:----

"Explanation l~--When a female under the age of eighteen years is sold, let for hire. or otherwise disposed of to a prostitute or to any person who keeps or manages a brothel, the person so disposing of such female shall, until the contrary is proved. be presumed to have disposed of her with the intent that she shall be used for the purpose of prostitution."

Section 373 makes similar provisions for the person who buys etc. minors for purpose of prostitution etc. In order to achieve the object, it will be necessary to amend sections 372 and 373 of the Indian Penal Code. so as to delete the wards "under the age of eighteen years" (and to make consequential changes). in sec- tions 372 and 373. We recommend accordingly' 5.21. Amendment of section 372 appropriute--Wc may state here that an amendment of sections 372-373 on the -lines suggested above would not be inappropriate. No doubt, at present. under section 372. it is only thesale, etc. of a person under the age of 13 years for the speciﬁed purpose which is punishable. in fact, as originally enacted, section 372. prescribed tit' Pg? linwit of 16 years mod it was in N751 that, by an amendment. the 33% was raised to 18 years. The _r)<=,rscn under the ego of [8 years may be married or unmarried'. Normally, the sale or letting to hire or other disposition of a person, as contemplated by the section, will be difﬁcult in the case of a person above the age of 18 years, sincehg would be c.xpcr:tc-d to resist the disposition effectively. Nevertheless, there is no reason why. if such an act is cornmitted in respect of an adult. it should not be punishable. Sections 372 and 37.3 are beneﬁcial provisions, and we see no reason why the scope of such mercenary crimes should be limited to acts in respect of minors.

S.2lA. It has been pointed out that sections 372 and 373 were originally enacted to deal with "tratﬁcking in innocence". It has also been stated' that these sections protect female minors against their guardians and third parties in respect of acts of disposal tlor 21 life of prostitution. These propositions cnrrectly zmalyse the present section; but they do not, in our view, militate against the extension of these sections to adults, if the kind of control envisaged by the sections is. in practice. found to have been exercised over adults.

It may be noted that the sections of the Penal Code relating to slavery are not conﬁned to minors?

1 To be carried out under section 372-37:1. l.l'.[.9.

9 rjgmmp, 1;. Kommu, (1879) Punjab E-ecrwrl No. 1.'! (Criminal) 3-1, 35. 3 Dori.-lrit Bee V. Ekeikk Ali; 5 .\la.'lrJ..'~' High T.' 121:': liepﬂrli 473.

' l'r"rtlcu V'. Ilfafiniingra, lC.L.l"t. 1'| .\Tc1Ll1'a5! 3975, #93.

5 Spptione 3'70 and 3'71. Indian Penal ('ode-.

r)J 5.22. Section 6(1) and section 6(2)--Section 6(1) punishes any per- son who detains any woman or girl, whether with or 'without her con- sent.--

(at in any brothel, or

(b) in or upon any premises with intent that she may have sexual intercourse with any man other than her lawful husband.

The olfender is punishable, on lirst conviction, with rigorous im- prisonment for a term of not less than one year and not more than two years, and also with ﬁne which may extend to two thousand rupees. It needs no change.

Under sub-section (2), on a second or subsequent conviction for an offence under this section, a person _r.hall be punishable with rigorous imprisonment for a term of not less than two years and not more than five years, and also with line which may extend to two thousand rupees. It needs no change.

5.23. Section 6(3}-- Under subsection (3) of section 6, a person shall be presumed to detain a woman or girl in a brothel or in or upon any premises for the purpose of sexual intercourse with a man other than her lawful husband, if such person. with intent to compel or induce her to remain there,

(a) withholds from her any jewellery, wearing apparel, money or other property belonging to her. or

(b) threatens her with legal proceedings if she takes away with her any jewellery, wearing apparel, money o:r other property lent or supplied to her by or by the direction of Such per- son.

It needs no change.

5.24. Section 6l4)--Sub-section {4} of section 6 provides that not- withstanding any law to the contrary, no suit. prosecution or other legal proceeding shall tie against such woman or girl at the instance of the person by whom she.has been detained, for the recovery of any jewellery, wearing apparel or other property alleged to have been lent or supplied to or for such woman or girl or to have pledged by such woman or girl or for the recovery of any money alleged to be payable by such woman or girl.

It needs no change.

5.25. Section 7(1) ~Vcrbat change rccontmendcd--~Under Section 7(1), any "woman CE girl who carries on prostitution and the person with whom such prostitution is carried on. in any premises which are within :1 distance of two hundred yards of any place of public religious worship, educational institution. hostel. hospital, rmrsing home or such other public place of any kind as may be notified in this behalf by me 35 Commissioner of'Po1ice or District It-Iagistrate in the manner prescrib- ed, shall be punishable with imptisoiiment-for a term which may eat. tend to three months.

Section 7(l)-~Under section 7 we may refer a suggestion' providing sterner punishment in the case of "the male partner". A punishment of imprisonment upto one year and a line upto Rs. 1,000 is suggested in respect of the male partner for the ﬁrst offence. For the second and subsequent convictions, the imprisonment may be upon}? years, and the ﬁne amount may be upto Rs. 2,000.

We have found ourselves unable to accept the suggestion. No re-axons have been give: for the suggestion. Moreover, the suggestions for punishing the male with a higher punishment than the prostitute misses the main object of the section,--preventing prostitution near speciﬁed places. The prostitute is as much guilty as the male partner.

Only a verbal "change" is required in this sub-section. namely. in .-..p1'ace of the words. "yards", the word "meters" should be substituted.

5.=W'e- recommend accordingly.

5.26. Suggestion regarding court to considw pF'(JbCIIi0!.' comrirfercd n--------'I/t-Elias been suggested" with reference to section 'I that a pro-.n'si.on nsl-lsivultt be inserted to the effect that the court by which the person is Ifdiund guilty shall not sentence her to imprisonment unless it is satisfied nthat, having regard -to the circumstances of the case tinsluding the nature of the offence and the character of the offender), it would not blade desirable to deal with her under section 3 or section 4 of the Proba- *-tio'n'of Dﬁenders Act, I958 or under section it] of this Act; and if Eh-'3 court passes any sentence of imprisonment on the offender, it shali ".Te--t:D1'd reasons for doing so. Further, it should be provided that for the purpose of satisfying itself whether it would not be desirable to deal with an olfender under section 3 or section 4 of'the 3Probation of Offenders Act or under section ID of this Act. the court shall cult for a report from the Probation Oflicer and consider the report, if any, and any other information available to» it relating to the character and physi- cal etn.d.rnen.ta1 condition of the offender. The object is to introduce the [probation method.

5-' 5.27. Change recommended----We are of the View that the sugges- tion should be accepted in substance, as 'introducing a salutary princi- ple. i 5.28. Amenslment _of section 10 recon-nmeii-de:i--«-We 1:1: "recom- mending suitabla Klmendmcnt of section it) for' the alJOf!'E: purpose.' 5.29. .S'ecri'c-n '.'(23~L'nder section 7(2), any person who--

[all being the keeper of any public place knowingly permits prostitutes for purposes of their trade to resort to or rernian in such place; or 1- E-.}l'o. in-~Suggeet.ion of the Department. of Sucial 'rValEI1'P-

' Suggestion of the Central Bureau of Coronet-ionili Servieaﬁ. * See racommlndat-ion as to section ll}. infra.

(b) being the tenant, lessee. occupicrem-.;perso11_i11 charge of any premises referred to in sub-section ll) knowingly per- mits the same or any part thereof to be used for prostitu-

_ tion or _ (C) being the owner, lessoriir landlord of any premises referred to in subsection (1). or the 'agent of such owner, lessor or landlord, lets the same; or any part thereof with the know- ledge that the same or any part thereof may be used for prostitution, or is wilfully a party to such use, ' punishable on ﬁlrstdconviiction with imprisonment for a term which may extend to three months, or with ﬁne which may extend to two hundred rupees. or with both, and in the event of a second or subse- quent conviction with imprisonment for a term which may extend to six months and also with ﬁne which may extend to two hundred rupees.

5.30. Suggestion con.s1'dered--There is a suggestion' to- make--the following change in section 7(2), clause (a):-A "being the keeper of any public place knowingly permits a woman or a girl to resort to or remain ins-uch a place for purposes of prostitution." ' I It has been stated that a keeper of a public place may take the a plea that he does not know that the woman is a "prostitute" as defined in the Act. The purposes of the Act can, thus, be defeated. Hence the need for amendment.

w We do no-t, however, accept the suggested amendment, as it will I1pt_solve the ditﬁculty referred to above. The principal requirement of ..'.'Qurposes of prostitution" will still have to be proved. and the proposed . amendment will be of no use in that respect.

' l 5.31. Section 7(2)---AAnother suggestion c'onsidered------As regards section- 7(2)(c)_. the following re-draft has been suggested':-----

"(cl .......... ..may be used for the purposes of prostitution."

It has been stated that the proposed change is necessary, as it may .'l;Ig(diﬁiCl..l1t to prove actual prostitution within the very premises. A place gused for operating a call-girl system should {it is stated) also be brought 'within the scope of this Act. The suggested change however. becomes unnecessary, in View of the wide definition of "prostitution"._ which is 'separately' recommended by us.

5.32. Section 8---«Section 8 reads as follows:---

"8. Whoever, in any public place or within sight of, and in such manner as to be seen or heard from, any public place. whether from within any building or house or not----

* Suggestion of the Central Bureau of Correctional Serviees. 3 Suggestion of the Central Bureau of Correctional Services. 3 Sue discussion as to section 2(f) -"'prostit.ution".

(a) by words, gestures, wilful exposure of her pefson (whether by sitting by a window or on the balcony of a build-

ing or house or in any other way)- or othervrise tempts or endeavours to tempt, or attracts or endeavours to attract the attention of, any person for the purpose of prostitution or (bi solicits or molests any person, or loiters or acts in such manner as to cause obstruction or annoyance to persons resid- ing nearby' or passing by such public place or to oﬂenci against public Clﬁoency, for the purpose of prostitution; shall be punish- able on first conviction with imprisonment for a term which may extend to six months, or with tine which may extend to five hundred rupees, or with both and in the event of a second or subsequent conviction with imprisonment for a term which may extend to one War, and also with 'ﬁne which may extend to five hundred rupees."

5.33. Section 8--~Di'firJitirm of "sol-='-t'r'I"' rim' jizv0ured----Thc Com-

.mittee' made a recommendation that the expression 'soiicits" in section 8 should be defined. so as to determine the action precisely. But we do not think that a deﬁnition of this expression would be an irnprovernent, and we do not recommend any such amendment of the Act.

5.34. Section 3--Plt?!l._l'FlmE'Jlf--kl t has been suggested," as regads the punishment under section 8 thatﬂl

(a) the offence should be punishable with imprisonment for a term which may extend to six rncmths (as at present};

(b) but it may be provided that the Court by which the person is found guilty shall not sentence her to imprisonment unless it is satisfied that, having regard to the circumstances of the case, including the nature of the offence and the character of the oﬁender. it would not be desirable to deal with the oﬁender otherwise;

(CI for the purpose of satisfying itself whether it would not be desirable to deal with the offender under section 3 or section 4 of the Probation of Offenders Act or under section 10 of this Act, the Court shall call for :1 report from the probation officer and consider the report. if any. and any other infor- mation available to it relating to the character and physical and mental conditions of the offender.

The reason given for the suggestion is, that both ﬁne and imprison- ment are totally unsatisfactory methods for dealing with such olfenceas. The satisfactory methods are probation with its diverse techniques. and corrective training over a period of 2 to 5 years with a provision for reiease on licence and supervision and after care.

' HE'pnIt- of t-110 Committee on i1ri1r=r1dmBr1'I>' to the .'~'11'pp1~csasriori Act. ].na1'a. =3-3. * Para. 5- 32 siipm.

'' Lituggestion of the Central Burt-an of Corrcotiiona-1 -'Services.

The suggestion may be accepted in principle, as a progressive one, in respect of ﬁrst conviction.

5.35. Amendment of section l0--We are recommending suitable amendment' of section 10, for the above purpose.

5.36. iﬁection 9¥--Amendment recommended--We now come to sec- tion 9, which reads--

"9. (1) Any person who, having the custody, charge or care of any woman or girl, causes or aids or abets the seduction for prostitution of that woman or girl shall be punishable on ﬁrst conviction with rigorous imprisonment for a term of not less than one year and not more than three years, and also with ﬁne which may extend to one thousand rupees."

(2) In the event of a second or subsequent conviction of an offence under this section a person shall be punishable with im- prisonment which may extent to ﬁve years and also with a line which may extend to one thousand rupees."

It has been suggested? that in section 9, after the words "having the custody, charge or care of" the words "or a position of authority over ....... ..", be added; The phrase proposed to be added is considered to be a modern need in legislation of this nature, as employers or their agents exercise immoral inﬂuence and induce girls to participate in organised commercial vice occasionally. With the provision as it exists, a very large number of offenders are ﬁned. They have to work harder to pay the ﬁne, and the remedy defeats the purpose. "A tolerated system of prostitution with the State realising revenue from the same through ﬁnes comes into existence." It is stated that such a developm cnt should not be allowed, and we should provide for a scientiﬁc correctional ap- proach.

5.37. Recommendation to amend section 9(l)~The suggestion is worth acceptance. and sound in principle. We. therefore, recommend that section 9(1) should be revised as follows:-- --

"9(l) If any person having the custody, charge or care of any woman or girl, or standing in a position of authority over any woman or girl, causes or aids or abets the seduction for prostitution of that woman or girl, he shall be punishable on ﬁrst conviction with rigorous imprisonment for a term of not less than one year and not more than three years, and also with ﬁne which may extent to one thousand rupees." ' _ 5.38. Section lOv--e-Section 10 is an important Section, and reads as follows:

"10(l)(a) A person convicted for the ﬁrst time of any offence under sub--section (2) of section 3, or under section 4, section 5, section 7 or section 8 may, having regard to his age, character, 1 Sea redraft ol'sect.ion 10, infra.

' Suggestion of the Central Bureau of Correctional Services.

is ,.E.".1t¢9f"-d§m'S_-and the circumstances in which the offence was com- rmtted, be released by the court before which he is oonvieted on probation _of good conduct in the manner provided in subsection f ..(1),Qfscctton 562 of the Code oi Criminal Procedure, 1898. -

_(b) A person convicted 'for the first time of any olfence under section 1' or section 8 may, having regard to his age, character, antecedents and the circumstances in which the-oﬂ"enee' was com- mitted, also be released with admonition in the manner provided f01? in -Sub-Section (IA) of section 562 of the Code of Criminal _-Procedure, 1898-. ' (C) The provisions of subsection (2), sub-section (3) and sub-

section (4.1 of section 562 and section 563 and section 564 of the Code of Criminal Procedure, 1893, shall apply to cases referred ' to in clause ta) and clause (b). a p (2) Where a woman or girl is convicted of any offence under ' 'section 7 or section Smandnis not.re1e'c_lSed,under clauseia) of sub- section tii on probatio'n'of good conduct or under clause {bl of ~_ thatisubésection with admonition, the court convicting the woman ori'=girl:~.may, hayi-ng regard to the age, character, antecedents of -

>tlaei~won1an?ot>7'--girl and the circumstances in which the offence was.::I:ornhtinteclr,_r:pa;ssi i_n'flieu of the sentence of--hnprisonment or *- ':ﬁ:re,ia:sentenc'e:of_ttetent'ion= in a protective home for aperiod off 'not less than" two years and not more than ﬁve years.

{3} Notwithstanding anything contained inthe Code of Cri-

minal" Procedure. 1898, or any otherplaw for the time being in force. no, person convicted under isuh-section (1) of section 3 or ' . ii under section 6 or, section}! shall be released on probation or with admo-nition." e , --

A 5.39. .Section:1(}~--.Anr}lysr's----On analysis it will be found that sec-

tion.' 10 contains two types of provisions' applicable to the various offences: * ' ' t1l'=.Pr,obeﬁon;"if- t --' T ; ' 'i:~.:>',ﬁ1';;=iar,=--*ti,°.I';*"s'I'ra a:;p€qi§¢:ivc home: _ , 'i-"ﬂ,'I'iie ;1§;gaa+i,§ian;. *si.g'7_;p'm.__'ati_ over"a number of sub-sections. The rn'tiiineii'in"which the' section is drafted, does not already bring, out the effei:'t or the section? on each type of offence. The following analysis has, therefore. been prepared to facilitate a clear understanding: ---

Se«c*-tir.In 3(1'l . . . . .. . . . . . . No prolia.t,ion---

Keeping it 'brothel _ Seotiq-n 10(3) Fieetion 3(2) .. . . ., .. .. "Probation A-liowiin,-': premises to be neat] as a. brothel . . . . . . .. Sec-ﬂan 10(Il{ﬂ~'.' stat-.m;t " ' " *' .. .- --'P:i»'?'~ﬁ"n""' Li--,':'n_E an {.11 $331-Rings ni' prostitution . . . . . . . . I Sect-101:! ' 1 Palm 5.38. -mywrs.

~13 S691-'10r_1 5 _ I . . . . . . . . . . . . Probation PI'0@RI'ing. inducing or ﬁﬂilng vrcman o_r girlfot [II'0i!iiili11i)l|J.| . . Section 1O(1)(c1) Sentlglt 5_ . . . . . . . . .. . . No probation Detoinlngo wornan or girl in premises Where pwsbitubiorr is carried on Election 10(3) Soer_l':ir_n_:.7,._ _ .. .. .. .. .. .. Probation Prolmtnuion-in or in vicinity of public places. . . . . . . Section 10(l.;|[n] Ad- rnonj tion Sees-Eon 10[1][_b).

sections ' .. s ;. ' ..' ., .. .. Probation Seducing or soliciting For purpose of prostitution . . . . . . Section llI|(1}(u) Admonition 7 Section lO(l)(l'a} Section 9 . . . . .'. . . . . . . No probation Seduotiorrof woman: or girl in custody [for prostitution) . . . . Section 10(3).

. _5.4-0. Suggestion for revising section 10 considered---The_ provision prohibiting probation--found in section IO(3),----raises an important question arising _from_ a suggestion, The_ suggestion' is that though the oifeijtircs for which probation _is disallowed under the Act---e.g. keeping a hrothel [section 3(1)] or detaining a girl for prostitution [section I5] or seduction of a girl in custody for prostitution [section 9].---are vicious enough_,_,they could at times, be the result of an ill-considered or ill-bred min_d_ t'aﬂ1er_than of a well-planned criminal career, and it: is desirable that a. categorical denial of probation should not ﬁnd a place in the law.

5.41. Distinction f}E'IIjV£.'€_!'t "protective home" and "correc1ive" insti- r.u!t'on----_That suggestion has also. dealt with one other aspect of the matter.' We have referred earlier' to the suggestion for making a distinc- tion between "protective homes" and "corrective" institutions. Carrying the same approach further, the suggestion now is that the court should, under section 10, have a discretion to send the convicted person to a corrective institution. It is stated that the wording used in the deﬁnition ._sec-7-lion .2(g}(iiJ---fort'fcorrective institutions" is the same as is used normally for Borstal. institutions. Borstal institutions are meant not for first offenders or for those who show minor deviant traits, but are intend- ed for those who appear to be taking to life of crime, having already committed two to three offences. In the existing provisions-. "corrective institution" is supposed to be a step towards leniency. It has been sug- gested that such an institution really-confortn to the standards of Borstal institutions.-'a'od seek to train; re-educate and re-adjust the personalities of those {who are seriously cﬁisrnrbed or are c2'.isora'eriy.

The schemeset forth in 'the _suggestion, therefore. is that ordinarily. the court should'--~' '

(i) -admonish'-the person in case of first offence; ' ' {ii} '1;-'y' extra-mural probation, in case a second oﬁ'er:ce;

T S'11ggeai-.inn of the Central B11ron.u of C'-orrectiona.| St-.1-vines. 2 'duggestiﬂti of the {'-=~nt-ta! Bureau of (Torri oiiornl '?-ervic.E'.«'5. 3 See discussion relating to .~ye-oL'on 2[g). ti-.FiI1ii-inn uf"[JI'c1t-E-ntive hnnie".

(iii} order probation with residential requirements (institutional- ised probation) in case of a third offence; and

(iv) order corrective training thereafter.

imprisonment may be used, along with binding down orders under sec- tion_ l_2, when the person convicted appears to be incorrigible after receiving corrective training, and supervision, and: after care under the same.

Further, the extramural probation mentioned above may include compulsory attendance and counselling and guidance services, as well as requirements {or joining educational or training institutions or subjecting oneself to medical treatment. The institutionalised probation mentioned above may include Special Homes and Hostels, where vocational as well as social rehabilitation may be attempted by professionally trained per-

sons in small home--1ike atmosphere affording personal guidance and counselling. All these can be arranged under the Probation of Oifenders Act, 1958.

We appreciate the spirit underlying the suggesaion, but it raises several important issues and we proceed to consider the relevant aspects in detail.

5.42. Connected provisions' of Probation Act--We may, at the out- set, note that the power tn' the court to release a person on probation of good conduct is now provided for in section 4 of the Probation of Offenders Act, 1958. As regards persons under 21 years of age, section 6 of that Act requires the court to release the offender on probation, except in certain cases. Keeping these two provisions of the Probation Act in mind. we may refer to the connected provisions in sectio-n l0(l)(a} of the Suppression of Immoral Traﬂic Act, which relates to the same topic (release on probation) as is dealt with in sections 4 and 6 of the Proba-

tion Act.

The power of the court to release on adinonirion is now provided for in section 3 of the Probation of Offenders Act. Section 10(_l)(b) of the Suppression of Immoral Traffic Act relates to the same topics.

Section l0(1l(c) of the Suppression Act is connected with section l()(l)(a) and (b).

It would be convenient if the section in the Suppression of Immoral Traffic Act makes a reference to the provisions in the Probation of Offenders Act.' 5.43. Amendment of section 10(1) to exclude probation for certain oﬁences_-From section 10(1), we propose to remove olfences under sec- tion 3(2), section 4 and section 5. These are serious olfences, not suitable for probation. We propose to add them in section 10(3). which prohibits probation?

1 See 1-ed:-aft in 'para. 5-50, infra.

5' See recommendation as to section 10133 Pitta 5' 48» '5Tlf"'T--

5.44. Section 10(1), Suppression Act to be amended and section 18, (Probation Act, also to be amended#We considered a suggestion to the effect that section 10(1) should be deleted, in view of the overlapping between the Probation of Offenders Act and section 10(1). But the sug- gestion cannot be accepted for reasons which we shall presently state. In this connection, section 18 of the Probation of Offenders Act was also referred to. Section 18 of the Probation of Offenders Act, 1958 (so far as is material). provides as follows:

"Nothing in this Act shall affect the povisions of ............. .. the Suppression of Immoral Trafﬁc in Women and Girls Act, 1956 We have come to the conclusion that section 10(1) of the Suppres- sion of Immoral Trafﬁc Act should be retained, but the section should be made into a self-contained provision. After this change, section 18 of the Probation of Offenders Act should be amended, so as to delete the reference to the Suppression of Immoral Trafﬁc Act, as it will be- come confusing.' 5.45. Reference to new Code to be substituted----lt is also necessary to substitute reference to the new Code of Criminal Procedure. 1973 and the Probation of Offenders Act, 1958 in section l0(l)(a), (b) and (0), in place of the portion referring to the Code of Criminal Procedure, 1898. Incidentally, we may state that the reference to the Code is now

- required only for areas where the Probation of Offenders Act is not in force.

5.46. Points summarised--The net result of the points made above under section 10(1) is that a person convicted for the ﬁrst time of any offence under section 7 or section 8, may, having regard to his age. character, antecedents and the circumstances in which the offence was committed, be released by the court before which he is convicted with admonition or on probation of good conduct----

(a) in the manner provided in the Probation of Offenders Act, 1958, if the said Act extends to the -State;

(b) in themanner provided in section 360 of the Code of Criminal Procedure, 1974, if the said Act does not extend to the State.

5.47. Section 10(2) to be amended--Section 10(2) of the Suppression of Immoral Traffic Act provides for detention in a protective home." in respect of persons convicted under sections 7 and 8. In place thereof. we propose that detention in a corrective institution should be provided for", since we are of the view that for the offences referred- to in section 1 Section 18, Probation of Offenders Act, 1958, to be arnenrled, so as to remove reference tn the Sllppression Act.

2 Para 5'29, supra.

'4 See para. 5- 5!), infra (proposed new s. INA).

'[Jl'[D)12lVIofIJ&.C-A-»-5 46 10(2), the proper institution is a corrective institution where such persons are not released on probation etc. We recommend the insertion of section 10A for the purpose.

5.48. Section 10(3) to be widened/Section 10(3) prohibits release on probation or with admonition for certain offences, i.e. olfences under sections 3(1), 6 and 9. According to the scheme which we contemplate'. only offences under sections 7 and 8 are suitable for probation, and, consequentially, it is necessary to amplify section 10(3) so as to prohibit release on probation or with admonition for all oﬁencezsg except those

-under sections 7 and 8. ' 5.49. Reasons to be recorded for not granting pr0bation----sec_tion 10 to be amended---We consider it desirable to insert a provision that where inany case the court could have dealt with a convicted person by ordering probation, but has not done so, it shall record in its judg- ment the special reasons for not having done so." This is in regard to the first conviction for oifences under sections 7 and 8. Section I0 is the appropriate place for such a provision, and we recommend that it should be amended accordingly.

'5.50. Recommendation as to section 10 and to insert 5. 10A --In the light of the above discussion, we recommend the following re-draft of section 10, and we also recommend that new section*---section 10A--- shouldtbe inserted. as under:--

Revised Section 10

10. [Existing section l0(l}(a)(b) in part, modified]----(l) A person convicted for the ﬁrst time of any offence under .......... ..section 7 or section 8 may. having regard to his age, character, antecedents and the circumstances in which the offence was committed, be released by the court before which he is convicted on probation of good conducte-

(a) in the manner provided in section 4 of the Probation ol Offenders Act, 1958 (hereinafter referred to as the "saia' Act"), if the said Act extends to the State;

(b) in the manner provided in sub-section (1) of section 360 of the Code of Criminal Procedure, 1974, if the said Act does not extend to the State.

(IA) [Existing section 10(1}ta) and (b) in port, modiﬁedlAA person convicted for the ﬁrst time of an offence under section 7 or section 8 may, having regard to his age. character. antecedents and the circum-

stances in which the oﬁence was committed. also be released with admo- 'Jition---

"(#1) in the manner provided in section 3 of the said Act. if the said. Act extends to the State;

1 c.b. our recommendation ll'! *0 sect-ion 10(1). pnr.-i 5-43. snpm.

' For the suggested re-draft. of sections 1|'! and 1011, son '|C3':l.I'lL 5 - en, infra. ' C-11. Bection. 331, Code of Criminal Procedure, 1974.

1 Para 5-47, aupm.

4'7 '(b) in the manner provided in sub-section (2) of section 366 of the Code of Criminal Procedure, 1974. if the said Act does not extend to the State.

Explfanation: In this section, "State" includes a part of a State.

(IB) The provisions of sections 5 to 17 of the said Act (both inciti-

sl'V€).S'l1£1ll apply to the cases referred to in clause (a) of Sui)-sectiott H) and clause (a) of sub-section (IA).

(IC) [Existing section l0(l)(c), modified]ﬁThe provisions of sub-sec- rions (2) to (10) of section 360 of the Code of Criminal Procedure, 1974. shall apply to the cases referred to in clause (b) of sub-section (1) and clause (b) of subsection (IA).

(2) [Existing section 10(3). tttodified] --Notwithstanding atiything. contained in the ("ode of Criminal Pocedure. 1974. or any other law for the time being in force. no person convicted under sub-section (1) or (2) of section 3 or under section 4 or section 5 or section 6 or section 9 shall be released on probation or with admonition.

(3) (New) The Court by which the woman or girl is found gttilty shall, on first conviction under section 7 or section 8. deal with her under this section, and shall not sentence her to imprisonment unless the Court is satisﬁed that, having regard to the circumstances of the case, inclacﬁng the nature of the offence and "the character of the offender it would not be desirable so to deal with her; and if the court passes any sentence of imprisonment on the oﬂender on first conviction, it shall record its reasons for doing so.

(4) (New) For the purpose of satisfying itself whether it would not be desirable to deal with such woman or girl under this section, the court shall call for a report from the Probation Officer appointed under the said Act, and shall consider his report, if any, and any other information available to it relating to the character and ph_\'.\'iCal and mental condition of the oﬁender."

Section 10A (New) "IOA. [Section 10(2) modiﬁed] (1) Where--

(a) a 'female offender is found guilty of an oifence under section 7 or section 8, and is not released under sub-section (1) or (IA) of section 10; and

(b) the character. state of health and mental condition of the offender and the other cit'cumstanCes of the case are such that it is expedient that she should be subject to detention for such term and such instruction and discipline as are conducive to her correction, it shall be lawful for the court to pass, in lieu of a sentence of imprison- ment an order for detention in "a corrective _ institution' established ' A4 to urn-rec ivn institution, S01 section 2! an p:-opoaoal In he 3..I[1l'-'-1|I9'i-

under this Act. for such term, not. being less than two years and not being more than ﬁve years, as the court thinks ﬁt:

Provided that, before passing such an order---

(i) the court shall give an opportunity to the offender to be heard, and shall also consider any representation which the offender may make to the court as to the' suitability of the case for treatment in such an institution, as also the report of the Pro-

bation Oﬂicer appointed under the Probation of Oﬁenders Act, 1958; and ' r ' (ii) the court shall record that it is satisﬁed that the charac- ter, state of health. and mental condition of the offender and the other circumstances of the case are such that the offender is likely to benefit by such instruction and discipline as aforesaid.

(2) Subject to the provisions of subsection (3), the provi- sions of the Code of Criminal Procedure, 1974, relating to appeal, reference and revision, and of the Limitation Act, 1963 as to the period within which an appeal shall be filed. shall apply in relation. to'an order of detention, under sub-section (1) as if the order had been asentence of imprisonment for the same period as the period for which the detention was ordered.

"{3} Subject to the rules made in this behalf the appro- priate Government or any authority authorised in this behalf by such Government may, at any time after the expiration of six months from the date of an order for detention in a corrective institution, if satisﬁed that there is a reasonable probability that _ the offender will lead a useful industrious life, discharge her from such an institution, with or without such conditions as may be considered fit, and grant her a written licence in the prescribed form.

(4) The conditions on which an offender is discharged on licence may include requirements relating to residence of the offender and supervision over the oﬂenderﬂs activities and move-

ments."

. 551,- Section l1--This takes us to section 11. Section 11(1) pro- vides "that when any person having been convicted of an offence punish- able under this Act or punishable under section 363. section 365, sec- lion 366, section 366A, section 3663. Section 367, section 368, section 370, section 371, section 372, or section 373 of the Indian Penal -Code. with imprisonment for a term of two years or upwards, is within a period of ﬁve years after release from prison, again convicted of any offence punishable under this Act or under any of those sections with imprisonment for a term of two years or upwards by a court, such 'court, may, if it thinks ﬁt, at the time of passing the sentence of im-

' Amﬂndm '.' t o{'.uoction 18, 1'1'0'ba.tlun Act. to be separately oonsirlerc-.d. See para 5- -14 .'?HfN'ffu 49 prisonment on: such person, also order that his residence, any change of. or absence from, such residence. after release be notiﬁed.acco1'ding to rules made under section 23 for a period not exceeding ﬁve years from the date of expiration of that sentence. Sections 11(2) and 11(3) con« tain certain incidental provisions. - -

Section 11(4) provides that a person charged with a breach of any rule referred to in sub-section (1) may be tried by a Magistrate of competent jurisdiction in the district in which the place last- notiﬁed as his residence is situated. ' ' The section needs no change.

5.52. Section l2«Section 12 deals with security for good be- haviour from habitual offenders, and needs no change. T 5.53. Abuse of ourizority by police ofﬁcer----whether provision needed. Sections 17A and 17B (New)--We have examined the question whether any specific provision is needed to prevent immoral behaviour by police officers who may be in charge of girls rescued under the Act. Abuse of authority by a public servant in various. situations is dealt with in several sections of the Penal code} Sexual misconduct of a particular type by a public servant or others is also dealt with in several other sections' in the Code. In particular, inducing any woman to go from any place in order to force or seduce her to illicit intercourse, is punishable under the latter part of section 366, Penal Code.

It may also be noted in this connection that a previous "Law Com- mission" has, in its Report on the Penal Code, recommended the addi- tion of certain provisions (in the Chapter on offences alfecting the hu_~ man body) for dealing withsexual misconduct. The object was to' punish persons who commit acts, which, though technically not proved to be_ rape, represent rr1iS--conductJin sexual matters by an abuse of position. The relevant portion of the Report is quoted below:----

"Thereare certain situations in 'which, although force or fraud cannot be established, the compulsion of the situation is such that the women's will is dominated by the will of the man. and taking an undue advantage of the situation, the man takes liberties with the woman. The woman's submission to sexual intercourse in such a situation is really not a 'willing consent, and we think that provisions punishing this re-r. prehensible conduct on the part of theman should be included in the Penal Code. We do not, however, wish to make the provisions very wide, because they may furnish a weapon for blackmail in the hands of unscrupulous women or their relations. We would conﬁne it to lho'se situations where the need for throwing a cloak around the woman for protecting her chastity outweighs the opportunity 'for blackmail. On this principle we recommend the insertion of three new sections as follows:'' a ' T [Sections recommended not quoted here] 1 E'.g. section 220, I.P.C'-.

2 I-lg. sections 342, 354. 366, 36621, 376. $5150.. T.P.{7.

-" rlﬂud Report. (Pi,-mi,' Critic page 279, print lti-123.

5.54. Recommendation to insert new sectionwWe have considered the matter carefully. While the recommendation made by a previous Law Commission' in its Report on the Penal Code. read with the existing provisions in the Penal Code, furnishes the needed safeguards in general terms, we have come to the conclusion that. having regard lo_ the possibility of misconduct in view of the nature of the duties which police ofﬁcers have to perform under the Act, and other relevant circumstances, aispeciﬁc provision in the Act on the subject is needed. Accordingly, we recommend that the following new section should be inserted in the Act---

"l7A. If a police officer having the charge or custody of a woman or girl under this Act, compels or seduces to illicit sexual intercourse-with any such woman or girl, he shall be deemed to be guilty of----

(a) an oﬁence under section 376 of the Indian Penal Code, if he compels her to such intercourse,

(b) an offence under section 376A of that Code, if he seduces her to such intercourse."

We may make it clear that in the above new section, where we refer to "section 376A, of the Indian Penal Code, we have in mind the section proposed to be inserted by the l.P.C. (Amendment) Bill. l972"._ which is now pending before a Joint Committee of Parliament.

5.55. Delay in the production of gir!s_At this stage, we would like also to deal with the question whether a provision is needed to penalise Police Oﬂicers who are guilty of delay in the production of rescued girls. We have devoted some thought to the problem because, in our opinion, such a default by the police ofﬁcers is likely to increase the opportunities for misconduct which are inherent in the very nature of "the functions assigned to them by the Act.

The Act contains meticulous provisions for the prompt produc- tion before the Magistrate of the girls rescued under sections 15 and

16. These provisions show the anxiety of the legislature to ensure that the girls shall not be detained under the Act for a longer time than is necessary in the circumstances of the case. In View at this anxiety of the legislature as reflected in these provisions,---- particularly by the use of the expression "forthwith",--we consider it desirable to recom- mend the insertion of a suitable provision dealing with non-produc- tion, so that the obligation cast on the Police ofﬁcer to produce the girl promptly does not remain a dead letter.

5.56. Offences of wrongful confinement d:'scusse.d--No doubt. even in the absence of a provision on the subject, a Police oﬁicer who 1 Pure 5-53, supra.

9 See the T PE. 1119 51 delays production of the girl would be guilty of the offence of wrong- ful confinement under the Indian Penal Code', because the justification for arrest and detention which is provided' by the statutory power under sections 15, 16 and 17 of the Act would not be available if it is established that the detention of the girl is made to extend beyond the limit indicated by the prorvision for production "forthwith" before the speciﬁed Magistrate, as contained in these sections.

5.57. Effect of illegal confinement--AGeneral principle----lt is well- established that conﬁnement under legal authority must conform to the terms of that authority, and cannot exceed: those terms, whether in respect of place, duration, manner or otherwise, except in the case of mistake of fact in good faith. dealt with in sections 76 and 79 of the Penal Code 3-3-* or other speciﬁc exceptions created by statute.

Thus, it has been held' that police officer is not justiﬁed in de- taining a person for one single hour. except upon some reasonable ground justified by the circumstances.

5.58. Two devices considered--In this connection we thought of two alternative devices: The ﬁrst device would be to insert, in the Indian Penal Code, a provision that a police ofﬁcer who fails to pro- duce a woman or girl removed under section 15 or 16, should be deemed to be guilty of wrongful conﬁnement. under section 340 of the Indian Penal Code. .

The second alternative would be to introduce a rebuttable pre- sumption that such police ofﬁcer shall be presumed, until the contrary is proved. to have wrongfully conﬁned the woman or girl within the meaning of the aforesaid section. Having carefully considered the matter. we have come to the conclusion that it would be "better to frame the provision in accordance with the second alternative, so that the police ofﬁcer may, if the circumstances of the case so justify, give evidence proving his good faith and thus rebut the presumption. No doubt, cases of failure to produce the girl owing to unavoidable cir- cumstances; ~e.g. escape of the girlmwould be rare. However, it is not intended that such failure on the part of the police officer should be punishable.

We may, of course, point out that a penal provision punishing delay by the police officer in these circumstances would be in tune with the general principles recognised by judicial decisions under the Penal Code, as already noted". These principles, which have been evolved to protect the personal liberty of those whom public servants or the local authority take in their charge or custody, in general, apply with greater force where females are concerned.

1 Section 340, Indian Penal Code.

" Ram Sing}; Y. Emperor, A.I.R. 1923, All. 34.

3 Queen. v. Behari Si-rtqh, (1867), Sutherland Weekly Reports, Cr. 3-30 (CAL).

4 In. re Dim;-natk, A.I.R. 1940 Nag. 186, 190.

5 Queen v. nguprtwonmt Ghoaal, 6 Snth. W.R. (CL) SS-89 (Kemp it markby JJ].

" Para 5- 57. supra.

5.59; Recommendation to insert section 17B--We, therefore, re- commend that the following new section should be inserted in the Act:----

"17B. If a police oﬂicer, having removed a woman or girl under sub-section (4) of section 15 or sub-section (2) of section 16, fails to produce the woman or girl----

'(a) before the appropriate Magistrate as required by sub- section (5) of section 15, or

(b) before the Magistrate issuing the order as required by sub-section (2) of section 16, or '

(c) before the nearest Magistrate as required by subsection (1) of section 17, it shall be "presumed, until the contrary is proved that he has wrongfully conﬁned the woman or girl within the meaning of section 340 of the Indian Penal Code."

CHAPl'l5.R 0 PRO(.'i:'D U RA 1. 1' Rt) VI .5! ONE (Sections l3------22) ' 6.1. Infr0duCIi0rr----~A ,nnn1ber ol '!'!Ii'E1CC(lLli".il pt'()\»'i.~.lo-its are Contain- ed in sections 13--22.

6.2. Section 13 deals with the appointment of special. police oili- cers and an advisory body.

6.3. Section 13 chcmge not .s'uggri.si2';-r.l The Committee recommend- ed' that the duties of the Special Police Oﬂi«;er, as entunertttcd in sec- tion l3, should be assigned to an oliiccr not below the rank of inspec- lor, so that adequate personnel to £.li_scl1tl1'\__>c lllC_\L3 functions could be available in the country, But having regard to the wide powers con- ferred on special police officers, we a re oppos-c-d to such a. change. We give below a list of functions perl'or1ned by Special Police Officers appointed under section l3:--A (1) Section l4(l)w~Arrest without warrant for offences under the Act. . ' Section I?'-l(2)----The special police officer can also authorise any ofﬁcer subordinate to him to ar'1'<::'at witliottt warrant.

(2) Section 15mSearch of premises without warrant can be done by such officer in certain C]l"CL1rl]SiE1!'1CC.'i_ (3) Section l5l.'5_)----T'r1e special police oliiccr who lius remo»vecl any girl who is in his opinion below 21 years and is carrying on, or made to Cdl"L-'j' on, prostitution under sec; tion i5(4} has to forthwith produce her before the appro- priate Magistrate.

(4) Section 16-A-Magistrate may direct the special police ofﬁcer to enter a brothel anci to rescue therefrom such girl, whom he has reasons to believe is below 21 years and pro- duce her before him". The special police officer has to pro-

T duce the girl before the Magistrate forthwith after taking the girl. A .

(5) Section 17---Whenthe special pnlict; If_)fﬁ.;er regnoxging :1 girl under section 15(4) or SECl.i-Hi toil) fails to produce her immediately before the inpproprizslc il\«Tag_rist1'atc. he l'l['.S to forthwith produce her lteelmc thc IlC:t!'C§l. i\v'l2lgl5Lll'i:lC of :I.Py class for his o1'(iL:rs.

1 Reportufthc Committee on mt1u;1d1m-..t'.-. rm rI.~ Hiigapu ~ V-rt c-tn. .'\c_-+_._ pm--4 5-2}, ).L.,-,,,..___ mendation No 7 335 54 6.4. Section M------Section 14 provides that otfences under the Act shall be cognizable, but also imposes certain restrictions as to the tank of the ofﬁcers who can effect an arrest without warrant. The Com- mittee recommended' that in section l4liiJ and l4(iii), nn officer not below the rank of Sub-Inspector should be authorised to as.rr'.rt the special police oﬁicer. Having regard to the nature of the functions to be performed by the designated police ofﬁcers, we do not recommend such change.

6.5. Extertsiort of provr'.s-£011.; as to rescue to women above the ctge of adult women---.Secn'ons 15(4) and l6---We now come to a question which, though procedural, is of importance in connection with the effective impieinentation of the policy of the Act which is the crea- tion of a legislative set up towards achieving social welfare in this par- ticular held. The question concerns the rescue of those: women who are made to carry on prostitution and. who have completed the age of El years. The Act makes a beneﬁcial provision for the rescue of "git-1s"--»--i.e., females under the age of 2] years but it is silent as to the rescue of women above the age of 21 years who are made to carry on prostitution.

It may be noted that the Act deﬁnes a "woman" as denoting? a female who has completed the age of 21 years, and a "gir"" as denot- ing female who has not completed the age of 21 years. In our discus- sion of the present question we shall use the expression "women" as denoting only adult women. i.e., females who have completed the age of 21 years.

6.6. Relevant prrzmisions summarised-~--W'e shall iii-st refer briefly to the relevant provisions. Section 15 sub-section (ll authorises the search of premises where any woman or girl is living in respesr of whom an offence punishable under the Act has been or is being com- mitted. An offence "in respect of a woman or a girl"-----an expression not very precise --could be of several kinds. Prostitution as such is not an offence under the Act but certain acts connected with prostitution are offences, and the deﬁnition of "prostitute" is not conﬁned to girls as that expression' is deﬁned to mean "a female who offers her body Eor sexual intercourse" etc. Thus for example, section 3 which deals with one of the oilences under the Act and punishes the keeping of a brothel, may involve girls as well as women. Section 4 which prescribes the punishment for living on the earnings of prostitution would similarly involve any female by virtue of the deﬁnition of "prostitution", and in fact. sec- tion 4 sub-section (1) makes this clear by using the phrase "prostitu- tion of a woman or gir ". Under section 5, certain acts,--mainly, pro. curing, inducing or taking a "woman or girl" for the sake of prostitu- tion----are punishable, and! under section 6, detention of a "woman or a 1 Rgpgrg-. of the Uommitnee on a.ri1m-uzlment-5 to the Supptesniun etc. Act. 133-l'ﬂ-ED'-l3]£l 5'4 Recommendation No. B. --

' Section EU).

" Section 2(5}-

! S3:t.ion 2, eﬁnit.'on_ of "IE'i'o:t.itut-ion".

girl" in any brothel or in or upon any premises with the specified intent, is punishable. A "woman or a girl" who carries on prostitution in pre- mises within the speciﬁed distance of a place of public religious wor- ship, educational institution and the like, is punishable under section 7'- Seduction of a "woman or girl" in custody is punished under section 9. This brief resume of the relevant provision shows that section 15(1) is not conﬁned to girls.

6.7. Deﬁciency of the low in regard to rescue of women under sec- tion l5-----Now, while in many cases the women carrying on prostitu- tion at the premises searched under section 1541) would be doing so without any sort of compulsion, it cannot be denied that sometimes women are made to carry on prostitution and they are not voluntary participants in the activity. When such women are found at the pre- mises searched under section 15(1), there ought to be some provision by which they could be rescued. Subsection (4) of section 15, how- ever, entitles the special police oflicer entering the premises to'. remove only a girl who, in his opinion, is under the age of 21 years and who is carrying on prostitution or is being made to carry on prostitution, or attempts are being made to make her carry on prostitution. The case of women who are made to carry on prostitution is left out of this beneﬁcial provision for rescue.

. p 6.8. Same comment on section l6~--The same t:or.nmen.t applies to section 16, under which the rescue of a girl who is apparently under the age of 21 years, can be ordered by a magistrate if the girl is living in a brothel or is carrying on prostitution in a brothel or is being made to carry on prostitution in a brothel.

In our view, this power should be available also where a woman of any age is being made to carry on prostitution in a brothel.

Need for amendment----We are [therefore of the View that the scope of section 15 (4) and section is should be widened as above.

No doubt, even after the Act is amended on the above lines, cases of women who are voluntarily carrying on prostitution will remain outside the provisions for rescue in sections 15(4) and 16(1) or the provision for subsequent custody contained in section 1?. We do not think that the law could appropriately make a provision for rescuing such women because, ex nypothesi. they are carrying 'on prostitution voluntarily and the question of their "rescue" cannot arise. Since prostitution in the abstract is not an offence punishable under the Act, it would not be proper for the present Act to empower the police or the court to take any action for the removal or custody of such women.

6.10. Institutiott to which rescued women should be sertt---Assum- ing, then, that an amendment extending the scope of section 15(4) and section 16 is to be made as above', the connected question arises whe- ther women to be coverd by the extended provvision'should be sent to I Para. 3: 9, supra.

a protective home, or whether they should be sent to a corrective institution. We have considered this question carefully and areclearly of the view that such women whatever their age, being involuntary participants in prostitution, should be sent to protective homes and not to corrective institutions. Corrective institutions, in our scheme, are meant for women who voluntarily adopt a career of "vice and have hardened in that career. At the same time we appreciate that an adult woman whose experience in a life of vice may be much more detestable than that of girls below the age of 21 years should, while__in_ the protective home, be treated on a different footing f:ron1_such, girls and provision for their residence should be made in separate cells. This safeguard could be provided for by the rules to be. made under the Act under section 23(2).

6.11. Amendments' needed in sections 15(4), 16, 17 and 23(2) #- Implementation of the scheme proposed above will necessitate amend-. merits in sections 15(4) and 16 and consequential amendlrrients in sec- tions 17 and 23(2). We shall indicate at the appropriate place,' the precise amendments to be made in sections 15(4), 16 and 17. The amendment of section 13(2) is a minor matter which could be" taken care of by the draftsman without further guidance from us".

It has been held in a Bombay case' that the distinction between young "girls" (aged 'below 21) and women (above 21) which is made in sections 15(4) and 16(1) of the Suppression of Immoral Tratﬁc in Women and Girls Act, 1956 is a reasonable distinction in the con- text of prostitution and immoral traffic in sex. The discrimination bet- ween them is fully justiﬁed by the fact that girls below 21 arelikelyu to be exploited to a greater extent in the market of prostitution. The distinction is therefore germane to the vice which is attempted to be suppressed -by the provisions of the Act and cannot be attacked as unreasonable or as prohibited by Article 14 of the Constitution. This case does not, of course, necessitate an an-iendment of the section.

6.12. POWEW under sectiarr 15----no change--Section 1'5 empowers the special police oﬁicer to conduct a search without warrant. The power is unusual; but, having regard to the fact that it is conﬁned to special police officers and also to the fact that no serious complaints of excess or abuse of this power have been voiced. it appears unneces- sary to recommend a change in this respect.

6.13. Section l5(2)ﬂNeca' for g3pf)OinIir1_!..' women police oﬂ'ir.'ers--+ With reference to section 15(2), the Committee' discussed the various procedural diiﬁcultics experienced by the concerned agencies in __1he implementation of the Act, and observed that the main difﬁcully in the enforcement of the Act had been lack of adequate cooperation 1 See amendntent-s reconimcndod in section 1:314), I6 and I7, pun; 6- 25, ~.u'n_fm._ 9 Section 23(2) to be amended by the Cl.l'u.ftsl11El]. ' " ' ' I-'5' Stayed Andul Khmir v. State of llfrgfinrrmkt-kn, (1974) 76 Brim. LR. 390 (Vnidyn, J.).' 5 Report of the Conimii-tee on il.Tl\".'llfll!'lP!1l<t-I') the Fluppit-i-sion etc. Act. para. 5-6. Recrrma nlendation No 18. - '-

from the public. The Act envisages an active participation of the pen; le in tackling the problem of immoral traﬁic which unfortunate- ly is not generally forthcoming. Owing to the stigma attached to the vice. decent people in the locality shirk their responsibility in bringing culprits to book. The Committee further observed that even "the essen- tial requirement of women as witnesses as provided in section 15, could not be met adequately. The Committee therefore made the re commendation that the words "at least one of whom shall be a woman"

should be deleted from section 15(2).

We appreciate the practical difliculties experienced in this respect. But we think that the provision as sound and salutary anti the dilii- culties experienced and in its implementation should be met by appointing more women special police oﬁicers. If that is done, there will be less reluctance on the part of women to witness the search.

No change in the law is therefore recommended.

6.14. Section 16~Section 16 deals with the rescue of girls appa- rently under the age of twentyone years living in a brothel or carry- ing on prostitution in a brothel.

6.15. In regard to this section the Cornmittce' made a. recommen- dation that "to bring it (section 16) in line with section 20(3), Et proviv sion for reference to protective homes of certain types of cases may be made in section 16''.

__6.16. We have not been able to appreciate this recornmendation. So far as sending girls to protective homes is concerned, section 17(2), which applies after action is taken under section 16, already provides for it. The reference {in the above reconnnendationl" to section 20(3) is not intelligible as section 20(3) empowers the Magistrate to pass. an order for extemmcnt, and does not deal with the power to send to a protective home.

. 6.17. Section l6(l)~--Suggesti0n Ia ur.rIi'1or-ire persons empowered by the Store Governme-nr~--It has been stated3 in one suggestion that some persons considered suitable for the purpose should be appointed by the appropriate Governments for furnishing information to the Magis- trate regarding girls who need to be rescued under the provisions of section i6. This is in fact only an elaboration of a provision which al- ready exists in this subsection, viz., that the magistrate concerned may not act on information received otherwise than from the Police. Where information involving families of the neighbourhood is concerned, res- pectable people do not come forward to inform the law enforcement agencies unless appointed by the Government to do so. Ordinarily the only information which the law enforcement agencies get "otherwise"_ is either out of malice or from people of doubtful character. It is stated that the States have not been in a position to assign any whole-time 1 Report of the (T-'omrnit-tee On. a.u1c;ifivrte.1i-- in tho "i'ippi'csa'<1|t Act . 2 Pain. 6'15, supra, 3 dugge Hon nf the Central 'Sure-a.:t ofl,'or-I-ecfio ml .'~is-I-t»-J-:-u>.r-.

staff for the purposes of the Act in general or for rescue: operations in particular which can be considered adequate enough to notice activities 0 fthis nature. Reliance may therefore have to be placed largely as voluntary social work in this sphere. not only for making the processes of detention moreeﬁicient but also for saving those rescued from stigma. Hence the Suggested provision.

6.18. We are of the view that the suggestion should be accepted as introducing a useful feature. No doubt, the existing language appears to be wide enough to cover such information. However an amend- ment would bring out emphatically the ideas.

6.19. Recomntendarionmwe, therefore. recommend that section 16(1) should be revised as follows: ----~ "Where a magistrate has reason to believe, from information received from the police or from any other pe}'.5'0.I'1 authorised by the State Government in this behalf or otherwise .......... ..iRest as at present)."

We are incorporating a suitable amendment of subsection ill of section 16 on the above point', in the redrafts which we give later.

6.20. Suggestion for verbal chctnge.-r in .s'ectt'wz I6") regarding the phrase "in a brorheI"~Alt has also been suggested' that in section 16(1)', the phrase "in a brothel" should be transposed and brought immedia- tely after the word "living" so that the rest of the situations in which rescue operations may be carried on, are not restricted to the girls liv- ing in. brothels. The Act, it is stated, envisages a number of situations in which a girl has to be rescued prior to her arrival in a brothel, such as those in section 5; and; it is urged that for the ellective enforcement. of such provisions of the Act, it would be necessary to extend section 5 even when the girls are not in brothels.

We ﬁnd that if section 16(1) is revised as suggested, then the situations in which rescue operations may be carried out when the girl is not living in a brothel, will be the tollonvingre

(a) when she is carrying on prostitution otherwise than in a brothel;

lb) when attempts are being made to make her carry on pros- titution; and . (C) when she is being procured for purposes of prostitution or sale.

Category (at above would considerably widen the powers under section 16(1), This may be abused. We do not, therefore, accept the suggestion.

1 Sue ratlcafr ofnoonions 1ﬁ(»-'EL lift?) e--tc_; para 6- 25, infra, 3 'uaegdntinn Ilf t-he Umtral Bureau oi'i.'.or-rcei:inn:n.l Her-vioi:s.

6,21. Section l7(l)--Amendment recommended---We now pro- ceed to consider section 17. There are two provisions of the Act, ~ sections 15 and l6--whereunder a girl under the age of 2! years, who is carrying on or being made to carry on prostitution. can be removr ed or rescued. Removal of the girl is dealt with in section 16 under which the proceedings are taken by a special police oﬂicer by way of search without warrant. Rescue is directed by a magistrate under section 16, and the direction again is issued to the special police oﬂicer. In both these sections, there. are provisions--section 15(4) and l6(2)----whereunder the special police officer, after removing or rescu- ing the girl, "shall forthwith produce her" before the appropriate magistrate (in a case governed by section 15) or before the magistrate issuing the order (in a case governed by section 16).

Now, a situation may arise where, owing to unavoidable rea- sons, the special police officer cannot produce the girl before such magistrate "forthwith". In such a case, section 17(1) requires the police officer to produce the girl before the nearest magistrate of any class. We are not concerned with the substance of this provision in section 17(1) but there appears to be scope for improvement in a point of detail. Section 17(1), when referring to the earlier sections, speaks of the special police oﬂicer who "fails to produce her immediately be-

'fore the magistrate" but the earlier sections themselves use the word "forthwith". Hence the word "irnmediate1y" in section 17(1) is inaccu- rate. To remedy the inaccuracy. we have two alternatives.ﬁ~(i) to sub- stitute the word "forthwith" in place of the word ''immediately'', or tii) merely to remove the word "irnrnediately".

If the ﬁrst device is adopted, the word "forthwith" would occur twicelin "section 17(1). This repetition would be jarring. We there- fore prefer the second alternative, and recommend the word "imme- diately" should be deleted from section 17(1)'.

6.22. Recommendation to amend section 17(1) by adding a proviso

---It has been suggested" that the following proviso may be added in section 17(1):»-

"Provided that no girl shall be (i) released or placed in custody of a person who may, exercise harmful inﬂuence over her, or (ii) be detained in such custody for a period exceeding ten days from the date of such an order."

The suggestion is worth accepting as it is based on a sound princi- ple. We therefore recommend that the following proviso should' be added in section 17(1):-- ' "Provided that no girl shall bem-

li) detained in custody under this sub-section for a period exceeding ten days from the date of such an order, or 1 For re-draft, see 'D1'lJ'IL B-25. infra.

3 Stttggoation of the Cent-ml Bureau of Correctimml Services.

ti-it {iii restored or pl;-iced in the custnsdy of a person who may exercised harmfi.-1 l!liiLl€11Ci: over her."

523- 5H§t£€-¥f!'0H Fé'.a'C1J't!'ing .s'et'n'n:r l7t2}~ -With reference to section 11(2). a suggestion has been made for revising it. The salient features of the suggested revision zireﬁ

(a) appropriate provision re\i_:a1-ding intermediate custody; {bi pre--he:J.ring enquiries by Probation Otiicers;

{C} introduction of the criterion of the need for care and protection for orders by courts instead of the standard of correct- ness of the intormation recci'.-ei: and (ti) I1on--institutional_ cute. guidance and counselling with or without supervision.

It is stated that all these are vitally necessary for the proper disposi- tion of the rescued girls and for employing in it social case work techni- ques.

6.24. Rt'cm.=mIendutirm----The suggestion is useful and salutary and may be accepted. Section 17(2) should be suitably' revised for the pur~ pose. The redrait which we -give later will explain the changes needed.

6.24A. Detention in (I ;.vr'0!e*ctE:'e Frame: of (I girl !'eit'C't(e'd una'ei- .5'. 16 am' convicted mam -.r_ l.?~Sng~ges'Iicva of the D5'pm-linen:---In one sug- gestion," it is stated that it has been found by experience: that short term of resideiiee in protective homes or corrective institutions does not have the desired impact on the persons concerned. It is therefore suggested that a minimum period of 1 year might be prescribed for detention in a protective home or a correctional institution.

in this connection we may state that the arnendrnent, which we are recommending in section 17 will take care of this aspect."

6.25. Redrnits 0:1' certain .s'cacti0,r1.<~]11 the light of the above discus- sion. we give below redrafts of sections 15(4), 15(5), 16(1), 16(2), 17(1), 17(2), 1'7{2A), to 17i2E) and section 17(4).

Reizired section: 15(4). 15(5). iﬁill. 16(2). 17(1). 17(2), l7t2A) to }7(2E) and section 17(4) _ "l5. (4) The special police oﬂicer entering any premises under sub- section ill shall be entitled to remove 1herel'ro'm--»

(a) any girl if, in his opinion. she is under the age of twenty- on years and is carryirir: on or is being made to. carry on, prostb tution or attempts are being made to make her carry on prostitu- tion, or ' r'*r:*.* §1.;i'.:. if-25, 5}?vfi"I'1.

2 H. Eizr. '.

(b) any woman, if. in his opinion, she is being made to carry on_pro.rtin:ttion or attempts are being made to make her carry on prostitution. '

15. (5) The special police otﬁcer. after removing the woman or girl under sub-section (4), shall forthwith produce her before the appropriate maglstrate.

.16. {1} Where a magistrate has reason to believe from information ' l't:3CB"1V6d from the police or from any other person authorised by the State Government in this behalf or otherwise", that-

_ _ la) :1 girl apparently under the age of twenty~one years, is living, or is carrying on, or is being made to carry on prostitu- tion, in a brothel, or (hi it woman is being made to carry on prostitution in a brothel"

he may direct the special police oﬂicer to enter such brothel, and» to remove therefrom such woman or girl and produce. her before.

"16. (2) The special police officer, after removing the worm-m or girl. shall forthwith produce her before the magistrate issuing the order."

Revised section 17(1) "I7. (1) When the special police oﬂicer removing a woman or girl' under sub-section ('4) -od' section 15 or rescuing a woman or girl uno'b'm sub-section (1) of section 16, fails to produce her .... before the magis- trate, as required by sub--section (5) of section 15 or sub--section (2) of section I6, he shall produce her forthwith before the nearest magistrate of any class, who shall pass such orders as he deems proper for her safe custody until she is produced before the appropriate magistrate:

Provided that no woman or girl she}! be»= (ii detairred irr c'n'.§tociy zmder this .mb-reciio.-2 for a period exceeding ten days' from the date of me order under riris sub- .rec.riorr_ or

(ii) rertorec! to or placer! in the czm'oa'_,\«' of o persori who may exercise a harmful influence over her."

(2) When the girl is produced before the appropriate magistrate, he shall, after giving the girl an opportunity of being heard, cause an inquiry to be made as to the correctness of the information received under sub-

section (1), the age. character and antecedents of the girl and the swim- bility of her parents, guardian or husband for taking rsharge of her and the nature of the inﬂuence which the conditions in her home are likely 1 See para 6-] l, £n't1i_'p|"t2.

* See para 6-19. wjpm.

5' Sue par : 6- ll, supra.

* S a para. 6-] L, mprrt.

'- H a para 6- ll. supra.

" T'ars-. '"422. Swim.

as 111-112 .1» Loom.-e 62 to have on her if she is restored to the same, and, for this purpose, he may direct a Probation Officer appointed under the Probation of Oﬁicers Act, 1958, to inquire into the above circumstances and into the personality of the girl and prospects of rehabilitation of the girl.' '.'17. (2A) The magistrate may, while an inquiry is made into a case under sub-section (2), pass such orders as he deems proper for the safe custody of the girl;

Provided that no girl shall be kept in the custody for this purpos-:3 for a period exceeding three weeks from the date of such an order, and no girl shall be kept in the custody of a person likely to have a harmful inﬂuence on her.' "17. (2B) When the magistrate is satisﬁed, after making an inquiry; as required in subsection (2)----

(a) that the information received is correct.

(b) that the girl is under the age of twenty--one years, and

(c) that she is in need of care and protection. he may, subject to the provisions of sub-section (3), make an order that such girl be detained for such period, being not less than one year and not more than three years, as may be speciﬁed in the order. in a pro» teotive home or in such other custody as he, for reasons to be recorded in Writing, shall consider suitable?' Provided that such custody shall not be that of person or body of persons of a religious persuation different from that of the girl, and that those entrusted with the custody of the girl, including the person in charge of a protective institution, may be required to enter into a bond which rna y, where necessary and feasible, contain undertakings based on directions relating to the proper care, guardianship, education, training and medical and psychiatric treatment of the girl as well as supervision by a person appointed by the court, which will be in force for a period not exceeding three years..'"

"I7. (ZC) When the woman is produced before the appropriate magistrate, he shall, after giving the woman an opportunity of being heard, cause an inquiry to be made as to the correctness of the informa- tion received under sub-section (I), the age, character and antecedents of the woman and the suitability of her parents, guardian or husband for taking charge of her and the nature of the inﬂuence which the conditions in her home are likely to have on her if she is restored to the same, and for this purpose, he may direct a Probation Ofﬁcer appointed under the Probation of Offenders Act, 1958, to inquire into the above circum- stances and into the personality of the woman and prospects of rehabili- tation of the woman.

1 Para. 6-2-1-, sttpra.

5' Para 6-24, supra.

3 Para 652-1, supra.

4- |'.u'u ('I-2-L sunrrt.

"I7. (2D) T he Magistrate may, white an inquiry is made into a case under sub-section pass .S'£iCi1 t')t'(i£3t'S a5 he deenys proper for the safe "ustody of the woman:

Provided that no woman shall be kept -in the custody for this pur- pose for a period exceeding three weeks from the date of such an order, and no woman shail be kept in the custody of a person iikeiy to have harmful inﬂuence on her. ' "17. (2E) When the magistrate is satisﬁed, after making an inquiry as required it. sub-section CED)»-

(a) that the information received is correct and

(b) that the woman is above the age of twenty-one years, and

(c) that she is in need of care and protection, he may, sub- ject to the provisions of sub-section (3), make an order that such peniod, being not less than one year and not more than three, years, as may be speciﬁed in the order, in a protective home, or in such other custody as he, for reasons to be recorded in writ- ing. shall consider suitable:

Provided that such custody shall not be that of a person or body of persons of a religious persuation different from that of the woman, and that those entrusted with the custody of the woman, including a person in charge of a protective institution, may be required to enter into a bond which may, where necessary and feasible, contain undertakings based on directions relating to the proper care, guardianship, education, training and medical and psychiatric treatment of the woman, as wet] as super- vision by a person appointed by the court, which will he in force for a period not exceeding three years." i T 6.25. [section 17(3)--No change].

"l7(4) Against every order under sul-rsection (2B) or sub-section (2E), an appeal shall lie to the Sessions Judge, whose decision on such appeal shall be ﬁnal." _ 6.26. Sections 17A and 17B (new)--We have already recommended the insertion of two new sections--l7A and l7B~to deal with seduc tion by police officers of rescued women and girls and non-production of rescued women and girls by police officers acting under the Act.

6.27. Section l8----Under section 18(1), :1 Magistrate may, on receipt of information trom the police or otherwise, that any house, room, place or any portion thereof within a distance of two hundred yards of any public place referred to in subsection (1) of section 7. is being run or used as a brothel by any person, or is being used by prostitutes for carry- ing on their trade, issue notice on the owner, lessor or landlord of such house, room, place or portion or the agent of the owner, lessor Orland- lord or on tile tcnant, lessee, occupier of, or any other person in charge of such house, room, place, or portion. to show cause within seven days 4 See Para 5'53, supitri-.

of the receipt or the notice why the same should not be attached for improper user thereof. If, after hearing the person concerned, the Magis- trate is satisﬁed that the house. room, place, or portion is being used as a brothel or for carrying on prostitution, then the Magistrate may pass orders~-- .

(a) directing eviction of the occupier within seven days of the passing of the order from the house, room, place, or portion;

(bl directing that before letting it out during the period of one year immediately after the passing of the order, the owner, lessor or landlord or the agent of the owner, lessor or land- lord shall obtain the previous approval of the Magistrate.

Under sub-section (2) a court convicting a person of any offence under section 3 or section 7 may pass orders under sub-section (1), with- out further notice to such person to show cause as required in that sub- section.

. These are the important provisions of the section.

6.28. Suggestion to repeal sec2'v'on 18 not ar:cepted--It has been suggested that section 18 may be repealed'. It is stated that instead of issuing notices, punitive action as contemplated in the Act should be taken. "We do not warn thieves before catching them."

We apprehend, however, that the suggestion i-s based on an incom- plete and inaccurate conception of the scope" of section 18. The section does not deal with "notice" before prosecution or before punitive action. Its main object is preventive. Moreover, it is wrong to suppose that in every case. of conduct amounting to violation of the Act, prosecution is the only remedy. Lastly, sub-section (2) of section 13 of the Act requires no notice, and can operat.e immediately on conviction. For these reasons:

we do not accept the suggestion that the section be repealed.

6.29. Section l9--Section 19 provides for applications by women and girls for beingtkept in a protective home. and reads as follows: -

"l9. (1) A woman or girl who is carrying on, or is being made to carry on, prostitution, may make an application to the magistrate within the local limits of whose jurisdiction she is carrying on. or is being made to carry on, prostitution. for an order that she may be kept in a protective home."

"{2} If after hearing the applicant and making such inquiry as he may consider necessary. the magistrate is satisﬁed that an order should be made under this section. then, he shall make an order. for reasons to be recorded, that the applicant be kept in a protective home for such period as may be speciﬁed in the order." -

1, Suggestion of the Central Bureau at" Correctional Serviuaa. '3 Para, ﬁ- 27A, supra.

B5 6.30. Section 19(1)----Suggestion accepted---[t has been suggested,' that section 1911) should contain also a provision for an ordier that the girl he provided Care and protection fly the court. This suggestion is, in principle, sound, and We accept it.

6.3 l. Recommendorionmwe, therefore, recommend that for the last 12 words of section 19(1), the following should be substituted:

"(a) for an order that she may be kept in a protective home.

or {b} for an order that she be provided care and protection by the court in the manner specified in subsection (2)."

6.32. Section l9(lA)~Recommendorio.o regarding interim custody awe are of the view that pending an inquiry under section 19(1), the Magistrate should have power to direct that the girl he kept in proper custody. This should be incorporated in section 19.. in the form of sub- section tIA), as follows:--

"(1A) Pending such inquiry, the Magistrate may direct that the girl he kept in such custody as the Magistrate may consider proper, having regard to the circumstances of the case."

6.33. Section 19i2}»Sugge.ra'.ion for inqixiry accepted---It has further suggested? that in sub--section (2) of section 19, an inquiry by a Probation Officer into the personality, home and conditions and rehabilitation prospects should be provided' for. His report will be before the Magis- Irate.

If, on such inquiry, the Magistrate is satisﬁed that an order should be made under this section. then, he shall make an order. for reasons to be recorded, that the applicant be inept in a protective home. or a correc- five institution or under the Supervision of a person appointed by him, for such period as may be speciﬁed in the order. It has been stated that in the revised scheme, a protective home has been envisaged as a home for the rescued girls." who should be protected against the very stigma of being considered as having been a prostitute at any period of their lives. In this context, it will not be advisable to send all applicants under section 19 to protective homes. A few of them may still justify such a course. Hence, opportunity should be taken to provide for sending such cases to corrective institutions. as well as for keeping them under super~ vision under a. "non-institutional social case work system."

We agree with the principle of the suggestion.

6.34. Recommendation to unread section l9i2}~--We recommend that to carry out the changes already indicated.' sub-section (2) of sec» (2) of section 19 should be revised as follows : =-

'jt2) If the magistrate. after hearing the applicant and making such inquiry as he may consider necessary. includirzg an irtqrciry 1- I'~}uggest.ion_ of the Central Burcn..t1 of C3 rrectioiiul Services 9 Suggestion of the C-Gl'l't|':l-l Bureau ofC'or-we-ohioilul 5lt=l"i'iC&=r

-'| Fine diseussiinn as 'to section 2, "pI'n'r.eetive hom+=". sh'-prar.

* Sop pom. 5- 33, swpm.

by a Probation Officer appointed under the Probation of Of}?- cers Act, 1958, into the persomn.'it_v, conditions of home and pros- pects of rehabilitation. oi" the applicant, is satisfied that an order should be made under this section, he shall, for reasons to be recorded, make an order that the applicant be ].<;ept----

(i) in a protective home, or

(ii) in a corrective institution, or

(iii) under the supervision of a person uppoiritcii by the magistrate, for such period as may be speciﬁed in the order."

6.35. Section 20--Removai of prostitutes--------Section 20, which deals wi-th the removal of prostitutes from any place, deserves close considera- tion. Brieﬂy the scheme of the section is as fo'1lows:---

Under sub-sections (I) and (2). a Magistrate, on receiving information that any woman or girl residing in or frequenting any place within the local limits of his jurisdiction is a prostitute, may record the substance of the information received, and issue a notice to such woman or girl requiring her to appear before the '_ magistrate and show cause why she should not be required to remove herself from the place and be prohibited from re-entering it. The notice must be accompanied by a copy of the record» referred to above, and the copy is to be served along with the notice on the woman or girl against whom the notice is issued.

Subsection (3) of section 20 provides as follows:----~ "{3} The magistrate shall, after the service of the notice referred to in sub-section (2), proceed to inquire into the truth of the information received, and after giving the woman or girl an opportunity of adducing evidence, take such further evidence as he thinks ﬁt, and if upon such inquiry it appears to him that such Woman or girl is a prostitute and that it is necessary in the interests of the general public that such woman or girl should be required to remove herself therefrom and] be prohibited from re- entering the same, the magistrate shall, by order in writing com-

" municated to the woman or girl in the manner speciﬁed therein. require her after a date (to he speciﬁed in the order) which shall not be less than seven days from the date of the order, to remove herself from the place to such place whether within or without the local limits of his jurisdiction, by such route or routes and within such time as may he speciﬁed in the order and also prohibit her from 1'e--entering the place without the permission in writing of the magistrate having jurisdiction over such place."

_ Under sub--section (4) of secton 20, a person who---

(a} fails to comply with an order issued under this section, within the period specified therein, or whilst an order prohibiting her from re-entering a place without permissicn is in force, re- enters the place without such permission, or 67 (hi knowing that any woman or girl has, under this section, been required to remove herself from the place and has not ob- tained the requisite permission to re--enter it, harbours or conceals such woman or girl in the place, is punishable with ﬁne of the speciﬁed amount.

6.36. Validity or section 20 -Hphel'd---The validity of section 20 was challenged in the past and in fact, the challenge was partly successful, before the Bombay High Court,' as well as before the Allahabadi High Court. But the Supreme Court has now upheld validity of the section."

5.37. Suggestion for repeat consictercd=--It has been suggested' that section 20" should be repealed. The reason given in support of the suggestion is, that mobilizing the community interest in reforming and rehabilitating the offender. rather than encouraging an attitude of ostracization, is accepted? as the right approach for the purpose of pre- vention of crime as well as for the treatment of offenders. Section 20 is not in line with this principle. "Such provision could he considered reasonable when prevention was attempted on municipal and local basis; it is obviously a waste of effort all round, when we intend to safeguard every jurisdiction against the malady."

6.38. Suggestion not acceptedn--We are, however, of the view that considerations of public interest should override the reasons set out above. In our view, public interest requires retention of the section, and we do not, therefore, recommend its repeal. We may point out that the power under sub-section (3) is circumscribed.

6.39. Section 2l---~Prevem'ivg Homcsa-eSection 21 deals with the establishment and licensing of protective homes. Sub-section (ll. (2). (3) and (8) are important for our purposes, and read as follows:--

''(I) The State Government may in its discretion establish as many protective homes under this Act as it thinks fit and such homes, when established. shall be maintained in such manner as may be prescribed.

(2) No person Or no authority other than the State Government shall, after the commencement of this Act, establish or maintain any protective home except under and in accordance with the conditions of a licence issued under this section by the State Government.

{3} The State Government. on application made to ii: in this be- half by a person or authority, issue to such person or authority a licence in the prescribed form for establishing and maintaining or as the case may be, for maintaining a protective home and a licence so issued may contain such conditions as the State Government may think lit to im- pose in accordance with the rules made under this Act:

1 Begum 'E'. State, A.I.Ii. 19-B3 Born. 17.

3 Shanta Bis: V. State, ALR. 1959 All. 17.

3 State of U.P. v. Kurukaliva, A.I.R.. 1964 3.0. 416, 521, 4-22.

4- h'u_r.;=.r,e-.-sti-or: oithe Gent-ral Blrsmii cut' (3 prroni.-iurm.l 'E u-ricus. ' Para. 6' 35 supra.

(58 Provided that any such condition may require that the manage- ment of the protective home shall, wherever practicable. be entrusted to women: ' Provided further that a person or authority maintaining any pro- tective home at the commencement of this Act shall be allowed a period of six months from such commencement to make an application for such licence. .

"{8} Where a licence in respect of a protective home has been revoked under the foregoing sub-section, such protective home shall cease to function from the date of such revocation.

Whoever establishes or maintains a protective home except in accordance with the provision of this section, shall be punishable in the case of a ﬁrst olience with ﬁne which may extend to one thousand rupees and, in the case of second or subsequent offences, with imprison- ment for a term which may extend to one year, or with ﬁne which may extend to two thousand rupees, or with both."

6.40. Recommendation to add corrective institution----In section 21. sub-section (1), (2), (3) and (8). corrective institutions should be added', in view of the proposed schernei. We recommend acccordingly 6.41. Section 2] (9A)--Suggesn'on for power to transfer inmates accepted----It has been suggested", that in section 21, a provision should be added whereby the State Government or an authority authorised by it in this behalf may, subject to any rules that may be made in this behalf, transfer an inmate of a protective home to a corrective institu- tion or vice versa; the person transferred should not he required to stay in the institution to which she is transferred, for a period longer than she was required to stay in the institution from which she is transferred.

6.42. The siiggestion may be accepted in principle, as providing a useful procedure.

6.43. Recommendation to add mb-section (9A) in section 2| --.In the light of the above discussion, we recommend that a sub-section should be added in section 21, as 'follows:

"(9A) The State Government or an authority authorised by it in this behalf may, subject to any rules that may be made in this behalf, transfer an inmate of a Protective Home to :1 Cor-

rective Institution or an inmate of 21 Corrective Institution to a protective home, where such transfer is considered desirable having regard to the conduct of the person to be transferred. the kind of training to be imparted in each institution and' the other circumstances of the case:

Provided that 1 C'.f. compare suggestion of the Central Bureau nf('orr*nct.innul Services. 3 SOL'. Ll.'|BGuESl.011 ['6ga.1'rllnp; iseﬁliiun 2, .su.p)'n', 3 Suggest-ion of the Central Bureau of(' )I.'|'i=n Sun-ul St-rvices.

G9 {a} no woman or girl who is transferred under this sub- section shall be required to stay in the institution to which she is transferred for a period longer than she was required to stay in the institution from which she was transferred;

(b) reasons shall be recorded for every order of transfer under this section."

6.44. Section 22--Triuis'----Under section 22, no Court inferior to that of a Magistrate as delined in clause (c) of section 2, shall try any offence under section 3. section 4, section 5, section 6. section 7 or section 8. The expression "Magistrate" is deﬁned in section Etc) as meaning the District Magistrate or a Magistrate of the first class spe- cially empowered by the Government to exercise jurisdiction.

6.45. Seciitm 22---/imendment recommended--As already indicat- ed.' changes regarding the competent Magistrate, should be made in this section.

6.46. It has been suggested' that section 22 should be repealed. It is stated that we should trust all our magistrates--and eventually even Gram Panchayats----when we want to ﬁght commercial Vice not only in cities but also in remote rural areas. It is-not correct to think that such vice exists only in cities.

The suggestion is based on a misconception. Section 22 does not require that only Magistrates in cities can be empowered. Moreover, Gram Panchayats are not debarred, by this provision, from trying an offence, if they are otherwise competent (under the Panchayat Act in force in the State}, to try that offence.

1 Flee discussion regarding section 2, deﬁnition ot"'.\I.1gistra1:e". ' Suggestion of the Central Bureau of Correction 1| Services.

CHAPTER 7 MISCELLANEOUS (Sections 23 to 25) 7.1. Section 23(1) ~We deal in this Chapter with the remaining sections of the Act. Section 23 deals with the power to make rules. The power is vested in the State Government, under subsection (1). It has been suggested1 that section 23(1) should be amended as follows:--

"The State Government may, with the approval of the Cen- tral Government, by notiﬁcation in the Ofﬁcial Gazette, make rules 'for carrying out the purposes. of this Act."

The object of the suggested amendment is to require the approval of the Central Government before rule», are made by the State Govern- ment. it, however, appears rather inappropriate to require the approval of the Central Government in this respect. It is rarely' the practice to require the approval of the Central Government. for rules to be made by the State Government. Moreover, there is no strong reason for in- serting this requirement in this particular Act. Hence, we are unable to accept the suggestion. ' 7.2. Section 23(2)(b)--Change recommended--Section 23(2) enume- rates in detail the matters as to which rules can be made. We shall deal with only those clauses of the sub-section which require discussion. Section 23(2)(b} authorises rules relating to--

"(b) the placing in custody of women and girls released under sub-section (1) of section 10 or for whose safe custody orders have been passed under sub--section {1} of section 17 and their maintenance"

It may be recalled that section iO(1) deals with release of con- victed women and girls on admonition or on probation. 'l'I§'1e placing in custody of such women and girls so released may sound inconsistent with release on probation. and that-is the reason why there is a sug- gestions to delete this part of the clause. The suggestion is that the words 'released under sub-section (1) of section 10 or' should be deleted.

It is stated' that the concept of release from custody is inconsistent with the idea. of probation.

We broadly agree with this approach. but we do not accept the suggestion in toto. Instead, we recommend that in section 23(2l(b) the words "where the women or girls are without a home" should be added after the words "sub-section (ll of section 10". This will narrow down the scope of this part of section 23(2). clause (bl.

1 H11;-gegtiun of the Cniiﬁral Bureau of C<11'['eol1i<_u1a.l Services. 3 Om; very rare example is ibuntl in 4I:Utlt'1']H 39 uh'. 30, Regist-ration of Blrl.-ll!-' Act. 197] . 3 Para. 7'8 '70 71 7.3. Section 23(2)(c)--We shall deal later with section 23{2)(ct.* 7.4. Scctfort 23(2)(f)----Se(:tio11 23{2l(f) relates to rules for carrying out the provisions of section 18. it has been suggested" that section ' 23(2)(I") should be deleted. But, it section 18 is not to be deleted, we do not see any reason why section 23(2J(f) should be deleted- We do not. therefore, recommend any change in this regard.

7.5. Section 23{2}----RuIes as to corrective i'i"L5'l'f'Elt.?i()!'lJ'--'fl-ddilion 0»f--~Iri consequence of our recommendation" for having :1. separate nomenclature for corrective institutions, it becomes necessary to ex- pand the rulemaking powers of the State Government, so as to enable rules to be made on various matters Concerning corrective institutions (besides protective homes). In fact, there is also a suggestion' which is substantially to the same effect. We proceed to indicate the detailed changes required for the above purpose.

7.6. Section 23(2)(c)--<:hange FE?COJ*J1J'Tt(?rId€£l'---SCCtl.'3I1 23(2,t(c) pro- vides for rules relating to:

"(cl the detention and keeping in protective homes of wo- men and girls under sub-section (2) of section 10, sub-section (2) of section ['7 and section 19 end their maintenance;"

In view of the proposed substitution of corrective homes institu- tions' in section 10(2), the relevant portion of this clause will require change; and we recommend that it should be suitably revised for the purpose".

7.7. Secrfo.-z 23t2)fg)#Several consequential changes arise for con» ' sideration with reference to section 23(2}(g).

(3) Section 23(2}(g)[it provides for rules relating to-

"lil the establishment, maintenance, managenient and superiritendence of protective homes and 'C116 appointment, powers and duties of persons employed in such homes,"

We recommend' that corrective institutions should be added in this clause.

lb) Section 23(2)(g)l_v) provides for rules rclatirtg tow "(vi the manner in which the accounts of a, protective home shall be maintained and auditcd;"

We recommend that corrective institutions should be added in this clause.

1 Pam 7-B, supra.

9 Suggestion of the Ce=.Lt»ml Bureau of C-'m'necti:sn:tl H(irViBé.=s.

3 See recommendatfmn li.'< to sootir.ri ltlﬂll 'pr«:t:~ee.-an home', and section :_3-"'.'(\I'f'F_'.Ct-l'-'C lr1Sti'LLlf-iO]1".

** 'Suggestion of' the Octitml Bureau of Correctional Services.

5 Para 7-ii-, «supra.

' D1'aFl not I1-nnexerl.

I (C) Section 23(2)(g}(v1'i) provides for rules as to--

"(vii) the care," treatment, maintenance, training, instruc-

tion, control and discipline of the inmates of protective homes." We recommend that corrective institutions should be added in this clause.

(d) Section 23(2)(g}(ix) provides for rules as to----

"(ix) the temporary detention of women and girls sentenced to detention in protective homes until arrangements are made for sending them to such homes;"

We recommend that corrective institutions should he added in this clause.

(e) Section 23(2)(g)(xi) and (xii) deal with rules as to--

"(xi} the transfer, in pursuance of an order of the court from a protective home to a prison of a woman or girl found to be incorrigible or exercising bad inﬂuence upon other in- mates of the protective home and the period of her detention in such prison;

(xii) the transfer to a protective home or women or girls sentenced under section 7 or section 8 and the period of their detention in such homes?' We recommend that corrective institutions should be added in these clauses. wherever considered suitable.

(f) Section 23(2){g}(xiii) provides for rules as to---

"(xiiii the discharge of inmates from a protective home either absolutely or subject to conditions. and their arrest in this event of breach of such conditions;"

We recommend that the Corrective institutions should be added in this clause.

(g) Section 23(2)(g)(xv) provides for rules as to~ "(xv) the inspection of protective homes and other institu- tions in which women and girls may be kept, detained and main- tained."

We recommend that corrective institutions should be added in this clause also.

7.8. Section 24--This takes us to section 24. It saves laws relating to juvenile offenders. and needs no change.

7.9. Schedrrle of powers of Magistrates to be t'nserted-- --In view of what we have stated above. in connection with the deﬁnition of "Magis- trate", the following Schedule' dealing with the powers of Magistrates should be inserted in the Act.

1 Sage cliaetlssion. as to section 2(6)-deﬁnition of ".\Iagisl:mt»e". 3 9305 para. 4' Ill. sirpm.

SCHEDULE Magistrates competent to exercise the powers under w:zra'ou.s' .s'(=ctr'on.s' of the Act.

Explanatory Note: (1) In regard to offences under the Act, the entries in the second column against a section, the number of which is given in the first column, are not intended as the deﬁnition of the offence in the Act, but merely as an indication of the substance of the section.

(2) In this Schedule, (i) the expression "Magistrate of the first class" includes Metropolitan Magistrates, but not Executive Magis-

trates; (ii) the expression "District Magistrate" includes Chief Metro-

politan Magistrates.

Magistrates' competenr to exercise var."ou.s' pmwar.s'.' .\Iagsm.1-.9 of the £.r»,l class. Di."-(riot Magistrate or Sub-Llivisiorml Magic.

Magistrate of the Ii1'stela.eu, Dix,-triot Magistrate o1'Suh'l)iVi.sir)11ul l\L-Agin-

Section Gist of the section ill) Prostitution in or in the vicinity ofwllistricl Magistrate. public place to be notiﬁed.

]l(-1+ Tria.ll'o1' breach oftiieraquitement to Magistrate of the ﬁt':-ll class notify address by a. previously con-

victed offender.

12(4) Security for good behaviour from h;ibi- ltlagistrate of the first class. tual offenders.

15(5) Search without Warrant trots-

lﬁ Rescue of girl tmtr.

17 Intermediate custody of girls I'eItlu'~L'(.l under section 15 or rescued under see-

tinn U5.

l8(1}(3) &(4') Closure of brothels and eviction of' off- ernders from premises.

19 _. . | xpplicution for being; kept in a p unec-

tivc. home.

'_"O[l)&(:1) ltomoval of prostitutes from any place 22 . . Tria.ls .\'l'd.glhlZTiJ.lzf:' of theiirst class, District ,VIa,gistr-ate or Sub-divisional Magi:---

tl'b\.I2t*.

District Magistrate or Sub-rilvi.-smug] Ma.gistr'a.1c.

lihgistrute of the ﬁrst glue.-,. District-

l\Ia.gieti-ale or Sub-Divisional }[5_.glg-

tra.tv.

District Mu.giatrn.te or Sub-divainmgl M.a.gi.trate of any Exemltive Magis-

trate specially empawe ad by the b'I:a.t-e Government.

Mn.giatrak~ of th tirat. class.

1 See para 4-10 of the Report.

CHAPTER 8 IMPLEMENTATION OF THE AC1? SOME HMPORTAJVT POINTS 8.1. 1m'roa"ucI0ry»-We would like to conclude this report by drawing attention to an important aspect of the problem with which the Act is concerned. We wish to emphasise that apart from amend- ments of the Act, many other measures are needed to mitigate the evil of prostitution. The need for such measures has been stressed in the past' also, but what may be conveniently called "non--legislative measures" are so important that we would like to draw attention to some points that require serious attention.

8.2. Need for well-mtmagea' im't:'tutEon----In the iirst place, we would like to point out that the Act may be defeated by reason of dearth of well-managed institutions. Implementation of the beneﬁcial provisions of the Act, particularly, the provisions as to the rescue of fallen women and girls, postulates the existence of sutﬁcient number of well-managed institutions. This may sound axiomatic, but We think that it is an aspect of very great importance, which should be bo.rne in mind.

In this connection, it should also be stated that the line ot demar- cation between institutions for the correction of hardened prostitutes on the one hand, and institutions for the protection of new recruits to this Vocation on the other hand should be kept in the forefront. We have discussed this aspect in detail, in the relevant portion of the Report".

8.3. Need for adequate women police oﬁ'icers--Secondly, we would like to record our view that it should be ensured" that the number of women police ofﬁcers is adequate for the discharge of the duties that may have to be specially entrusted to these police officers under the Act.

8.4. Proper up-brin.ginguThirdly, it is well--known that many in- mates of brothels have children who are brought up in the surround- ings in which their mothers live. These children are, therefore. bound to imbibe the undesirable atmosphere of the brothels. This aspect requires paramount and immediate attention. It illustrates how, apart from legislation. other efforts are necessary to prevent the evil of prostitution from assuming a larger dimension.

1 Paras 3,1],-7, 6-13, 6-17, 6-23, supra.

2 See discussion as to section il-tloﬁuition of "corrective irrstitittinnu' homes". Pars. 4-7, 4-33, sitpra.

5 See also para 6- l3. -mpm'.

' and "pmtntztivo 74:

The law can deal with serious and blatant manifestations of 'immo- rality. But the problem is not only a legal one. We may point out that there are institutions relating to children, and suitable use should be made of these institutions.

If there is any lacuna in the relevant legislation, the matter should be dealt with suitably, by amending the relevant legislation. But, be- sides legislative action, it is desirable that measures should be taken to protect impressionable girls from imbibing such atmosphere, The enlisting of the co-operation of voluntary agencies is eminently desir- able, in this regard.

CHAPTER 9 SUMMARY OF REC OM MEN DA TIONS Our recommendations are summarised below:---

I. The Suppression of Immoral Traﬂic in Women and Girls Act, 1956-----Amendment.

_ Section 2(a)---'brothel'--In' the deﬁnition of 'br0the1", t'he addi- tion of 'conveyance is recommended.

Section 2~"cori-active instirution"--The deﬁnition of "corrective institution" should be inserted in section 2. to include an institution where women and girls who are in need of correction may be detained".

Section 2(c)--'Magi.straie'¥--The term 'Metropolitan Magistrate' should be substituted for 'Magistrate' in the Act, to accord with the terminology adopted in the Criminal Procedure Code. 1973".

The deﬁnition of "Magistrate" in section 2(c) should be revised so as to refer to a schedule of powers of Magistrates, which is recom- mended to be inserted in the Act'.

Section 2(e)--~--"pr0stitm*e"--The deﬁnition of 'prostitute should be linked up with that of 'prostitution?

Section 2{fl--'pro.stituti0n'--The deﬁnition of 'prostitution' should be revised so as to clarify that the payment for the intercourse need not be immediate. Further, the deﬁnition of 'prostilute' should be linked up with that of 'prostitution'''.

Section 2(gl\'prorective home'#Recom1nendation has been made to amend the deﬁnition of 'protective home' so as to include an insti- tution for the care and protection of rescued women and girls, being an institution as is referred to under section 21. but as to exclude a shelter for female under--trials or a corrective institution'.

Section 4(2)---Recommendation has been made to revise section 4(2), so as to make it clear that it is those persons who are over the age of eighteen years and found in the circumstances mentioned in this sub- section who are punishable under sub-section (l). The proviso to section 4(2) should be deleted, as being superﬂuous".

1 Pam 4-5.

3 Para 4-7.

3 Para. 4-9.

4 Para 4'12, 7-9.

5 Paras 4-17 and 4-23.

Para 4-26.

Para 4-33.

Para 5'17.

Ind:

76 77

The point relating to section 5 is considered. An amendment is recommended in sections 372 and 373 of the Indian Penal Code', to cover girls above a certain age.

Section 7(l}--VerbaI changeAIn section 7(1), for the words "yards" the word "meters" should be substituted.

Section 9(l)e~Section 9(1) should be revised so as to punish a per- son who stands in a position of authority over any woman or girl and who causes or aids or abets in seducing her for prostittttiorf'.

_Section 10(l)_~In section 10(1), the oﬁences under section 3(2). section 4 and section 5 should be removed, as these are serious offences and not suitable for probation'.

Section l0(l}(a), '(b) and (c)--The reference to the Criminal Pro- cedure Code, 1898 should be replaced by reference to the new Code of Criminal Procedure, 1973 and the Probation of Offenders Act, 19585.

Section 10(1) should be revised to provide that a person convicted for the ﬁrst time under section 7 or 8, may, having regard to his age, character, antecedents and circumstances be released by the court with .admonition or probation under the Probation of Offenders Act, 1958 or section 360 of the Criminal Procedure Code, 1973, if the said Act does not extend to the State".

Section 10(2) and Section 10A (New}--Seclion 10(2) should be revised so that persons convicted under sections 7 and 8 should be deter- mined in a corrective institution. For this purpose, a new section 10A should. be inserted'.

Section 10i3)_Section 10(3) should be widened, so as to prohibit release on probation or with admonition for all oﬁences except offences under sections 7 and 8'.

Section 10--Section 10 should be amended so as to provide that where a court convicting a person could have ordered probation, but has not done so. it shall record the reasons for not having done so".

Sections 15(4), 16, 17 and 23(2)---The scope of sections l5(4) and 16 should be widened, so as to make the beneﬁcial provision for rescue available also to a woman of any age who is being made to carry on prostitution". r Such women, being involuntary participants in prostitution. should be sent to protective homes, and not to corrective institutions":

1 Pars. 5-21.

' Para 5-25.

3 Para 5-3'7.

4 Para 5-43.

5 Para 5-45.

5 Para. 5-46.

7 Para 5-47.

5 Para, 5°48.

3 Porn 5-49 1" Paras ii-'7, 6-8 and B-9.

11 Puma. 5- 10.

L] P(D}l2Mo °L._T&('A--7 78 however, such adult women, while in the protective home, should be treated on a different footing from girls below the age of 21 years, and suitable provision should be made in this regard in the rules to be made under the Act'.

In section 17(1), the word "imrnetlriately" should be deleted". It is also recommended that a proviso should be added to section 17(1) to the effect that no girl should be detained in custody for more than ten days or be placed in custody of a person who may exercise harmful inﬂuence over her'.

Section 17(2PSection 17(2) should be revised so as to provide for intermediate custody, enquiries by Probation Oﬂicers, need for care and protection of orders by courts and non--institutional care and gui- dance'. A minimum period of one year and not more than three years may be prescribed for detention in a protective home or in such other custody as the court may order'.

Set-rion 17A and 17B (New)----The insertion of two new sections-- HA and l7B--to deal with seduction and non-production by police officers of rescued women and girls' is recommended.

Section 19(l)----Section 19(1) should be revised so as to include a provision for an order that the girl be provided care and protection by the court in a protective home or in the manner speciﬁed in section 19(2)'.

Section l9(lA) (N-3w)~interim custody--The insertion of a new section l9(1A) regarding the interim custody of the girl, pending an inquiry under section 19(1) is recommended'.

Sectron 19(2)»-Section 19(2) should be revised so as to include an inquiry by a Probation Officer into the personality, conditions of home and prospects of rehabilitation of the applicant, and the Magistrate may then order her to be kept in a protective home, corrective institu- tion or under the supervision of such person as he appoints".

Seciions 21(1), 21(2), 21(3) and 21(8)~--In section 21, subsections (1), (2), (3) and (8), dealing with protective homes, corrective institutions should' be added".

Section 2l(9A)~--P0wer to transfer I'nrnateS--(Newl----'I'he insertion of a new sub-section (9A) in section 2], regarding power to transfer an inmate of a Protective Home to a corrective institution or vice versa 11 is recommended.

1 'Para 5-I0.

3 ]E'et1':i. G '31.

" Para 3'22.

' Paras 6 '93 and 6 '24.

5 ,l-'itr.-151 6'24 and (i-2-5.

5 Pttras 5 53 and 5 '23.

' Para 6 '31.

9 Para 6-32.

9 Poraﬁ-3-I».

1" Pnirtt (3-40.

11 I'.-tru li --'l-3' 79 Section 22----The changes regarding the competent Magistrate should be made in section 22, so as to accord with the recommenda- tions regarding section 2'.

Section 23(2J'(b)---'In section 23(2)(b) the words "where the women or girls are without a home" should be added after the words "sub- section (1) of section 10" in order to narrow down this part, regarding custody".

Section 23_l2)(c)--~--The relevant portion of section 23(2.)(c) should be revised in view of the proposed substitution of corrective institutions in section 10(2)'.

Section 23(2}(£.'l----The term "corrective institutions" should be added in section 23(2)(g), clauses (i), (V), (vii), (ix), {xiii} and (W) and in clauses {xi} and {xii}, wherever considered suitable.' Schedule of powers of Magistrates' to be inserled------A. schedule dealing with the powers of Magistrates should be inserted in the Act'.

II. The Suppression of Immoral'. Troﬂir: in Women and Girisr Act, 1956 Imptemem'arion----Apart from the implementation of the Suppres- sion of Immoral Traﬁic in Women and Girls Act, many other non- legislative measures are required to mitigate the evil of prostitution' Need for well managed :'n3rirutions--The provisions regarding res- cue of fallen women and girls postulates the existence of suﬂicient number of well-managed institutions. This should be borne in mind. The distinction drawn between Corrective Homes and Protective Homes for diﬂerent categories of prostitutes should also be kept in the fore- front'.

Need for adequate women police oﬁ'fcers--Tl1e number of women police ofﬁcers should be adequate to carry out the work entrusted to them under the Act".

Proper upbringing of prarritute.r' i."hiia'ren----The children of pros- titutes are bound to imbibe the undesirable atmosphere of brothel life Here again. institutions relating to children should be suitably used {if necessary, relevant law be amended) and the assistance of voluntary agencies should he enlisted to protect young girls" particularly.

1 Par.-16-45.

' Para, 7-2.

9 Paras 7-3 and 7'6.

' Para. 7-'7.

"' Para. 7-9.

' Puma 8-1.

7 Para 3-2.

9 Pam 3-3.

' Para. H-4.

III. Indian Penal Code, 1360 Sections 372 and 373, Indian Penal Code----Sections 372 and 373. Indian Penal Code should be amended so as to extend these sections regarding purchase or sale of girls to adults also' IV. Probation of Offenders Act, 1958.

Section 18, Probation of Offenders Act, 1958--Se=ction 18 of the Probation of Olfenders Act should be amended, so as to remove refe- rence to the Suppression of Immoral Traffic Act".

We would like to place on record our warm appreciation of the valuable assistance we have received from Shri Bakshi, Member-Secre- tary of the Commission in the preparation of this Report.

P. B. Gajendragadkar Chairman P. K. Tripathi Member S. S. Dhavan Member.

S. P. Sen Verma Member B. C. Mitra M Member P. M. Bakshi Member-Secretary New Delhi;

7th February, 1975.

1 ['aI'a.S 5'20 und 5-2].

3 Para 5*-14.

APPENDIX 1 COMPARATIVE POSITION AS TO PROSTITUTION IN OTHER COUNTRIES Prostitution at common law!At common law, keeping a brothel is not an oﬂence. A prostitute receiving melronly into her own room could not be convicted of keeping a "brothel"?

It may be stated that "scandalous and public" indecent behaviour was, at common law, an offence". The history of the offence of grossly open and notorious "lewdness-indecent exposure" is illustrative of this. To be indictable in earlier times, this act not only had to be public, but had to actually be seen by "more than one" non-consenting persons." The "more than one person" rule was, however. soon relaxed, to the extent that acts were held indictable if they were committed in a place "so situated that what passes there can be seen by a considerable num- ber of people if they happen to look''.' However, courts, retaining this requirement as so modiﬁed, have still refused to indict the act when committed in private before a single non-consenting person".

The law on the subject in England has now been modiﬁed by a number of enactments".

Statutory provisions in Engltmah-The main statutory offences in England relevant to prostitution are the followingzﬂ Causing or encouraging women to become prostitutes:

By section 22(1) of the Sexual Offences Act, 1956,-----

"It is an offence for a person"-

(a) to procure a woman to become, in any part of the world, a common prostitute; or

(b) to procure a woman to leave the United Kingdom, in-

tending her to become an inmate of or frequent a brothel else- where; or -

(C) to procure a woman to leave her usual place of abode in the United Kingdom, intending her to become an inmate of, or frequent a brothel in any part of the world for the purpose of prostitution."

1 Singleton V Ellison, (1895) 1 Q B. 607; Arehbold (1966), para 3854. 9 Note "Homo-sexual Gonduot.", 70 Yale Law Journal 623, 624, and footnote ll. 5 {ct} Regina V. Wrttaort, (1847) 2 Cox Grim. Gas. 376; {it} Regina v. Orchard, (1848) 3 Cox. Crim. OILS. 2-18. 4 (a) Van Houtrm, v. State, 5N.L.J. 311 (Essex Quarter Sess. 1882), :tl'l"rI= 4.-6 N.L.-I. 16 (Sup. Ct. 1884) {act committed in store} (U.S.A.); (5) Regina v. Holmes, (1853) 6 Cox Grim. Gas. 216 (not in omnibus}:

(0) Regina 7. Tiiailman (1863) 9 Cox. Grim. Gas. 383 (act. in roof).

5 See (1946) Burdiek, Law of Crimes 967, cited in l\Tot.e,"Ho1nosexua.l Conduct." 70 Yale LJ. 623, 624 and footnote 11.

' See infra-"Statutory provisions in England."

S2 The use of Premises for Prostitution:

(a) Brothei keeping»»By section 33 of the Sexual Offences Act, i956:

"It is an offence for a person to keep a brothel, or to manage, or act or assist in the management of a brothel."

By Section 34:

"It is an oﬁence for the lessor or landlord of any premises of his agent to let the whole or part of the premises with the knowledge that it is to be used, in whole or in part, as a brothel, or,_whe1'e the whole or part of the premises is used as a brothel, to be wilfully a party to that use continuing."

And by section 35(1):

"It is an n-lfence for the tenant or occupier, or person in charge, of any premises knowingly to permit the whole or part of the premises to "be used as a brothel."

Tenant permitting premises to be used for prostitution:

By section 36 of the Sexual Offences Act, 1956:

"It is an offence for the tenant or occupier of any premises knowingly to permit the whole or part of the premises to be used for the purpose of habitual prostitution."

Living on the Earnings of Prostitution:

By section 30 of the Sexual Oliences Act, 1956:

"{1} It is an offence for a man knowingly to live wholly or in part 011 the earnings of prostitution.

(2) For the purposes of this section a man who lives with or is habitually in the company of a prostitute, or who exercises control, direction or inﬂuence over a prostitutes movements in a way which shows he is aiding, abetting or compelling her prostitution with others, shall be presumed to be knowingly living on the earnings of prostitution, unless he proves the con-

trary."

By section 4 of the Street Olienc-es Act, l959, the maximum penalty for this offence was increased from two to seven years.

A woman exercising control over a prostitute:

A closely related offence under section 31 of the Sexual Oﬂences Act, 1956, may be committed only by women:

"It is, an offence for a woman for purposes of gain to exer- cise control, direction or inﬂuence over a prostitute's movements in a way which shows she is aiding, abetting or compelling her prostitution."

Lettering or Soliciting in Public Places:

In all the oﬁences so far considered, the crime is corrmitteil not by the prostitute but by another. The legislation now to be considered is aimed at the prostitute herself. Its object is not the suppression or dicouragement of prostitution, but the elimination of an oitence against public order and decency arising from the activities of prostitutes in public places. The present law is to be found in the Street Offences Act, I959, which provides, in section l---~ "(ll It shall be an offence for a common prostitute to loiter or solicit in a street or public place for the purpose of prosti- tution."

Section 1(4l of the Street Offences Act, 1959 provides:

"For the purposes of this section 'street' includes any bridge, road, lane. footwav, subway. square. court. alley or passage, whether a thoroughfare or not, which is for the time being open to the public; and the doorways and entrances of premises abutting on a street (as hereinbefore deﬁned), and any ground adjoining and open to a street, shall be treated as forming part of the street."

"Soliciting" takes place in a street or public place where the soli- citation takes eﬂ'ect there, even though the accused may be outside the street or public place. In Smith v. Httges' attracted the attention of men in the street by tapping on the window pane, and by gestures in- vited them and indicated the price of her services. Applying the "mis- chief rule' of construction, the Divisional Court dismissed her appeal:

"Every body knows that this was an Act intended to clear.' up the streets, to enable people to wall: along the s: rests without being "molested or solicited" by common prostitutes. Viewed in that Way, it can matter little whether the prostitute. is soliciting while in the street or is standing in a doorway or on a balcony, or at the window, or whether the window is shot or open or half open; in each case her solicitation is projected to and addressed to somebody walking in the street."

Of course, a person who is not criminally punished by the law. can still be denied its protection. Thus. the doctrine that the inn-keeper must admit all travellers is not applicable to a prostitute F A landlord who lets a flat for fornication may not recover his rents' Other countries ~--vI-Iaving dealt with English law, we give below a brief surnraary' of r e position in 2. _-'..v.r -other CDLU."_1Tt']'€5.

1 Smith v. Hughes (1880) 2 All ER. 859, 381 = no R-Ii.-fer 9-.':I'ts o.i.-an Inn H923) 198 K» 243 s.w. 229 (1923) (_U.N.A.). (bl Salton 'T2i.1-their Bath, Inn. tr. Board of Police Comrmssicmers, 1&9 4.'l:tl. App. 25:1 H58. 337 P. 2-1 203 (Dist. Cb. App. 1959) (U.S.A.}.

5 Upﬁli 17. Wright, [1911] 1 KB. 506.

'| lIrIa.l;:_l1-ia.] mostly based on International Review of Criminal Policy Ijtllebobr-r 1.'.i5Sf|.1'~ln. 1.1..

84:

Cambodia----ln Cambodia, a number of licensed brothels and houses of prostitution exist under special regulations oth.er than licens- ing. Clandestine prostitutes are prosecuted under Article 430 of the Penal Code. Tlheir arrest is the responsibility of the "public morals police", which keeps a special register o.f persons so arrested and sent tlzno trlpalnnent centres, as well as of inmates of licensed or recognised rot es.

C'anarla--~--Position as to Canada is dealt with later.' In Chile, on October 4, 1955, the Ministry of Health issued a new regulation concerning the prevention of venereal disease, which pro- vided for the suppression of all brothels in the country and the dis- continuance of the medical inspection relating to the occupants of such establishments.

Denmm-k_-In Denmark, prostitution is not an offence as such. The police, may, however, order a prostitute to seek lawful occupation under section 199 of the Criminal Law and it the prostitute fails to comply with the order, she can be imprisoned upto one year. Section 233 of the Criminal Law provides that any person who offends public decency by her wayof life, or by importuning other persons, is liable to simple detention or to imprisonment upto one year. The sentence is normally suspended for the ﬁrst offence.

Fmm:e----Iu France, Act of 24th April, 1946, and the decree of 1947 contain the law on the subject. The Ministry of Health has estab- lished a Central health and social card index of prostitutes. Prostitution per se is not an oﬁence. The Act of 1946 provides for penalties for its public manifestation. Also, the Act punishes procurers of all types, but this law is not effective.

Hat'ri----In Haiti, prostitution is regulated by the Decree of 13th June, 1927. Prostitutes who. are not inmates of recognised! brothels are not subjected to general or administrative measures; they are tolerated.

Htmgary--In Hungary, registration of' prostitutes was abolished in June, 1950.

Ireland--In Ireland, no licensed or recognized brothels nor any system of registration of prostitutes exists. Section 16 of the Criminal Law Amendment Act, 1935 provides that every common prostitute who is found loitering in any street, or other place and soliciting passersby for the purpose of prostitution shall be guilty of an offence and on conviction be liable, in the case of the ﬁrst offence, to :1 ﬁne not ex- ceeding two pounds or in case of -subsequent offences to imprisonment for a term not exceeding six; months.

POI.rmd--In Poland, heterosexual prostitution is not a punishable oﬂence. But, as regards homosexual prostitution. article 20? of the Penal Code provides that any person who offers himself l'or reasons of proﬁt to at person of the same sex for the purpose of committing an 1 See below under "U.'3.A. and i.'-made".

immoral act shall be liable to a term of imprisonment for 3 years. Under further provisions of the Penal Code, consorting with relatives in the direct line, with a brother or sister or with minors, exploiting the pros- titution of others and inducing another person to engage professionally in immoral acts, are punishable offences. In a number of cities where the problem of prostitution i-s acute, names of all prostitutes who had committed an offence were previously entered in a special card register which also contains personal data e.g. education, age etc. This system was abolished in April, 1956, and now no system of registration exists in Poland.

Spain----In Spain, the Penal Code provides for the offences of pro tecting or abetting prostitutes, and inducing other persons by deception, violence or threats to satisfythe unlawful desires of others. If the woman involved is under 21 years, oifenders are liable to heavier penalties, and any person who fails to place under restraint a minor subject to his legal authority who is, to his knowledge, engaging in prostitution or residing in a house or place of ill-fame, is liable to arrest on a major charge, and may be disqualiﬁed from acting as guardian and deprived of his parental authority. Persons engaged in clandestine prostitution as a means of livelihood, and the protectors of such person, are also liable to sentence of conﬁnement or special supervision under the Vagrants and Beggars Law. The legislative Decree of 3rd March, 1956 declaresvprostitution to be an illicit traﬂic and prohibits brothels and other similar establishments.

Sn' Lanka--In Sri Lanka, there are no licensed or recognised brothels, and prostitutes are not subject to registration. Prostitution is an oﬂence under the Brothels Ordinance and the Vagrants Ordinance. The Brothels Ordinance does not provide for the punishment of the women found in a brothel presumably for the purpose of prostitution. but a charge-could be made against them under section 9(lA) of the Vagrants Ordinance. Such a charge, however, is extremely diﬂicult to prove, and a great handicap to the raiding of such houses arises from the fact that the courts frown on the police practice of using "decoys" in order to trap the women.

U.S.A. and C-:mada----Under the dilferent laws in force in the U.S.A. and Canada, the term "prostitution" is generally construed to mean the offering or receiving of the body for hire for the purpose of sexual intercourse. In some States, a further qualiﬁcation is added; the term "prostitution" includes the offering or receiving of the body for indiscriminate sexual intercourse, without hire. It may be assumed that a "promiscuous" woman (as distinct from a prostitute} shows some degree of discrimination and emotional involvement, and that pay- ment to her does not take form of a fee for services rendered, although some less tangible consideration may be received. The line of demar- cation. however, (between promiscuity and prostitution) is not a hard or fast one. Further, the same woman may shift back and forth bet- ween "prostitution" and "promiscuity" as the economic and other conditions of her life change.

_ Generally speaking, the prostitute group includes women who deriyecntire earnings from this, as well as those who are waitresses, barmaids, dance hall girls etc. The Federal Act in the U.S.A. (known as the White Slave Tralﬁc Act) prohibits and penalises, as a; felony, the act of any person who transports, causes to be transported, or aids or assists in tninsporting any woman or girl in r'nter--stare or foreign commerce for the purpose of prostitution or debauchery or any other immoral purpose, or who knowingly procurcs or obtains, causes to be procured or obtained, or aids or assists in procuring or obtaining any ticket or tickets or any form of transportation to be used by any woman or girl in inter-state or foreign commerce for the purpose of prostitution or debauchery or for any other immoral purpose'. Knowingly to persuade, induce, en- tice, or coerce, or to aid 01' assist in persuading, inducing, enticing, or coercing any woman to go from one place to another in inter-state or foreign commerce for the purpose of prostitution, debauchery, or other immoral purpose", or knowingly to persuade, induce, entice, or coerce any woman or girl under the age of eighteen years from any state or territory or from the District of Columbia to any other state or territory or District of Columbia, with the purpose and intent to induce or coerce her or that she shall be induced or coerced to engage in prostitution or debauchery or any other immoral practice, or in furtherance of such purpose knowingly to induce or cause her to go and to be carried or transported as a passenger in inter-state com- merce upon the line or route of any comomn carrier or carriers' are also declared to constitute felonies.

Prostitution in one form or another has existed on the North American continent since the very early days of its history. In the 19th century, the white slave tratﬁc prospered in business and residen- tial areas. Brothel keepers and pimps grew rich, but the prostitutes themselves were always in debt to the brothel owners.

With the dawn of the 20th century, there was public awakening, in Western Europe, particularly in England and in France. In Lon- don, the ﬁrst International Conference for the Suppression of Traﬁic in Women in 1899 was held. In i902. the ﬁrst international Confe- rence for the Suppression of the White Slave Tratlic met in Paris to draft a Treaty. By 1904. an international agreement for suppressing the international traffic in women had; been adopted by 13 nations:

Belgium, Denmark, France, Germany, Italy, Great Britain, the Netherlands, Norway. Portugal. Russia, Spain, Sweden and Switzer- land. The U.S. accepted to it in 1906. In 1917, the 11.8. Congress passed an Act which prohibited prostitution within a prescribed area around military or naval installations. Following these, several states enacted laws against all phases of comrnercialised prostitution, and passed 'injunction and abatement' laws. The laws against traffic in 1 18 113. Code 3. 397.

3 IS U.S. Code s. 398.

3 I 8 'U.S. Code 3. 4-00.

women and girls aimed at the prosecution of procurers and other pro-- moters of vice. The 'injunction and abatement' laws provided for the suppression of disorderly houses as public nuisance. These resulted, in many states, in the closing of many houses of prostitution; this marked the beginning of the end of these districts as an American institution. , By 1948, every State in the U.S.A. had enacted some kind of improved Vice--represSiVe laws. By deﬁning "prostitution" so as to in- clude both the giving as well as taking of the body in indiscriminate sexual intercourse for hire, and by penalising the customer as well as the prostitute, some States' marked a long step forward in legislation In this ﬁeld.

Between the two World Wars, there was growing interest in pub- lic health and a campaign for control of venereal disease and for vice- repressive laws was adopted. The May Act, 1941"---"to prohibit pros- titution within such reasonable distance of military and/'0-r naval establishments as the Secretary of War andior Navy shall determine to be needful to the eﬂieiency, health and welfare of the Army and,' or Navy" is Worth particular notice.

By 1948, every State in the U.S.A. had. enacted some kind of repressive legislation.

The "regulationist" system, involving the registration of prostitute and the regulation of brothels, had been tried out in one form or another in the United States and Canada. This proved inellective, and was abandoned in favour of a policy of strict repression. The American point of View on regulation 'Was inﬂuenced by the 'fact that (I) "regu- lation does not regulate" but simply increases the demand for prostitu- tion, and (2) the regulationist system involves the Governments con- cerned' as partners in licence fees and levying taxes.

At present, the federal law_ in Canada against commercialised prostitution and the State laws in the U.S.A. classify prostitution and traﬂic in persons as a crime, and call for its strict repression. The trend is towards decreased cornmercialised prostitution, because of elfective law enforcement, and improvement in economic conditions.

In the U.S.A., the Federal Government may enact special legislation to protect servicemen from the threat of prostitution activities, and the commanding officers of army, navy and air force installations may place out of bounds to servicemen the neighbouring brothels and other resorts where illegal sex contracts are made or attempted. However, the role of the Federal Government is restricted largely to the Immigration and Naturali-sation Service, and to the F.B.I. which takes action only when the traﬂic in persons crosses state lines.

State attorneys can take action where the law is not complied with. Further, state health authorities may bring pressure on municipal gov- ernments to secure the enforcement of these laws.

1 13.g. Arizona, Florida. New Hampshire and Wiaeonniin.

The State laws differ. In New York City, for example, a prostitute when apprehended is taken to the police station, where she is charged and if of a legal age taken to a house of detention to await trial. A minor is placed temporarily in a home for delinquent girls. With least possible delay, they are brought before the. Court for Women Vagrauts. or if under age. before the Juvenile Court; bail may be granted; the Court moves quickly. if it is a ﬁrst offence and evidence is snﬁcient to war- rant conviction, a suspended sentence may be given, or the convict may be placed on probation. If she is a rcciclivist and of legal age, she is often given prison sentence of 30 days to a year. If she is a minor, she is given an indeterminate sentence in a rehabilitative institution. New York does not tine convicted prostitutes. A large ﬁne is fourid to be a deterrent, but a smaller ﬁne is useless.

Law in New }'0rk----Ser.:tions 230.00 230.05 and 7.30.10 of the 1965 New York State Penal Law read as follows':-

"S.-sctiorz 230.00 Pr0.m'Im'r'on..

A person is guilty of prostitution when such person engages or agrees or otters to engage in sexual conduct with another person in return for a fee.

[Prostitution is a violation. L. 1965, c. 1030, eff. Sept. 1, 1967}. A person is guilty of patronizing a prostitute when:

1. Pursuant to a prior understanding, he pays a fee to another person as compensation for such person or a third person having engaged in sexual conduct with him; or

2. He pays or agrees to pay a fee to another person pursuant to an understanding that in return therefore such person or a third per-

son will engage in sexual Conduct, with him', or

3. He solicits or requests another person to engage in sexual con- duct with him in return for a fee.

Patronizing a prostitute is a violation'.

Section 230.10 Prorrirurion} and patronizing a prostitute.

Sex no defence.

If any prosecution for prostitution or patronizing a clrostitute, the sex "of the two parties or prospective parties to the sexual conduct engaged in, contemplated, or solicited is imrnaterial. and it is no defence that:

1. Such persons were of the same sex; or 1 See Pamela. A. Roby, "Politics and U1-irninal Law-Revision of New State Penal Law nri P1-ost.i'bntion", (1939 Suiitmer), Vol. 1'7, No. 1, Social Problems 53, 85.

9 L. 1955. o. llfllﬂtl. eff. Sept. 1. 19$?' 89

2. The person who received, agreed to receive or solicited a fee with a male and the person who paid or agreed or offered to pay such fee was a female' 2.

It was after public hearing that the New York Penal Law and Criminal Revision Commission added. section 230.05, concerning pat- rons. In its comments on article 230, the Commission termed the addi- tion of the New otlencc, "Patronizing a Prostitute", the most impor- tant change in the article. In explaining the change, the Commission wrote':

"Though not presently an olfence in New York, such 'patro- nizing' conduct is prescribed in various forms by the penal codes of several other jurisdiction, including the recently revis- ed Codes of Illinois and Wisconsin.

"At the public hearings held by the Commission with respect to the proposed Penal Law and in conferences and correspondence with the Commission and its staif, a number of persons and organizations have strongly urged the inclusion of a "patronizing" oﬁ"e-nce. The rea- sons most vigorously advanced are:

(1) that criminal sanctions against the patron as well as the pros-

titute should aid in the curtailment of prostitution; and (2) that to penalize the prostitute_and exempt the equally culpable patron is in- herently unjust.

"After consideration of these contentions, the Commission decided to include the indicated patronizing offence in the new bill as a proper corollary to prostitution."

The power of forces opposing the "patron's" penalty was discussed by Flexner' in the twenties:

"The professional prostitute being a social outcaste may be periodi- cally punished without disturbing the usual course o.f society ............. .. ............. ..the man, however, is something more than :1 partner in an immoral act; he discharges important social and business relations, is a father or brother responsible for the maintenance of others. has com- mercial or industrial duties to- meet. He cannot be imprisoned without damaging society (i.e., those with inﬂuence in society)."

In 1966, Davis wrote, "Although the service is illegitimate, the citizen cannot ordinarily be held guilty, for it is inadvisable to punish a large portion of the populace for a crime ............. .. that has no political signiﬁcance. Each such citizen participates in the basic acti- vities of the society, in business. government, the home. the church. etc.

1. L. 1965, o. 1030, elf. Sept. 1, 1967.

*. A.la0 see B. George, "Legal, Mcdicu-1 and Psychiatric Consider-at-ic-r. in the Control of Prostitution", (1932), 60 Mich. Law Review.

_ '. New York Penal Law, Comm-nts B. 230.05 tMclKinney 1965] cited by Eamela. A. Roby 'Politics and Criminal Inn, (1989 Summer), Vol. 17 Social Problems N0. 1, 33-92. '. Flexner, Prostitution in Europe. (1920) pages 105%, cited. in Pamela. A. 'Roby, "Politics and O1'iminalLaw (1969) (Summer), Vol. 17, No 1, Social 1-'roblems 83, 105, footnote.

To disrupt all of these by throwing hirn in jail for a mere vice would cause more social Cl1SI'lJpll0l'l and inefliciency than correcting the alleged crimed would be worth'."

In 1968, in New lforlr State (contrary to Davis' expectations), the patron can be held guilty, but the theory upon which Davis based his expectations remains true, for the law is seldom enforced."

Mode! Penal C0de--The Model 'Penal Code", original draft. section 207.12, was as follows:--- --

"S. 207.12---Prosr'f!utio.u and rel'-area' oﬂencrer.

(1) Prostitution. A person who engages, or offers or agrees to en-

gage in sexual activity for hire, or is an inmate of a house of prosti- tution, or enters this state or any political subdivision thereof to en- gage in prostitution, commits a petty misdemeanor .... .."

The following comment was annexed to the draft.

"Although prostitution appears to respond to a widespread de- mand, and despite indications that a substantial proportion of prosti- tutes are victims of social and psychic conditions beyond their control, most students of the problem favour penal repression of commercialized sex. Religious and moral ideas undoubtedly "are the main forces be- hind the demand for repression, but utilitarian arguments are also available. Prostitution is an important source of venereal disease, al- though some contend that the "amateurs" to whom men turn in lieu of prostitutes present a great danger in this respect. It has been obsew- ed that prostitution is a source of proﬁt and power for criminal groups who commonly combine it with illicit trade in drugs and liquor, illegal gambling and even robbery and] extortion. Prostitution is also a source of corrupt inﬂuence on government and law enforcement machi- nery. Its promoters are willing and able to pay for police protection; and unscrupulous oﬂicials and' politicians ﬁnd them an easy mark for extortion. Finally, some view prostitution as a signiﬁcant factor in social disorganisation, encouraging sex delinquency and undermining marriage, the home. and individual character.

"Counter-arguments have been made by some students of the pro- blem. who flavour legislation of prostitution under public supervision. Regulation rather than total repression has been advocated on the fol-

lowing grounds:

(1) Prostitution cannot be eliminated 'on' law.

1 Davis, "Sexual Bol1a.1riour". in R. Merton and Nisbet, Contemporu-r'= Social Problems { I966) 358 citedln Pamela A. Roby, "l'o]itiea and Grinﬁnal Law eto.. "-(1969) (Summer) Vol. 1'7, No. 1, Social Problems, 83. I03.

2 Pm11ela.A.Rrrhy"Politi-usand Criminal Im'refD..(1959) tSurumerlVo!- 17- No. 1 Social Problems, 33. 103.

3 H019] Pang! {lode (Amerimn Law Institute), Ta.-rtutive Draft No. 9(19ﬁ9) ('.C1II'1mBnb£l at page; 170 to 174. quote i in Paulaon and Kurdish. Criminal I'"''«' "id "7" .f'T0€(=5'Fl*'-'-F' il95msF'&5"' 91 (2) Sumptuary laws that cannot be generally enforced lend them- selves to extortion and arbitrary and episodic prosecution.

"(3) Failure to provide a professional outlet for male sexuality will result in more rape and other sexual crimes.

(4) Registration and periodic health inspection are the best means of controlling venereal disease; disease is much more likely to be spread by the promiscuous amateur than by professional prostitutes concerned and instructed to avoid infection.

(5) Legalised prostitution offers less opportunity for official corrup-

tion than an unrealistic effort at total repression.

(6) By conﬁning prostitution to particular neighbourhood police surveillance is facilitated and the safety of the general coinmunity is promoted . _ . . ..

"Many of the issues between those who favour repression and those Who would tolerate some prostitution cannot be resolved on the basis of available evidence. However, on the question of medical risk. the record is persuasive that inspection of licensed prostitutes would give no assurance against venereal infection ............. ..

"Accordingly, the Institute's proposals on prostitution, embodied in Section 207.12, pursue the same basic policy of repressing commer-- cialised sexual activity, as does present American law . . . . . . . . . . . . .

Later, however, a modified draft was adopted, as l'o1low.<.:

"Section 251.2 Prostitution and Related Offences, (1) Prostitution. A person. is guilty of prostitution, a petty mis-

demeanor, if he or she:

(a) is an inmate of a house of prostitution or otlierwise engages 111 sexual activity as a business; or

(b) loiters in or within View of any, public place for the pur-

pose of being hired to engage in sexual activity ............. ..

APPENDIX 2 LIST OF SECTIONS CONTAINING THE EXPRESSION "WOM'AN"' OR "GIRL" OR BOTH THE EXPRESSIONS Sect-ion Refernce to Enafereiice tu Ref-ereiwe to ''Woman'' "Grill, "Woman 0:1' nnly only girl".

8. 2(5) --

definition of "girl" .. ._ .. l'.irl S. 2i:;>">+ i deﬁnition of "Woman" . . . . _ . Woman S. 4.---. ' Punishment ft 1' living on the earnings of "pro- Woman 01' girl :ai.it--\:hio11" iii" a, wraman or girl.

'ml. 5% Punishment for pr-ocmring. inducing m-taking Woman 01' girl WU man or girl fnr prnatitut-ion.

S. E---- _ I-'lxniahmﬁnt. for drrtaining a. woman or girl in Woman I)!' girl premises WhE'IB prl:-stitul-ion is carried or.' , 5. 16(1) --

Rescue by Magistrate ufa. girl living or m1:-r_v- Girl ing rm in brothel.

S. 17"-

Immerliatr custody of girls removed uadw a. Girl 15(4) or rescued under 3. 13(1).

5. l9--~ _ App'.io.a.tim1for being kept. in a. 1:-rutectlive Wnmnu or girl home.

S.2D---Rrcmnral of prostitute fmm any plume by V\7DTll9»n 0!' '.§l1'l :3. Magistrate.

'L 7 {1}--~Won1uu or girl carrying on pmstitution 'Woman' or girl in. or in blue. vicinity of public places.

S. 9--Sed.un'--ionifur proatit-ution Dfra. womannr "'0J11M'- 0'7 El"

gir] by person having her custody, charge or care.

g. 15(1 )------Search without warmnt of pramiaas Wnm im or girl where oﬁence umler the: Act committed in reg-

pect. of a. W0t1'I.a11 or girl living" there.

3. 15(4) ~'['i1I2 special police nﬁiccr can E6tI'lI'J\'('.- Girl any girl from premises scarclled under 5. 15(1) who is. -.mrr_\;'ing on or biting maﬁa to carry on pros t-it-utiou .

*HE:GEl0n l5[2} requires the presence cyfat least one. "woman ", at the zaearuii.

' if ';'[ EliI2T|.l0fLJSI.{}A--l'l0ll----»9-41-5'-!3-GIPt5l

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The Supression Of Immoral Traffic In Women And Girls Act, 1956