vi. The trafficker and the law
Though the trafficker is the main focus of the TIPA containing five complete sections detailing the offences constituting the ingredients of trafficking, (sections 3, 4, 5, 6,and 8), as stated earlier, in practice it is only the sections directed against the prostitute/victim that are invoked during implantation of the Act, both at the stage of filing of charge-sheet by the police and of framing of charges by the magistrate.
Despite the intention and purpose of the law to charge, prosecute and make the trafficker face the consequences of this crime in accordance with law, data revels that this is not happening. The research study indicates that more then 90 percent of the cases of the registered under sections 7 and 8 ITPA only or in combination with other sections of the ITPA, and around to per cent of convictions are under sections 7and 8 of the ITPA. The trafficker who is responsible for a woman the exploitation remains beyond the reach of the law. It is thus clear that in practice the main focus of implementation of the ITPA is through the repeated use of section 7 and 8 against the prostitute/victim, who in most cases is under the complete control of the trafficker and is soliciting under his orders.
In the instant study across 10 states, several trends have been noted:
1. Very few cases are registered against the trafficker and hence the basic purpose of the Act of focusing on the trafficker is not being fulfilled. As started above, maximum use is made of sections 7 and 8 of the ITPA, to target the trafficked women/prostitute for soliciting. The state profiles in annexure 3 give a clear picture of this.
2. Even when a cases has been registered against the trafficker, it was very rarely ends up in conviction. the trail progresses slowly, an the witnesses are either not traceable or turn hostile. In effect, the traffickers go unpunished and continue to commit the crime of trafficking with impunity.
3. the research study has revealed that conviction under the ITPA almost always refers to convictions of prostitutes/victims and not of trafficker, pimps of brothel owners. This results in re-victimisation to trafficked woman and exonerates the main criminal – the trafficker. This is an extremely serious issue and demonstrates that the law is being manipulated to the advantage of the trafficker, and re-victimises the victim/trafficked woman.
2.1 The task of the magistrate/judge
· To verify and ensure that the police reports are properly prepared after due application of mind by the police against the traffickers/brothel owners/pimps and others.
· If the charge-sheet is directed only against the prostitute/women/ under section 7 and 8 of the ITPA, the magistrate only question the police as to way the brothel owner/pimp or customer have not been charge-sheet. s/he may direct the police to do further investigation under section 173(8) of the Cr.P.C with a view of fix the identity of the person who is running the brothel under section 3 of the ITPA, or the person living of the earnings of prostitution as per section 4 of the ITPA or the procurer/inducer of other as defined under section 5 of the ITPA or the person detaining a women for prostitution as defined in section 6 of the ITPA
· Before farming charges, he may also question the women accused under section 7 and 8 of the ITPA to ascertain whether she has been forced into prostitution or is soliciting under duress. If the magistrate questioning leads him/her to believe that the women is trafficked and is being sexually exploited and abused, a being forced to solicit under duress, s/he may direct the police to do further investigation under section 173(8) of the Cr. P.C.
(Issues concerning grant of bail to the accused women
have been discussed in Para 4.6(2).
· If the charge-sheet field by he police is against the prostitution/trafficked victim, pimp, brothel,-owner, etc, jointly, then the magistrate must direct the police to seriously pursue the evidence against the person who is running the brothel under section 3 of the ITPA, for the person leaving of the earnings of procurer/inducer of other as defined under section 5 of the ITPA, or the person detaining a women for prostitution is defined in section 6 of the ITPA.
· If at any stages of investigation or inquiry for trail of an offence under ITPA, the magistrate is of the view the women accused under section 7 and 8 of the ITPA is indeed a women and trafficked and forced into prostitution, he may use his discretion and grant here pardon under section 306 of the Cr.P.C and frame charges against the trafficker who is running the brothel under Section 3 of ITPA, Or the person detaining a women for prostitution as defined in Section 6 of the ITPA.The victim pardoned under Section 306 of Cr. P.C shall be examined as a witness against the trafficker as the trial progresses.
· Framing of charges: The Magistrate should frame charges not only under TTPA But also under IPC, so as to ensure that the stongest provisions of law with maximum punishment are made applicable against the trafficker.
Table5: Provisions that deal specifically with sexual exploitation
| Sr.No. | Law | Provision |
| 1 | Section 3 ITPA | Punishment for keeping a brothel or allowing premises to be used as a brothel. (1) Any person who keeps or manager, or acts or assists in the keeping or management of, a brothel, 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 two thousand rupees and in less than two years and not more than five years and also with fine which may extend to two thousand rupees. (2) a any person who – a. being the tenant ,lessee, occupier or premises, uses , or knowingly allows any other person to use, such premises or any part thereof as a brothel .or b. being the owner, lessor or landlord of any premises or the agent of such owner, lessor or landlord lets the same or any part thereof with the knowledge that the same or any part thereof is intended to be used as a brothel , or is wilfully a party to used of such premise of any part thereof as a brothel, shall be punishable on first conviction with imprisonment for a tram, witch may extent to two years and with fine, which max extent to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term which may extent to five years and also with fine. (2-A) for the purpose of sub-section (2), it shall be presumed, until the contrary is proved that any person referred to in clause (a) or clause (b) of that sub-section, is knowingly allowing the premises of any part thereof to be used a brothel or, as the case may be, has knowledge that the premises of any part thereof are being used as a brothel, if- a. a report is published in a newspaper having circulation in the area in which such person resides to the effect that the premises or any part there of have been found to be used for prostitution as a result of a search made under this Act; or b. a copy of the list of all things found during the search referred to in clause (a) is given to such person. (3) Notwithstanding any thing contained in any other law for the time being in force, on conviction of any person referred to in clause (a) or clause (b) of any offence under of any person referred to in clause (a) or clause (d) of sub-section (2) of any offence under that sub-section in respect any premises or any part thereof, any lease of agreement under which such premises have been leased out or held or occupied at the time of the commission of the offence, shall became void and inoperative with affect form the date of the said conviction. Punishment for living on the earnings of prostitution- (1) Any person over the age of eighteen years who knowingly lives, wholly or in part, on the earnings of the prostitution of any other person shall be punishable with imprisonment for a team which may extend to two years, of with fine which may extend to one thousand rupees, or with both, and were such earning relate to the prostitution of a child or a minor, shall be punishable with imprisonment for a term of not less than seven years and not more than ten years. (2) Where any person over the age of eighteen years is proved- a. to be living with, or to be habitually in company of, a prostitute; or 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 prostitute; or c. to be acting as a tout or pimp on behalf of a prostitute, it shall be presumed, unit the country is proved, that such person is knowingly living on the earnings of prostitution of another person within the meaning of sub-section (1). Procuring, inducing or taking person for the sake of prostitution- (1) any person who- a. procures or attempts to procure a person whether with or without his/her consent, for the purpose of prostitution; or b. induces a person to go from any place, with the intent that he/she may for the purpose of prostitution became the inmate of, or frequent, a brothel; or c. takes or attempts to take a person or causes a person to be taken, from one place to another with a view to his/her carrying on, or being brought up to carry on prostitution; or d. causes or induces a person to carry on prostitution; shall be punishable on conviction with rigorous imprisonment for a team of not less than three years and not more than seven years and also with fine which may extend to tow thousand rupees, and if any offence under this sub-section is committed against the will of any person, the punishment of imprisonment for a term of seven years shall extend to imprisonment for a term of fourteen years; Provided that if the person in respect of whom an offence committed under this sub-section – is committed against the will of any person, the punishment of imprisonment for a term of seven years shall extent to imprisonment for a term of fourteen years: Provided that if the person in respect of whom an offence committed under this sub-section- 1. Is a child, the punishment provide under this sub- section shall extent to rigorous imprisonment for a term of not less then seven years but may extent to life; and 2. is a minor, the punishment provide under this sub-section shall extent rigorous imprisonment for a term of not less then seven years and not more then fourteen years. (3) an offence under this section shall be triable- a. in the place from which a person is procured, induced to go, taken or from which an attempt to procure or taken such persons made; or b. in the place which she may have gone as a result of the inducement pr to which he/she is taken or caused to be taken or an attempt to take him/her is made. se |
| 4 | Section 6 ITPA | Detaining a person in premises where prostitution is carried on- (1) any person who detains any other person, whether with or without his consent- a. In any brother, or b. B. in or upon any premises with intent that such person may have sexual intercourse with a person who is not the spouse of such person. To ten years and shall also be liable to fine: Provided that the court may for adequate and special reasons to be mentioned in the judgment, impose as sentence of imprisonment for a term, which may be less then seven years. (2) where any person is found with a child in a brothel, it shall be presumed, unless the contrary is proved, that he has committed an offence under sub-section (1) (2A) where a child or minor found in a brothel, is, on medical examination, detected to have been sexually abused it shall be presumed unless the contrary is proved, that the child or minor has been detamed for propose of prostitution or , as the case may be has been sexually exploited for commercial purpose. (3) a person shall be presumed to detain a person in a brothel or in upon any premises for the propose of sexual intercourse with a men other then her lawful husband, if such person, with intent to compel or induce her to remain there- a. withholds from her any jeweler, wearing apparel , money of other property belonging to her, or b threatens her with legal proceedings if she takes away with her any jewellery, wearing apparel money of other property lent or supplied to her by the direction of such person. (4) Notwithstanding any law to the country, no suit, prosecution or other legal proceeding shall lie against such women or girl at the instance of the person by woman 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 giral or to have been pledged by such woman or giralor for the recovery of any money alleged to be payable by such woman or girl. |
| 5. | Section 7(1)& (2) ITPA | any person who carries on prostitution with woman such prostitution in carried on, in any premises: a. which are within the area of areas, notified under sub-section (3),or b. which are within a distance of two hundred meters of any place of police religious worship, education institution, hotel, hospital, nursing home or such other police place of any kind as may be notified in this behalf by the commissioner of police or magistrate in the manner prescribed, Shall be punishable with imprisonment for a term, which may extent to three month. (2) any person who: a. being the keeper of any public place knowingly permits prostitutes for purposes of there trade to resort to or remain in such place; or b. being the tenant, lessee, occupier or person in charge of any premises referred in to sub-section (1) knowingly permits the some or any part thereof to be used for prostitution; or c. being the owner, lessor or landlord, lets the same or any part referred to in-section (1), or the agent of such owner, lessor or landlord, lets the same or any part thereof with the knowledge that the same or any part thereof may be used for prostitution, or is willfully a party to such use. Shall be punishable on first conviction 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 subsequent conviction with imprisonment for a term which may extend to six months and also with fine, which may extend to two hundred rupees, and if the public place or premises happen to be a hotel, the license for carrying on the business of such hotel under any law for the time being in force shall also be liable to be suspended for a period of not less than three months but which may extend to one year: Provided that if an offence committed under this sub-section is in respect of a child or minor in a hotel, such licence shall also be liable to be cancelled. Explanation- for the purposes of this sub-section “hotel” shall have the meaning as in clause (6) of Section 2 of the Hotel- Receipts Tax, 1980 ( 54 of 1980). |
| 6. | Sections 8 (a) & ( b) ITPA | Seducing soliciting for purpose of prostitution –whoever, in any public place or with sight of, and in such manner as to be seen or heard from, any whether from within any building or house or not; a. by words, gestures, willful exposure of her person (whether by sitting by a window or on the balcony of a building or house or in any other way) or otherwise tempts or endeavour to tempt, or attracts or endeavour to attract the attention of, any person for the purpose of prostitution; or b. solicits or molests any person, or loiters or acts in such manner as to cause obstruction or annoyance to person residing nearby or passing by such public place or to offend against public decency, for the purpose of prostitution, shall be punishable on first conviction with imprisonment for a term which may extend to one year, and also with fine which may extend to five hundred rupees: Provided that where an offence under this Section is committed by a man he shells be punishable with imprisonment for a period of not less then seven days but which may extend to three months. |
| 7. | Se Section 9 ITPA | Seduction of a person in custody –any person who having the custody, charge or care of in a position of authority over any person cases or aids or abets the seduction for prostitution of that shall be punishable on conviction with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine: Provide that the Court may for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. |
| 8 | Section 359 IPC | Kidnapping Kidnapping, is of two kinds: kidnapping form |
| 9. | Section 361 IPC | Kidnapping from Lawful Guardianship Whoever takes or entices any minor under sixteen years of age if a male or under eighteen years of age of a female, or any person of unsound mind, our of the keeping of the lawful guardian of such minor or person from lawful guardianship. |
| 10. | Section 362 IPC | Abduction Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person. |
| 11. | Section 365 | Kidnapping or abducting with intent secretly and wrongfully to confine person Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully shall be punished with imprisonment of wither description for a term, which may extend to seven years, and also be liable to fine. |
| 12. | Section 366 IPC | Kidnapping, abducing or inducing women to compel her marriage, etc. Whoever kidnaps or abducts any women with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will or in order that she may be forced or seduced to illicit intercourse, or knowing to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of wither description for a term which may extend to ten years, and shall also be liable to fine: |
| 13. | Section 367 IPC | Kidnapping or abducting in order to subject person to grievous hurt, slavery, etc. Whoever kidnaps or abducts any person in order that such person may be subjected, or may be so disposed of as to be put in danger of being subject to grievous hurt, or slavery, or to the unnatural lust of any person, or knowing it to be likely that such person will be so subjected or disposed of, shall be punished with imprisonment of either description for a term which many extend to ten years, and shall also be liable to fine. |
| 14. | Section 368 IPC | Wrongfully concealing or keeping in confinement, kidnapped or abducted person Whoever, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person, shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge, or for the same purpose as that with or for which he conceals or detains such person in confinement. |
| 15. | Section 370 IPC | Buying or disposing of any person as a slave Whoever imports, exports, removes, buys sells or disposes of any person as a slave, or accepts, receives or detains against his will any person as a slave, shall be punished with imprisonment of either description for a term, which may extend to seven years, and shall also be liable to fine. |
| 16. | Section 371 IPC | Selling minor for disposing of any person as a slave Whoever sells, lets to hire, or otherwise dispose of any 164 [person under the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose ,or knowing it to be likely that such person will at any age be] employed or used for any such purpose, shall be punished with imprisonment of either description for a team which may extend to ten years, and shall be liable to fine. |
| 17. | Section 373 IPC | Buying minor for purposes of prostitution, etc. Whoever buys, hires or otherwise obtains possession of any 164[person under the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, of knowing it to be likely that such person will at any age be] employed or used for any purpose, shall be punished with imprisonment of either description for term which may extend to ten years , and shall also be liable to fine. |
| 18. | Section 375 IPC | Rape A man is said to commit “rape” who, except in the case hereinafter excepted , has sexual intercourse with a women under circumstances falling under any of the six following descriptions: First – Against her will. Secondly- Without her consent. Thirdly- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly- With her consent , when , at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or though another of any Stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly - With or without her consent, when she is under sixteen years of age. |
| 19. | Section 376 PIC | Punishment for rape (1) Whoever, except in the cases provided for by sub-section (2) commits repe shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age , in which cases , he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the Court may , for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less then seven years. |
Table 6: Provisions with Respect to a Minor or a Child
| Sr.No | Law | provisions |
| 1. | Section 3 ITPA | Punishment for keeping a brothel or allowing premises to be used as a brothel – (1) Any person , who keeps or manages, or acts or 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 two thousand rupees and in the event of a and not more than five years and also with fine which may extend to two thousand rupees. (2) a any person who- a. being the tenant, lessee, occupier or person in change of any premises, uses, or knowingly allows ant other person to use , such premise or any part thereof as a brothel, or b. being the owner, lesser or landlord of any premises or the agent of such owner, lesser or landlord, lets the same or any part thereof with the knowledge that the same or any part thereof , is intended to be used as a brothel, or is willfully a party to the use of such premises or any part thereof as a brothel. Shell be punishable on first convocation with imprisonment for a term , which may extend to two years and with fine , which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term which may extend to five years and also with fine . (2-4) for the purposes of sub-section (2) it shall be presumed, until the contrary is proved, that any person referred to in clause (a) or clause (b) of that sub-section, is knowingly allowing the premises or any part thereof to be used as a brothel or , as the case may be, has knowledge that the premises or any part thereof are being used as a brothel, it- a. a report is published in a newspaper having circulation in the area in which such person recedes to the effect that the premises or any part thereof have been found to be used for prostitution as a result of a search made under this Act; or b. a copy of the list of all thing found during the search referred to in clause(a) is given to such person . (3) Notwithstanding any thing contained in any other law time being in force , on conviction of any person referred to in clause(a) or clause (d) of sub-section (2) of any offence under that sub-section in respect of any premises or any part thereof , any lease or agreement under ehich such premises have been leased out or held or occupied at the time of the commission of the offence , shall become void and inoperative with effect from the date of the said conviction. |
| 2. | Section 4(1) TIPA | Punishment for living on the earning of prostitution – (1) Any person over the age of eighteen years who knowingly lives, wholly or in part , on the earning of the prostitution of any other person 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 , and where such earning relate to the prostitution of a child or a minor , shall be punishable with imprisonment for a term of not less than seven years and not more than ten years . |
| 3. | Section 5(1) ITPA | Procuring , inducing or taking person for the sake of prostitution –(1) Any person who – a. procures or attempts to procure a person whether with or without his/her consent, for the purpose of prostitution ;or b. induces a person to go from any place , with the intent that he/she may for the purpose of prostitution become the inmate of ,or frequent, a brothel; or c. takes or attempts to take a person or causes a person to be taken , from one place to anther with a view to his/her carrying on , or being brought up to carry on prostitution; or d. cases or induces a person to carry on prostitution; shall be punishable on conviction with rigorous imprisonment for a term of not less three years and not more then seven years and also with fine which may extend to two thousand rupees , and if any offence under this sub-section is committed against the will of any person , the punishment of imprisonment for a term of seven years shall extend to imprisonment for a term of fourteen years : provided that if the person in respect of whom an offence committed under this sub-section – 1. is a child , the punishment provided under this sub-section shall extend to rigorous imprisonment for a term of not less then seven years but may extend to life; and 2. is a minor , the punishment provided under this sub-section shall extend to rigorous imprisonment for a term of not less then seven years and not more than fourteen years. |
| 4. | Section 6(2) ITPA | Where any person is found with a child in a brothel, it shall be presumed, unless the contrary is proved, that he has committed an offence under sub-section n (1). |
| 5. | Section 6(2A)ITPA | Where achild or minor found in a brothel, is on medical examination, detected to have been sexually abused, it shall be presumed unless the contrary is proved, that the child or minor has been detained for purposes of prostitution or , as the case may be , has been sexually exploited for commercial purposes. |
| 6. | Section 7(1A) ITPA | Where an offence committed under sub-section (1) is in respect of a child or minor , the person committing the offence shall be punishable with imprisonment of either description for a term which not be less than seven yearts but which may be for life of or for a term which may extend to ten years and shall also be liable to fine : Provided that the Court may , for adequate reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. |
| 7. | Section 366 IPC | Kidnapping , abducting or inducing women to compel her marriage ,etc. Whoever kidnaps or abducts any women with intent that she may be compelled, or knowing it to be forced or seduced to illicit intercourse , or knowing it to be likely that she will be compelled, to marry any person against her. Will or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercouses, shall be punished with imprisonment of either description for a term which may extent to ten years , and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any women to go from any place with intent that she may be, or knowing that it is likely that she will be , forced or seduced to illicit intercourse with another person shall be punishable as aforesaid |
| 8. | Section 366 A IPC | Procuration of minor girl Whoever, by any means whatsoever , induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years , and shall also be liable to fine. |
| 9. | Section 366 B IPC | Importation of girl from foreign country Whoever imports into 161[India] from any country outside India 162[or from the State of Jammu and Kashmir] any girl under the age of twenty-one years with intent that she may be, or knowing it to be likely that she will be , forced or seduced to illicit intercourse with another person , 163[***] shall be punishable with imprisonment which may extend to ten years and shall also be liable to fine . |
| 10. | Section 368 IPC | Kidnapping or abducting in order to subject person to grievous hurt, slavery, etc. Whoever kidnaps or abducts any person in order that such person may be subjected, or may be so disposed of as to be put in danger of being subject to grievous hurt , or slavery, or to the unnatural lust of any person , or knowing it be likely that such person will be so subjected or disposed of , shall be punished with imprisonment of either description for a term which may extend to ten years , and shall also be liable to fine . |
| 11. | Section 368 IPC | Wrongfully concealing or keeping in confinement, kidnapped or abducted person Whoever , knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such , shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or for the same purpose as that with or for which he conceals or detains such person in confinement. |
| 12. | Section 370 IPC | Buying or disposing of any person as a slave Whoever imports, exports removes , buys, sells or disposes of any person as a slave , or accepts, receives or detains against his will any person as a slave, shall be punished with imprisonment of either description for a term , which may extend to seven years , and shall also be liable to fine . |
| 13. | Section 371 IPC | Habitual dealing in slaves Whoever habitually import, exports, removes buys, traffic or deals in slaves , shall be punished with 152[imprisonment for life], or with imprisonment of either description for a term not exceeding ten years and shall also be liable to fine. |
| 14. | Section 372 IPC | Selling minor for purposes of prostitution, etc. 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 purpose of potation or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such 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 b liable to fine . |
| 15. | Section 373 IPC | Buying minor for purposes of prostitution, etc. Whoever buys, hires or otherwise obtains possession of any person under the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose , of knowing it to be likely that such person will at any age be] employed or used for any 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 . |
| 16. | Section 375 IPC | Rape A man is said to commit “rape “ who, expect in the case hereinafter excepted, has sexual intercourse with a women under circumstances falling under any of the sex following descriptions: First:- Against her will. Secondly:- without her consent. Thirdly:- with her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly: - With her consent when the man knows that he she not her husband, and that her consent is given because she believe that he is another man to whom she is believes herself to be lawfully married. Fifthly :- with her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly :- With or without her consent, when she is under sixteen years of age. |
| 17 | Section 376 IPC | Punishment for Rape (1) Whoever, expect in the cases provided for by sub section (2) commits rape shell be punished with imprisonment of either description for a term which shall not be less than years but which may be for life or for a term which may extend to ten years and shell also be lible to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shell be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the court may, for adequate and special reasons to be mentioned in the judgement,impose a sentence of imprisonment for a term of less than seven years. |
2.2 Trafficking Offences Under the Immoral Traffic
(Prevention) Act, 1956 (ITPA) and Indian Penal Code
This part indentifies the Sections in ITPA and IPC that address various offences related to trafficking. It also discusses the ingredients of each offence and enumerates specific points to be noted by the magistrate.
6.2.1 Keeping a brothel or allowing premises to be used as a brothel – Section 3 of the ITPA
Ingredients of the offence
· Any person who keeps or manages or acts or assists in the keeping or management of a brothel [Section 3(1)], or
· A tenant, lessee, occupier or person in charges of any premises who uses, or knowingly allows any other person to use such premises or any part thereof as a brothel [Section 3 (2a) ] , or
· The owner lessor or landlord of any premises or the agent of such owner, lessor or landlord , who lets the same or any part thereof with the knowledge that the same or any part thereof is intended to be used as a brothel, or is willfully a party to the use of such premises or any part thereof as a brothel [Section 3 (2b)].
Points to be noted
· There may be a presumption of culpability on the part of such persons in certain circumstances [Section 3 (2a)] of the ITPA.
· Any leases or agreement under which such premises have been leased out or are held or occupied at the time of commission of an offence under the ITPA is void [section 3 (3)]
6.2.2 Living on the earnings of prostitution – Section 4 of the ITPA.
Ingredients of the offence
· The offender must be above eighteen years of age
· The offender knowingly lives wholly or partly on the earnings of prostitution
· Such exploitation of living on the earning of the prostitution is being done by the exploiter/ trafficker and not the prostitution/ trafficked victim.
· This section is not applicable to the prostitute/ trafficked victim herself . The section makes it an offence for any person , and not the prostitute/trafficked victim herself ,who is knowingly ,living on the earning of prostitution of any other person [section 4(1) l of the ITPA].
(As stated earlier in Chapter 4, data reveals that Magistrate sometimes framed charges and punished the prostitute /trafficked victim under this section . this is a wrong application of section 4(1) of the ITPA against the prostitute / trafficked victim .
· If the prostitution is being carried on by a child and a person is living off the child’s earning s, the Act provides for stringent punishment of rigorous imprisonment for a term of not less than seven years but may be extended for life.
· There is a rebuttable presumption that a person is living on the earnings of prostitution [section 4(2) of the ITPA].
1. When the person is living with or habitually in the company of a prostitute /trafficked victim.
2. When the person exercises control, direction or influence over the movement of a prostitute/trafficked victim in such a manner as to Shaw that such person is aiding, abetting or compelling her prostitution.
3. acting as a tout or pimp on behalf of a prostitute
6.2.3. Procuring , inducing or taking a person for sake of prostitution –section 5 of ITPA.
Ingredients of the offence
· Procuring or attempting to procure a person with or without the person’s consent for prostitution .
· Inducing a person to become an inmate or frequent a brothel; for prostitution.
· Taking or attempting to take a person from one place to another for prostitution.
· Causing or inducing a person to carry on prostitution.
Points to be noted
· Consent of the person who is prostituted is immaterial.
· There is a special provision for punishment of offences against children and minors [section 5(1) of the ITPA]. See also Chapter3.
· False marriages are a common way of luring women into prostitution.
· False promises of employment ,marriage and inducement are other common methods employed for inducing and procuring women and children for prostitution.
· The trafficker who is the focus of this section could be the seller, the buyer, the pimp, the mddleman, the brothel owner, or the person who has transported the victim .
· Parents and relatives who abet, sell or cases children to be sild/ taken for trafficking or who themselves cause children to become prostituties are also lible under this section.
Section 5 of immoral Traffic (Prevention ) Act, 1956 (ITPA) may be used along with section 367/ 368 of the IPC (kidnapping /Abducting ) and/or with 370/371 of the IPC(Sexual Slavery ) wherever relevant.
Kidnapping or abducting order to subject a person tom grievous Hurt slavery,etc.
Section 367 IPC
Ingredients of the offence
· Kidnapping or abducting a person .
· Knowing it to be likely that such person may be subjected to or put in danger of grievous hurt, slavery or unnatural lust,
Wrongfully concealing or keeping in confinement, kidnapped or abducting person.
Section 368 IPC
Ingredients of the offence
· Knowledge that a person has been kidnapped or abducting wrongfully.
· Concealment or confinement of such kidnapped or abducting person.
Points to noteds
· Wrongful concealment or confinement of person is an offence by itself. Some aspects of this are discussed in
· Knowledge by a person/persons of wrongful confinement and wrongful concealment of kidnapped or abducted person are also be culpable of the offence of knowledge of trafficker may also be culpable of the offence of knowledge of wrongful confinement and concealment of trafficked women and children , as also those who provide transportation or conveyance for the purposes of prostitution.
· These offences are cognizable, non-bailable, non-compoundable and triable by the Court of Sessions.
Buying or disposing of any person as a slave
Section 370 IPC
Ingredients of the offence
Import, removal, buying, selling or disposing persons.
· For the purpose of slavery.
Habitual dealing in slaves
Section 371 IPC
Ingredients
· Habitually imports, exports, removes, buys, sells, traffics or deals in slaves.
Points to be noted
· Much of trafficking happens in condition of slavery
· This offence is cognisable, non bailable, non compoundable and triable by the Sessions Court.
6.2.4. Detaining a person in premises where prostitution is carried on – Section 6 of the Immoral Traffic (prevention) Act, 1956 (ITPA)
Ingredients of the offences
· Any person who detains any other person with or without the person ;s consent in any brothel, or
· Any person who detains another person in any premises with intent that such person may have sexual intercourse with a person who is not a spouse of such person.
Points to be noted
· Actual physical restraint need not be proved.
· Something in the nature of control or influence and some kind of persuasion is sufficient proof (Harman Singh VS. Emperor AIR 1939 Lah 295).
· Consent of the person who is detain circumstances in respect of a child/minor namely [section 6(2) and 6(2A)]:
“Section 6(2)-where any person is found with a child in a brothel, it shall be presumed, unless the contrary is proved, that he has committed an offence under sub-section (1).
Section 6(2A) where a child or minor found in a brothel is , on medical examination , detected to have been sexually abused , it shall be presumed unless the century is proved, that the child or minor has been detained for purposes of prostitution or, as the case may be, has been sexually exploited for commercial purposes”.
· There is a presumption of the offence in certain circumstances in respect of a woman [section 6(3)].
“section 6(3) A person shall be presumed to detain a person in a brothel or in 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 jawellery, wearing apparel, money or other property lent or supplied to her by or by the direction of such person .”
· no legal proceedings may be instituted against a women who has been detained for the recovery of any jewellery, clothes, money or property alleged to have been supplied or lent to her [section 6(4)].
“section 6(4) Notwithstanding any law to the contrary, no suit ,prosecution or other legal prceeding shall lie against such women or girls 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 women or girl or to have been pledged by such women or girls or for the recovery of any money alleged to be payable by such women or girl.”
· Very often, it has been found that brothel keepers and other traffickers attempt to take away the women’s savings, jewellery. Etc. to prevent her from giving evidence against them.
6.2.5. Prostitution in or in the vicinity of police places – section 7 of the immoral traffic (prevention) act, 1956(ITPA)
Ingredients of the offence
· The person carrying on prostitution and the person with whom prostitution is being carried on with, is doing so in the vicinity of a “public place ‘’ as defined in the ITPA.
· Keeper of a public place, tenant, lessee or occupier, or person in charge of public premises knowingly allows it to be used for the sexual exploitation or abuse of persons for commercial purpose.
· Owner, lessor or landlord of such premises or the agent of such owner, lessor or landlord lets the same or any part with the knowledge that it may be used for prostitution or is willfully a party to such as use.
To be noted
· If such public place is a hotel, then the lecence of the hotel shall be suspended for three months to one year. However, if the offence is in respect of a child or minor, the license shall be liable to be cancelled [proviso to section7(2) of the ITPA].
· Public place has been defined in the ITPA as any place intended for use by or accessible to the public and includes any public conveyance [section 2(h) of the ITPA]
· There is evidence that sometimes, tourism also involves sexual exploitation of women and often children (peadophilia). Hotels sometimes connive with the trafficker in such situations.
6.2.6. seducing or soliciting for the purpose of prostitution –section 8(a) of the immoral traffic (prevention) act,1956 (ITPA)
Ingredients of the offence
· Seduction or soliciting must occur in a public place or within the sight of and in such manner as to be seen or heard from any public place.
· Seduction or soliciting may be done through words, gestures, and willful exposure of person.
· Also, through tempting/attracting or attempting to tempt/attract for the purpose of prostitution.
Section 8(b) of the immoral (prevention) act, 1956 (ITPA)
Ingredients of the offence
· Soliciting/molesting/loitering for the purpose of prostitution.
· Causing obstructing/annoyance in a public place.
· Offending against public decency.
Pointes to be noted
· Traffickers in general and pimps of brothel keepers in particular are liable to be punished under this section (state if
· Data collected during the research clearly indicates that section 7 and 8 are the most commonly used sections for the implementation of the ITPA, both of which are directed against the prostitute/trafficked women.
6.2.7. Seduction of a person in custody- section 9 of the ITPA
Ingredients of the offence
· The offender is a person having custody, charge, care of or a position of authority over another person.
· That offender causes or aids or abets the seduction for prostitution of that person in his custody.
Points to be noted
· This section is comprehensive and includes parents, relatives or any de facto guardian of a child or women who is responsible.
| Counseling IS: · A psychosocial process that addresses child’s thoughts, feelings and behavior in the context of her environment that includes her family, peers and the community. · A planned intervention between the child and the caregiver/counselor to assist the child to change, improve, and resolve behaviors that the difficult, distressing or maladaptive. · A process of identifying the child’s coping strategies and strengthening them further, as well as helping the child develop more effective coping methods. · A collaborative effort between the child and the counselor, keeping the child’s interests and needs in mino · A process that takes place with full active participating of the child and involves a mutual responsibility between the child and the counselor. · Aimed at developing individual’s unique self and potentials. · A from of education through communication and structuring · Voluntary in nature, can’t be forced on the child · A process that involves a use of specific technologies based on certain theoretical constructs, which should be carried out by trained personnel in an appropriate place and time |
| Counseling IS NOT · Lecturing · Advising · Ordering · Persuading , coercing · Moralizing/ criticizing · Confronting · Instructing · Deciding · Solving · Only for people with problems · Not just a one-to-one interaction where counselor is active and child is a passive recipient · A stand alone process · Just and add- on technique, it is a basic approach to survivors · A method to handle only difficult cases · Just a cathartic experience, it is a skill-based approach to survivors. |
The counseling process (Nelson-Jones, 1994)
| D- Develop a relationship with the child A- Assess the problem S- state working goals and plan intervention I- intervene, to develop problem solving skills and coping strategies. E- end the counseling process |
| PART B: section iv Activity 1 slide 3 |
APPROACH TO COUNSELING TRAFFICKED CHILDREN
| Trauma impact |
Each case study should be given as a handout to each of the three groups
| Case study for group I: rapport formation Police found a boy on the streets. They take him to the police station and after initial reporting and verification ; the police brought the child to your NGO as the child in not opening up at all. After too much probing, all the boy said was that his name was Ashok and he is lost. Demonstrate the process of rapport formation with Ashok. |
Case Study for Group II: Self-Disclosure
Case Problem- only to be shared with the volunteer playing the role of a survivor:
Ashok is 13years old boy, orphan and school drop out after 5th class, who had run away from his employer’s house, fed up of being constantly abused and beaten up. Since the last 8months, he has been living on the streets, earning enough by doing odd jobs in petty shop. He attends a drop in shelter on and off for day care and counseling. Since about 1month, he has no resources, no support systems. He is confronted with the problem of finding a way to lead a normal regular life.
Ask the volunteer to share the problem when he/she feels comfortable to share with the counselor.
Instructions for the volunteer playing the role of a counselor:
The police have brought Ashok to you and do not know what the problem is. Demonstrate how will you help Ashok in disclosing his problem.
Case Study for Group III: Rapport Formation; Empathy and Self-Disclosure
Case problem- only to be shared with the volunteer playing the role of a survivor:
Sunita a good looking, smart 15 years old was a high school student in a small town in
- Ask the volunteer to share the problem when he/she feels comfortable to share with the counselor.
Instructions for the volunteer playing the role of a counselor:
Sunita has been sent to your shelter by the rescue team and you do not know what the problem is. Do a role play to show the process of “Rapport Formation”; Self Disclosure” and ways by which you will demonstrate ‘Empathy’.
Rapport and therapeutic alliance: Rapport Building Skills
Do‘s
Ø Introduce yourself, who you are and your current role.
Ø Talk to the child in a friendly manner showing genuine interest in her/ him – smile, pat, and nod.
Ø Explain how you can work together to reduce her/his stress and resolve problems.
Ø Display attitude of warmth, sympathy and affection to create a congenial atmosphere.
Ø Give some time for the child to feel comfortable in your presence.
Ø Provide for physical comfort, privacy in the setting.
Don’ts
Ø Don’t being questioning the child immediately about her/his problems or difficulties.
Ø Don’t be intimidating, or too authoritarian in your approach.
Ø Don’t be patronizing.
Ø Don’t rush into probing into trauma experience.
Ø Don’t pressurize the child to talk, respect her hesitation to open up immediately.
Ø Don’t show impatience if the child takes times to relate to you
| Facilitating Self-Disclosure: Self-Disclosure Skills Do’s Ø Begin with gentle questioning about her/his current activities daily, routine, friendship etc.(general, natural) Ø Direct the talk towards elicitation of her/his current feeling – anxieties, fears, worries, problems etc. Ø Encourage the child to express her/his feelings without fear of being scolded, judged or rejected. Ø Assure confidentiality of information shared with you. (Exceptions can be made if there is a threat of self harm, substance abuse or planned violence) |
| Ø Allow for free flow of talk without too many intrusive question. Ø Listen without passive negative remarks. Convey an attitude of acceptance of child’s experiences and feelings as genuine and that you her. Ø Listen actively, indicating by your expressions and verbal affirmation like ‘Hmm’is that so’, ‘I sec, etc. Noticing, prompting, pacing, structuring, clarifying – that you are following her talk with interest. Ø Show a willingness to understand what she/he is going through. Ø Be sincere and honest in your interaction with the child. The child has to believe in you to open up. |
| Don’ts Ø Don’t be critical or pass judgmental remarks. Ø Don’t laugh, snigger or ridicule the child’s feeling or experiences. Ø Do not reject the child or her/his experiences as untrue or a ‘story’. Ø Do not show expressions of shock or disbelief at the child’s disclosures. Ø Do not look disinterested or bored. Ø Do not make too many interruptions when the child is talking. Ø Do not attempt to control the conversation- follow the child’s lead. Ø Do not show exaggerative responses yourself – it creates mistrust. Ø Do not confront any of the child’s disclosure |
| Empathy Skills Do’s Ø Show an attitude of accepting and understanding what the child is experiencing the moment, or had in the past. Ø Thank and feel as if you are the child going through her/ his experiences – “to actually be in her shoes”. Ø Convey’ I understand hoe you feel’ in both verbal and non verbal ways. Ø Empathy is not to be confused with sympathy which is a mere feeling without really understanding the meaning behind the behavior. Empathy allows you to ‘feel’, at the same time maintain a sufficient reserve, a distance so that you do not get caught in the child’s overpowering emotions yourself. |
| Ø Maintain your identity as a counselor, who is in a helping situation, who ‘feels’ the emotion of the child, without getting emotional yourself. Ø Show empathy early in the Counseling relationship as it will facilitate better communication process to ask, clarify and interpret the thoughts and feelings of the child Ø Reinforce a strong message of support and understanding to help the child through the trauma. Ø Give access to the feeling, perceptions and behaviors of the troubled child. Ø Non verbal behaviors can greatly facilitate empathy. |
| Don’ts Ø Don’t look sorry or feel pity for the child. Ø Don’t identify yourself with the child’s problem situation- maintains your own. Ø Don’t disbelieve or discredit the child. Ø Don’t trivialize the child’s thoughts and feelings. Ø Don’t become too emotional yourself and show it. |
| GOALS OF COUNSELLING WITH TRAFFICKED CHILDREN Immediate goals § Provide safe outlets outlets self disclosures § Promote better self awareness – of need, desire, feelings § Create safe environment to develop feeling of trust and security in the child. § Reduce child’s distress and discomfort and help her/him recuperate physically and emotionally. Long term goals § To understand and accept self § To promote self esteem § To reconcile with the post, view self as survivors not victims. § To enhance resilience and coping skill. § To improve social skills and promote socialization process. § To change negative, maladaptive behaviors. § To achieve better control over negative destructive emotions. § To help decision making and become autonomous and independent. § To help deal with existential dilemmas through problem solving § To help develop a new identity, new purpose. § To help achieve reintegration with society and family. § To heal the person holistically |
| Case Study- sunita Sunita a good looking , smart 15 years old was a high school student in a small twon in After 3 days of traveling she was brought to Mumbai and sold to a brothel by the uncle repulsed, betrayed and cheated, sunita had no choice but to get into prostitution after her initial refusals were met with violent beatings, starvation and torture. Fortunately when there was a raid on that brothel the next month, she was rescued and send to a shelter home. Sunita was kept in the shelter home while reparation efforts were on. During her stay there (15 day) she was observed to be extremely fearful and not talking any body and found to be constantly weeping .she refused to etc saying that she felt nausea when she looked at food .in the night she was observed tossing and turning in her bed , resless and muttering in her sleep . she was not even taking care of her personal hygiene and would at times just keep lying in bed , staring silently or weeping . when other resicents tried to tolk to her , she only kept repeating that she is a ‘characterless person ‘, who has spoil her famil reputation and did;s deserve to vive . She took no interest in the homes Activities. She could not even bear the thought of going back home to face family. At the shelter home she had developed some skin allergies which also bothered her. She was referred for evaluation. Sunita was physically examined by a docor who confirmed her skin allergy. She had also appeared to have lost wight and was found to be anemic. In the first meeting with the counselor she was found to be poorly kempt, face dul and eyes puffy and red . She sat quietly at a distance, looking down all the time . She looked preoccupied and answered only if spoken to, that too in monosyllables. At times, sme would silently start weeping without any provocation or she would look around in quick fiurtive glances as though to check out who else was fisteing. The only thing she sand repeatede was I have let down my family . I m tainted . I can go back home its better that I die’. Case Studay – Maya Maya , now aged 17 years , come from a large impoverished family in Managing to collect a few hundred rupees she boarded a bus one day and crossed the border into On reaching |