Raided - National Network Of Sex Workers

Illustration : Amuda Meena Vasant, Sangli

Design & Layout : Mahaveer Vibhute, [email protected]

Publisher : Sampada Grameen Mahila

Sanstha (SANGRAM), India

This publication was made possible with support from

American Jewish World Service, Fund for Global Human

Rights, Human Capability Foundation, Levi Strauss

Foundation, Rights4Change, South Asia Women’s Fund.

© SANGRAM, India, March 2018

E-mail : [email protected]

RaidedHow Anti-Trafficking Strategies

Increase Sex Workers’ Vulnerabilityto Exploitative Practices

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Acknowledgments

We gratefully acknowledge the central role of sexworkers who implemented the study. Special creditgoes to the community researchers whometiculously worked to identify and speak withwomen who were raided in the name of anti-trafficking measures.

v

This document is a compilation offindings of research tounderstand the impact of anti-

trafficking laws and policies on womenin sex work in India. This study wasundertaken as a partnership betweenRights4Change, SANGRAM and VAMP.

SANGRAM and Veshya Anyay MuktiParishad gratefully acknowledge thecentral role of sex workers whoimplemented the study. Weacknowledge the valuable contributionsof the Kerala Network of Sex Workers,Uttara Karnataka Mahila Okkutta, SrijanFoundation, Saheli Sangh and Aadhar

Bahuddeshiya Sanstha. Special creditgoes to the community researchers whometiculously worked to identify andspeak with women who were raided inthe name of anti-trafficking measures.

SANGRAM and VAMP specificallyacknowledge the valuable contributionsof Marjan Wijers and Lin Lap-Chew fromRights4Change for actively working todesign and implement this study inIndia. Their assistance in training sexworkers on the RighT Guide hasenabled the community to emerge aspeer researchers and obtain valuablenarratives from the field.

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Research Team

The team meticulously applied methodologicallysound research tools which enabled the sex workersto speak out.

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Analysis, Report Writing� Aarthi Pai � Laxmi Murthy

� Meena Seshu

Legal Framework and Analysis� Rakesh Shukla � Aarthi Pai

Trainers� Aarthi Pai � Meena Seshu

� Marjan Wijers � Lin Chew

Facilitators of Focus Group Discussions and After the Raid Interviews� Kiran Deshmukh, VAMP, Sangli � Raju Naik, SANGRAM, Sangli

� Mahadevi Madar, Saheli Sangh, Pune � Mandakini Desale, Saheli Sangh, Pune

� Tejasvi Sevekari, Saheli Sangh, Pune � Shantilal Kale, SANGRAM, Sangli

� Chandralekha, KNSW, Thrissur � Deepa Dandvate, Saheli Sangh, Pune

� Manda Chavan, VAMP, Kolhapur � Noorjehan Sheikh, VAMP, Kolhapur

� Hazrat Bi, UKMO, Karnataka � Malan Kumbhar, Saheli Sangh, Pune

� Meena Koli, Saheli Sangh, Pune � Mutakka Pujar, UKMO, Karnataka

� Pushpa Sharma, Srijan Foundation, Ranchi � Shashikant Mane, SANGRAM, Sangli

� Bharati, Aadhar Bahuddeshiya Sanstha, Jalgaon

� Gurukiran Kamath, Consultant, Karnataka

� Satish Joshi, Consultant, Karnataka

Transcriptions� Kiran Deshmukh � Santoshi Karamcheti

Study Partners� Veshya Anyay Mukti Parishad, Maharashtra

� Saheli HIV/AIDS Karyakarta Sangh, Maharashtra

� Uttara Karnataka Mahila Okkutta, Karnataka

� Kerala Network of Sex Workers, Kerala

� Srijan Foundation, Jharkhand

� Aadhar Bahuddeshiya Sanstha, Maharashtra

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Foreword

This research is designed to have sex workers speakfor themselves. I hope they will be listened to,because in the end, defending rights and combatingviolence and abuse are two sides of the same coin.

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This report is the result of researchcarried out by Veshya AnyayMukti Parishad (VAMP) and

Sampada Grameen Mahila Sanstha(SANGRAM) in cooperation with sexworker collectives in Kerala, Karnataka,Maharashtra and Jharkhand. Theresearch examines the impact of TheImmoral Traffic (Prevention) Act (ITPA)on the protection of the human rightsof sex workers. It discusses the relevantnational and international legalframeworks, analyses the case law onsex work. Above all, it gives voice to sexworkers themselves.

This research study employed the RighTGuide,a tool to investigate and analysethe human rights effects of anti-trafficking laws and policies, link theseto the human rights obligations of thegovernment, and use the outcomes tomore effectively advocate for rights-based and evidence-led policy reforms.

The RighT Guide is built on thefollowing principles :

State accountability : the tool ispremised on the understanding thatStates have undertaken binding humanrights commitments by ratifying humanrights treaties. Governments can be heldaccountable if they do not live up totheir human rights promises.Knowledge/evidence-based action: thetool aims to go beyond ideologicaldebates. It requires rigorous data-collection as a basis for analysing andunderstanding the actual impact of lawsand policies on the human rights ofaffected persons.

Participation : the tool requires theparticipation of groups affected by thepolicies concerned. This is afundamental principle and an essentialelement in the process of collecting

evidence and understanding the impactof a policy.

Bridging movements and buildingalliances : the tool aims to facilitatebridging the divide between anti-trafficking organizations, sex workers’rights, migrants’ rights and humanrights organizations by presentinghuman rights as applying to all thesegroups and movements in specific, yetuniversal, ways.

Groups and communities that aredirectly affected by a certain law orpolicy should be involved in itsdevelopment, implementation andevaluation. Failure to do so, may lead toineffective measures or even havenegative effects. However, though sexworkers are the first whose lives, safetyand health are impacted by laws andpolicies on trafficking and prostitution,their voices and lived experiences areseldom heard nor listened to.

This research is designed to have sexworkers speak for themselves. It does soin two ways. First, the participating sexworker collectives organized focusgroup discussions with their colleagueson how the Immoral Traffic (Prevention)Act, 1956 (ITPA) affects their daily workand life. In addition, focus groupdiscussions and interviews were heldwith sex workers who were picked up inso-called ‘raid and rescue’ operations asa method to stop trafficking.

A theme that runs through all theirstories is the daily exposure to arbitraryarrest and detention, and police abuse.Rather than combating trafficking, theITPA creates the conditions under whichadult, consenting sex workers can bearrested without due process under theflag of rescue operations, detained in‘rehabilitation’ or ‘correction homes’

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that are in fact prisons, sometimes forupto five years, subjected to forcedmedical tests, humiliated and abused,coerced into sex and extorted withimpunity in the process. If producedbefore a court they often do not evenknow what the charges are and areinstructed by the police to just admit towhatever the judge says, under thethreat of being beaten up and sent tojail if they refuse to do so. “Aconsequence of this culture of policeabuse is that it also sends a message toother groups in society that sex workerscan be abused with impunity,” saidSangeeta Manoji from VAMP.

The abuse is exacerbated by thedegrading way media, and in somecases also courts, talk about sexworkers. The Supreme Court in one ofits judgments declared, “The differencesbetween a woman who is a prostituteand one who is not certainly justify theirbeing placed in different classes”.

A second theme is the denial of theiragency to do sex work for a living.Although many sex workers are theheads of their households and theprimary providers for their families, theyare considered to be incapable of takingdecisions about their own lives.

When ‘rescued’, for example, the ITPArequires that even adult women arehanded over into the ‘safe custody’ of ahusband, parent or guardian or even ayounger brother, often accompanied bythe signing of an affidavit that they willnot go back to sex work. This not onlydenies that a woman can actuallydecide to do sex work for the incomeand independence it offers them, it alsoignoresthe fact that a woman traffickedinto sex work may decide to remain insex work under certain conditions.

As stated by one of the interviewed sexworkers, “We do our work in the form ofsex work. We are also earners. We alsohave problems with customers just likeanyone providing services. We are sexworkers and our money is hard earnedmoney. I take care of my kids, mymother, my brother’s family. Now I amsupporting my granddaughter’seducation. I am happy with the money Iget from sex work. I am notpickpocketing nor stealing from anybank. I am earning on my own. Formoney I am providing a sexual serviceand this is our work.”

The study identified the persistentconflation between trafficking and sexwork to be one of the underlyingproblems. It is not clear what the ITPAaims to combat: trafficking orprostitution, traffickers or sex workers.As a result, adult, voluntarily workingsex workers are treated as helplessvictims in need of rescue or, when theyrefuse to identify themselves as victims,as perpetrators or deviants who deservepunishment. Similarly, media reportsoscillate between conflicting portrayalsof sex work as ‘rape’ and/or ‘easymoney’.

Many of the findings represent seriousviolations of human rights, such as theright to protection against arbitraryarrest and detention; violence anddiscrimination; the right to freedomfrom cruel, inhuman or degradingtreatment or punishment; the right to afair trial; to health; to privacy and familylife; to freedom of movement and,above all, the right to equality beforethe law and equal protection of the law.

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States not only have a duty to combattrafficking, they also have a duty toprotect the human rights of theircitizens. Even those deemed criminal bythe state have human rights. That is themeaning of ‘human rights are universal’:they apply to everybody, including sexworkers.

When sex work laws and policiesnegatively impact fundamental humanrights of an already marginalized andvulnerable group and when Statespersist in such policies despite knowingtheir harmful effects, there is a serioushuman rights problem. A problemwhich cannot be remedied by justifyingit as collateral damage that must beaccepted to combat trafficking orprotect society.

If there is anything fundamentallyagainst the very principle of humanrights, it is the idea that it is all right tosacrifice some for the sake of all. It isalso a profound reversal of values:human rights are there to protect theindividual against the State, not theState against the individual. Besides, itsends the message that the humanrights of sex workers are less worthy toprotect.

Ironically, it is precisely the idea that sexworkers do not have the same value asother human beings that fosterstrafficking and other abusive andexploitative practices.

I want to thank the Oak Foundationwhose generous support made thisresearch possible. I also want to expressmy admiration for the stamina andresilience of the sex workers, mycolleague Lin Lap-Chew and I got toknow through the training in the use ofthe RighT Guide and the subsequentcommunity validation meeting in whichthe preliminary results of the researchwere discussed.

In this study sex workers speak. I hopethey will be listened to, because in theend defending rights and combatingviolence and abuse are two sides of thesame coin.

MARJAN WIJERS, RIGHTS4 CHANGE

FEBRUARY 2018

Summary

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Discussions on anti-trafficking measures haveoften been overshadowed by debates onprostitution per se as violence and slavery ofwomen; and further muddied by a conflation withsexual exploitation of children. Anti-traffickinginitiatives have been largely responsible for theconflation of trafficking and sex work, leading toan overriding conception of sex work itself as‘violence’, ignoring the violation of the humanrights of sex workers and trafficked persons.

Summary

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This has led to a division betweenanti-trafficking organizations onthe one hand and sex workers’

rights organizations on the other. Thisdivision has also led to strategies thatadvocate the abolition of sex workrather than protecting the rights ofwomen in sex work. The anti-traffickingdiscourse also tends to invalidate thenarratives of millions of womenmigrants. Safe migration and the rightto choose a livelihood continue to behindered by narrow conversations onmorality and culture.

The present research is an attempt toforefront the experiences of women insex work who have been raided, rescuedand rehabilitated. We examine women’snarratives along with quantitative dataabout the strategies of raid, rescue andrehabilitation deployed to combattrafficking of women into sex work. Thestudy unravels the impact of laws andpolicies on the lives of sex workers. Wecentre the research around theexperiences of women who were‘rescued’ in raids, ‘rehabilitated’ forvarying periods of time, and are nowback in sex work. These complexnarratives show a non-linearrelationship between trafficking and thedecision to continue in sex work.

India is a signatory to most of the majorhuman rights treaties and conventionsand periodically reports on theirimplementation status. In recent years,sex workers and activists have engagedwith treaty body reporting mechanismsto strengthen the articulation of ahuman rights framework within thecountry on sex work. The emerging

rights discourse at the global andnational levels argues that efforts torespect, protect, fulfil and promote thehuman rights of sex workers needs tobe premised on ensuring their rights ascitizens under the Constitution.

However, India has failed to recogizethe marginalization, vulnerabilities andhuman rights of sex workers. Anti-trafficking policies in India, in particularthe Immoral Traffic (Prevention) Act,1956 (ITPA), conflate trafficking and sexwork, fail to protect trafficked persons,thus leading to increased violenceagainst sex workers.

Paradoxically, despite the enactment ofthe ITPA in the decade followingIndependence, what exactly constitutestrafficking was not defined in any of theIndian laws prior to 2013.The ITPA inaction impacts the lives of sex workersby: criminalizing work; criminalizingfamily and the right to raise children;the right to privacy; unfair or forcedeviction and removal from homes orany other place; and by invalidatingadult consent. The study analyzed thegap between the letter of the lawsrelating to trafficking and the manner inwhich the cases are interpreted and howthey are decided, based on thesubjective interpretation of judges.

Context

Anti-trafficking policies in India,in particular the Immoral Traffic(Prevention) Act, 1956 (ITPA),conflate trafficking and sex workand fail to protect traffickedpersons, thus leading toincreased violence against sexworkers.

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The research was an outcome of thepartnership between human rightsactivists, human rights researchagencies and sex worker collectives inIndia. The research was led andconducted by the sex worker collectiveVeshya Anyay Mukti Parishad (VAMP),the NGO SANGRAM in India andRights4Change based in Netherlands.The study partners in India were VeshyaAnyay Mukti Parishad, Saheli HIV/AIDSKaryakarta Sangh and AadharBahuddeshiya Sanstha, Maharashtra;Uttara Karnataka Mahila Okkutta,Karnataka; Kerala Network of SexWorkers, Kerala and Srijan Foundation,Jharkhand.The study aimed to:

• Understand the application of theinternational human rightsframework to sex workers in India.

• Enable sex workers to understandthe human rights framework andparticipate meaningfully in the datacollection and analysis process.

• Identify the gaps between the statedrights for all citizens and theirapplication in the lives of sexworkers.

• Collate the experiences of violenceand violations faced by sex workers.

• Document and analyze how raidsand rescue initiatives impact the livesof sex workers.

• Analyze through communitynarratives how anti-trafficking laws

and policies are applied to adultconsenting sex workers.

VAMP and SANGRAM developed theframeworkand selected the researchteam from sex worker collectives inJharkhand, Karnataka, Kerala andMaharashtra, which constituted thestudy sites. A training workshop‘Assessing the Impact of Anti-TraffickingLaws on the Human Rights of SexWorkers’ in June 2015 laid down thetheoretical framework. A ‘CommunityResearch Guide’ encapsulated themethodological aspects and shared withthe peer researchers.

The study employed the RighT Guide, atool to investigate and analyse thehuman rights effects of anti-traffickinglaws and policies, link these to thehuman rights obligations of thegovernment, and use the outcomes tomore effectively advocate for rights-based and evidence-led policy reforms.The RighT Guide – translated into Hindiand Marathi– is built on the principlesof: state accountability;knowledge/evidence-based action;participation and bridging movementsand building alliances.

The study was conducted using primarysources including focus groupdiscussions (156 participants in 14FGDs), survey (243 participants) and

The Study

The Research

The study employed the RighT Guide, a tool to investigate and analysethe human rights effects of anti-trafficking laws and policies, link theseto the human rights obligations of the government, and use theoutcomes to more effectively advocate for rights-based and evidence-led policy reforms.

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interviews (23) in all four states.Secondary sources included a scan ofjudicial decisions, laws and treatydocuments and India reports to the UNbodies. Besides the ITPA judgements incases under the Indian Penal Code,Juvenile Justice Act and other laws werealso analyzed. Right to Informationapplications were also used to accessdata.

The research studied the impact of anti-trafficking laws on sex workers whofunctioned in a range of settings: ruraland urban; streets, brothels and lodges;as well as ‘hidden’ sex workers who didnot openly do sex work. Participants ofthe study were identified based onthese criteria. The research wasconducted in sites where sex workers’collectives were active so that theycould take forward the findings incampaign strategies beyond theresearch period. The preliminaryfindings were presented at a validationmeeting with the researchers and themembers of the partnering collectives.Inputs and recommendations werediscussed and the findings incorporatedinto the research.

Data was collated for 243 women whowere raided between 2005 and 2017 infour towns of Maharashtra: Kolhapur,Jalgaon, Pune and Sangli throughinterviews and group discussions, homevisits and visits to rescue homes.

The next phase of the research carriedout with women who were tracked afterhaving been discharged/released or hadescaped from correction homes, centredaround the experiences of women whoare in sex work of their own volition,who were ‘rescued’ in raids,‘rehabilitated’ for varying periods oftime, and their work choices after beingreleased from the rescue homes.

The Collectives, CBOs and NGOsworking in the brothels collected dataof the raids and followed up womenwho had been picked up. In Pune,community researchers spoke withindividuals who had been raided andreleased from rescue homes. They alsofiled Right to Information petitions toascertain the status of those in rescuehomes and visited rescue homes tospeak with the women. Communityresearchers held group discussions aswell as individual interviews with thewomen who were picked up in raids inthe area.

Sensitivity was exercised because manywomen interviewed had givenundertakings and signed affidavits tothe court or rescue NGO that theywould leave sex work as a pre-conditionfor release. Care was taken to maintainconfidentiality and mask the identitiesof some participants.

The study was a search for evidence toanswer crucial questions: If womenentered sex work by force then whywould they want to return to sex workvoluntarily? If they entered because oflack of skills to do other jobs, why didthey return after they were taught skillsthat could have helped them earn? Ifthey entered sex work due to ‘force ofcircumstance’ why would they returnwhen those circumstances had changedfor the better? If they entered becauseof deception, lure, by unscrupulouspersons who they trusted, why wouldthey return when they were given achance to make a ‘new’ life? If theyentered because of lack of life choices,why would they ‘choose’ to return?

Findings

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The following is a summary of researchfindings:

Moralistic and arbitrary laws

• The bedrock of the problem is thelaw, The Immoral Traffic PreventionAct (ITPA) which in its name itselfconflates ‘immorality’ and ‘traffic’ inwomen, the interpretation on theground being an anti-sex workerapproach.

• Analysis of legal cases in Indian HighCourts and the Supreme Court from2010-17 revealed an increase in thenumber of cases, possibly indicativeof lobbies advocating abolition ofsex work invoking law as part of theirstrategy.

• The working of the legal machineryincluding the interpretations, ordersand judgments of courts arecoloured by the moral disapproval ofsex work and end up infantilizingadult women by deeming them tobe ‘safe’ only in the custody of theirfamilies; criminalizing bread winnersby making it illegal to “live off theearnings of a sex worker; andimpacting not only the livelihoods,but also the safety net for sexworkers by criminalizing ‘thirdparties’ such as brothel keepers andclient procurers.

• Law enforcement mechanisms areweighted against sex workers, andthe police often use the law to justifyviolence, incarceration, fines and

extortion, and the legal system holdsout little hope.

Raids and the aftermath

• Arbitrary police action during raids,with scant respect for the rights ofsex workers and those residing in thebuildings deemed to be brothels wascommon.

• The entire process of the raidsmacked of a notable disregard forthe purported victims who werebeing rescued. Humiliation, verbaland physical abuse routinelyaccompanied these raids.

• Misuse of the media and violation ofright to privacy, with the police andthe media in collusion in order tohumiliate the women andsensationalize stories of the raid.

• Sexual coercion and extortion ofmoney from sex workers by thepolice was used as a sort ofinsurance against being raided ormis-treated by the police.

• Arbitrary use of the law to detain sexworkers who were carrying condomshas an adverse impact on HIVprevention, and forcible testing afterbeing picked is against the law, as ispublicizing results of HIV status.

• The impunity with which policeinflict violence on sex workers allowsother members of the public to dothe same.

The entire process of the raid smacks of a notable disregard for thepurported victims who were being rescued. Humiliation, verbal andphysical abuse routinely accompanied these raids.

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• Police excesses form a commontheme, in some cases amounting toforced labour and even torture-liketreatment in police custody.

• Systematic shaming of sex workerscontinues into court appearances,where even before any legal processbegins, the women detained aretreated as criminals with no right toredress. They are also forced to‘accept their guilt’ even if the casesare fake.

Rescue : Myth of the better life

• Women ‘rescued’ from sex work aresometimes forced to provide sexualservices in rehabilitation homes andthus become “victims ofrehabilitation”.

• “Skill development” was ineffectivein the context of a burgeoningcorporate economy where skills suchas sewing or making papad andpickles are economicallyunsustainable.

• Procedural aspects of the courts arestacked against sex workers, who areforced to borrow large sums ofmoney to extricate themselves, athigh interest rates

• Sex workers upon release are facedwith massive debts due to the loss oflivelihood during the period ofincarceration. They are thensubjected to debt bondage or otherforms of exploitative practices, whichis ironical for a process that seeks tosave women from exploitation.

• Upon release, sex workers are morevulnerable and under the control ofbrothel owners who have paid largesums to the police to prevent furtherraids. Mobility and attending regularhealth check-ups is alsocompromised.

Combating Trafficking throughCollectives

• Collectives of sex workers haveworked out effective strategies tocombat the trafficking of girls andwomen into sex work.

A high percentage of sex workers who had been picked up and‘rescued’ in raids had returned to sex work after release. The returneesto sex work included both those who had earlier been trafficked as wellas those who had entered sex work of their own volition. Post-raid andrescue, many had returned to sex work at great risk to themselves,given that they had signed undertakings that they would quit sex work.

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0.82% (2 out of 243) were minors at thetime of the raid, the rest were adults

79% (193 out of 243) of the womenstated that at the time of the raid theywere voluntarily in sex work and hadnot wanted to be "rescued".

36% (13 out of 36) of women who hadbeen trafficked were currently doing sexwork and stated that they wanted toremain.

77% (168 out of 218) women who werereleased, returned to sex work.

behind the statistics?

1

2

3

4

numbersWhat do these

willingto listentell us, and are we

to thewomen

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The police, NGOs and others involved in ordering and conducting raids aregenerally not sensitive to the complex trajectory of the individuals they encounterduring raids. The persistence of the ‘victim mode’ runs through the entireenterprise, along with a refusal to listen to those who are purportedly beingrescued. Contrary to one of the usual justifications put forth for raids – minors insex work –, the research found that only a minuscule percentage of those raidedwere minors. Additionally, the research revealed that an overwhelming percentageof sex workers who had been picked up and ‘rescued’ in raids had returned to sexwork after release. The returnees to sex work included both those who had earlierbeen trafficked as well as those who had entered sex work of their own volition.Post-raid and rescue, many had returned to sex work at great risk to themselves,given that they had signed undertakings that they would quit sex work.

The evidence from this study indicates that rescue and restore missions have notonly proven to be indiscriminate, violent, and destructive of invaded communities,but have also been ineffective in addressing the problem of minors in sex work andadult persons forced into sex work. Generations of police raids have not been ableto combat the menace of trafficking in persons.

The only light at the end of this dark tunnel comes from the collectives of vigilantsex workers who are organizing themselves to root out the violence and abuse intheir own lives and that of minors and women trafficked into sex work. In anycommunity, the idea that a rescue can be orchestrated from the ‘outside’ using anoppressive police force that incites violence rather than protection, compounds theproblem.

The strategy of raid and rescue without the participation of women in sex workfrom that particular brothel or community offers no protection to the womenforced into sex work. This would perhaps be more evident if the voices of thewomen at the centre of the debate are amplified.

End Note

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AIR All India Reporter

CBO Community Based Organization

CEDAW Convention on the Elimination of All Forms Of

Discrimination Against Women

Cr PC Criminal Procedure Code

CRG Community Research Guide

CrLJ Criminal Law Journal

CSWB Central Social Welfare Board

FGD Focus Group Discussion

GR General Recommendation

HC High Court

HIV Human Immuno Deficiency Virus

HRC Human Rights Council

HRIA Human Rights Impact Assessment

ICCPR International Convention on Civil and Political

Rights

ICESCR International Convention on Economic, Social

and Cultural Rights

ILO International Labour Organization

IPC Indian Penal Code

ITPA Immoral Traffic (Prevention) Act, 1956

JSS Jwala Shakti Samuh

KNSW Kerala Network of Sex Workers

LLJ Labour Law Journal

NGO Non-Government Organization

NNSW National Network of Sex Workers

PIL Public Interest Litigation

Abbreviations

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RTI Right to Information Act

SANGRAM Sampada Grameen Mahila Sanstha

SC Supreme Court

SCC Supreme Court Cases

SITA Suppression of Immoral Traffic in Women and Girls

SR-VAW Special Rapporteur on Violence Against Women

STI Sexually Transmitted Infection

UKMO Uttara Karnataka Mahila Okkutta

UN United Nations

UNAIDS Joint UN Program on HIV/AIDS

UNDP United Nations Development Program

UNTOC United Nations Convention against

Transnational Organized Crime

UPR Universal Periodic Review

VAMP Veshya Anyay Mukti Parishad

Glossary

Dalal Agent

Gharwali Brothel Owner

Goondas Unlawful elements

Gulli Brothel Street

Hafta Bribe

Mohalla Neighbourhood

Sudhar Gruh Correctional Home

Tiffin Packed Food

xxvi

Table of Contents

Acknowledgements ivResearch Team viForeword xSummary xviAbbreviations & Glossary xxiv

CHAPTER 1 - Introduction 1

A. Laws and Policies Impacting Women in Sex Work 17B. Anti-trafficking Legislation : Court Orders and 35

Ground Realities

A. Partners 3B. Background 4C. Assessment 8D. Methodology 10E. Ethical Principles of the Research 12

CHAPTER 2 - The Sex Worker and the Law 15

A. The Research

i. Phase I : Focus Group Discussions 47with women in sex work

ii. Phase II : Follow up of women 51picked up under the ITPA

B. Brutality of Raids 56

C. Incarceration in the Name of Rescue 63

D. Flawed Laws 69

E. New Life after the Rescue : The Myth 77

F. Combating Trafficking Through Collectives 83

CHAPTER 3 - Findings 45

CHAPTER 4 - Endnote 89

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Tables and Figures

Annexure

Annexure 1 Status of ratification of 96human rights instruments

Annexure 2 Analysis of individual cases 100

Annexure 3 List of cases 161

Figure 1. Organizations participating in Research 4

Figure 2. Data analyzed 10

Figure 3. Districts represented in focus group and raid discussions 11

Table 1. Break up of all focus group discussion participants 47

Table 2. Focus Group Discussion participants 48

Table 3. Age group of FGD participants 48

Table 4. Age break up of FGD participants 49

Table 5. Type of sex work 50

Table 6. Age group and site of sex work 50

Table 7. Year of Raid 51

Table 8. Age at the time of the raid 52

Table 9. Whether trafficked at time of raid 53

Table 10. Correction home incarceration of 54voluntary sex workers

Table 11. Current status of trafficked women who wanted to 55remain in sex work

Table 12. Status after release of all women who were 56picked up in raids

Table 13. Current status of 193 adults who were voluntarily 72in sex work at the time of the raid

Chapter 1

Introduction

1

2

This research is designed to have sex workersspeak for themselves. It does so in two ways.First, the participating sex worker collectivesorganized focus group discussions with theircolleagues on how the Immoral Traffic(Prevention) Act, 1956 (ITPA) affects their dailywork and life. In addition, focus group discussionsand interviews were held with sex workers whowere picked up in so-called ‘raid and rescue’operations as a method to stop trafficking.

3

Chapter 1 Introduction

This study unravels the impact ofThe Immoral Traffic (Prevention)Act, 1956 (ITPA) on the

protection of the human rights of sexworkers. Anti-trafficking laws andpolicies have located women in sexwork at the cusp of violence andimpunity by law enforcementmechanisms and anti -traffickinggroups.To demonstrate the impact oflaws and policies on women in sex workto law and policy makers and otherstakeholders, sex workers from VeshyaAnyay Mukti Parishad [VAMP]undertook, along with other sex workergroups to document the human rightsviolations that they experienceparticularly because of anti-traffickinglaws and policies. This initiativeemerged from a partnership betweenhuman rights activists, human rightsresearch agencies and sex workers’collectives in India. The research was ledand conducted by the sex workercollective VAMP, the NGO SANGRAM inIndia and Rights4Change based in theNetherlands.

VAMPVAMP (Veshya Anyay Mukti Parishad orSex Workers’ Collective AgainstInjustice) is a community-basedorganization of sex workers that cametogether in 1996, addressing socialinequality and promoting justiceamongst communities discriminatedagainst because of sex work, HIV status,gender, caste and or being a sexualminority.

An independent collective with 5,500members, VAMP works in Sangli andSatara districts in West Maharashtra andBelgaum and Bagalkot in NorthKarnataka.

VAMP aims to forge and consolidate acommon identity among women in sexwork to assert their rights and to worktowards a safer and more enjoyableworking and living environment. VAMPhas a tiered structure based onmembers’ responsibilities and roles, andits board members started as peereducators. Collective meetings decidechanges in this structure and the rolesof members elected to various posts.VAMP members play a supportive roleto community members living with HIV,often becoming their de facto familiesand care givers. While HIV/AIDS is asignificant focus area, considerableattention is paid to the socio-economicimpact of women sex workers’ healthand wellbeing. VAMP plays a crucial rolein promoting the interests of itsconstituents by mediating communitydisputes, lobbying with the police,helping colleagues access governmentsystems and services and facilitatingleadership potential among itsmembers.

SANGRAM

SANGRAM, established in 1992 inSangli, Maharashtra, has grown into aseries of collective empowermentgroups for stigmatized communities(sex workers, men who have sex withmen (MSM), and transgenderindividuals) in six districts of southernMaharashtra and northern Karnataka.SANGRAM is unique in being a women-led, rights-based group that seeks tochange community norms and tacklegender inequities at the grassrootslevel. These inequities include gender-based violence (GBV), access toresources, and rights in terms ofprotection, property, and power.SANGRAM is a registered non-profitorganization with a board of sevenwomen members who live in and

A. Partners

4


around the city of Sangli, and 83 staffmembers. SANGRAM’s activities buildon the concept of asserting rights andthe core tenet that communities havethe ability to find their own solutions.

Central SANGRAM principles includei) Collectivization of marginalized

groups as a tool to access rightsii) Organizing to root out exploitative

practices in sex work.iii) Community-led processes to fight

for rights.

Rights4Change

Rights4Change is a small collective ofDutch human rights and genderexperts. It develops tools to assess theimpact of laws and policies on thehuman rights of those affected andtrains organizations in using them.Rights4Change has tools on the healthrights of women (HeRWAI), domesticviolence (DOVA) and human trafficking(The RighT Guide). It also has a tool tomap policies on violence againstwomen. The RighT Guide helped sexworker collectives to undertakeassessments and collate evidence onrights violations. It presents a systematicframework, which enables collectives toanalyze the human rights situation on

sex work in India and the relevant policyframework, including treaty obligations.

The human rights framework andemerging international law haveincrementally recognized andguaranteed the rights of vulnerablegroups of people. There has been a shiftin the understanding of sex workerrights precipitated in part by the globalHIV epidemic.

A. The Special Rapporteur on ViolenceAgainst Women (SR-VAW) hasobserved that "measures to addresstrafficking in persons should notovershadow the need for effectivemeasures to protect the humanrights of sex workers". The SR-VAWhas also called for a review of theImmoral Traffic Prevention Act, 1956that criminalizes sex work.1

B. UN Resolutions, Internationalagencies and Commissions havestressed a rights-based response tosex work and the need to protectrights not just by decriminalizing sexwork, but by eliminating the unjustapplication of non-criminal laws andregulations against sex workers.

B. Background

RaidFollowup

FGD,Interviews

AadharBahuddeshiyaSansthaJalgaonMaharashtra

SangamitraThrissurKerala

Vanitha SocietyKozhikode

Kerala

Uttara KarnatakaMahila Okkutta,

Karnataka

Srijan FoundationJharkhand

Saheli SanghPune

Maharashtra

VAMPSangli, Satara,Maharashtra

Figure 1 :Organizations participating in the research

5


i. The UN Economic and SocialCommission for Asia Pacificresolution calls on members toaddress legal barriers2 to HIVresponses including reviews3 ofnational laws, policies with a viewto eliminating discriminationagainst vulnerable populations.

ii. The Independent Commission onAIDS in Asia,4 UN SpecialRapporteur on Right to Health,5

Global Commission on HIV andthe Law6 and UNDP Asia Pacific7

have recommended thedecriminalization of sex workinvolving consenting adults.

iii. National Human RightsInstitutions have been calledupon to hold governmentsaccountable for the protection ofsex workers from discrimination,harassment, abuse and violenceperpetrated by police or othergovernment officers.8

C. UN organizations, Internationalagencies and Commissions call forrecognition of Trafficking in persons

for sexual exploitation and Sex Workas two different conceptsto beunderstood and legislatedaccordingly.9, 10, 11 Sex worker rightsorganizations have also called for areview of laws that criminalize thirdparties who support sex workers towork within a safe environment.12

D. The International LabourOrganization (ILO) and UNDP haveemphasised the need to provide sexworkers with legally enforceablerights to occupational health andsafety and the right to participate inthe process of developing workplacehealth and safety standards.13 , 14

E. Sex workers have been recognized asan invaluable resource in the law andpolicy reform process with a view todeveloping non-judgmental andrights-based laws, policies andprogrammes.15

F. Elaborating the scope of Article 6 ofCEDAW; General Recommendation19 calls on States to recognise that

1. UNHRC (2014) Report of the Special Rapporteur on violence against women, its causes and consequences,Mission to India, p 19. A/HRC/26/Addl.12. UN Economic and Social Commission for Asia Pacific (ESCAP) Resolution 66-10, Regional call for action toachieve universal access to HIV prevention, treatment, care and support in Asia and the Pacific, 2010 (29September 2011), available from http://www.unescapsdd.org/files/documents/HIV_IGM1_INF4.pdf3. UN ESCAP Resolution 67-9, Asia pacific regional review of progress in achieving declaration ofcommitment on HIV and political declaration on HIV/AIDS, 20114. Commission on AIDS in Asia (2008), Redefining AIDS in Asia, Crafting an effective response, New Delhi:Oxford University Press.5. Human Rights Council, Report of the Special Rapporteur on the right of everyone to the enjoyment of thehighest attainable standard of physical and mental health, Anand Grover, A/HRC/14/20, 27 April 20106. Global Commission on HIV and law (2012), op. cit., p 437. UNDP (2012), Sex Work and the Law in Asia and the Pacific, HIV and human rights in the context of sexwork. p 34- 398. ibid. p 399. Global Commission on HIV and the law (2012), op. cit., p 4310. UNDP (2012), op cit., p 2411. Human Rights Council (2010), op. cit., p 159.12. Global Network of Sex work Projects (2013), Third parties briefing paper.http://www.nswp.org/sites/nswp.org/files/thirdparties3_0_0.pdf. Viewed on December 201313. ILO Recommendation concerning HIV and AIDS and the World of Work, 2010 (No 200), Geneva: ILO14. UNDP (2012), op cit., p 3515.WHO, UNFPA, UNAIDS, Global Network of Sex Work Projects, The World Bank. Implementingcomprehensive HIV/STI programmes with sex workers: practical approaches from collaborative interventions.Geneva, World Health Organization, 2013. P XX

6


sex workers’ unlawful status makesthem vulnerable to violence andhence need equal protection of lawsagainst rape and other forms ofviolence.16 States were asked toreport on the measures to protectwomen in sex work and theeffectiveness of these measures.17

The CEDAW Committee hasrecommended the need formeasures to prevent "discriminationagainst sex workers and ensure thatlegislation on their right to safeworking conditions is guaranteed".18

G. The Supreme Court of India hasobserved that sex workers areentitled to the right to life and mustbe accorded the protectionguaranteed to every citizen. Itinstructed the State to providerecommendations on therehabilitation of sex workers whowish to leave sex work of their ownvolition and to provide conduciveconditions for sex workers who wishto continue working as sex workersin accordance with Article 21 of theConstitution.19 A Supreme Courtpanel recommended that the CentralGovernment and ElectionCommission issue voter ID cards,relaxing verification requirements,and state governments and localinstitutions issue ration cards to sexworkers.20

The emerging rights discourse at the

global and national levels argues thatefforts to respect, protect, fulfil andpromote the human rights of sexworkers need to be premised onensuring their rights as citizens underthe Constitution. Laws, policies andprogrammes devised in partnershipwith sex workers are most likely to beeffective with such an approach. Despiteclear recommendations by internationalhuman rights instruments India hasfailed to recognize themarginalization,21 vulnerabilities andhuman rights of sex workers.

Anti-trafficking policies in India, inparticular the ITPA, conflate traffickingand sex work, fail to protect traffickedpersons, this leading to increasedviolence against sex workers.The Act, for example, permits searcheswithout warrant and authorises thepolice to arbitrarily arrest and detain sexworkers. Police are unable todifferentiate between women traffickedinto the the trade and others who wishto remain.

Thus raid-and-rescue operations by thepolice lead to the forced rehabilitation,detention and deportation of sexworkers, both trafficked and non-trafficked.

Anti-trafficking initiatives have beenlargely responsible for the conflation oftrafficking and sex work, leading to an

16. UN Committee on the Elimination of Discrimination Against Women (CEDAW), CEDAW GeneralRecommendations Nos. 19, Article 6. Adopted at the Eleventh Session, 1992, available at:http://www.refworld.org/docid/453882a422.html [accessed 14 December 2013]17. ibid. Specific recommendations 24 (h)18. UN Committee on the Elimination of Discrimination against Women, Concluding Observations on thecombined seventh and eight periodic reports: Hungary, 26 March 2013, CEDAW/C/HUN/CO/7-819. Budhadev Karmaskar v. State of West Bengal (2011) 11 SCC 53820. Interim Orders, Sex Workers Rehabilitation Case, Supreme Court of India, 16 September 2011, LawResource India. http://indialawyers.wordpress.com/2011/09/16/sex-workers-rehabilitation-case.21. Marginalization is the process by which people are pushed to the margins or edge of society, resulting intheir physical exclusion as well as neglect of their needs and rights.

7

overriding conception of sex work itselfas ‘violence’, ignoring the violation ofthe human rights of sex workers andtrafficked persons. This has led to adivision between anti-traffickingorganizations on the one hand and sexworkers’ rights organizations on theother. This division has also led tostrategies that advocate the abolition ofsex work rather than protecting therights of women in sex work.

The sex worker rights movement inIndia has been demanding therecognition of sex work as work, safeworking conditions and dignity for sexworkers. While that is yet to be fulfilled,laws and policies that countertrafficking, often violate the humanrights of sex workers without ‘endingtrafficking, assisting its survivors andpenalising its perpetrators.

The Palermo Protocol in 2000 laid outthe first-ever definition of trafficking22

and identified three distinct elements :a. The act including recruitment,

transportation, transfer, harbouringor receipt of persons

b. The means to carry out the act whichincludes the threat or use of force,other forms of coercion, abduction,fraud, deception, abuse of power,position of vulnerability, or giving or

receiving payments of benefits toachieve consent

c. The purpose being to exploit,including the exploitation ofprostitution, sexual exploitation,forced labour or services, slavery orpractices similar to slavery, servitudeor the removal of organs.23

In 2014, India also amended Section370 of the Indian Penal Code whichdefined trafficking. However, within thedefinition of trafficking a new Section370A was inserted to punish peoplehaving sexual intercourse with victims oftrafficking. It was feared that the newsection would be used to harass clientsof sex workers. Indeed, anecdotalevidence from Maharashtra in 2016 hasrevealed that Section 370A has beenused to prosecute clients of sex workers.VAMP has also worked at the local,regional and international level withother sex worker groups to highlighthow anti-trafficking policies andmeasures have negatively affected thelives of sex workers and their families.

Since the raids conducted onGokulnagar, Sangli in 2005, sex workersfrom VAMP have spoken at all forumscalling for greater focus on theviolations committed by lawenforcement agencies at the local level


22. Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children,supplementing theUnited Nations Convention against Transnational Organized Crime, 2000.23. Article 3, Protocol to Prevent, Suppress and Punish Trafficking in Persons, 2000.

The human rights framework and emerging international law haveincrementally recognized and guaranteed the rights of vulnerablegroups of people. There has been a shift in the understanding of sexworker rights precipitated in part by the global HIV epidemic.

8

through forced rescue measures. Inaddition, sex workers are also beingincarcerated in rescue homes againsttheir consent under provisions of ITPA,the primary law dealing with traffickingin India.

SANGRAM and VAMP have madenumerous successful interventions withgovernment-appointed commissions,treaty bodies and UN mechanisms todevelop a more nuanced understandingof sex worker rights at the national andinternational level.

In 2013 SANGRAM, VAMP and membersof the National Network of Sex Workers(NNSW) made a representation to theJustice Verma Committee on theproposed Criminal Law Amendment.

Due to their sustained intervention, thesex workers’ movement was able tostave off an effort by abolitionist groupsto equate sex work with ‘exploitation’.Between 2012 and 2015, VAMP andother collectives of sex workers havemade representations before a panel ofthe Supreme Court of India to readdown provisions of the ITPA, in thecontext of adult consenting sex workand to ensure that sex workers are notharassed by anti-trafficking groups.

In 2013, SANGRAM, VAMP and NNSWmembers successfully sought theintervention of the Special Rapporteuron Violence Against Women torecommend that the government reviewthe ITPA to ensure that anti-traffickingmeasures were not impacting the

human rights of sex workers. Morerecently in 2016, VAMP madesubmissions to the Human RightsCouncil for the Universal PeriodicReview process of India which wasconsidered in May 2017.

The assessment aimed to :

1. Understand how the internationalhuman rights framework could beapplied to the context of sex workersin India.

2. Enable a large group of sex workersto understand the human rightsframework and participate in thedata collection and analysis process.

3. Frame the gaps between the statedrights for all citizens and its actualapplication in the lives of sexworkers.

4. Understand and collate theexperiences of violence andviolations faced by sex workers.

5. Document and analyze how raidsand rescue initiatives impact the livesof sex workers.

6. Analyze through communitynarratives how laws and policiesenacted to respond to traffickingwere being applied in the context ofadult consenting sex workers.

C. Assessment


Since the raids conducted on Gokulnagar, Sangli in 2005, sex workersfrom VAMP have spoken at all forums calling for greater focus on theviolations committed by law enforcement agencies at the local levelthrough forced rescue measures.

9

Stages of AssessmentThe assessment was carried out asfollows :

A. Planning to Develop the StudyFramework : VAMP and SANGRAMdeveloped the framework andcontacted the groups that agreed tocarry out the assessment. The RighTGuide developed by Rights4Changewas translated into two languages(Marathi and Hindi). The researchschedule was finalized and aresearch team was selected by VAMPand SANGRAM.

In addition to Maharashtra whereVAMP is active, sex worker collectivesfrom Jharkhand, Kerala andKarnataka were identified toimplement the research. In Jalgaon,an NGO working with sex workerswas identified to partner with sexworkers and collate data on raid andrescue.

B. Training : A training workshop‘Assessing the Impact of Anti-Trafficking Laws on the HumanRights of Sex Workers’ was held from4-6, June 2015 to understand humanrights and pertinent researchmethods. The training was a jointeffort of SANGRAM andRights4Change. The participantsincluded women sex workers;adultchildren of sex workers; lawyers;NGO activists and social workers.

The objectives of the training were toprovide an:

1. Understanding of the significanceand types of human rights.

2. Overview of the RighT Guideprocess.

3. Introduction to Human Rights

Impact Assessment (HRIA) andproposed research on the impact ofanti-trafficking policies on humanrights of sex workers.

The trainers included Marjan Wijers andLin Lap-Chew from Rights4Change;Meena Seshu and Aarthi Pai fromSANGRAM.

C. Community Research Guide : Theresearch questions were translatedinto Marathi and VAMP piloted afocus group discussion with sexworkers in Sangli in September 2015.The discussion was transcribed andtranslated by the communityresearchers and the CommunityResearch Guide (CRG) was finalized.The finalised CRG was shared withother collectives who thenundertook the focus groupdiscussions in their collectives inJharkhand, Karnataka, Maharashtraand Kerala.

D. Interviews : Community partners inMaharashtra in Kolhapur, Jalgaon,Pune and Sangli conductedinterviews of women in sex workwho had been picked up under "raid,rescue and rehabilitation" measuresby NGOs, some of them supportedby the local law enforcementmachinery.

E. Legal Analysis : A legal expert withexperience of working on judicialcases relating to the ITPA legislationconducted a study of the judicialdecisions related to sex work andtrafficking for the period 2013-2017.

F. Validation meeting : Communitygroups who participated in theresearch process met to discuss thefindings from the research. Sex


10

workers who participated in theresearch made presentations aboutthe process and district specificfindings. These findings werediscussed and debated in the largergroup. Inputs and recommendationson the findings were incorporatedinto the research.

The assessment was conducted usingprimary sources (focus groupdiscussions, survey and interviews) andsecondary sources (scan of judicialdecisions, laws and treaty documentsand India reports to the UN bodies).

Four states were selected for the studywith members of the National Networkof Sex Workers (NNSW) as participants.NNSW is a national level network of sexworkers recognising the principles ofsex work as work and advocating for fulldecriminalization of sex work.

Maharashtra and Karnataka have a longexperience of collectivising (VAMP andSaheli Sangh in Maharashtra and afederation called the Uttara KarnatakaMahila Okkutta (UKMO) in Karnataka).UKMO was formed in 2010 with smaller

district collectives from Gadag, Haveri,Koppal, Raichur and Uttara Kannada asits members. Saheli Sangh formed in1998 is the only sex worker collective inPune and works with over 2000 brothel-based sex workers.

VAMP which came together in 1996today works in Sangli, Satara andKolhapur districts of Maharashtraincluding Belgaum and Bagalkotdistricts of North Karnataka, it currentlyhas over 5000 members. The KeralaNetwork of Sex Workers Network(KNSW) was formed in 2015 with smallcollectives of street and home-basedsex workers running HIV preventioninterventions in Thrissur, Ernakulam andKottayam.

Jwala Shakti Samuh (JSS) in Jharkhandwas formed in 2016 and representshome based sex workers in Ranchi,Gumla, Palamu, Dumka and Khumti.Both KNSW and JSS have begun a slowjourney towards strengtheningcollective processes to respond toviolence, exploitative practices andinjustice.

Data was collected and analysed at thefollowing three levels:

D. Methodology


Community Narratives -On Violations, Violence,

Raids and Rescue

l Focus Group Discussions

(14 in 10 districts)

Survey of Large Raid

and Rescue

(2005-2017)

LegalAnalysis

Figure 2 :Data Analyzed

Framework ofLaws and Policies

Scan of Laws,

Scan of treaties signed by IndiaScan of Judicial

Decisions (2013-2017)

11


Figure 3 :Districts Represented in FGD and Raid Discussions

Pune

Jalgaon

Satara

Sangli

Kolhapur

Kozhikode

Trissur

Raichur

Koppal

Gadag

HaveliUttarKannad

Godda

RanchiGamla

12

A. Community Narratives

In the first part of the research 14 focusgroup discussions were held, with 156participants from the following districts:

The second part of the research wasconducted by two community researchgroups in Maharashtra. Sex workersfrom Saheli Sangh and VAMPsystematically followed up women whohad been picked up and detained inraids and forced rescue operationsconducted from 2005 to 2017 in Sangli,Satara, Kolhapur, Jalgaon and Pune. Inall, 244 adult women were picked up inthese operations. The communityresearch team was able to track down230 women through direct contact,telephone or indirectly through amember of Saheli, VAMP or othercollectives.

B. Legal Analysis

A scan of 73 cases decided by HighCourts and the Supreme Court of Indiawas conducted for the period 2013-2017. The cases were reviewed using akeyword search method for terms suchas “ITPA”, “sex work”, or “trafficking”. Thesearch was further narrowed down tothose cases that had direct bearing onthe research questions outlined above.

C. Framework of Laws and Policies

The laws relating to sex work ortrafficking, their background andamendments were reviewed. Regionaland international human rights,migrant, labour rights treaties andconventions signed and acceded to byIndia, the regular status reportssubmitted and the concludingcomments provided by the Committeeswere reviewed to analyse the

recommendations provided to theIndian government that could apply inthe context of sex workers. Specificobservations made by Committeesrelating to the status of sex workers andtheconcluding comments made in thatregard helped to situate the manner inwhich governments responded to theconcerns of sex workers.

Research involving marginalized andcriminalized communities such as sexworkers needs to ensure that safetymechanisms are followed to prevent sexworkers from experiencing trauma;societal, family, or legal backlash.Numerous measures were taken toensure that the design of the researchadhered to ethical principles thatincluded:

1. Community Participation :participation of the sex workers’community in every aspect of theresearch – from the design and datacollection to validation of research offindings.

2. Confidentiality : names of sexworkers participating in the researchhave been changed according toindividual requirements to maintainconfidentiality. The focus groupdiscussions and parts of the surveyof raids were conducted in the officeof the sex worker collectives orNGOs.

3. Informed Consent : A two-stepmethod to ensure genuine informedconsent. The leaders of thecollectives were first contacted byVAMP and SANGRAM. In Kerala andKarnataka, an NGO representative

E. Ethical Principlesof Research


13

helped to translate the researchrequest and the research objectiveswere explained to them. Acommunity leader was recruited toconduct the focus group discussionsand raid and rescue survey. Whileconducting the FGD and survey,these community leaders along withthe NGO representative explainedthe purpose of the research.Participants provided their consentto the research and for the use oftheir real names or in some casesassumed names for the final report.

4. Trust and Confidence : participantswere aware of or linked withCollectives: Participants for theFocus Group Discussions wereselected from those sex workers whoknew the local sex worker collectiveor were members of the CBO. Onlythose who self-identified as sexworkers were asked to participate inthe discussions in order to ensure

that the participants had trust andconfidence in the research processand the outcomes. This techniquealso helped forge a link with newcollective members in newlyestablished networks such as theKerala Network of Sex Workers.

5. Balancing Harm and ResearchPurpose: the survey was conductedwith women who had been releasedby the court or from correctionalfacilities after completion of thedetention period. This was asensitive and difficult process,because some women were releasedon the condition that they would notenter sex work again. Revealing theiridentities would pose them furtherharm. Hence it was crucial to balancethe purpose of the research and thepotential harm from participation inthe research.


Chapter 2

The Sex Workerand the Law

15

16

An outline of the framework of laws and policiesthat impact sex work will provide an analyticaltemplate to engage with and understand the legalanalysis and narratives of affected women.

17

India has a complex set of laws andpolicies that influence and impact thelives of women in sex work. Discussionson anti-trafficking measures andresponses have often beenovershadowed by debates onprostitution itself as violence andslavery of women; and further muddiedby a conflation with sexual exploitationof children. These discussions have beenled by sections of women's groups, anti-trafficking groups and child rightsgroups in major part in the completeabsence of sex worker rights groups.Consequently, the discussion ontrafficking has been conducted on aparallel track with efforts to raiseawareness on the status of women insex work, respect their agency and rightto choose their work.

The anti-trafficking discourse also tendsto invalidate the narratives of millions ofwomen who migrate due to economicor other pressures. Safe migration forwomen and the right to choose alivelihood continue to be hindered bynarrow conversations on morality andculture and notions of whether or notall women – especially single women –who move are potentially victims ofsexual exploitation.

Anti-trafficking laws and policies andtheir application have followed a similartrajectory in India, evident in itsinternational obligations and nationallaws and policies.This chapter outlines the framework oflaws and policies that impact sex workand the manner in which thegovernment, civil society organizationsand more recently, sex worker rightsgroups and advocates have engaged

with the legal framework and reportingmechanisms of the treaty bodies. Thiswill provide an analytical template toengage with and understand the legalanalysis and narratives of affectedwomen.

Laws dealing with trafficking andsex work

1. The origin of anti-trafficking laws inIndia can be traced to the periodimmediately followingIndependence. India ratified the UN‘International Convention for theSuppression of Immoral Traffic inPersons and Exploitation of Sexworkers and others’ in 1950,thereafter ratified it in 1953. TheGovernment of India then proceededto draft the Suppression ofImmoral Traffic in Women andGirls, Act, 1956 (SITA).

This domestic law was aimed at“suppressing the evils of prostitutionin women and girls and to provideopportunity to fallen women andgirls to rehabilitate themselves asdecent members of society”.

Abolition of vice and rescuing thehapless female victims of male lustunderpinned the foundation of thislaw, rather than the human rights oftrafficked persons. The Act wasamended in 1978 and again in1986when it was renamed theImmoral Traffic Prevention Act 1956(ITPA).Penalties were made more stringentthrough subsequent amendments. In1978, provisions relating toprobation for good conduct wererepealed and stricter and higherpenalties were provided under theamended Act. Trafficking is notdefined under this Act.

A. Laws and PoliciesImpacting Women inSex Work

Chapter 2 The Sex Worker and the Law

18

2. The Constitution of India prohibitstrafficking in persons under Article23(1) and gives the Parliamentpowers to prescribe punishments forthe same.24 The UN Conventionpreamble states“prostitution and the accompanyingevil of traffic in persons for thepurpose of prostitution areincompatible with the dignity andworth of the human person andendanger the welfare of theindividual, the family and thecommunity.”Indian government traffickingpolicies and court judgmentsfollowed the objective of theConvention24 in that the primarylegislation and the governmentpolicy approach since the 1950swere focused on regulatingprostitution.

3. Crucial shifts in understanding alsooccurred following the ITPAamendments of 1986, and thenewly amended ITPA covered malesex work. The new legislation usedthe term “persons” to cover bothmale and female genders, while inthe original Act, “prostitute” wasdefined as a female who offers herbody for promiscuous sexualintercourse for hire, whether inmoney or in kind. In 1986, thedefinition was amended to meansexual exploitation or abuse ofpersons for commercial purposes.

4. There are many levels at whichoffences under the ITPA impact thelives of sex workers and some ofthem are a violation of citizenshiprights and the dignity of the women.

a. Criminalizing work : ITPA makesit an offence for a sex worker tosolicit in public26 or in any spacesnotified by the state governmentas a public place.27 Womenarrested or picked up under theseoffences can be detained in a“corrective institution” for aperiod of 3-5 years.28 In the eventa man is convicted of a solicitingoffence, the maximumpunishment is between sevendays and three months.

b. Criminalizing family and rightto have children : The ITPA lawmakes it an offence for anyperson above the age of eighteento live off the earnings of a sexworker;29 which includes adultchildren and parents living with awoman in sex work anddependent on her earnings. Suchan individual can be punishedwith imprisonment of up to sevento years.

c. Right to privacy : People whoare picked up from brothelsduring “raid and rescue”operations are required toundergo testing for sexuallytransmitted infections underSection 15 (5A) of the ITPA. The

24. Traffic in human beings and begar and other similar forms of forced labour are prohibited and anycontravention of this provision shall be an offence punishable in accordance with the law.25. Convention on the Suppression of the Traffic in Person and the Exploitation of Prostitution of Others,1951, United Nations, Treaty Series, volume 96, page 271 retrieved fromhttps://treaties.un.org/doc/Publication/UNTS/Volume%2096/v96.pdf26. Section 8 makes seducing or soliciting for the purposes of prostitution an offence punishable with sixmonths imprisonment or fine.27. Section 7 makes prostitution in a public space or a space notified as a public place, an offence, includingany place which is within 200 metres of a hospital, educational institution.28. Section 10A ITPA29. Section 4 of ITPA makes it an offence for any individual above the age of eighteen years to live off theearnings of a sex worker and such an individual can be punished with an imprisonment of seven to ten years.


19

results of these tests areconveyed to the magistrate.Mandatory tests and thecommunication of the results toanyone other than the concernedindividual are infringements ofthe right to privacy andconfidentiality.

d. Unfair or forced eviction,removal from homes, removalfrom any place : Under ITPA,magistrates are empowered toclose brothels and removewomen from any premises wheresex work is believed to be beingcarried out. A brothel is definedas :“any place where two or more sexworkers can be working formutual gain”and thus includes places wheresex workers are living.30 The lawpermits raids of brothels andremoval of people and premisesregardless of their age and theirconsent.31 The provisions do notmake any distinction betweenminors and adults. If any place isbeing used as a brothel, amagistrate can direct not only itsclosure, but also direct theeviction of people living in thosepremises with only a seven-daynotice period or by serving anotice to the landlord of thepremises. The orders of evictioncannot be appealed against andthe premises can remain sealedfor one to three years.32

In perhaps the starkest violationof a woman's citizenship rights

and freedom of movement, amagistrate can remove a‘prostitute’ from any place underhis jurisdiction and prohibit herfrom re- entering it, in theinterests and well-being of the"general public".33 Violation ofthe removal orders is acontinuing offence and can resultin the imposition of a daily fine.There is no accompanying law ororder on how evicted sex workerscan access alternative housing orresources with which to rebuildtheir homes. Thedisproportionate application ofsuch laws on women in sex workresults in exposing them andtheir families (often youngchildren) to extreme forms ofdispossession, violence anddestitution.

e. Invalidating adult consent : Awoman who is "rescued" as aconsequence of raid and rescueoperations34 can be handed overinto the "safe custody" of herhusband or parents or guardianand this includes adult womenwho have consented to being insex work. Once the magistrate issatisfied about the antecedentsand "suitability" of the husband,parents or guardians, he or shemay make an order grantingcustody to them.35 In many casessuch custody is accompaniedwith an affidavit of the womanundertaking that she will not dosex work in future. Alternately, themagistrate can also pass an order

30. Section 18, 20 ITPA.31. Section 13 and 15 ITPA32. Section 18 (1) of the ITPA33. Section 20, ITPA34. Section 17 (2) ITPA35. Section 17 (2) ITPA


20

detaining the woman in aprotective home for a periodbetween one and three years forher "care and protection".36

5. Other laws too contain provisionsbearing on trafficking. The IndianPenal Code (IPC) has numeroussections dealing with offences linkedto trafficking. These include offencesrelating to the kidnapping of womenand girls for illicit intercourse orforced marriage (Section 366);procuring minors (Section 366A);kidnapping and abduction for thepurposes of slavery (Section 367);buying and selling minors forprostitution (Section 372, 373). TheIPC also makes it an offence tocompel a person to labour againsthis or her will. Bonded labour ofadults and children has also beenprohibited under the Bonded LabourSystem (Abolition) Act, 1976 andChild Labour (Prohibition andRegulation) Act, 1986.37 Organ tradeis regulated under theTransplantation of Human OrgansAct, 1994. Traditional forms of sexwork (such as the Devadasi system)have been prohibited or abolishedunder state-specific laws inMaharashtra, Karnataka and AndhraPradesh. 38

6. The Juvenile Justice (Care andProtection of Children) Act, 2000,was promulgated after India ratifiedthe Convention of the Rights of theChild and thereafter was amended in2015. The Act has numerousprovisions to protect and safeguardthe human rights and well-being ofchildren. The Act defines two

categories of children: those in needof care and protection and thosewho have committed offences underthe law or children in conflict withthe law. The comprehensiveunderstanding of a child in need ofcare and protection includes: thosefound working in contravention oflabour laws; missing children;children who may have been or arelikely to be abused, tortured orexploited for sexual abuse; or whoare vulnerable to or have beeninducted into trafficking.

The law mandates the constitution ofa child welfare committee (Section27) to oversee the well-being,protection and welfare of the child. Itestablishes mandatory reportingprocesses for children who areseparated from their guardians(Section 32) a detailed enquiryprocess to ascertain the steps andorders in respect of such children(Section 37) including the processrelated to their adoption. The law(Section 39) also lays out a detailedmap for the process of ensuring therehabilitation and socialreintegration of a child in need ofcare and protection throughadoption, foster care, guardianship,parents or a fit person. The purposeof care homes or children's homes isto eventually facilitate this process ofrestoration.

7. The Goa Children's Act, 2003 is theonly piece of legislation that defineschild trafficking. However, thedefinition conflates adult and childconsent. It states,

36. Section 17 (4) Proviso ITPA37. Bonded Labour System (Abolition) Act, 1976; Child Labour (Prohibition and Regulation) Act, 1986.38. Andhra Pradesh Devadasis (Prohibition of Dedication) Act 1988; Karnataka Devadasi (Prohibition ofDedication) Act, 1982; Maharashtra Devadasi Abolition Act, 2006.


21

“child trafficking” means theprocurement, recruitment,transportation, transfer, harbouringor receipt of children legally orillegally, within or across borders, bymeans of threat or use of force orother forms of coercion, ofabduction, of fraud, of deception, ofthe abuse of power or of a positionof vulnerability or of giving orreceiving payments or benefits toachieve the consent of a personhaving control over another person,for monetary gain or otherwise. 39

The section also ignores the well -established position that minors orchildren are considered incapable ofgiving consent in law. The UNtrafficking protocol considers theconsent of a trafficked minor/childas irrelevant, regardless of whetherthe prescribed means (listed in thedefinition) have been used.40 Hencein the case of the Protocol, theoffence of child trafficking isestablished by the “act” and theexploitative “purpose”, withoutapplying the “means” as relevant todetermine the offence. This ishowever not the case with thedefinition adopted under the GoaChildren’s Act.

Another problematic expression inthe Act is that children of sexworkers are per se viewed asneeding to be separated from theirmothers for their protection andwell-being. According to the law,these children’s rights are being

violated and they are in need ofspecial attention and protection.41

The provisions of the Act are inconflict with the rights of sexworkers to bear and raise children.Unfortunately, this understandinghas permeated the legalunderstanding of the rights ofwomen in sex work even before theGoa Act was promulgated. In a casedecided by the Supreme Court in1990 and later reviewed in 1997, theCourt defined a “neglectedjuvenile”as a child born to aprostitute, or one who frequents orassociates with prostitution.42

As noted above, the Goa Children’sAct is the only legislation thatcontained a definition of sexualexploitation prior to thepromulgation of Section 370 of theIPC in 2014 which defined traffickingfor the first time in Indian statutebooks.

The Goa Act states:“Commercial sexual exploitation ofchildren means all forms of sexualexploitation of a child includingvisual depiction of a child engagedin explicit sexual conduct, real orstimulated, or the lewd exhibition ofthe genitals intended for sexualgratification of the user, done with acommercial purpose, whether formoney or for kind. It includesimplying allowing, using, inducing orcoercing and child to engage insexual conduct, it also includes the

39. Section 2 (z) Goa Children’s Act 2003.40. The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitationshall be considered “trafficking in persons” even if this does not involve any of the means set forth in the …Article. (Article 3(c), Trafficking in Persons Protocol)41. Section 2 (l) – “Child in need” means all children including those whose rights are being violated or whoneed special attention and / or protection and shall include for the purposes of this Act – (xii) Children ofCommercial Sex Workers42. Gaurav Jain Versus Union of India, (1997) 8 SCC 114, 137-139


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use of the child in assisting withother persons to engage in explicitsex.”

Defining trafficking

Interestingly, what exactly constitutestrafficking was not defined in any of theIndian laws prior to 2013. Following thegang-rape and murder of a youngwoman who came to be called‘Nirbhaya’ (The Fearless One) inDecember 2012, the Justice VermaCommittee appointed in early 2013 toreview the existing laws related tocrimes against women, made extensivesuggestions to amend laws relating totrafficking of women and children.

National Network of Sex Workers India(NNSW) members intervened andsought to highlight the violence facedby criminalized populations such as sexworkers, from state and non-stateparties.43 The articulation of prostitutionfrom the prism of trafficking in theCommittee’s report was disappointing.The report argued that prostitution wasthe inevitable end to offencescommitted on women.

"Offences committed initially on them(women and girls) never comes to light.Over time sexual abuse becomes part oftheir life. It then gets termed asprostitution and then the abuse borderson being consensual. It is this viciouscircle of missing children/ women -trafficking - abuse - prostitution whichneeds to be curbed with urgentmeasures." 44

The report conflated the concerns oftrafficking of women and minor girls, toa large extent obliterating the importantaspect of safe migration for labour byadult women in search of livelihood.

The report did recognize that a keyproblem was the surfeit of laws andprovisions dealing with trafficking whichoperated in dissonance andrecommended that an "overhaul andsensitization" of the law was needed toprevent the stigmatization of women.45

Its most crucial observation, emergedfrom the obvious lacuna in ITPA and thepenal code, i.e. the absence of adefinition of "trafficking in persons" inthe statute books creating confusion onwhat exactly was being legislated,regulated or criminalized. It observedthat the legislation had been reduced todealing with prostitution.46

The Committee’s definition of traffickinghowever, gave cause for concern for sexwork rights activists. The originalformulation of the Committee providedas follows :

43. Recommendations on laws relating to se al assault in India, submission to the Justice Verma Committee,5 January 2013, National Network of Sex Workers.44. Chapter 6, Trafficking of Women and Children, Report of the Committee on Amendment to Criminal Law.P 15245. Ibid. page 12946. Para 66, p 199, Report of the Committee on Amendments to Criminal Law

The absence of a definition of"trafficking in persons" in thestatute books was creatingconfusion on what exactly wasbeing legislated, regulated orcriminalized. It was observedthat the legislation had beenreduced to dealing withprostitution.


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“Whoever for the purposes ofexploitation…. commits the offence oftrafficking.

The Section went on to defineExploitation :

Explanation 1 : The expression“exploitation” shall include, prostitutionor other forms of sexual exploitation,forced labour or services, slavery…” 47

It was argued that the term“exploitation” could be construed verybroadly to include voluntaryprostitution. Activists made thefollowing points to the Commission –the manner in which Section 370 wasdefined, would result in criminalizing allforms of sex work, including voluntarysex work. Section 370 as defined in theproposed Ordinance, conflatedexploitation and sex work, therebygiving greater leverage to the police toharass and exploit sex workers.

Following extensive representationsfrom sex workers and rights activistsfrom VAMP, SANGRAM and the NNSW,the Committee acknowledged the errorin formulating the definition enablingactivists to seek an amended form to beintroduced into the final draft of thelaw. In doing so, the Committee clarifiedthat “the purpose of the law was not toharass adult consenting sex workers andtheir clients”. This was perhaps the firstarticulation from a government-appointed Committee on the narrowinterpretation inherent in anti-trafficking laws.

The Committee observed:“The members of the Committee wishto clarify that the thrust of theirintention behind recommending theamendment to Section 370 was toprotect women and children from beingtrafficked. The Committee has notintended to bring within the ambit ofthe amended Section 370, sex workerswho practice of their own volition. It isalso clarified that the recast Section 370ought not to be interpreted to permitlaw-enforcement agencies to harass sexworkers who undertake activities oftheir own free will, and their clients. TheCommittee hopes that law enforcementagencies will enforce the amendedSection 370 IPC in letter and in spirit.” 48

In the final definition the Criminal LawAmendment Act 2013 removed thewording “prostitution as exploitation”and arrived at the following formulationof prostitution

“The expression “exploitation” shallinclude any act of physical exploitationor any form of sexual exploitation,slavery or practices similar to slavery,servitude or the forced removal oforgans.” 49

Another clause in the formulation thathas been retained despite opposition,

47. Section 370: Trafficking of a Person, Para 6, p 438, Report of the Committee on Amendments to CriminalLaw48. Email communication dated February 8, 2013 addressed to Ms. Meena Seshu, from Gopal Subramanium,Verma Committee member. The clarification can be found on the NNSW Website (last accessed February 14,2018) : http://www.nnswindia.org/upload/ News/Press-Release/Clarification-from-verma-Commission-on-370.pdf49. Explanation 1, Section 370, Indian Penal Code

In the final definition theCriminal Law Amendment Act2013 removed the wording“prostitution as exploitation”.


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deals with the offence of exploitation oftrafficked persons.

Section 370 A (2) of the Indian PenalCode states that “Whoever knowingly orhaving reason to believe that a personhas been trafficked, engages suchperson for sexual exploitation in anymanner, shall be punished with rigorousimprisonment …”.

The section is broad and brings withinits ambit the clients of sex workers.Since 2015 there is evidence of thissection being used by courts calling forits implementation against clients of sexworkers.

Human Rights Treaties

Special Rapporteur on violenceagainst womenIndia is a signatory to most of the majorhuman rights treaties and conventions.50

Signing these treaties requires States toreport periodically on theirimplementation status. For instance,India has submitted a periodic report tothe Committee on Economic, Social andCultural Rights in 2008, four reports tothe Committee on Child Rights;including reports on the OptionalProtocol on the sale of children, childprostitution and child pornography. Inaddition, India has also invited Special

Rapporteurs with thematic mandatesfrom time to time. In terms ofaddressing treaty obligations related totrafficking and sex work, India and theactivists have been active on threetreaty fronts – the Special Rapporteuron Violence Against Women (SR-VAW);CEDAW Committee and the UniversalPeriodic Review Process of the UNHRC.In recent years, sex workers and activistshave engaged with treaty bodyreporting mechanisms to strengthen thearticulation of a human rightsframework within the country on sexwork.The report of the Special Rapporteur onViolence Against Women in India to theUN General Assembly in 2014 madeextensive observations on the status ofwomen in sex work in India. The reporthighlighted four areas where rights ofsex workers are being constantlyviolated i.e. violence faced within sexwork and as a consequence of being asex worker with family, community andlaw enforcement; absence of redressand access to justice for violations;forced detention and rehabilitation ofsex workers.51

The Report underscored the need toaddress the violence faced within sexwork from state and non-state actorsand the lack of avenues for legalredress. It noted that sex workers in

In recent years, sex workers and activists have engaged with treatybody reporting mechanisms to strengthen the articulation of a humanrights framework within the country on sex work.The report of the Special Rapporteur on Violence Against Women inIndia to the UN General Assembly in 2014 made extensive observationson the status of women in sex work in India.

50.India has ratified the International Convention of Elimination of all forms of racial discrimination, 1965;Covenant on Civil and Political Rights, 1966; Covenant on Economic, Social and Cultural Rights51. Report of the Special Rapporteur on violence against women, its causes and consequences, RashidaManjoo, Human Rights Council, twenty-sixth session, A/HRC/26/38/Add.1


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India are "exposed to a range of abuseincluding physical attacks, andharassment by clients, family members,the community and State authorities".

It further found that "sex workers areforcibly detained and rehabilitated andconsistently lack legal protection" andthat they "face challenges in gainingaccess to essential health services,including for treatment for HIV/AIDSand sexually transmitted diseases". 52

Calling for the separation of efforts tocombat trafficking from sex work thereport reiterated that conflating sexwork with trafficking had led toassistance that was not targeted fortheir specific needs. It had also led tocoercive rehabilitation measures by theState.53

The observations in the report emergefrom a sustained effort by VAMP andthe NNSW to draw attention to theviolence and rights violations faced bysex workers in health, education, accessto justice and state impunity. Membersof VAMP deposed before the SpecialRapporteur in Mumbai and Delhi andcalled on her to recommend review oflaws that criminalized sex work; shutting

down detention centres for sex workersand separating adult and childtrafficking amongst others.

In her discussions with interlocutors, theSpecial Rapporteur noted a tendency toconflate sex work with trafficking inpersons and when sex workers areidentified as victims of trafficking, theassistance that is provided to them isnot targeted to their specific needs.The Report further found that violenceagainst women in custodial settings wasa matter of concern and noted that sexworkers were also being sent torehabilitation centres.54

The Special Rapporteur called for areview of the trafficking legislation toensure that the anti-traffickinglegislations did not impact humanrights of sex workers.55

A significant recommendation by theSpecial Rapporteur was that thegovernment “review the Immoral Traffic(Prevention) Act, 1956 that de factocriminalizes sex work and ensure thatmeasures to address trafficking inpersons do not overshadow the needfor effective measures to protect thehuman rights of sex workers.” 56

“Review the Immoral Traffic (Prevention) Act, 1956 that de factocriminalizes sex work and ensure that measures to address trafficking inpersons do not overshadow the need for effective measures to protectthe human rights of sex workers.” (Special Rapporteur, Violence AgainstWomen, India Report, 2014.)

52. Para 20, page 6, ibid.53. Ibid.54. Para 21, page 755. The observations in the report emerge from a sustained effort by VAMP and the NNSW, India, to drawattention to the violence faced by sex workers in India. The Network members submitted detailed casestudies of violence and rights violations occurring in all spheres prior to the Special Rapporteur's visit. Duringthe India visit, VAMP members and SANGRAM deposed in Delhi and Mumbai and gave recommendationsincluding review of laws and policies that criminalized sex work, shutting down detention centres for sexworkers, separating adult and child trafficking amongst others.56. Para 79, page 21


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The Committee takes note of the establishment of Anti-traffickingUnits, sensitization programmes, the draft protocol and StandardOperating Procedures, as well as the Task Force on human trafficking.However, it remains concerned at the alarming persistence oftrafficking in the country, both internal and cross-border, at the lack ofprotection and services available to women and girl victims oftrafficking and sexual exploitation and at the lack of efforts to addresstheir root causes. The Committee is also concerned at thepersecution of women in prostitution as a result of measures taken toaddress trafficking such as raid and rescue operations.

The Committee recommends that the State party:(a) Review the Immoral Traffic Prevention Act (1986) and include

provisions addressing the prevention of trafficking in womenand girls and the economic and emotional rehabilitation ofvictims;

(b) Address the root causes of trafficking by promoting alternativeincome generating activities developing the economic potentialof women and raise awareness among the population in ruralareas on the risks of trafficking and the way in which traffickersoperate;

(c) Ensure the effective investigation, prosecution and punishmentof traffickers and collect data and establish appropriatemechanisms aimed at early identification and referral of, andassistance and support for, victims of trafficking includingforeign women, and provide them with remedies; and

(d) Ensure that trafficked women and girls have access to victimand witness protection shelters, quality medical care,counselling, support programmes for alternative income-generation programmes, for their reintegration in the educationsystem and labour market, as well as access to adequatehousing and free legal aid regardless of their availability orwillingness to testify against traffickers.


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CEDAW engagement withsex worker rights

India signed the CEDAW Convention,the primary treaty on affirming andupholding the rights of women; in 1980and ratified it in 1990. Since then threereports (including two combinedreports) have been submitted by theGovernment of India and civil societyorganizations.

Historically, sex worker rights groupsglobally have not engaged with eitherthe CEDAW treaty or its reportingmechanisms though there have beenwindows of opportunities for asystematic dialogue after theintroduction of GeneralRecommendation 19 on violenceagainst women (GR19) in 1992;57

General Recommendation 24 on health(GR 24) in 1999;58 GeneralRecommendation 26 on womenmigrant workers (GR 26) in 2005;59

General Recommendation 28 on theCore Obligations of State parties (GR28) in 2010; and GeneralRecommendation 33 on women’s access

to justice (GR 33) in 2015.60

For the most part, women'sorganizations from the first reportingcycle chose to report on trafficking forsexual exploitation. Both the State andwomen's groups have focused on Article6 as the site of discourse,understandably since Article 661 dealsprimarily with trafficking andexploitation of the prostitution ofwomen.

However, the phrase "exploitation ofprostitution of women" was interpretedto mean "sex work as exploitation".

In the process, the struggle of sexworkers to gain recognition for theircitizenship rights was replaced by theconstant effort to repudiate thisnegative articulation and frame. Forinstance, the State reports submitted aspart of the initial reporting cycles in1999 views trafficking from the lens of"prostitution" brought on by economicdistress and lack of viable choices;though it acknowledged that no studyhad been conducted towards thecausative factors or trends of women

57. In its comments to Article 6 dealing with trafficking and exploitation of prostitution, the Committee laysout that poverty and unemployment increase opportunities for trafficking in women and they are placed atspecial risk of abuse and violence. It goes on to observe that poverty and unemployment also forces womeninto prostitution. It argues that prostitutes are vulnerable to heightened violence because of their unlawfulstatus in many situations, which further marginalizes them. It concludes that sex workers need the equalprotection of laws against rape and other forms of violence. CEDAW General Recommendation 19, ViolenceAgainst Women, CEDAW Committee.58. The Committee observes that numerous societal factors can be determinants to health of disadvantagedwomen such as migrants, internally displaced women and women in prostitution among others and hencespecial attention needs to be paid to them. Women in prostitution are vulnerable to HIV/AIDS and other STIsand need special attention. It further recommends that States should ensure without prejudice anddiscrimination, the right to sexual health information, education and services for all women and girls,including those who have been trafficked even if they are not legally resident in the country. CEDAW GeneralRecommendation No. 24, Women and Health, 1999.59. The Committee recognized the plight of undocumented migrant workers who are at high risk ofexploitation and abuse because of their immigration status. CEDAW General Recommendation 26, WomenMigrant Workers, 2005.60. The Committee stated that women are disproportionately criminalized due to their situation or status, forinstance women in prostitution, migrant women etc. The Committee recommends that State parties shouldconsider abolishing discriminatory criminalization and to act with due diligence and provide redress forcrimes that disproportionately or solely affect women. CEDAW General Recommendation 33, Women’s Accessto Justice, 2015.61. State Parties shall take all appropriate measures, including legislation to suppress all forms of traffic inwomen and exploitation of prostitution of women, Article 6, CEDAW.


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entering sex work.62

The 1999 state report went on to arguethat since all women entered sex workdue to economic distress or lack ofalternatives; such entry constitutedforce and consequently all these womenwere sexually exploited.It states:"recognising that certain areas in thecountry tend to be potential areas fromwhere women in the professionoriginated, the Government of Indiafeels that the development of suchsource areas is of critical importance inconfronting the problem of sexualexploitation of women... Economicdistress and lack of options are majorreasons for the introduction andcontinuation of young women into theprostitution trade as either a childprostitute or as minor or adults. Inparticular, in the originating families,poor and uncertain family incomes andlack of access to marketable skills andproductive resources keep them belowthe poverty line in important cases.Thus such families are particularlysusceptible to this kind of exploitation.Therefore Government feels that amajor effort needs to be made foridentifying and developing vulnerablesource areas." 63

The situation was further confused byreferring to "child prostitute", for minorsin sex work and its conflation with adult

sex workers and women forced into sexwork."…a CSWB survey report indicates thatthe number of child sex workers wouldbe around 15% or so of the totalpopulation of sex workers in India …Thereport contains recommendations in thearea of enforcement of law, removal ofchild sex workers from red light areas,institutionalized care of such rescuedchild sex workers, counselling andvocational training for rehabilitationpurposes…"

The concluding comments of theCommittee in 2000 called on the Stateto review the anti-trafficking legislationstrengthen law enforcement on womenand girls being exploited in prostitution.This was in line with GeneralRecommendation 19 which called onstates to report on measures taken toprotect women engaged in prostitution;distinct from those women subject totrafficking and other forms of sexualexploitation. The Government of India’sreport in 2005 provided details of thesteps taken to combat trafficking. Itacknowledged the need for initiativesthat went beyond law enforcementmeasures.The joint report of women’s groupsreporting to CEDAW in 2006, called foralternative opportunities for “aged sexworkers”. It stated :“Alternative opportunities for aged sexworkers should be introduced. It hasbeen experienced, often that those whocan no longer attract customers bythemselves, in order to ensure theirincome, turn into traffickers or brothelmadams. Thus, those who had beenvictims of violence become the

The situation was furtherconfused by referring to "childprostitute", for minors in sexwork and its conflation withadult sex workers and womenforced into sex work.

62. The State report submitted by the Government of India in 1999, finds that "women are forced into thisprofession without having much choice as a result of economic distress, both individual and familial." Itfurther finds that the "phenomenon of trafficking is largely concentrated in large cities followed by smallerconcentration in small towns."63. Para 131, State Report, 1999, CEDAW Committee


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perpetrators of exploitation. This viciouscycle needs to be broken.” 64

During the reporting period in 2014, theCommittee’s process was strengthenedby a chapter on the status of women insex work that was included in the jointwomen’s group report.65 Thegovernment report focused on thesetting up of anti-trafficking units andtraining, setting up rehabilitation homesfor victims of trafficking, developmentof training manuals for medical officers,counselling services for children andjudiciary. During the 2014 India sessionthe Committee was much more active inconsidering the status of women in sexwork. As part of the pre-session list ofquestions, the Committee called on theGovernment to“provide information on exploitation ofprostitution… including whetherprostitution is criminalized and the

measures taken to guarantee the rightsof women engaged in prostitution.”66

In the concluding comments, theCEDAW Committee observed that thepersecution of women in prostitution asa result of measures taken to addresstrafficking such as raid and rescueoperations was a matter of concern andit recommended that the ImmoralTraffic Prevention Act (1986) bereviewed. 67

Universal Periodic Review

Since the initiation of the reportingmechanism to the UN Human RightsCommittee in 2006, India has reportedtwice to UNHRC (2008, 2012).Seven recommendations were made bycountry representatives at the UPR inthe second round of reporting relatingto trafficking; of which three wereaccepted by India.

64. Trafficking and prostitution, chapter 4, page 49, India second and third NGO alternative report onCEDAW, 2006, Coordinated by National Alliance of Women.65. Status of women in Sex Work; Aarthi Pai, Meena Seshu, Manisha Gupte, VAMP. Chapter 3, p 37. 4th and5th NGO Alternative Report on CEDAW, National Alliance of Women in India. July 2014.66. List of issues and questions in relation to the combined fourth and fifth periodic reports of India,CEDAW/C/IND/Q4-5, 28 October 201367. Para 22, P 7, Concluding Observations on the combined fourth and fifth periodic reports of India,CEDAW/C/IND/CO/4-5, 18 July 2014

“In the absence of adequate monitoring of ITPA, what isbeing done to ensure that ITPA is not used to violate therights of or to harass sex workers who are adult consentingwomen? Especially in light of the Special Rapporteur onViolence Against Women’s recommendation thattrafficking response should not overshadow the need toprotest the rights of sex workers.”

- Ismat Jahan,CEDAW Committee Member

“What efforts have been made to provide sex workersaccess to occupational health services?”

- Niklas BrunnCEDAW Committee Member

At the 58thCEDAWsession onJuly 3, 2014,theCommitteeposed thefollowingquestions tothe IndianGovernmentdelegation.


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Accelerateefforts on

combating humantrafficking

Ensure that lawsare fully and

consistently enforced toprovide protections formembers of religiousminorities, scheduledcastes and Adivasigroups, as well as,women, traffickingvictims, and LGBTcitizens.

Continuestepping up

efforts in the area offighting trafficking aswell as consider thepossibility of invitingthe Special Rapporteuron trafficking inpersons, especiallywomen and childrento visit the country.

Continue tostrengthen its

efforts to combattrafficking inpersons byproviding thenecessary budget toestablish a largernumber of localbodies to combatthis scourge.

Strengthen protection ofchildren’s rights,

including the ratification of theConvention on the Rights of theChild, by improvingmechanisms and resources forthe implementation of existinglegislation, and bydemonstrating higherconviction rates for crimesagainst children such as sexualexploitation, child labour, childforced-labour and childtrafficking.

Implementmonitoringmechanisms to

stop people trafficking

Reinforce effortsto protect and

rehabilitate victims oftrafficking


The four recommendations which were not accepted are :

Strengthen protection of children’s rights, including theratification of the Convention

Accede to the ILO Convention No.182 concerning the Prohibition

and Immediate Action for theElimination of the Worst Forms of ChildLabour; ratify the Statute of theInternational Criminal Court and theConvention Against Torture and OtherCruel, Inhuman or Degrading Treatmentor Punishment and Its Optional Protocol,the International Convention on theProtection of the Rights of All MigrantWorkers and Members of their Families,and the ILO Convention 189 concerningDecent Work for Domestic Workers.

1111001100997722

44001100

4400

110077 110088 111111

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Related recommendations on signingthe Migrant workers treaties andelimination of child labour were rejectedby India.

Civil society organizations participatedfor the first time and reported on thestatus of human rights in 2012. Thesecond State report in 2011 onlymentioned that India had laws relatingto trafficking and had ratified theUnited Nations Convention againstTransnational Organized Crime [UNTOC]and its protocols.

The civil society report however drewattention to the problems in theimplementation of the laws and thetargeting of sex workers in name ofanti-trafficking efforts.68 It pointed outthat the laws were being used to arrestsex workers and prevented them fromaccessing legal protection and othersafeguards against violence.69

India underwent a review in 2017 and aspart of the reporting, civil societyorganizations made a submission inSeptember 2016.

A key observation made in thesubmissions regarding women in sexwork and the law is the conflation of sex

work and trafficking which results instigma and harassment of sex workers.70

The report also calls for a review of themigration policies for women in theunorganized sector stating that it leaveswomen vulnerable to trafficking andexploitative labour.71

The recommendations call forprotective legislation for women in sexwork and review of the implementationof ITPA.72

REGIONAL TREATY - SAARCConvention on Preventing andCombating Trafficking in Womenand Children for Prostitution India signed the South Asia Conventionon combating trafficking in 2002. TheSAARC Convention is a limited treatywith the primary objective ofeliminating prostitution. TheConvention defines trafficking as “themoving, selling or buying of womenand children for prostitution within andoutside a country for monetary or otherconsiderations with or without theconsent of the person subjected totrafficking”73 The Convention calls onStates to criminalize trafficking bycriminalizing brothels, renting property

68. Discrimination in access to justice, p 122, human rights in India status report, working group on humanrights, 2012. 69. The Immoral Traffic (Prevention) Act, 1956 (ITP Act) covers trafficking for prostitution alone, contrary to theTrafficking Protocol, which requires States to address trafficking into all forms of forced labour, slavery andservitude. Police led raid and rescue operations undermine the rights of victims, who may be prosecuted forsoliciting or engaging in sex work in public places even if they are coerced. Offences under the ITPA includesoliciting and engaging in sex work in public places. These provisions are not directed at trafficking but aremeant to safeguard public decency and morality. Almost all convictions are against sex workers, includingthose who may have been trafficked. The Act undermines sex workers’ ability to claim protection by the law,while the absence of safeguards has intensified violence and exploitation by brokers, agents and the mafia.70. On the other hand, approaches to trafficking often conflate sex work with trafficking, which together withcriminalization of soliciting (an aspect of sex work), results in systemic harassment of sex workers (in additionto the social stigma).71.With few options for safe migration for unorganized sector women workers, they become vulnerable totrafficking and exploitative labour.72. Construct positive legislation for protection of women in informal sector, sex work, special zones andarenas like garment and fisheries industries where women employees are at risk. The provisions of the ITPA Act should not be imposed upon adult consensual sex work. 73. Article 1 (3).


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used for the purpose of prostitution(Section 3 (2)).

The Convention also requires States tocreate awareness about the causes oftrafficking including the projection ofnegative images of women.” (Article 8).

The Convention conflates sex work andtrafficking, and also treats adult womenon par with children. Withoutaddressing the causes of migration andvarious forms of trafficking, theConvention is a remarkably limiteddocument in its scope and reach.Ignoring the aspect of voluntarymigration, the Convention seeks to limitthe rights of migrant women and leavesthem open to greater exploitation.

For instance, in 2007, in an attempt tocurb sexual exploitation, the Indiangovernment places restrictions onwomen below the age of 30 fromtravelling to Gulf countries as domesticworkers.74 In addition all women arerequired to undergo mandatoryemigration checks before visas aregranted for any work in certaincountries.

Additional restrictions for femaleworkers include employment contractsthat need to be attested by the Indianembassy of the receiving country. InNovember 2014, the Indian governmentplaced further restrictions on migratingwomen by mandating that women’sapplications for blue collar jobs couldonly be processed by governmentemployment agencies. Similar age banson single women have also been inplace in Nepal since 2012.

US Trafficking in Persons ReportsIt is also appropriate to refer to thepressure to amend trafficking laws andpolicies due to the pressure by the USVictims of Trafficking and ViolenceProtection Act of 2000. The Traffickingin Persons Report published by the USDepartment of State placed India on aTier 2 Watch List for seven years from2003 to 2010 for not complying withthe minimum standards.

Since 2010 to the current report in2016, India has been upgraded to Tier 2.In its 2014 and 2015 reports, theGovernment has asked for furtherupdates on measures taken to reducecommercial sex or forced labour.75

These observations and pressures havealso been a contributing factor foramendments in law. For instance, in2006, the US report drew attention tothe increasing cases of sexual abuse ofwomen migrants in West Asiacontributing to the age ban for Indianfemale workers, as well as the continuedobservations todemand criminalizationof sex work.

Judgements andConstruction of the Law

High Court and Supreme Courtjudgments play a large role in themanner in which sex work and sexworkers are viewed by lower courts andcases related to them are judged. Sincethe inception of the ITPA, there havebeen considerable and sometimesinconsistent opinions voiced by HighCourts on the purpose of the Act.

74. Banning women from working in the Gulf will lead to more trafficking, say activists, Scroll.in, January 14,2016 Mridula Chari. https://scroll.in/article/801710/banning-women-from-working-in-the-gulf-will-lead-to-more-trafficking-say-activists75. India report, p 187. Trafficking in Persons Report, June 2016.


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The prevailing opinion about theobjective of the Act continues to besimilar to the observation by theAllahabad High Court in 1959 : "to impose restrictions to mitigate theevil effects of the trade and to protectthe interest of the general public".76

The Bombay High Court observed thatthe purpose was to "discourageprostitution and prevent any openacting which would influence othersand tempt them from falling into thevocation." 77

The Moral Gaze

The Supreme Court in the landmarkcase State of Uttar Pradesh versusKaushaliya in 1964 drew an extremelyunfavourable conclusion regarding themanner in which the purpose of the Actwas to be interpreted. In a judgementthat had far-reaching consequences, theapex court observed that the purposewas not only to suppress immoral trafficof women and girls but "to rescue fallenwomen and girls" and "prevent thedeterioration in public morals".78

Thus emerged the construction of thesex worker as the deviant, and the needto protect public from such womenbecame a dangerous argument tojustify the eviction of sex workers from

their residences, a practice thatcontinues even today. In the case theconstitutional validity of Section 20 ofthe ITPA was challenged asdiscriminatory, an infringement of theright of a woman to move freely andreside in any part of India and thus aviolation of guaranteed fundamentalrights.(Section 20 gives power to a Magistrateto direct a prostitute residing in his/hergeographical area of jurisdiction toremove herself from the area and alsoto prohibit the person from re-enteringwithout written permission from theMagistrate.) 79

The Supreme Court went on to observethat laws which created reasonableclassification was permissible underArticle 14 and were not in conflict withthe right to equality, if it is in keepingwith the objective to be achieved by theparticular legislation. It held that therewas a pronounced and real differencebetween a woman who is prostitute anda woman who is not; and furtherbetween a prostitute who is a publicnuisance and one who is not.

The court observed that one of theobjects of the Act is to control the“growing evil” of prostitution and therestrictions imposed by Section 20 were

High Court and Supreme Court judgments play a large role in themanner in which sex work and sex workers are viewed by lower courtsand cases related to them are judged. Since the inception of the ITPA,there have been considerable and sometimes inconsistent opinionsvoiced by High Courts on the purpose of the Act.

76. Shama Bai vs. State of UP, AIR 1959 All 57 at 61: 1959 All Cr. R. 42777. Begum d/o Hudsain Saheb Kalawat v. State, AIR 1963 Bom. 17: 1963 (1) Cr. L. J 14878. State of Uttar Pradesh v. Kaushaliya, AIR 1964 SC 416 at 41979. The Act was amended in 1986 to make the provisions gender neutral. However, the provisions continue tobe applied to females in sex work.


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in public interest. The judgmentconcluded that the activities of aprostitute in a particular area are sosubversive of public morals anddestructive of public health that it isnecessary in public interest to deporther from that place, then the restrictionsimposed are reasonable andpermissible.

“The differences between a woman whois a prostitute and one who is notcertainly justify their being placed indifferent classes. So too there areobvious differences between aprostitute who carries on her trade onthe sly or in the unfrequented part ofthe town or in a town with sparsepopulation may or may not bedangerous to public health or morals asa prostitute who lives in a busy or in anover-crowded town or in a place withinthe easy reach of public institutions likereligious and educational institutions.Though both sell their bodies, the latteris more dangerous to the publicparticularly to the younger generationduring the emotional stage of their life.Their freedom of uncontrolledmovement in a crowded locality or inthe vicinity of public institutions notonly helps demoralise the public moralsbut, what is worse, to spread diseasesnot only affecting the presentgeneration” . 80

The power to remove a prostitute underSection 20 of the Act was held to be notviolative of the right to equality, areasonable restriction on the right tomove freely and reside in a place ofchoice and constitutionally valid.In one of the earliest cases thatdifferentiated between sex work and

trafficking, the Madras High Courtobserved that the primary offencesought to be criminalized was"commercialised vice" and there was nointention to abolish sex workers orprostitution.

While observing that the practice ofprostitution in public spaces waspenalized, the court observed that therewere limits in the practice of theprofession insofar as it offended "socialdecencies". The Andhra Pradesh HighCourt was amongst the first to articulatethe construct of exploitation ofprostitution and observe that the ITPAprovisions had to be read in conjunctionwith the provisions of Article 23 of theConstitution of India which prohibitedhuman trafficking and the exploitationof prostitution. 81

The Gujarat High Court extended thisinterpretation in 1967 when it observedthat the Act sought to abolish traffic inwomen and girls for the purpose ofprostitution as an "organized means ofliving". 82

The construct of the sex worker as anunfit mother was another disturbinglegacy. No less than the Supreme Courtof India held that efforts must be madeto separate children from their motherswho were sex workers andaccommodation in hostels and otherreformatory homes should be madeavailable to enable this segregation. 83

In addition, one of the judges alsocalled on the government to takemeasures to eradicate prostitution. Inresponse to a request for review, thesecond judgment dated March 30, 1998,

80. para 7, page 421, State of Uttar Pradesh v. Kaushaliya, AIR 1964, Supreme Court81. Seetharamamma v. Sambasiva Rao AIR 1964 AP 400 at 402-40382. Bai Shanta v. State of Gujarat, AIR 1967 Guj 211 at 213: 1967 Cr. L. J 1140 (Guj)83. Gaurav Jain Vs. Union of India and Others, order dated 15 November 1989.


35

set aside direction relating toprostitution and its eradication, thoughit permitted the central and stategovernments to formulate their ownpolicies in this regard.

However, the directives with regard tothe separation of children of sexworkers from their mothers and theestablishment of a juvenile home forthat purpose was upheld. Once againthe absence of sex workers and thecomplete disregard for their agency wasvisible in the manner in which concernsof sex workers and their children wereaddressed.

In 2000, the UN framed the PalermoProtocol, an advanced protocol whichlinked trafficking with organized crime.India signed this protocol in 2000 andratified it in May 2013. The PalermoProtocol adopted a much broaderapproach towards trafficking byenlarging the scope of trafficking fromthe initial construction of justtransportation from one place toanother and included recruitment andreceipt.

Secondly, the definition extended theunderstanding that trafficking was forcommercial sexual exploitation andincluded other practices such as forcedlabour, slavery-like practices. In Indiathe major legislation dealing withhuman trafficking remains the ImmoralTrafficking Prevention Act, 1956,although it did not define trafficking. Itwas only in 2014, that the Indian PenalCode was amended to introduce adefinition of trafficking.

Context of the Current Study The primary legislation in India dealingwith sex work is the Immoral Traffic(Prevention) Act, 1956 (ITPA). Inaddition, provisions dealing withtrafficking, ‘loitering’ and ‘creatingpublic nuisance’ under the Indian PenalCode, 1860 (IPC) or police acts ofvarious states are used to harass sexworkers. At times emergency provisionsunder the Criminal Procedure Code,1973 (CrPC) to deal with public nuisanceare also used to restrain or sealpremises. Preventive detention lawsmay be used in the context of ‘immoraltrafficking’ and under some statelegislations.

The provisions of any law are to beinterpreted to further the object andpurpose of the legislation. The aim ofITPA was not to render prostitution perse a criminal offence, or to punish awoman merely because she prostitutesherself. The working of the law inpractice is reflected in the cases whichcome up before courts. There is a gapbetween the letter of the law and thelaw in action, that is, the manner inwhich the cases are interpreted and howthey are decided, based on thesubjective interpretation of judges, whoare also prey to prevalent social biasesand prejudices.

The majority of cases pertaining to sexwork are decided in Magistrate’s courtsor ‘trial courts’ where the trial takesplace. In appeal, these cases can go onto Sessions Courts. However, there is noreporting of the judgments delivered bythe Magistrate and Sessions courts, attimes referred to as the ‘lower judiciary’.Some of the cases which go in appealreach the High Court of the relevantState.

B. Anti-trafficking Legislation : Court Ordersand Ground Realities


36

Judgments and orders of High Courtsand the Supreme Court are published inlaw journals like the All India Reporter(AIR), Supreme Court Cases (SCC),Criminal Law Journal (CrLJ) and LabourLaw Journal (LLJ). There are twenty twohigh courts in India : Allahabad,Telangana and Andhra Pradesh,Bombay, Calcutta, Chhattisgarh, Delhi,Gauhati, Gujarat, Madhya Pradesh,Madras, Meghalaya, Orissa, Patna,Punjab and Haryana, Rajasthan, Sikkimand Uttarakhand.

The judgments of all the twenty-twoHigh Courts were scanned in order tolocate cases pertaining to sexwork/prostitution under legislations likethe ITPA as well as under provisionsprohibiting trafficking, loitering andcreating public nuisance under the IPCor Police Acts of various states whichare often used against sex workers. Thepresent study analyses the judgmentsfor the period 2010 till November 2017.

Scrutiny of legal cases in IndianHigh Courts and Supreme Court(2010-17)While laws and treaties against humantrafficking can help some individuals,they can also harm others. In particular,they can impact the rights of sexworkers, specifically the right to work,the right to residence and the right tomobility. An analysis of the cases throwsup certain broad trends as well ascontinuation of old trends.

Increase in number of casesThere has been a substantial increase inthe number of cases in 2014-2015, evenwhile factoring in the possibility thataccessibility to unreported cases andorders may have increased in thisperiod. Media reports tend tocorroborate the phenomenon, whichmay be indicative of lobbies advocatingabolition of sex work invoking law aspart of their strategy. Perhapslitigation84 initiated by NGOs likeFreedom Firm and Apne Aap WomenWorldwide Trust may be reflections ofthis approach.

Targeting the customer

The police routinely conduct raids andarrest and charge customers. Given thatcustomers do not fall within the ambitof offences under ITPA, the courtsquashed the charges in a number ofcases. In several cases85 analysed, theHigh Court quashed charges againstcustomers. However, the reluctance ofjudges to quash charges againstcustomers is at times reflected inobservations such as :“In my considered view, it is unwise tosay that a customer who lurks in dayand night in search of hidden avenuesto quench his sexual lust is a haplessvictim of a crime to place him out of thereach of the tentacles of the law whichis intended to eradicate the perniciouspractice of immoral trafficking ofwomen. Such an unwarranted sympathyon a criminal will not help achievedesired results though aimed at high”. 86


84. Freedom Firm vs Commissioner of Police, Pune, (1) CRPIL 4/15 (J); Apne Aap Women Worldwide Trust vsState of Bihar, 2015(1) PLJR85. Shajahan vs State of Kerala, 2014 CrLJ 2261; Sreejith @ Ayyappan vs State of Kerala, Crl. M.C. No. 4994 of2013; Goenka Sajan Kumar vs The State of A.P. 2015 (3) Crimes 281 (A.P); Karthik Hegde vs State of Karnataka,Criminal Petition Nos. 1007/ 2015 ad 1642/ 2014 and Writ Petition No. 60129/ 2014; Katamoni Nagaraju vsState of Telangana, Criminal Petition No. 1536 of 2015;Mohammed Shaeed vs The State of Telangana, 2015 (1) ALD (Crl.) 992 (A.P).86. Mohammed Shaeed vs The State of Telangana, 2015 (1) ALD (Crl.) 992 (A.P).

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There has undoubtedly been a judicialpush to penalize customers. Theunprecedented order of the Telanganaand Andhra Pradesh High Court in 2015marks a turning point and portends illfor the future. After quashing thecharge under Section 4 of the ITPA, theHigh Court directed that the Magistrateproceed against the customer underSection 370 A of the Indian Penal Code(IPC) which penalises “exploitation” of atrafficked person.87

This judgment has been approvinglyquoted by the Gujarat High Court in2017, which held that even if Section370 IPC is not applicable in case of sexworkers who enter the profession oftheir own volition, charges againstcustomers would not be quashed. TheHigh Court took the view whether a sexworker came into profession due toforce, inducement or coercion or of ownvolition is a question of fact to beinvestigated by the police .88

Courts have denied statutory bail whichis a matter of right, if investigation isnot complete in 60 days in case ofoffences punishable with less thanseven years imprisonment, on theground that the facts make out thegraver charge of trafficking underSection 370 IPC punishable with tenyears or life imprisonment .89

Undercutting SpecialPolice Officers

Measures introduced in the law toprevent harassment by a series ofpolicemen, such as authorising onlySpecial Police Officers appointed underthe ITPA are sabotaged by blanketempowering all police officers above arank as Special Police Officers. The WestBengal Government authorized allofficers above the rank of police

inspectors as Special Police Officers. ThePunjab Government also authorized allDeputy Superintendents of Police asSpecial Police Officers under ITPA. Thisdefeats the very spirit of this salutaryprovision. 90

It must be noted that the Commissionerof Police cannot bestow a special powergranted by statute ITPA to an officerbeyond his jurisdiction. A Special Police Officer under ITPA cantake assistance of officers under him butcannot delegate his powers to them.91

In a positive development the HighCourts set a trend to set aside searchesand investigation done withoutcompliance with the provisions of theITPA .92

However, the Supreme Court hasoverturned this trend and held that itwas wrong to quash the criminalproceedings merely on the ground thatthe investigation was invalid. It held thatin case where the police report is


87. S. Naveen Kumar vs State of Telangana, 2015 (2) ALD (Crl.) 156 (A.P).88. Vinod vs State of Maharashtra, 2017 SCC Online Gujarat 46689. Abdul Nazar vs State of Kerala, 2016 SCC Online Ker 8673, Kerala High court; Dilip Khan KM vs State ofKerala, 2016 SCC Online 7938, Kerala High Court 90. Ashok Hazra vs State of West Bengal, 2015 (1) CHN(CAI) 289; Preeti vs State of Punjab, Cri. Misc. No. M/10378 of 201391. Anthony Vincent vs State of Kerala, 2014 (3) KLJ 517; C.P. Raju vs State of Kerala, 2014, Cri. LJ 293692. Kuriakose versus State of Kerala, 2016 SCC Online Ker 2050; Shaiyra versus The State, 2016 SCC OnlineDEL 2352; Shankar Gowda versus State, AIR KANT R353; Firoja vs The State of Maharashtra, Criminal AppealsNos. 534 and 597 of 2010; Sandhya vs State of Kerala, ORS. MANU /KE/ 0862/ 2017- RILR, 2017 (3) Kerala 171

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vitiated due to breach of mandatoryprovision, criminal proceedings can beset aside, only if it can be shown thatthe illegality in investigation resulted inmiscarriage of justice.93

In a rare instance of ensuringaccountability, eight police officers werearraigned as accused after beingidentified by minor girls in a TestIdentification Parade at the direction ofthe High Court.94

Closure of brothels

The Delhi High Court by a recentjudgment95 in January 2016 upheld theconstitutional validity of Section 18(1)ITPA which authorizes the DistrictMagistrate or Sub-Divisional Magistrateto order closure eviction and closure ofa brothel. Significantly, orderingimmediate closure of brothels withoutgiving notice and without givingopportunity to be heard was held to bebad in law. Notice and opportunity tobe heard in tune with principles ofnatural justice was held to be amandatory requirement under Section18(1) ITPA before directing closure. 96

Indiscriminate arrest and remand The police arrest and charge found anyperson found in the premises or in thevicinity indiscriminately regardless ofculpability in law. In turn the Magistratesroutinely remand the persons roundedup by the police into custody, regardlessof any offence being made out. In manyinstances where the accused personsare able to approach the high court thecharges get quashed as no offence hasbeen made out.97

Arresting and detaining as ‘ImmoralTraffic Offender’ seems a clear trend inTamil Nadu under the State preventivedetention law ‘Goondas, Immoral TrafficOffenders and Slum Grabbers Act,1982’. 98

Raids on massage parlours/spas

The massage parlours/spa wereregularly subjected to raids by the Anti-Vice Squad of the Chennai City Policeon the apparent suspicion of sex workbeing carried on at the premises. In asimilar vein raids were carried out inBengaluru on spas and parloursresulting in harassment.99 A number ofwrit petitions were filed by personsrunning beauty parlours/massage


93. R.A.H. Siguran vs Shankare Gowda, MANU/SC/1086/2017 - 2017(101)ALLC C 281 94. T. Sundar vs Superintendent of Police, Crl. O. P. Nos. 225, 330, 384, 657, 840, 841, 1331 and 2387 of 201595. Nitu vs Government of National Capital Territory of Delhi, NCR Delhi, W.P.(C) 4414 of 2012, Delhi HighCourt 96. M. Ramkrishna vs Sub-Divisional Magistrate and Anr. 2014 CrLJ 2013; T.K. Sadhananthan vs Sub-DivisionalMagistrate cum Revenue Divisional Officer, W.P No. 25663 of 2013 and M.P Nos. 1 and 2 of 201397. Shajahan vs State of Kerala, 2014, CrLJ 2261; Sreejith @ Ayyappan vs State of Kerala, Crl M C. No. 4994 of2013; Goenka Sajan Kumar vs The State of A.P. 2015 (3) Crimes 281 (A.P); Karthik Hegde vs State of KarnatakaCriminal Petitions No. 1007/ 2015 and 1642 of 2014 and WP No. 60129/ 2014; Katamoni Nagaraju vs State ofTelangana, Crl Pet. No. 1536 of 2015; Mohammed Shaeed vs The State of Telangana, 2015 (1) ALD (Crl) 992(A.P); Abhijit Kallianpur vs State of Karnataka, Crl Pet. No. 1959 of 2017; Abhishek Mishra vs State of Goa, crl.WP No. 77 of 201798. Mangamma vs State of Tamil Nadu, 2014 CriLJ 3420; Ravi @Ramkumar vs State of Tamil Nadu, 2014( 2)MLJ , 317; S. Masthan Reddy vs State of Tamil Nadu, 2014 (2) MLJ Crl. 257.99. Abhijit Kallianpur vs State of Karnataka, Crl Pet. No. 1959 of 2017; Neeli Mathiya vs State of Karnataka, CrlPet. No. 4242/ 2017

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centres/spas in and around the city ofChennai. It was submitted that suchraids and the frequent interference bythe police spoiled their business andamounted to an interference with theirfundamental right to carry on a lawfulbusiness.

The Madras High Court held that thepolice are in the habit of carrying outsearches in a manner not prescribed bySection 15 ITPA and it is tantamount toan unlawful interference with thefundamental right of the petitioners tocarry on any business or professionwhich is not declared as unlawful by anylegislation.100

Public interest orsex workers’ interest?

The period under study saw a numberof instances of the filing of PublicInterest Litigations by NGOs andproceedings in court with noparticipation of sex workers or theircollectives and passing of sweepingorders with regard to a wide variety ofsubjects.101 These orders do notnecessarily work in the interests of sexworkers or protect their right to alivelihood.

In a significant move, courts have takenjudicial notice of the role of NGOs in thearea of sex work and the instigation toconduct raid and rescue operations andlodge cases.102 The women ‘rescued’had not made any complaints and did

not support the prosecution case.

In a rare instance, a writ petition wasfiled by sex workers complainingagainst raids and being beaten up andasking for an order restraining theCommissioner of Police and the localSHO from entering the premises andremoving them. The High Court heldthat the undertaking given by policethat they would not evict petitionerswithout following due procedureprescribed by law was binding anddisposed of the petition.103

Compensation for illegal detentionA rare case was where compensation ofRs. 5 lakhs was given for illegaldetention in an ITPA case as Section 17of the Act permits a maximumdetention of only three weeks.104

If a sex worker says “no”, it is rape

The Sessions Court, Tis Hazari Delhiheld that the victim working as a sexworker does not confer any right onaccused to violate her and sexualrelations without her consent is rape.105

Not only does the case break thegeneral social myth that “sex workerscannot be raped”, it has significance indebates surrounding consent and howit is constructed in cases of sexualviolence.


100. S. Rangaraj vs Commissioner of Police, 2015 (1) CTC, 702S101. Court of its own motion through Shakti Vahini vs State, Wp (Crl) 891/ 2013 Delhi High Court; SumeerRamdayal Sabharwal vs State of Maharashtra, Cril PIL No. 43 of 2015; Freedom Firm vs Commissioner ofPolice, Pune (1) CR PIL 4/15 (J); Apne Aap Women Worldwide Trust vs State of Bihar, 2015 (1) PLJR 268.102. Indian Rescue Mission vs State of Maharashtra, 2016 SCC Online Bom 10248; Mamta Akash Raju vs Stateof Maharashtra, 2016 SCC Online 4188; Periayasamy vs Deputy Superintendent of Police, AntiTraffic Cell,CBCID, MANU/TN/ 1965/2017 : 2017 (2) MLJ Crl. 675103. Latabai Keshav Maundekar vs State of Maharashtra, WP 1185 of 2015.104. Chandni Yadav Vs. Adhikshika, Rajkiya Nari Sanrakshan Grih, WP 34964 of 2015, Allahabad High Court.105. State vs Deepak, Sessions Case no. 57 of 2013, ASJ Special FTC - 2 (Central) Tiz Hazari Courts, Delhi.

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De-linking sex workand trafficking

Significantly, courts have takencognizance of reasons like trafficking forfactory work in Malaysia, dancing inDubai or for marriage. Possiblysustained efforts of sex workerscollectives at delinking the conflation ofsex work and trafficking may have hadsome impact on the functioning of thelegal system. 106

Recognition of entry into sexwork of own volition

The almost invariable premise of thelegal system has been that all personsin sex work were coerced and forcedinto it against their wishes. In a numberof bail and anticipatory bail cases courtshave taken on board and recognizedthat adult women may have entered sexwork of their own volition and releasedthe accused on bail.107 In the PriyaGopal Saha case108 there is alsorecognition that she was an adult,capable of taking her own decisions andtaking care of herself and was wronglysent to the shelter home.

Detention in institutions

Detention in institutions of adultsagainst their wishes and of minorsagainst the wishes of the parents after‘rescue’ are a common occurrence.Stereotypes of communities andindividuals impact the decisions of

courts directing detention. For example,the stigma and stereotype of the‘Banjara’ community can play a role inthe suspicion that the parents may havetrafficked the child leading to denial ofcustody to parents and detention in ashelter home.109 Similarly, in case ofadult woman the lack of parents andunmarried status can lead to detentionin shelter home against the expresswishes of the person.110 Societal notionsof disapproval reflected in phrases inprobationary report like ‘the neighboursof the victim have not stated anysatisfactory remarks about the victimgirl and her mother’ can result in denialof custody to the mother and detentionin a shelter home.111

Sex worker-led disputeredress mechanism

Compared to raids and rescue by policeresulting in large-scale violation ofrights, sex workers’ collectives haveadvocated control for Internal DisputeRedress Mechanisms to check the entryof minors into sex work and traffickingof minors and adult women. A casewhere the wife of the brothel ownerhelped the minor girl on getting toknow her unwillingness to do sex work,illustrates that such partnerships withdispute redress mechanisms may be aneffective strategy worth exploring. 112


106. Jai Singh vs State, 2016 SCC Online Raj 3898; Sandeep Bhai Karathia vs State of Chhatisgarh, 2017, SCCOnlie CHH 200107. Dolee Ranglal Rangu vs State of Maharashtra, 2016 SCC online BOM 2560; Jayashree vs State ofMaharashtra, 2016, SCC Oonline 10079; Arun Baburao Chavan vs State of Maharashtra, 2017 Scc Online BOM7331; Prashant Shambhu Shetty vs State of Maharashtra, 2017 SCC Online MAH 7273108. Priya Gopal Saha vs State of Maharashtra, 2016 SCC Online Bom 6939109. Gheesabai vs State of Madhya Pradesh, 2016 SCC Online MP 7516110. Priya Gopal Saha vs State of Maharashtra, 2016 SCC online BOM 6939111. P. Saraswathi vs State of Tamil Nadu, 2017 SCC online 8299112. Ranjana Pathak vs. State of U.P, Cril Misc App No. 30421 of 2010

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Conclusion :The working of the legal machineryincluding the interpretations, orders andjudgments of courts are coloured by themoral disapproval of sex work andassociated activities. Violence againstwomen is on the rise, yet adisproportionate amount of time, effortand energy of the police is put intosetting up ‘raid and rescue’ operationsas well as the elaborate process ofsending ‘decoy’ customers to trapconsenting adult sex workers under theITPA.

Under the guise of ‘rescue’, the police inthe raids forcibly pick up and arrestadult persons who have attainedmajority, even though they are notaccused of any offence and send themto detention in rehabilitation ‘homes’.

The same approach is reflected inarresting anyone found in the vicinityduring the raid and producing thembefore a magistrate regardless ofwhether or not their actions amount toany offence. The magistrates, withoutdue application of mind as to whetherany offence is made out against theaccused go ahead and remand thepersons to custody.

Some individuals who are able toapproach the high court manage to getthe charges quashed as the ITPA doesnot penalize customers. At thelegislative level there are moves tobring in customers into the ambit of thelaw. Judges while quashing the ITPAcharges at times express theirdisapproval of the law at not penalizingcustomers.

However, the 2015 judgment of theTelangana and Andhra Pradesh HighCourt in the Naveen Kumar case where

while quashing ITPA charges the Courthas directed prosecution under Section370 A of the IPC —which penalises“exploitation” of a trafficked person— isominous and may be an indicator offuture portends. In fact, the GujaratHigh Court in 2017 in Vinod versusState of Gujarat held that even if Section370 IPC is not applicable in case of sexworkers who enter the profession oftheir own volition, charges againstcustomers would not be quashed as itwas a question of fact to beinvestigated by the police.

The same prejudiced approach isreflected in other activities consideredimmoral and translates into raiding thepremises of massage parlours and spas–which are not prohibited by law–under the suspicion that sex work isbeing carried out on the premises. Thecreation of a category of ‘ImmoralTraffic Offender’ under the ‘Goondas,Immoral Traffic Offenders and SlumGrabbers Act, 1982’ in Tamil Naduwherein a person can be detainedwithout a trial is another illustration ofthe impact of morality in law.

The High Courts had been setting atrend of taking a stern view of searchesand investigations without compliancewith the specific mandatory provisionsunder the ITPA and set the proceedingsaside as invalid in law. In a setback theSupreme Court in a recent 2017 casehas overturned this trend and held thatit was wrong to quash the criminalproceedings merely on the ground thatthe investigation was invalid. It held thatin case where the police report isvitiated due to breach of mandatoryprovision, criminal proceedings can beset aside, only if it can be shown thatthe illegality in investigation resulted inmiscarriage of justice.


42

The scrutiny of cases also brings to thefore the role of NGOs as reflected in thecases by the Freedom Firm and ApneAap Women Worldwide Trust whowithout much consultation with sexworkers initiate operations of ‘raid andrescue’ leading to incarceration of adultpersons who have consented to sexwork. Public Interest Litigation filed byNGOs result in sweeping large scaledirections given by courts which impactlives without hearing the principal partyconcerned: the sex workers. In sharpcontrast is the negative attitude of theHigh Court in the writ petition filed bysex workers in Nagpur reportingbeatings in raids and praying forrestraining the police from enteringpremises and removing residents.

The High Court did not take any actionwith regard to the human rightsviolations of the sex workers in the raidand disposed of the petition expressingsatisfaction with the undertaking by thepolice that the petitioners would not beevicted without following dueprocedure in law.

The upholding of Section 18(1) of theITPA authorizing the closure by theDelhi High Court in January 2016 is asetback. However, there have been anumber of other cases where theimmediate closure of brothels withoutgiving notice and opportunity to beheard has been quashed.

In law, sexual intercourse without theconsent of the woman, including a sexworker, amounts to rape, however, inpractice it is extremely difficult toprosecute. In this context, theunequivocal statement by the SessionsCourt, Delhi in the State versus Deepakthat the victim/survivor being a sexworker does not confer any right on the

accused to violate her and sexualrelations without her consentconstitutes rape is a positivedevelopment. The making of policeofficers identified by minor girls asaccused in T. Sundar vs Superintendentof Police is a rare instance, as policemeninvolved usually go scot-free despitetheir complicity.

The Ranjana Pathak versus Statecasewhere the wife of the brothel ownerhelped a minor girl could help in effortsat advocating ‘Sex Worker-Led DisputeRedressal Mechanisms’ rather than raidsand ‘rescue’ by the police to check entryof minors and trafficking in sex work.The awarding of Rs. Five lakh ascompensation for illegal detentionunder ITPA in Chandni Yadav Vs.Adhikshika, Rajkiya Nari SanrakshanGrih, Allahabad High Court is a positivedevelopment and must be used todevelop a jurisprudence ofcompensation for the violation of thelife, liberty and rights of sex workers.

On a positive note the efforts at de-linking of the conflation of sex work andtrafficking may have had some impactwith the courts willing to look into casesof trafficking for other purposes andobjects like factory work, dance andmarriage. Similarly, there have beenefforts at emphasizing that customersshould not be prosecuted and courtsseem in some cases to record that ITPAprovisions do not apply to customers.Courts have also taken recognition thatadult persons could have taken adecision to enter sex work of their ownvolition.

Critical judicial notice appears to havebeen taken of the role of NGOs ininstigating raid and rescue operationsand the foisting of cases in the area of


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sex work. The Madras High Court in theAmarpreet Kaur Chawla case in 2017while acquitting her of charges underITPA emphasized that the idea of ITPAwas not to render prostitution per se acriminal offence, or to punish a womanmerely because she prostitutes herself.The judgment approvingly quotes the1962 Madras High Court in Ratnamalacase 113 : "I desire to emphasise that a carefulscrutiny-of the Central Act 104 of 1956clearly reveals that the Act was aimed atthe suppression of commercialized vice,and not at the penalization of theindividual prostitute, or of prostitutionin itself. This is of some importance inconsidering the case against theappellant Ratnamala."

The denial of statutory bail when theoffences merit bail is an area whichneeds to be pursued in courts withregard to sex work cases. Althoughthere has been a lone reported case ofthe use of provisions of the CriminalProcedure Code dealing with publicnuisance to seal hotel rooms and barentry, but the area bears scrutiny to seethe prevalence at the ground level.Similarly, the State of Tamil Nadu underits preventive detention law hasincluded the category of ‘immoral trafficoffender’. The use of preventivedetention laws by states to detainpersons in the arena of sex work may beanother area on which to keep a watch.


113. Ratnamala versus State 1962 (1) Cri.L.J. 162

Chapter 3

Findings

45

46

The aim of the research was to understand theimpact of anti-trafficking laws on sex workers ina range of settings: rural and urban; streets,brothels and lodges; as well as ‘hidden’ sexworkers. Sex workers’ collectives in these siteswill take forward the findings in campaignstrategies beyond the research period.

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Phase I : Focus Group Discussionswith women in sex work

The aim of the research study was tounderstand the impact of anti-trafficking laws on sex workers whofunctioned in a range of settings : ruraland urban; streets, brothels and lodges;as well as ‘hidden’ sex workers who didnot openly do sex work. Participants ofthe study were identified based onthese criteria.

The research was conducted in siteswhere sex workers’collectives wereactiveso that they could take forwardthe findings in campaign strategiesbeyond the research period.

‘Red light’ districts, areas or streets arecommonly used to depict an area wheresex work is practiced. According toresearchers Rohini Sahni and KalyanShankar across the urban centres ofIndia, a Red Light Area has grown to bea commonly recognized spatial entity.Typically associated with larger urban

agglomerations (Mumbai, Kolkata), theterm evokes a similar understandingwhen referring even to a lane or streetin smaller urban centres (Kolhapur,Sangli).

These areas are of two kinds, an earliersettlement that has grown with the cityas in Pune or a new one that came upon the periphery of a new city as inSangli. For the purpose of this researchwe chose a range of spaces: small townsand larger cities, old settlements andnewer areas. The sex workers in thissample are women who are in contactwith a collective of sex workers or arepart of the HIV/AIDS programme run byan NGO or a CBO.

In terms of size and population of thelocations selected for the focus groupdiscussion, Pune and Ranchi were theonly ‘Million Plus’ cities withpopulations over a million.114 Sangli/Miraj, Thrissur and Kozhikode areclassified as ‘Class 1’ towns or cities withthe population varying between 3-5lakh. Godda, Gumla, Karad, Koppal andKumta are classified as ‘Class 2’ townswith populations under 1 lakh.

A. The Research

Chapter 3 The Findings

114. City with a population of over 1 million classified as a Million Plus - Provisional Population Total UrbanAgglomerations and Cities, Census of India. Retrieved on 25 December2017https://en.wikipedia.org/wiki/List_of_cities_in_India_by_population

Table 1 : Break up of all FGD participants

5524

72

5

Brothel SexWorkers

Home based

StreetBased SexWorkers

Children of sexworkers

Type Total

Brothel Sex Workers 55

Home based 24

Street Based Sex Workers 72

Children of sex workers 5

Total 156

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FGD Participants

156 participants participatedin 14 focus groupdiscussions. 151 womenwere in sex work. 5 adultchildren of sex workers alsoparticipated in discussions inSangli and Karad, since theyare active in the organizingwork of the VAMP collective.Only profiles of sex workersparticipating in thediscussions have beenconsidered for analysis.


Table 2 : FGD participants

Place Brothel Home based Street TotalGodda 10 10Gumla 9 9Karad 19 3 22Koppal 12 12Kozhikode 2 7 9Kumta 1 9 10Miraj 10 10Pune 19 6 25Ranchi 12 12Sangli 7 13 20Thrissur 2 10 12Total 55 24 72 151

20 21-30 31-40 41-50 51-60 >60Age group

Table 3: Age Group of FGD Participants

1 1

29

70

44

6

Type of sex work and place of work ofFGD participants

Of the women who participated in thediscussions all the brothel-based sex workerswere from Sangli, Karad, Miraj and Pune. Theyaccounted for nearly 37% of the totalparticipants.

Home based sex workers were predominantlyfrom Godda, Gumla which accounted for 16% ofthe focus group participants. Street-based sexworkers were largely from Ranchi, Sangli, Thrissur,Koppal, Kozhikode and Kumta accounting for48% of the focus group participants.

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Age Profile of group discussants

Since the research was focussed on thechallenges to sex work currently, a largeproportion of sex workers were from ayounger age group and actively in sexwork.

The mean age of the discussionparticipants was 37.3 years with theyoungest participant being 20 years oldand oldest at 62 years. 46% (70 women)were between the ages of 31-40 years.28% of the participants (44) werebetween 41 to 50 years of age. 19%women (29) were between 21 to 30years of age.

As indicated in table 4, participantsacross all age groups were equallyrepresented in all the group discussions.Women in the age group of 31 to 40were most evenly distributed across the11 districts.

Type of Sex Work

To ensure that the research benefitedfrom the experiences of all peopleinvolved in sex work, a variety ofdiscussants were included in the focusgroups. While 77% of the participantswere engaged full time in sex work, 17%were also managing houses or brothelsalong with doing sex work. 8 womenwere only managing brothels or housesof whom 7 were in the age group of 41-50 and one was under 30 years of age.

Age and type of sex work

There was not much of a difference inthe average age of brothel, home andstreet-based sex workers whoparticipated in the group discussions.36% of the respondents were brothelbased with an average age of 38.2 years.


Table 4 : Age break up of FGD participants

20 21-30 31-40 41-50 51-60 >60 Ttl

Godda 0 1 7 2 0 0 10

Gumla 0 4 5 0 0 0 9

Karad 0 2 8 7 4 1 22

Koppal 0 3 7 2 0 0 12

Kozhikode 0 0 6 3 0 0 9

Kumta 0 1 2 6 1 0 10

Miraj 0 1 7 2 0 0 10

Pune 0 9 4 11 1 0 25

Ranchi 1 3 7 1 0 0 12

Sangli 0 4 10 6 0 0 20

Thrissur 0 1 7 4 0 0 12

Grand Total 1 29 70 44 6 1 151

50

Two youngest brothel-basedparticipants were 24 and the oldestparticipant was 62 years. (Table 6) 70%of these participants were between 31and 50.

16% of the participants were home-based sex workers with a mean age of37.2 years. 70% of these home-basedsex workers were between 31-50 years.

47% of the discussants were engaged instreet-based sex work with a mean ageof 38 years, of whom 80% were in theages between 35 and 50.

The discussion was facilitated by a sexworker and an NGO representativeusing a semi-structured questionnaireformat.

The discussions were conducted in thelocal languages (Marathi, Kannada,Malayalam and Hindi). Thesediscussions were recorded afterobtaining the group’s consent andthereafter were transcribed in the locallanguages. In the case of VAMP thetranscription was done by thecommunity researchers.


Table 6: Age Group and Site of sex work

Type 20 21-30 31-40 41-50 51-60 Above 60 Total

Brothel 0 10 21 18 5 1 55

Home based 0 6 14 3 1 0 24

Street 1 13 35 23 0 0 72

Total 1 29 70 44 6 1 151

Table 5: Type of sex work

Type 20 21-30 31-40 41-50 51-60 Above 60 Total

Also Brothel Owner 0 2 11 8 4 1 26

Only Brothel Owner 0 1 4 3 0 0 8

Sex Worker 1 26 55 33 2 0 117

Grand Total 1 29 70 44 6 1 151

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Phase II: Follow up of WomenPicked up Under ITPA

The second phase of the research wascarried out with women who weretracked after having beendischarged/released or had escapedfrom correction homes. It centresaround the experiences of women whoare in sex work of their own volition,who were ‘rescued’ in raids,‘rehabilitated’ for varying periods oftime, and their work choices after beingreleased from the rescue homes.

Detailed follow up and interviews withwomen picked up in raids in Pune,Sangli, Jalgaon and Kolhapur inMaharashtra during the period 2005 toAugust 2017, was enlightening.

Data was collated for 243 women whowere raided since 2005 to 2017 in thesefour towns in Maharashtra. TheCollectives, CBOs and NGOs working inthe brothels collected data of the raidsand followed up women who had beenpicked up.

In Pune, Saheli Sangh communityresearchers spoke with individuals whohad been raided and released fromrescue homes. They also filed Right toInformation petitions to ascertain thestatus of those in rescue homes sent by

NGOs such as Rescue Foundation. Theyalso visited the rescue homes in Puneand Bhoiser to speak with the women.

In Sangli and Kolhapur the communityresearchers held group discussions aswell as individual interviews with thewomen who were picked up in raids inthe area. In Jalgaon the NGO runs anHIV prevention targeted intervention forsex workers, and tracked women pickedup in raids in 2016 and 2017 andascertained their current status.

A group of community researchers(themselves sex workers) from eachcollective/CBO/NGO (VAMP, SaheliSangh, SANGRAM, AadharBahuddeshiya Sanstha) undertook thetask of systematically tracing thewomen, recording their experiencesrelating to the raid and rescue, therehabilitation period and their currentstatus.

Care was taken to maintainconfidentiality and to ensure that thewomen were comfortable in sharingtheir experiences. This was a sensitiveexercise because many womeninterviewed had given undertakings incourt or with the rescue NGO that theywould leave sex work as a pre-conditionfor release. In some cases, the womenhad also submitted signed affidavits.


Table 7 : Year of Raids

JN KP PN SN ST Total2005 46 46 19%2010 24 24 10%2012 49 49 20%2013 51 51 21%2016 21 22 9 52 21%2017 13 3 5 21 9%Total 34 51 98 46 14 243 100%

Jalgaon

Kolhapur

Pune

Sangli

Satara

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Hence it was of utmost importance tomaintain their confidentiality. Due tothis reason, names and dates of someraids have been omitted from theanalysis to prevent possibleidentification of women.

In addition to tracking all the womenpicked up in raids, the researchersconducted detailed interviews andgroup discussions with 23 women inKolhapur, Sangli and Pune.

Some distinct large raids which havebeen tracked include the 2005 raids inSangli where 46 women were picked up;the 2010 raid in Budhwar Peth in Punewhen 24 women were picked up, the2013 raid in Dombarwada, Kolhapurwhen 51 women were picked up andthe 2016 raid in Jalgaon where 15women were picked up.

Raids in Jalgaon and Pune have takenplace more than once, hence these havebeen tracked separately. Satara districtsaw 14 women picked up in 2016 and2017.

In terms of the raids itself, 40% of thewomen raided during this period werein Budhwar Peth and surrounding areasin Pune. This was followed by 21%

women from Kolhapur who had beenraided in a single instance in 2013 when51 women were picked up and all thebrothels were sealed.

Age at the time of the Raid

Two main justifications are usuallyprovided for raids: under-age females insex work and adults being forced intosex work. The study revealed that at thetime of the raid, of the 243 who werefollowed up; two girls were minors, at17 years of age.

51% of the women were in the agegroup 21 to 30 years of age, 23% werein the age group 18 to 20 and 12% werebetween 31 and 40 years. Theresearchers were unable to track theages of 12 at the time they had beenpicked up. (9 women are still in therescue homes, 2 have been sent toBangladesh and its untraceable aftershe came out).

In the Kolhapur raid in which 51 womenwere picked up at one instance, theaverage age of the women was 34 years,with a minimum age of 25 andmaximum age of 52 years. In theJalgaon raids conducted in 2016 and2017, the average age of the women


Table 8 : Age at time of raid

JN KP PN SN ST Total17 2 218-20 4 1 31 21 0 5721-30 26 27 53 12 7 12531-40 3 13 2 7 5 3041-50 0 9 0 4 1 14>50 1 1 0 0 1 3No Info 0 0 12 0 0 12Total 34 51 98 46 14 243

51%

of the womenwere in the agegroup 21 to 30years of age

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picked up was 26 years, with theyoungest being 21 and the oldest being60 years.

Whether Trafficked attime of Raid

79% of the women stated that at thetime of the raid they were voluntarily insex work and had not wanted to be"rescued". 34 women tracked in Jalgaonstated that they had been in sex workfor 1 to 4 years when they were pickedup in raids as trafficking victims. Ofthese, 24 women stated that they hadcome from the nearby city of Amalnerto Jalgaon for better sex work optionswhen they were picked up in raids. 11%women were former sex workers whowere now brothel owners and some ofthem continued to do sex work.

36 women including two minors (14.8%)were trafficked into sex work. Of these27(75%) women (all from Pune) statedthat at the time of the raid they hadwanted to continue to be in sex work.These women were members of SaheliSangh, receiving their services and hadspoken about their wanting to be in sex

work, which has been documented.Seven women were trafficked andwanted to exit as per informationprovided to Saheli Sangh in response toa Right to Information (RTI) application.13 women raided were not part of anyof the collectives or receiving anyservices, hence it was not possible toget any information on their status.

Information about the rehabilitationand current status collated for each ofthese groups of women is alsoinstructive about the process.


Table 9 : Whether trafficked at time of raid

JN KP PN SN ST Total %age

Don't know - Not 13 13 7%part of collective / CBO

Trafficked minor 2 2 1%

Non Sex Worker 1 1 0%

Trafficked as per RTI 7 7 3%filed by CBO Saheli

Trafficked but 27 27 11%wanted to remain

Non-trafficked 34 51 51 43 14 193 79%Voluntary entry

Grand Total 34 51 98 46 14 243

193incarceratedforcibly women

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Duration of RehabilitationRehabilitation is the main strategy toaddress victims of trafficking. Across thefive sites where women were picked upand sent to the Sudhar Gruha they wereoffered rehabilitation counselling andfor those who were kept for a longerterm, alternative income generationskills were taught.

All the women picked up across the fivesites were women known to thecollectives, registered with theNGO/CBO/Collective as adults in sexwork and accessing services under theHIV Targeted Intervention programmesof the State government.

The indiscriminate raids not only pickedup women who were in sex workvoluntarily at the time of the raid butthey also forcibly ‘rehabilitated’themand ‘counselled’ them against the workthey were doing of their own volition.

Little wonder then that therehabilitation and counselling backfiredand 152 of the 193 returned to sex workafter release from rescue homes.(Table 13, Page 72).

Out of the 193 who were consentingadults in sex work, research revealed

that it took a large number of thewomen from six months to a year to bereleased.

14 women (7%) were incarcerated incorrection/rescue homes for a periodbetween 1-3 years.14 women (7%) were incarcerated for aperiod between six months to a year.44 women (23%) were incarcerated forup to six months. 82 women (42%) wereincarcerated for upto a month. At thetime of collating the study, 11%continued to languish in correction/rescue homes without access to familyand friends.

In stark contrast to the myth thatconsenting sex workers are treateddifferently from "victims of traffickingwho are in need of protection", adultsex workers are treated as people inneed of “behaviour correction” (sudhar).

As narratives later indicate, in case thewoman is found to be HIV positive, itbecomes a ground to detain her sinceshe or her "guardians" are incapable oflooking after her. Neither rescue NGOs,nor the government institutionsacknowledge this harm being metedout to sex workers


Table 10 : Correction home incarceration of voluntary sex workers

Jalgaon Kolhapur Pune Sangli Satara Total %age

1 day -1 month 22 13 2 33 12 82 42%

1 - 6 months 0 27 5 10 2 44 23%

6 month - 1 year 0 11 3 0 0 14 7%

1 - 3 years 0 0 14 0 0 14 7%

Not known 12 0 6 0 0 18 9%

Still in shelter 21 21 11%

Total 34 51 51 43 14 193

Table 11 : Current status of trafficked women who wanted to remain in sex work

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Current Status of trafficked women whowanted to remain in sex work .115

The researchers found that of the 27 women whosaid that they had been trafficked but wanted toremain in sex work at the time of the raid, 12women remained incarcerated for a periodbetween 20 days to 2 years. 13 women who werereleased are in sex work, and 2 died, 4 remainuntraced. 7 women were sent to their state oforigin including repatriation to Bangladesh. Onewoman ran away from the Sudhar Gruha home andremains untraceable.13 of those who are currentlyin sex work, clearly stated that they wanted to be insex work even if they were initially trafficked intosex work.


115. According to the information provided by Saheli Sangh collective, where these women were registeredmembers116. This information was received by the Saheli Sangh collective after filing several Right to Information(RTI) applications. 117. This information was provided by Rescue Foundation that the girl in question had escaped from theirRescue Home in Bhoiser, Maharashtra and was untraceable.

13

1

24

7

Active inSex Work

Came back to sexwork and nowdeceased

Non-traceable

Sent back to WestBengal/Repatriatedto Bangladesh116

Escaped fromRescue FoundationHome117

55%traffickedrescueeschose toreturn

Out of 27

Current Status Total

Active in Sex Work 13

Came back to sex work 2and now deceased

Non-traceable 4

Sent back to West 7Bengal/Repatriated toBangladesh116

Escaped from Rescue 1Foundation Home117

Total 27

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Current Status After Release

218 women out of the 243 have beenreleased to date. 199 in India and 22women repatriated or returned to stateof West Bengal.

77% returned to sex work. 8 women(3%) left sex work after their releasefrom rescue homes.

Besides organized raids on brothels, ledby NGOs or the police, individual sex-workers are also ‘raided’ and ‘rescued’in a range of spaces: public areas likebus stands or markets, as well as fromlodges and private home. Since the ITPApurports to prevent “traffic” in womenand offers only raids as the mosteffective strategy all the women arepresumed to have been trafficked andtherefore in need of rescue andrehabilitation.

Thus the experiences of women pickedup by the police mirror those of womenpicked up en masse in raids of brothelsand are hence analysed in this chapter.These experiences were shared inindividual interviews as well as in focusgroup discussions (FGDs).

Through narratives and quantitativedata, this chapter examines thestrategies of raid, rescue andrehabilitation deployed to combattrafficking of women into sex work. Thewomen who lived through the raids inBihar, Jharkhand, Karnataka, Kerala andMaharashtra, talk of the terror of thepolice and the rescue squads. Some alsotell of the violation of rights in rescueand rehabilitation inside correctionhomes. Their lived experiences,documented through interviews andFGDs backed by quantitative data, pointto the futility of raids and rehabilitationas a method of stopping trafficking inwomen and girls.

While many of the experiences overlapand glide over one another, they havebeen separated under sub-heads forease of understanding.

Green light for arbitrariness

Arbitrary police action during raids, withscant respect for the rights of sexworkers and those residing in thebuildings deemed to be brothels wasfound to be common. A ‘brothel’, underthe ITPA is defined as “...any house,room, 3 [conveyance] or place or anyportion of any house, room,3[conveyance] or place, which is used for

B. Brutality of Raids


Table 12 : Status after release of all women who were picked up in raids

Current Status Total

Returned to Sex Work after release 168

Left Sex Work after release from rescue home 8

Died in Custody 1

Not traceable after release from rescue home 18

Ran away from Rescue Home, not traceable 1

Sent to Bangladesh/ West Bengal 22

Grand Total 218

7777%%Returned toSex Workafter release

purposes 4 [of sexual exploitation orabuse] for the gain of another person orfor the mutual gain of two or more sexworkers.”

On May 20, 2005, a raid was conductedin Gokulnagar a red-light district inSangli, western Maharashtra, India. Thepolice acted on information given byGreg Malstead a U.S. national, andproceeded to conduct a raid. Mr.Malstead claimed he belonged to anNGO Restore International. It was laterfound that this is not a registeredorganization, but a Christian ministrystarted a few years before in South Indiaby Mr. Malstead.

Thirteen people were identified asbrothel owners. However, these brothelowners had no women with them at thetime. But in order to strengthen thefraudulent case, women were shown tohave been in their brothels. 35 personswere also picked up in the raid and twoof them were school-going girls whohad come home for their schoolholidays. The medical exam found 31girls above the age of 18. The policeasked for a re-exam and this time, theSangli civil hospital submitted a revisedreport stating that 18 women wereabove 20 and the rest between 16 to 19years of age. The 18 adult women werereleased to their parents.

The remaining 17 were transferred tothe Child Welfare Committee on theinstance of a lawyer from Prerna anNGO in Mumbai. They were remandedtill further orders. Two of the schoolgoing girls were then released to theirparents. One of the school going girls isso embarrassed by the incident andmedia reports, she refused to go backto school and threatened suicide if sentback. Nine girls produced birthcertificates and school-leaving

certificates as proof of them beingabove 18 but this was not accepted, inviolation of the law of the land. Theywere released to their parents.

Restore International went against theorder of the Child Welfare Committeebut lost the case in the Session’s courtin Sangli. Four of the six remainingyoung women produced proof of age asabove 18 to the sessions courtrepresenting themselves, as wrongfullyremanded, despite being above 18 andthey were also released to their parents.The two girls who were actually minorswere released on humanitarian groundsas they were found to be pregnant, illand pleading for their mothers.

In 2010 a massive raid took place inDane Ali of Pune's red-light area inwhich Andhra Pradesh police along withPune police raided and forcibly rescued58 women. The raid began at 2 pm andwent on till 7pm in the evening. Theroad was blocked from either side toprevent people assisting and also toprevent women from escaping. This wasa planned and organized police raidwith more than 50 police officers beinginvolved in the operation. After the raid21 women who were kept in the shelter

57


Arbitrary police actionduring raids, with scantrespect for the rights ofsex workers and thoseresiding in the buildingsdeemed to be brothelswas found to becommon.

58

home of Rescue Foundation tried to runaway by breaking the steel gate.However, they were unsuccessful. Sevenwomen however ran away from theSudhar Gruha in Mundhava.Places change, but the narratives remainthe same. The women in Kolhapur had asimilar experience in 2013.Dombarwada is a place where sex workis done, around 25 women have beenliving for nearly 40 years on theoutskirts of the city. As the city grewresidential colonies developed aroundthe brothel area. Slowly the communityof sex workers found themselves in themiddle of mainstream society. On 19th

August 2013, between 50-60 policecame with 5-6 police vans and raidedthe Dombarwada homes of the women.All the women were adults. Despite thatthe women were picked up in the raidand forced to undergo medical exams.Sixteen women were released by thecourt, the other women were sent torescue homes in Mumbai for 9 to 12months. Many adult women were forced

to produce their parents as guardianswith an affidavit that they would neverdo sex work again.

Humiliation not help

The entire process of the raid smacks ofa notable disregard for the purportedvictims who were being rescued.Humiliation, verbal and physical abusewere routine accompaniments to theseraids. Little wonder then that thewomen thus ‘rescued’ recalled it as ahorrific experience, designed to beatthem into submission, rather thanrescue women and take action againsttraffickers.

It must be noted that not all residencesin the so-called red-light areas arebrothels, nor are all residents of thebrothels sex workers. Non-sex workerswho happened to be visiting theirrelatives in the buildings that wereraided were also bundled into vans,sometimes in a state of undress. SaidTangevva daughter of a sex workersfrom Gokulnagar about the raid on May20, 2005, “I was not in sex work, butthey dragged me. I didn’t even havefootwear on my feet, I was unwashed,they [police] forced me into a van. Therewas total chaos, women were trying torun – they pulled the women by thehair, pulled their saris – some womenwere disrobed, some women were stillin their [night] gown. The women whowere with customers were dragged outas they were – it was one of the mosthumiliating experiences.”

All this is carried out in an atmosphereof immense drama and women areparaded before the media by the police.Says Tangevva from Sangli, “when wereached the police station a lot ofmedia was present. They had beeninformed by the police. They started


I didn’t even havefootwear on my feet, Iwas unwashed, they[police] forced me into avan. There was totalchaos, women weretrying to run – theypulled the women by thehair, pulled their saris –some women weredisrobed, some womenwere still in their [night]gown.

59

taking our photographs and videos. “At the time of the raid it was morningtime when the women had just wokenup”, says Pandavva about the Kolhapurraid of 2013. “They were washingclothes, cooking, conducting morningprayers when the police swooped inwithout warning. They pulled womenout of their homes by their hair, abusedthem and started throwing them intovans. We pleaded that we be allowed toat least wear sarees, but they did notlisten to us. We were herded and takento the police station.”

Sama of Miraj related, “Eight years ago,this happened in our locality. One of thesex workers had called her daughter tospend her school holidays with her. Oneday, we believe, a police informer visitedour place. He asked for a girl. A girlfrom the community was filling waterand was going to put the pot into theroom. At that time the fake customerclosed the door and called police toshow her as minor in sex work. We wentto the police. They published thisinformation in the press. The police alsosent the girl for a medical check and

found that she had had no sexualcontact before.

The humiliating two finger test wasperformed on her. We protested and thethen Deputy Superintendent of PoliceDigambar Pradhan made the statementthat she was not a sex worker andreleased her. But this ruined her life. Wecare for our daughters and do not allowminors to do business. We fought a lot,held rallies and protests against themedia which published the girl’s photoin a local newspaper saying ‘child sexworker’. It was a fake raid. We had afact-finding committee report to raisethis issue and fight against injustice.”

Ironically, after the raid, when the girlreturned, she was teased bysurrounding boys saying that she wassex worker. So we had to send her backto the observation home. Ralliesprotesting the violation of her rightsfollowed. She was traumatized by theincident, but is now married in herhometown.

Mahadevi recalls the Pune raid of 2010,“It was a very brutal raid. Police brutalitywas very visible. Women were draggedout from their brothels, beaten up byboth male and female police, they weredragged by their hair. Women in thearea along with Saheli Sangh membersand other NGOs witnessed the policebrutality during the raid. No otherperson including Collective and NGOsstaff was allowed to go near to thebuildings where the raid took place. Wewere just not able to intervene sincethere was too much police presence.After dragging women out of thebrothels where they were manhandledand dumped into the police vans.”Misuse of the media and violation ofright to privacy


Women were draggedout from their brothels,beaten up by both maleand female police, theywere dragged by theirhair. No other personincluding Collective andNGOs staff was allowedto go near to thebuildings where the raidtook place.

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After raids on brothels in Sangli,Maharashtra in 2005-06, thenewspapers and television channelscarried the photographs of the womendetained, in clear violation of the law aswell as the right to confidentiality. Sinceeven women who were not minors orwere simply living in the same abode assex workers were picked up, it alsoimpacted the daily lives of women andtheir prospects for marriage in aconservative society. Tangevva asked,“You tell me who will marry me after myphoto is carried in newspapers andtelevision for being arrested in a raid. Iwas not young and I was not doing sexwork at that time. Despite that, I waspicked up and sent to the rehabilitationhome. I am a Devadasi but I was notdoing sex work, I tried telling them that,but they refuse to listen to me. Theypicked me up.”

More disturbing was the fact that thepolice and the media seemed to be incollusion in order to humiliate thewomen and sensationalise the story ofthe raid. “At the police station the pressand media were taking our photographsnon-stop, they [also] were takingvideos. We tried to cover our faces, butthey were forcibly lifting our veils andtaunting us saying, ‘you had no shamethere – now why are you ashamed?’”

Police also threaten sex workers withmedia publicity in newspapers andtelevision channels in order to coercethem into having sex, according to thetestimony of Meenakshi of Koppal,Karnataka. Street walkers in Ranchicomplained that media exposure,especially by publishing photographs,rendered them more vulnerable and putthem at greater risk. Sex workers alsoimplicated the media in biasedreporting, using only court versions orpolice hand-outs without interviewingthem or listening to their stories. SaidSelin of Thrissur, “In court they listenonly to the police version, and lateroutside the court, media is onlyinterested in the news. Police use themedia but media will never takewomen’s versions; only the policeversion. In this way they humiliatewomen.”

Sexual coercion as insurance

Sex workers in Ranchi said that thepolice ask for free sex in the name of“helping” them in future, a sort ofinsurance policy, as it were. Many atimes, when a sex worker is arrested,eight or ten policemen have sex withher at night. Exploiting their lack ofliteracy or unfamiliarity with theprocedures is common. “Those whodon’t know to read and write take timeto file any complaint or write reports.

The police also ask money to registerFIRs. If anyone knows how to read andwrite, they take the application copyand after two or three days they call onour cell phones and demand free sexfirst and only after that they proceedwith our complaint.” One woman sharedhow she was forced to have sex eventhough she was heavily pregnant, "theyforced me to visit the police stationrepeatedly."


Sex workers alsoimplicated the media inbiased reporting, usingonly court versions orpolice hand-outs withoutinterviewing them orlistening to their stories.

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Said Mina of Sangli, “Four years ago,about 20-25 women were picked upfrom the road and taken to the policestation, I was one among them. As soonas we reached the police station; theyasked us to collect our money andjewellery and deposit it with the police.One of the policemen usually came tome for sex. He never paid me though.He would frighten us by saying that ifwe did not provide sexual services, hewould call the police van and arrest us.Due to fear, we agreed. He caught fivewomen that time; his wife is also in thepolice. She came to us and used badlanguage and intimidated us. We werereleased only after paying cash at thepolice station.”

Extortion, a by-product

Said Lalitha (name changed) fromThrissur, “Police personnel are thebeneficiaries of this law because theyare getting money from sex workers bymisusing sections in ITPA. They want toachieve a monthly target in petty casesso they levy fines on sex workers,through this they earn money besidetheir salary.”

Said Asha (name changed) fromThrissur, “I was waiting for a bus at thebus stand after buying some medicines.After some time, a group of Vanithapolice (a special women’s police) caughtme and fined me Rs.100. I refused topay and said that I was not doing sexwork there or disturbing the public.They said that if I did not give moneythey would take me into custody. Iborrowed money from the nearestshopkeeper and gave it.”

Ageism also operates in the “rates’ ofextortion by the police. Says Rama(name changed) from Pune, “If theyarrest an elderly woman, the police

might take Rs 1000 but if the girl isyoung they will ask for any amountfrom Rs 15,000 upward.”

Said Meenakshi of Koppal, “One of them[police] called me. Thinking that sincehe is a policeman and would be earningwell and that I would get something, Iwent to him. He was fully drunk. Hestarted telling me to do all awkwardthings, I refused. He then beat me andthrew me out and did not even pay me.Even then, I tried to threaten him that Iwould tell others about what he haddone. In turn, he threatened that hewould publicise my details in TVchannels and newspapers.”

Kamla of Koppal, Karnataka provided aninsight into police harassment bystressing on the monetary aspect, “It isbeneficial to police. Police getpromotions and other benefits if theycatch people. So, they catch us byplaying tricks. Some of them call us to aplace and others will raid to get thosebenefits. Women don’t want their familyto know their identity as sex workers, sothey listen to whatever the police sayand accept that they were doingsomething unlawful. Some of thempose as clients and some come aspolice, they too play a lot for the starsthey get on their shoulders.”


Police personnel are thebeneficiaries of this lawbecause they are gettingmoney from sex workersby misusing sections inITPA.

- Lalitha, Thrissur

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Unhealthy encounters

Kiran from VAMP highlights the impactof arbitrary use of law on health andwell-being, “When we are arrested theyreveal our identity, so we have to do sexwork without revealing ourselves. Howwill we use Nirodh [condoms] when weare doing sex work if we fear that theyare checking our bags. If they findNirodh in our bags then they accuse usof doing sex work, carrying Nirodh isitself an offence.”

Said Meenaxi Kamble from Miraj, “Threeyears back, there was a raid at Ashoklodge and the manager and two womenwere caught. We knew the HIV status ofone of the women, so we requested thepolice not to test her for HIV. But theydid it anyway.She was tested for HIV and her statuswas disclosed all over. While onewoman was handed over to her family,the woman living with HIV was sent tothe Karad correction home. We went toa lawyer and even then they did notlisten. The police showed the report of her HIVstatus, as though that was the reason tosend her to a correction home.”Tragically, the woman did not live longafter this traumatic incident.

Reign of impunityThe impunity with which police inflictviolence on sex workers allows othermembers of the public to do the same.Sex workers in Karad, Maharashtra, saidthat anti-social elements (goondas) feelfree to behave badly with them, with nofear of consequences.

Reena (name changed) from Puneshared a similar experience:“Sometimes, we are beaten bycustomers but police do not come torescue us. They only see these thingsfrom a distance. They will not arrestthose who are doing illegal things likegambling, but they will arrest us eventhough we are doing our businesshonestly.”

Said Zahira (name changed) fromKozhikode, “Even if we leave sex workand get into any other job or give upsex work and be with our family, policealways sees us as sex workers andassume that we are going with a clienteven if we are going with a familymember. With this assumption, policedirectly come up to us and ask ‘Are yougoing with a client?’ Police will notlisten to what we say or believe us. Theyonly say, ’You have come to Calicut citywith a client to do sex work’. Policebehave in the same manner when wecome to the city with our grown sons.For any purpose – it may be [to collectsupplies] from the ration shop or to visitthe office we have to come to town andwomen police insult us in public places.Police arrest women and tell them topresent two persons as surety to getthem out. Thereafter I startedquestioning the police and insisted thatif they wanted to arrest me they mustprove that I was with a client. Policebook ITPA cases against sex workers forthe following reasons: soliciting, andobstructing vehicles in a drunken state.


The impunity with whichpolice inflict violence onsex workers allows othermembers of the public todo the same.

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The police are not getting any othercases so they target sex workers.”

Some like Farida (name changed) fromKozhikode see minor changes in theattitudes of the police, “Somepolicemen are treating us well, theydon’t beat us now, but a few policemenabuse us with filthy language and forceus to get into the police van and releaseus only after collecting a fine.”

An impact of the law that is evident isthat because the law criminalizes orvictimizes them, it gives other peoplethe opportunity to exploit them. Saidsex workers in Ranchi, “Everyone treatsus well if they don’t know that we aresex workers. If police know that we aresex workers, they try everything toexploit us. They abuse us and use verybad language. If we are arrested, thelady police will come and stare at usand each one will pass some badcomment.”

The rhetoric of rescue and working forthe rights of women is hollow whenviewed through the prism of theviolations perpetrated by the authoritieson inmates of correction homes.

Nirmala of VAMP recounted herexperience when she was picked up tenyears ago, “We were put in Rajwada jail,there were around seven of eight of us,amongst us there was an older womanwhose name was Uji. No one outsideknew that we had been arrested. Someof the women were crying, a couple ofwomen fell ill and the doctor came tovisit. We were told that we must wear awhite sari but we refused. We spentnearly eight days inside. They used to

come and ask us daily whether we havea lawyer, whether we have relatives. Allour relatives were in the village. Afterthat Kamla Maushi and Bhimavvamaushi and VAMP came.

When we became associated with thecollective, we got some recognition.After they came, we were told to find alawyer. We used to cry a lot and wecouldn’t even eat due to our misery.Women became ill inside and had highfever. We used to pray to be releasedfrom the misery. Savita and Shoba wereextremely traumatized. For eight daysthey didn’t eat or sleep. They took awayour jewellery on the pretext that womentry to kill themselves and then thejailers lose their jobs. At that time thefine we paid was around Rs 1000 or1200.” A decade on, the situation is not muchbetter. Ironically, the women ‘rescued’from sex work are sometimes forced toprovide sexual services in rehabilitationhomes. Says Mala from Pune, “A girlwho was in an institution told me thatthey [the rescued women] were asked towear makeup and fancy clothes andasked to entertain the men who are thevisitors there. The girls were forced toprovide free sex in the institution.”

C. Incarceration in thename of rescue


The rhetoric of rescueand working for therights of women ishollow when viewedthrough the prism of theviolations perpetrated bythe authorities oninmates of correctionhomes.

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Said Bharthi from Sangli, “Some havenot returned from their village becausethey were so frightened by the waypolice behaved with us. They beat us,used bad words, did not allow us tomeet our parents for months and didnot send us home. One of my friendswith whom I was arrested, was sotraumatized that she died, probably dueto the suffering. Sometimes we weresleeping hungry as we could not eatthat uncooked and tasteless food.

My health was deteriorating in thecorrection home. They were notallowing anybody to give us food. If westood near the window, the staff wouldcome and close the window and beatus, asking whom we were calling. Theymade us sign something and they readit out: ‘I will not let my daughter to dosex work again’. And my father signedon it.” The increased vulnerability of childrenwhen their mothers are picked up andincarcerated as part of “rescue” and“rehabilitation” measures rarely comesto the fore. Mallavva from Karad said,“When women are put into theSudharGruha for three or four monthsat a stretch, it affects their children, whoare left in unsafe situations.”

Shaziya (name changed) fromKozhikode described her incarcerationin a mental asylum, “The police arrestedme and forcibly took me to a mentalhospital. I was ignorant but I had notmade any mistake. There were manywomen like me and there was aseparate place for mentally ill women. Iwas there for few days. The food wasnot good, there was no proper place tosleep and the toilets were bad. Theywere providing skill developmenttraining, but I was not interested andwas planning to escape. Finally, Imanaged to escape.”

There is a lack of transparency aboutthe processes that follow detention in acorrectional facility and subsequentrelease. Said Sudha (name changed)from Pune, “We don't know where theywill take the rescued girls and womenand we don't know where their recordsare. Nobody knows where those girlsgo, what they do, where they work.They take a girl’s belongings and saythat we will send her back to her village.But what is the proof that they will sendher to the village?”

Added Radha (name changed), “Whenthe police rescue the girl – whetherminor or major – they say they aretaking her to an orphanage or shelterbut nobody knows where the girl hasgone: to her village or an institution orworking elsewhere.”

Said Mala (name changed) from Pune,“Even if police rescue women and keepthem in an institution, all the womencome back. We have seen most of themcoming back.”

Added Beena (name changed), “If a girlhas been rescued from one brothel youwill find her in another brothel the next


Mallavva from Karad said,“When women are putinto the SudharGruha forthree or four months at astretch, it affects theirchildren, who are left inunsafe situations.

- Mallavva, Karad

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day. Much of this is due to corruptionamongst the police, who under theguise of ‘raids’, extract money from sexworkers in order to let them go.

Says Zahira (name changed) fromKozhikode, “Sometimes without anyreason they [police] arrest and put sexworkers behind bars. As per legalprocedures within 24 hours they shouldproduce them in court, but policedeliberately delay the process. Ifquestioned, they threaten and abuse usnot to teach law to them.”

Shalini (name changed) also from Punestates that it was only when shethreatened to commit suicide that shewas released. “It was a traumaticexperience for me in those six months.The quality of the food was very bad,and I was told to wash all the utensilsthere which I was not used to doing. Ifell ill from jaundice and it was onlywhen I threatened to commit suicidethat they got scared.”

Law enforcement mechanisms areweighted against sex workers, and thepolice often use the law to justifyviolence, incarceration, fines andextortion, and the legal system holdsout little hope.

Excesses in custody

Across the country, police excesses forma common theme, in some casesamounting to torture-like treatment inpolice custody. Said Vidya (namechanged), Thrissur, “Police caught usand took us to the police station andthey tortured us, they threatened to putchilli powder in our eyes and our privateparts.”

Besides actual physical assault, thethreat of violence is used to humiliate

and intimidate. Rekha from Sangli said,“In the police station, the police tried tofrighten us with a big lathi [baton]. Wethought that they would beat us. Wewere asked to stand in a line against thewall.”

In one reported instance, in completeviolation of the rights of detainees,police forced women to labour in thepolice station. Said Zahira (namechanged) of Kozhikode, “Police makethe women clean the police station, andsometimes they also sexually harasswomen.” Sex workers who have beenorganized know their rights, but thereality of police violence silences them,as Radha (name changed) of Punereveals, “Rights are there, but they are inthe books. If a woman dares to openher mouth, she will get beaten up.”

Those who dare speak up have to bearthe repercussions. Said Chandralekhafrom Thrissur who is a sex worker andemployee of a CBO, “I was interactingwith sex workers at the bus stand when


Law enforcementmechanisms areweighted against sexworkers, and the policeoften use the law tojustify violence,incarceration, fines andextortion, and the legalsystem holds out littlehope.

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police personnel came and picked upsex workers and took them to their jeep.When I questioned them, they arrestedme also. I asked the police why you arearresting me? I was taken to the policestation by a male police constable.When I raised my voice against thisinjustice, a male constable beat andthreatened me. I was produced beforethe magistrate and got bail. I informedthe magistrate about the physicalassault faced from male police duringcustody. The court mentioned this andsubmitted a petition. But after thatthere was no response from the policeor court. It is injustice; I am not gettingjustice even from court, what we willdo?”

“The police took us to Vishram BaghPolice Station. We were not given tea or

food. Other women got tiffin (packedfood) from their homes if they hadsomebody with them. But in my case Idid not have anyone to get a tiffin fromhome. We were there in the policestation for 13 days after which they tookus to hospital for medical check-up andwe were released on 14th day,” narratedKasturi of Sangli, describing acommonly reported practice ofdetention in a police lock-up withoutregard for basic needs of detainees.

Courting humiliation

What happens when the women areraided and produced in courts? Doesthe court actually serve as a mechanismof justice for women? In the raids inKolhapur, where women were picked upfrom Dombarwada and produced incourts, all the women were sent toSudhar Gruha and tested for STI andHIV/ AIDS.

While rejecting the applications forcustody by relatives, the trial courtproceeded to observe in the case of thewomen who were found to be positive,“Had the relatives of victims takenproper care, they would not havesuffered from such serious disease. ”118

Hence the applicants were found to beunfit to take custody of the womenagainst which an appeal was filed. Theappellate court not only agreed with theobservations of the lower court butwent on to observe, “The trial courthave rightly observed that had theappellant, the alleged guardian of thevictim taken proper care of the victim,she would not have suffered from suchserious disease which may occurbecause of promiscuous sexualrelations.”The court finally observedthat a rehabilitation home would be


While rejecting theapplications for custodyby relatives, the trialcourt proceeded toobserve in the case of thewomen who were foundto be positive, “Had therelatives of victims takenproper care, they wouldnot have suffered fromsuch serious disease. ”

118. Order disposing interim applications, Judicial Magistrate, September 2013, Kolhapur district court

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more capable of taking care of thevictim of HIV/AIDS rather than theparents who were working as labourersand rejected the appeal. The women inquestion were released to their relativesafter eight to nine months in rescuehomes in Mumbai and Nasik.

VAMP points out the irony of ‘custody’:“The court requires a 30-40-year-oldwoman to be sent into the custody ofher father/ mother/ brother or familymember. She may have been actuallytaking care of these people but in theeyes of the law, these people shouldprotect her.

Systematic shaming of sex workerscontinues into court appearances,where even before any legal processbegins, the women detained are treatedas criminals with no right to redress.They are also forced to ‘accept theirguilt’ even if the cases are fake.

Said Nirmala from Sangli, “Theyrounded us up and took us to the policestation. We were kept overnight andthen the next day we were all told thatwe would be presented in court. Theywould register our names in the policebooks. It was a humiliating experienceto be taken to court. The police wouldbe on either side and we would bemade to walk between them all the wayto the court. When we were presentedin the court they would tell us we werenot to open our mouths and when thejudge asks us, we must accept our guiltby nodding our head.”

Kiran of VAMP related an incident ofextreme brutality in Ahmednagar in2011: “The brothel was shut and thewomen were produced in court.Amongst them there was a woman whowas more than two months pregnant;she was beaten so badly in custody that

she aborted.

She was produced in court with thesame blood-stained sari. She still didnot have the courage to say in opencourt that she was beaten in custody ofthe police and that she had aborted as aresult. The court does not listen to us –it will only listen to the police. All thewomen caught in the raid scattered allover other places. We have no clues totrack their presence and places. The sexwork community just got dispersedthere.”

Raju of VAMP says, “The witness is oftensomeone who lives far away – forinstance, journalists or college studentswho are in other cities. In many caseswe have seen that the signature takenof the witness is of a person simplywalking by on the street, just tocomplete legal formalities. When thecase comes to court, the police getswitnesses as per their own will. When


Systematic shaming ofsex workers continues incourt appearances,where even before anylegal process begins, thewomen detained aretreated as criminals withno right to redress. Theyare also forced to ‘accepttheir guilt’ even if thecases are fake.

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the case comes on board in court;lawyer wants the witnesses physicallypresent at court. This is very difficult.We can’t find witnesses and pay them tobe present in the court and stand forus.”

The procedural aspects of the workingof the court are also stacked against sexworkers, who are then forced to borrowlarge sums of money to extricatethemselves, at high interest rates, thusbeing subjected to debt or other formsof exploitative practices. Ironically, it isoften the brothel owner who advancesthe bail amount, thus creating a newcycle of debt.

Dubious ‘saviours’

Rehabilitation and restoration of sexworkers has often focused on returningthem to their families or giving thempotentially marketable skills such assewing. Many women are returnedhome only to find that their familiescannot support them or condemn themfor their involvement in sex work andthus refuse to take them back. The

‘marketable skills’ scheme is also oftenineffective in the context of aburgeoning corporate economy. Thehead of an NGO working in Mumbai hasput on record the poor rehabilitationefforts of the government, and reportsthat many women at thesehomes/institutions perceive themselvesto be used as slave labour.119

The most senior official for women’sand children’s welfare activities in thestate of Maharashtra said in 1997 that“Apart from housing… the state has noother welfare measure for therehabilitation of prostitutes.” 120

Kasturi of Sangli described the dubiousstrategy used by Greg Malstead and hisNGO of befriending the women to gainaccess to their personal and workspaces before conducting the raid onquestionable authority.

Added Rekha, “We did not know thatthe raid would happen. That white man(Greg Malstead) came for two days,bringing chocolates and condoms. Heused to sit in every house and talk withthe women there. In the first two days,he developed a rapport with the womenby playing and laughing with them andafter two days the raid happened. Inthe meantime, the police came insidemy house and started pulling outeverything. They picked up six girlsalong with me.”

Minakshi of Miraj said, “Suchorganizations who are anti-sex workcome and raid, pick up girls and sendthem to the observation home. Theythink that their role finishes there. Theylack any follow up of the girls or helpand support to them. Why are they not


119. Dhaliwal, M. ‘Rescued’ Sex Workers: From Here to Nowhere. Mumbai: Lawyer’s Collective.120. Ibid.

Many women are‘returned’ home tofamilies who cannotsupport them orcondemn them for theirinvolvement in sex workand thus refuse to takethem back.

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keeping track to see what exactlyhappened to such girls after their raids.Once we visited an observation homeafter admitting girls and asked aboutthe status. We found that these girls ranaway from the observation home; whenwe asked to the administrator about thesame then we got answer that they havefile a complaint in police and givennews in newspaper. They feel that theirrole ends there only. They do not keeptrack of such girls.”

It would seem, from testimonies of thewomen raided, that the NGO seemedmore interested in carving out a namefor themselves as “saviours” of traffickedwomen, rather than carry out anymeaningful strategy that would meettheir felt needs.

Perhaps the most pernicious element ofthe law in the eyes of the women arethe powers of the police toindiscriminately raid and rescue womenin sex work, alleging that they havebeen trafficked or are being exploitedas sex workers. Consent and agency arecompletely negated in this endeavourprescribed in the name of anti-trafficking initiatives.

Radha (name changed) of Pune pointedout one of the biggest flaws with theITPA, “Police can come and takeanybody into custody. Police don't allowus to wait at places like in front of shopsor near temples. Women in sex work areeverywhere and not only in the red-light area, but all the restrictions are onwomen in the red light area and notoutside it seems! If women will remainonly inside the brothel how they canearn their livelihood?”

Said Nirmala from Sangli, “I wasreturning home after buying vegetablesfrom the market (Shivaji Mandai). In themiddle of the market place, police came

from both sides. I was with my bucket ofvegetables and was not doing anythingelse. Even then the police arrested me.They caught four or five women. Theyused a sex worker to recognize othersex workers, and used this strategy tocatch us in a public place.”

Sakina from UKMO, Kumta, who hasreceived training on ITPA says that theorganization has trained volunteers,“We caution our women not to violatethe law. Women have startedapproaching those sections rightly. Ithas helped all of us a lot. Like, not doingsex work near a bus stand, not topractice sex work near a temple, womenhave started changing their behaviour,which is useful.” Adds Pramila, “Two women should notgo together in a lodge for doing sexwork. In case if raid happens, they willbe at fault, I have learnt from it. To avoidpaying lodge charges, some people

D. Flawed Laws


Perhaps the mostpernicious element of thelaw in the eyes of thewomen are the powers ofthe police toindiscriminately raid andrescue women in sexwork, alleging that theyhave been trafficked orare being exploited assex workers.

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choose government places like schoolor government office, etc, if police raid,they will be punished. It’s myexperience, I used to go to schools fordoing sex work, clients used to avoidtaking a room, instead, they would saythat they would pay that amount to me,I would agree earlier. I am aware knowthat we should not use such places.”

Infantilization of women

There is a need to unravel theconstruction of the minor girls in sexwork. While sex worker rights activistshave clearly defined that their strugglefocuses on adult persons in sex work,the contentious space of the age ofconsent for sex is a huge challenge forrights activists.

Kiran of VAMP provides an insight intothe infantalization of adult women inthe matter of consent, “The constructionis that despite the fact that we havebecome adults and are able to makeour own decisions, since we havechosen sex work [bad work] we cannotbe exercising our choice correctly.”Shaheen (name changed), a streetwalker from Sangli narrates theharrowing story of trying to reclaim herdaughter. “In late 2015, a womannamely Reshma (name changed) wasusing her home on the 100ft road for

sex work. Due to complaints byneighbours, the police raided her houseand in that raid my daughter was alsopicked up. My daughter was not in sexwork, but the police took her intocustody. I went to the police station, butthe police did not release her. They sentfour women to jail and my girl was sentto the remand home. They kept herthere for three months. She is now 15years old.” The process of recovering herdaughter was a costly one: “I went tothree or four lawyers. I gave one lawyerRs.2000, to another I gave Rs.3000 andto a third I gave Rs.2000. Three otherpeople who said they would help metook about Rs 3000 each. But in theend, it was only the lady lawyer whohelped me, only because sheunderstood my feelings.”

Says Manju (name changed) fromSangli, “Our case is going on since thelast six years; it has gone to Sangli courtnow. A customer came to my home andasked about any girl there inside. Ithought he was a real customer. So Ishowed him that yes there is one inside.He went inside and asked anotherwoman who was looking thin andyoung; but she was not a minor. Theman asked for her; I told him that hecould be with her. Meanwhile he calledhis other people from the policedepartment and the raid happened. Thepolice picked me along with thatwoman up and took us for a medicalcheck-up in civil hospital. They kept usin a lock up for two days. And then thecase went to court and has beenpending since the last six years. Theyput me in jail under ITPA. The girl waskept for two months in a correctionhome and she was sent back afterwards.She is a member of my family and anadult. Since she was above 18 she wentto correction home and not juvenilehome.”


Two women should notgo together in a lodge fordoing sex work. If a raidhappens, they will be atfault.

- Pramila, Kumta

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Maya of Sangli says, “I recall a case of ayoung girl who came from Nippaniaround 2010. She approached Swarnawho looks like a gharwali (brothelowner) and does sex work. Swarna tookher into the house. She looked veryyoung but in fact she was above the ageof 18. We asked for her age proof, but inthe end it was decided that the girllooked too young and because of that,other people would get into trouble. Soif the girl is above the age of 18 onlythen will we keep her in the gulli[brothel]. We don’t keep underage girlsin sex work. We explained to her that inthe absence of age proof we could notkeep her in the gulli. We asked Swarnato keep the girl in her home where sexwork was not happening and go andget her birth certificate.

She went for a couple of days but thenthe hostel where she was stayingrefused to give her a document withproof of age. She spoke very well, and

said that I am of age and want to do sexwork of my own will and hence I wantedto bring my age proof. After staying acouple of days at Swarna’s home, shecame to the gulli and started doing sexwork. After a month, there was a raid. Apoliceman made a call from the nearbypan shop and the female police cameand picked her up. She was taken to thepolice station. She told the police thatshe was above 18 and was willing totake them to the place where shestudied and the places where she haddone sex work before coming to thegulli. She even told the police that thegharwali should not be abused, becauseshe had come into sex work of her ownwill and the gharwali had actuallyhelped her. She was sent for a medicaltest where it was revealed that she wasolder than 18. Only then Swarna wasreleased. So the gharwali [brothelowner] has to go through a lot ofproblems, including the family andother people in the area.

VAMP points out the irony of ‘custody’:“The court requires a 30-40-year-oldwoman to be sent into the custody ofher father/ mother/ brother or familymember. She may have been actuallytaking care of these people but in theeyes of the law, these people shouldprotect her. “

The story of Savitri from Sangli furtherillustrates the infantilization of womencoupled with the coercion to leave sexwork. During the raid in 2005 she waspicked up from Gokul Nagar and sent toa Sudhar Gruha in Karad. She waspresented before a judge who asked herwhether she wanted to stay in thecorrection home. Savitri replied that shewanted to go back to the galli (brothel).The judge was abusive and accused herof wanting to stay in a ‘gutter’, andreleased her on condition of leaving sex


The court requires a 30-40-year-old woman to besent into the custody ofher father/ mother/brother or familymember. She may havebeen actually taking careof these people but in theeyes of the law, thesepeople should protecther.

- VAMP, Sangli

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work. She was forced to go back to herhome town. Her meagre earnings fromdaily wage labour on the farm are notsufficient to support her and her twohearing-impaired sisters.

Representatives from the correctionhome in Karad routinely visited her inher hometown to check whether or notshe re-entered sex work. Eventually shedid return to sex work, but not withoutfear and apprehension, she said.The premise of the law and lawenforcement machinery is that atrafficked woman or girl will alwayswant to be ‘rescued’, given a chance.However, the narratives of the womenshow a non-linear relationship betweentrafficking and the decision to continuein sex work.Meenakshi from Koppal, Karnataka, toldher story of how she entered sex workand decided to stay on. “I was workingunder a brothel madam in Delhi. Istarted working at the age of 12.

Someone kidnapped and sold me forRs. 5000. Two more girls were soldalong with me. The Karnataka andAndhra Pradesh police raided ourbrothel area in Delhi as they hadreceived a complaint of trafficking girlsfrom here. So many young girls weretrafficked. They brought all of us toBangalore, trained is in bag making etc.Many of us got released and went backto Delhi some are doing sex work there.I came back to my place [Koppal] andstarted doing sex work here.”

The police, NGO members and othersinvolved in ordering and conductingraids are generally not sensitive to thecomplex trajectory of the individuals


Table 13 : Current status of 193 adults who werevoluntarily in sex work at the time of the raid

122. This information was received by the Saheli collective from Rescue Foundation after filing a Right toInformation (RTI) application123. As per information provided by Rescue Foundation to the Saheli Collective after a Right to Information(RTI ) application was filed

JN KP PN SN ST Total

Active in Sex Work 34 41 25 26 13 139 72%

Came back to sex 4 4 2%work and now left

Came back to sex work 1 8 9 5%and now deceased

Left sex work after the raid 3 3 1 7 4%

Non traceable since the raid 6 3 2 11 6%

Repatriated to Bangladesh122 2 2 1%

Rescue Foundation home123 21 21 11%

Grand Total 34 51 51 43 14 193

72% Still Activein Sex Work.

Out of 193

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they encounter during raids. Thepersistence of the ‘victim mode’ runsthrough the entire enterprise, alongwith a refusal to listen to those who arepurportedly being rescued. Kiran fromVAMP, Sangli, who was trafficked intosex work in 1992 said that she wishes toremain in sex work. “

Today if you pick me up in a raid andsay that you are rescuing me for beingtrafficked 25 years back, and they tellme ‘you are being exploited’, I cannotaccept that. I am happy today and mylife is settled. Opening up an old storyand saying that I am victimized isincorrect.” Added Maya, “They seek torake up what has happened in the past.They don’t listen to us. Even if wescream and say that I am not victimizedand exploited now, they don’t agree.”

VAMP says, “We don’t force anyone todo sex work. It is completely their wish.Also we don’t allow a minor into the sexbusiness. We have sent around 20 to 25minor girls back to their villages andsome 10 to 12 to the remand home.

However, we have not heard anythingback from the remand home regardingthese girls.”

Criminalizing the bread winner

Shakuntala a member of Saheli SanghCBO of Pune brought up one of thestark realities of women earning fortheir families, “The law says that livingoff the earnings of a sex workers is acrime but what about our families? Lookat a labourer, he will work hard and earnmoney. But does the government lookinto his house to see what he is doingwith his money? Then why do they wantto control our money?” Said Kusum (name changed) of Pune,“We should not consider the parents ascriminals. They know what theirdaughter is doing but they can eat andstay comfortably because of herearnings that also a fact. If my parentsare not well, if my father is not working,if my mother is blind, I have smallsiblings then if I earn and will contributeto my family they will be happy. Theywill say that our daughter is supporting


Collateral DamageSangita (name changed), was picked up in the 2005 raid in GokulnagarSangli when she was 20. She had come from a nearby village and wasdoing sex work in the brothel areas. Her younger sister had come tovisit her during the school break. Her sister Durga (name changed) waspicked up and sent to the juvenile home as a minor in sex work. Sangitawas also picked up and sent to the Rescue Home. Her protests that hersister was visiting her and not in sex work fell on deaf years. Meanwhile,due to the media attention around the raid, people from Sangita'svillage heard of her being arrested. The teacher from Durga's schoolalso appeared in court to testify that she was a regular student. All thisled to immense stigma and ridicule in the village against the family. Assoon as Sangita was released from the Rescue Home, she leftGokulnagar and went away. Today, both Sangita and her sister cannotbe traced either in the community or in their village.

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us. We have never heard that the policehad arrested any family member underthis clause only - living on the earningsof a sex worker. Only the girl will getarrested.”

Likewise, Sudha (name changed)pointed out the contradictions in therelating to brothel keepers: “If there isno brothel keeper, where will all thewomen in sex work go?” According toSagar, “The woman doing sex work inbrothel is safer than a girl workingoutside. Going to a lodge is not alwayssafe, a woman can earn at leastsomething even if she is giving a cut[commission] to the brothel keeper. So,under the law a brothel keeper might bea criminal but for us she is not. Only richcustomers or young sex workers can goto a lodge, many customers coming tous are daily wage earners so the brothelis the best option.”

Bharati (name changed) from Kumtanarrated how she turned around thesection about living off the earnings ofa sex worker “A rounding police (not araiding police) knocked at the doors atabout 1.30 at night. He forcibly tookaway the man who was with me anddemanded 5000 rupees to let him go.He then came to me and threatened toclick my photograph. I asked him howcan a rounding police knock at awoman’s door at midnight? Isn’t itharassment of a woman? We haven’tcreated any ruckus or not troubledanyone. Is it right to trouble us? By thenhe already had taken 2000 rupees.

Then I told him that as per ITPA section4, it is a violation of the law to forcetake the earnings of a sex worker. Iasked him to return the money and toldhim I will reach the police station in themorning. I could deal with such issue asI had received training. All thanks to the

proper training that we have received.”Said Amrita (name changed) of Pune,“We know law says that you should notstand on streets, don't attractcustomers, but even if we don't dothese things, the police still arrest us. Sowe will earn Rs 200 from a customerand if got arrested then we land uppaying Rs 1000 as fine.”

“Ok, so we can’t give our income to ourparents. But then what about thepolice? They take money from us all thetime. They don’t only ask us but takemoney from the customers too. Takethem to the ATM and ask to withdrawmoney and hand it over. And as high asRs 5000-6000, not just Rs 500 or 1000,”revealed Kavitha (name changed) ofPune.

Sakina from Kumta, pointing out thatthe ITPA is supposed to prevent humantrafficking said that now, it is considereda law to control sex workers. But, thelaw was made to prevent any type ofhuman trafficking, like, forced labour,marriage. Society and the governmentthink that it is meant for sex workers. Ittakes a lot of time to change thisthinking. If someone is trafficked forwork or marriage, they think that it isfor survival. With sex workers, theywon’t consider it consensual orvoluntary. It’s a big challenge, becausesome sections in the law itself aremeant to be for sex workers, like adultscannot live on the earnings of a sexworker, children cannot live in thepremises where sex work takes place,etc. It implies that sex workers traffictheir children into sex work. But, the factis that we choose sex work to give ourchildren a better life. Because of thisforced separation, relations between asex worker and her children alsobecome fragile.”


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Kiran from VAMP highlighted the factthat the objective of the ITPA was notreally being met. “There is certainlytrafficking of minors and adults. Also,when people want to move in search ofwork – there is trafficking in that also.But the moral aspect is only applied tosex work. There has been no benefit [ofthe law] to anyone – people have onlysuffered the negative impact of this.And it is the sex worker who hassuffered the most. If we actually see theworking of this law, it does not affectthe people it was meant to benefit. Forinstance, there are children who aremoved from one place to another to beforced to work (child labour).”

Significantly, during focus groupdiscussions when sex workers wereasked if they had ever heard from anygirl/woman that the police helped her ifshe wanted to leave sex work, theresponse was “no”. Instead, the law wasused to harass sex workers or coercethem into quitting.

Said Ambika (name changed) ofThrissur, “We don’t know clearly whatITPA is, but police are using this againstsex workers. Police release us ifsomeone comes and posts bail or paysa fine. There are cases where womenhave arrested for one or two monthsunder this act.

According to Mary (name changed)from Thrissur, “We have heard aboutITPA but we don’t know the sectionsunder this act. Police will tell womenwhen they arrest them. They book themunder various sections. If police catchwomen along with their clients, womenhave to pay Rs.10000 and produce twopersons to provide the bail. Otherwisethey have to face six months’imprisonment.” Selin says she wasarrested for two days when police

caught two women who were in herhouse. Police gave them money andframed a fake case. All the women werebetween the ages of 25-30 years. Policearrested me under trafficking and thecase was booked under ITPA, publicnuisance and for the work of a pimp.Police mentioned in the case that I wasinvolved in a ‘sex racket’ and traffickingof women from Bangalore and otherstates. The police circulated theinformation to all the police stations inThrissur.”

Lakshmi (name changed) of Kozhikodesaid, “We were arrested by town policeat a time when we were not with ourclients. Later we got out on bail afterjudicial custody of 14 days. Lawyers gotus out us on bail and informed us thatwe were booked under ITPA and this isnot an easy case. It was only then thatwe came to know about the ITPA.”

Farida (name changed) of Kozhikodeadded, “We know that ITPA is meant tocontrol sex work and sex workers. Butsociety and police has not accepted sexworkers and hence we have beenmarginalized. We want society andpolice to accept us as sex workers. Wewant to get rid of this sigma.”Ameena (name changed) of Kozhikodehad the most damning comment aboutthe law that is supposed to preventtrafficking: “I have heard about ITPA andit is to punish sex workers.”Sakina of Kumta related a case of grossmisuse of the law. “A sex worker wasworking in our HIV programme. She wasresponsible for visiting brothels andsupplying condoms. Police were eyeinga particular brothel with a view to raidit. On that day, she went to the brothel,gave them condoms, came back andwas standing in the bus stand. Apoliceman came and asked her to comewith him to the police station. Since she


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had conducted police sensitizationprogrammes she thought they mightwant to talk about the programme, shewent along. However, they snatched herphone and bag, put her into a cell anddid not even allow her to talk toanybody.

Though she was arrested in a bus stand,they had registered a false case of arrestduring a brothel raid, showing that shewas a brothel madam. Somehow, wearranged to bail her out. The case wenton for four or five years and she did noteven know the details of the case. Eventhe lawyer she had hired kept on askingfor later dates so that he could extractas much as possible from her. Whiledoing some sensitization for thejudiciary, one of our members sharedthis story and one judge showedinterest and support. Then the case wascleared saying that she was not thebrothel madam.” Sakina also revealed that the policewanted to raid the brothel, but somepolicemen with insider contactsinternally used to pass on a warningeach time. This time they got a bali kabakra (sacrificial goat). “She gotharassed because of their internalgrudge. Also, in a sensitizationprogramme, she had spoken very

strongly about sex worker rights whichthey did not like it. This had made themen angry about her as she hadchallenged their ego. This was also areason to ‘fix’ her.”

The impact of the ITPA on daily life isdescribed by Nirmala of VAMP,“Sometimes we are told to pay Rs. 600,sometimes Rs 1000 or Rs 1500 and thenwe are let off. We used to think it wasover because we had paid the fine andcome away. But when we go shoppingand our relatives are with us whilebuying vegetables for example, theywould say that we are soliciting andthey would catch us. I remember whenthere was a big raid the police caughtus in the middle of the market placeand beat us there.

They accused us of gesturing tocustomers and doing sex work. ‘Wehave caught you in a raid – now cometo the police station’ they said. At thepolice station they tell us to pay a fineand then they release us. This isrepeated again after five or six days.”

Says Tayevva, pointing out a basic flawin the law, “How do they know who isdoing sex work and who has steppedout of the house. How does the lawdifferentiate between the two?” In themonth of March, there is a drive toarrest since they want to show numberof arrests at the end of the year, shesaid.

Criminalizing third parties

Another challenge in the law is thecriminalization and consequentharassment faced by women who arebrothel owners. In the context ofbrothel-based sex work, narratives showthat brothel owners are an integral partof the work. They provide a safe space,


When we go shoppingand our relatives are withus while buyingvegetables, they (police)would say that we aresoliciting and they wouldcatch us.

- Nirmala, VAMP

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and a supportive environment for sexworkers. Many brothel owners are alsocurrent sex workers who give their workspaces on rent for other sex workers.The law criminalizes not just the brothelspace but also the construct of thebrothel owner itself. A Rights-BasedEmpowerment Approach121 ofIncorporating brothel owners intoHIV/AIDS programming has shown thattheir position of influence can beutilized to the benefit of all interestedparties. Further, engaging brothelowners in discussions about sexworkers’ rights may help brothel ownersto work with, rather than against, sexworkers. In addition, brothel ownerswho are themselves sex workers may bein a better position to understand thechallenges sex workers face.

Programs following a community-basedapproach have also recognized theimportance of allowing sex workers tocollectively determine what role brothelowners should play and negotiate withthem. When sex workers are able todefine the role of brothel owners,weeding out those intent onmaintaining abusive policies, it aids inrebalancing the uneven power dynamic.

Raids and consequent arrests of peoplefor running brothels where adultconsenting sex workers are present,further pushes sex workers into aposition of opting for unsafe spaces todo sex work. For instance, after the shutdown on the brothels in Kolhapur, allthe sex workers were forced to do sexwork in unsafe spaces.

Going back to the stories and narrativesof 193 consenting sex workers whowere incarcerated for various durations,we tried to find out how they shapedtheir lives after release. Again, theevidence is overwhelming. 152 out of193 (78 %) women returned to sex workafter release.

Today 72% of the total consentingwomen continue to be active in sexwork, 2% had left after doing sex workfor some years either to marry partnersor to settle in other places.5% havesince died, 11% continue to beincarcerated and 6% could not betraced at the time of the research. 7women left sex work after theraids (4%).Of the 11 women who are untraceable,6 are from Kolhapur. According toanecdotal evidence from their peers,they left Kolhapur in fear after having

E. New Life after theRescue : The Myth


121. Rights-Based Sex Worker Empowerment Guidelines: An Alternative HIV/AIDS Intervention Approach tothe 100% Condom Use Programme Monograph Series 2. Published by Sampada Grameen Mahila Sanstha,July 2008

Raids and consequentarrests of people forrunning brothels whereadult consenting sexworkers are present,further pushes sexworkers into a position ofopting for unsafe spacesto do sex work.

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been forced to give affidavits that theywould leave sex work. No concretefollow-up has been possible regardingthese women. Two women had beenrepatriated to Bangladesh as per reportsprovided by the NGO engaged in raid,rescue and rehabilitation.

The moot question is how these raidsand the subsequent incarcerationimpact the women when they come outof the correctional homes. The mythassociated with the return is that notonly do these women give up sex work,but their lives take a turn for the better.

As the data indicates, 85% of thewomen chose to return to sex work, buteven these women did not have it easyafter their return. Discussions indicatethat the impact of these periods ofincarceration is devastating for thewoman and her family and in manycases pushes them closer to destitution.

Victims of Rehabilitation?

A discussion with women in Kolhapurgenerated revealing answers to thequestion, “You were in a correctionhome for nine months and were alsotaught new options for a livelihood. Butyou came back to sex work. Why have

you not thought of starting a life withthe livelihood options that were madeavailable for you?”

Said one of the women, “There was toomuch debt. My health is not doing wellbut I come here [to the city]. There istoo much of debt, four children to lookafter and there is no one in the villageto take care. It has been eight monthssince I came back. I have taken a roomfor rent and am staying there. I had keptmy gold with a money lender to see mydaughters through the eight monthsthat I was locked up in the remandhome. Once out, I went back to sexwork in order to look after my fourdaughters.”

Skills training for women in correctionhomes includes tailoring, embroidery,painting, knitting and pottery amongother skills. However, in the absence ofmarketability of the products, such self-employment schemes remain poorlypaid and below subsistence level. By nomeans can these options beeconomically viable as compared withsex work.

Sugandha explained why she wouldrather not do the kind of work that issuggested in the rehabilitation home –sewing or making pickles: “Because theincome from this work is less.”According to her, “In sex work, themoney is unlimited but in other workthe money is limited. Also, in our ownwork, we are free to work when we wishand if we don’t then we do not.”

The stigma also contributes to womennot wanting to go back to their villages.Says Reena from Pune who has twiceescaped from rescue homes, “In theorganization, they are asked if they wantto stay there or want to go back to theirhome town. Women are afraid that if


In sex work, the money isunlimited but in otherwork the money islimited. Also, in our ownwork, we are free to workwhen we wish and if wedon’t then we do not.

- Sugandha, Sangli

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they go back to their village, they willbe caught again or not accepted bytheir parents. So they stay on in theorganization and are given some work.”

Some of the women share that theyagree to stop sex work in exchange forbeing released from the rescue homes.However, after staying away for 6months to a year they return to sexwork in the same areas in Pune. In thecase of some of the women in Kolhapur,they left Kolhapur and started workingin brothels in other places which weremore secure from the indiscriminateraids.

Vidya (name changed) has been pickedup twice during raids in the Punebrothels. She is hesitant to share herstory as she fears that she will bevictimised by the police and rescueNGOs. At the time of the first “rescue”she was married with a young child.However, at the rescue home she wasrepeatedly told by the officer in chargethat she “must refer to her husband as adalal [pimp] and not say that she had achild”. I told them many times to releaseme but they refused. They told me tolearn how to make soap and agarbati(incense sticks). Some of the otherwomen were taught tailoring. I was justnot interested, but then the wardenbeats you if you ask too manyquestions. I too was beaten a couple oftimes. Finally, my husband contactedsomeone and helped me to come out. Iwent back to my village for a year andthen returned to Pune to do sex work.”

Meenakshi from Koppal, Karnataka, toldher story of how she entered sex workand decided to stay on. “I was workingunder a brothel madam in Delhi. Istarted working at the age of 12.Someone kidnapped and sold me forRs. 5000. Two more girls were sold

along with me. The Karnataka andAndhra Pradesh police raided ourbrothel area in Delhi as they hadreceived a complaint of trafficking girlsfrom here. So many young girls weretrafficked. They brought all of ustoBangalore, trained is in bag making etc.Many of us got released and went backto Delhi some are doing sex work there.I came back to my place [Koppal] andstarted doing sex work here.”

Increased Debt BondagePost Rescue

The research showed that the raid,rescue and rehabilitation process onlyserved to accentuate the debt cycle.Despite a package to rehabilitate‘victims’ of sex work; income generationskills; small capital to set up incomegeneration units and linkage to thelocal bank, village panchayat and self-help groups, rehabilitation does notseem to be yielding the intendedoutcomes.

Ironically, the raids become a burden forthe women than a boon since itaccentuates the vicious cycle of debt.Almost all the women who wereinterviewed separately shared that theyhad to take debts to pay for the legalfees, fines, pay the police. On anaverage a woman who was picked up ina raid paid anywhere between Rs. 2000-25000. In the case of a woman in Pune


Raid, Rescue andRehabilitation processesonly serve to accentuatethe debt cycle.

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she shared that in the first raid herhusband paid money for her release.During the second period ofincarceration she paid Rs. 5000 to “beallowed to run away” from the rescuehome.

In Kolhapur, 28 women picked upreported that they had to pay atdifferent points of time either as fines,to be released immediately or to bereleased from the rescue homes.Payments ranged from Rs 1500 to thelawyer, Rs 1000-2000 to the police whopicked them, Rs 1000 to the police whoreleased them, Rs 2000 to the brothelownerto pay the police for their releaseand assorted amounts for fines. Familiestook extensive debts when the womenwere incarcerated to pay off theseamounts. Says one woman who waspicked up in the Kolhapur raid, “Eventhe team of police men who left us inthe middle of Aatani village, demandedmoney. We gave whatever money wasleft between all of us. We werepenniless and in bigger debt by thetime we were released.”

In the case of the raids in Satara, sixwomen paid Rs. 6000, for legal fees anddocumentation. One woman paid Rs.60,000 towards bail expenses and twowomen paid Rs. 20,000 to the lawyers.More often than not, it was the brothelowner who advanced the money to thesex workers. Women picked up in raidsare usually released after makingpayments between Rs. 8000 and Rs10,000 to lawyers, police personnel andother intermediaries. Says one of thewomen, “We gave Rs. 1000 each to thepolice, Rs. 2000 to the house owner, Rs.1000 to the man who came to check ifwe had parents, Rs. 1500 to the lawyer.After this we were released in twobatches of 14 each.” The families of thewomen took debts from various peopleto make these payments and after theirrelease from the rehabilitation, womencame back to sex work and spentconsiderable time in repaying thesedebts.

Mahadevi, member of Saheli SanghPune says "Many women who havebeen in rescue homes for severalmonths and out of business are tellingus that they not earning much now.They are forced to borrow money eitherfrom brothel keeper or money lender.The interest rates are also very highranging from 15 to 30% per month. Tosustain their daily lives they are takingloans and also send amounts to theirfamily members in the villages. Thefamilies also have not been receivingmoney from the woman for a longperiod of time and are in need largeamounts to make up for the debt thatthey may have incurred."Reena from Puneshares that as she wasin shelter for a longer duration and wasnot able to send money to her parents(she sends at least 20 thousand rupeesper month to her parents) she had nochoice but to borrow Rs. 1 lakh rupees

Many women who havebeen in rescue homes forseveral months and outof business are telling usthat they not earningmuch now. They areforced to borrow moneyeither from brothelkeeper or money lender.

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from the money lender with 20%interest. She need that money to takecare of her old parents and her elderdaughter who stays in the village.

This has on occasion led to greatervulnerability for the women. Forinstance, Seema from Pune shares thatbefore getting 'rescued' by force andbefore her stay at rescue home she wasable to refuse customers if she wantsbut after coming back to work she isforced to entertain each and everycustomer as she has incurred a hugedebt and has to earn much more torepay that.

Rukavva (name changed), Kolhapur says" I am doing sex work in Sangli nowaway from Kolhapur. A lot of money wasspent during the eight months I was inthe rescue home. My gold is pledged toa money lender. I have to take care offour children. I keep going to Kolhapurthinking that they will allot some landfor me."

Shantamma (name changed), Kolhapur"When we were doing sex work inKolhapur in the brothel we were payingmuch less since we were together. Therewas a municipal water connection andthe electricity bill also was very low. Weused to pay around Rs. 500 per monthrent. Now we are living separately sothe costs have gone up for us."Bharathi from Sangli described thecoercion at the correctional homes toleave sex work and adopt other forms oflivelihood, “They said that we have todo the work that they will give us backin our village. We know that if we dothat kind of work for a livelihood, ourhunger will not go but due to fear ofthe police we had to say yes. All thetime, I was wondering how my familywould run without my earnings, mybrother alone is the one who runs the

house. And on one side the police saythat sex work is bad. But I was sofrightened that I had to tell them that Iwould go back to my village and dosome work. After being released I wasin my village for one and half year.”

Gayathri (name changed) from Puneshares that in her stay at the shelterhome she was made to learn tailoring,but after some time she was finallyreleased after she said she would leavesex work and go to her village. Afterliving for a year in her village, shereturned to Pune to do sex work.

In order to break the cycle of povertyand debt bondage, Huligemma fromKoppal relates that they had formed acommittee under the District Collector(DC) and called about 40 to 50 sexworkers. “In our presence, the DCsanctioned loans. We didn’t know thatthat was a rehabilitation loan, we weretold that it was for sex workers. There,they told us to stop sex work and takethe rehabilitation facility. One of thegovernment officials said that you canavail the loan because it is available


I am doing sex work inSangli now away fromKolhapur. A lot of moneywas spent during theeight months I was in therescue home. My gold ispledged to a moneylender. I have to take careof four children.

- Rukavva, Kolhapur

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now and that later, we could dowhatever we wanted. Some of themwanted to try and went to the bank toapply. There, they started askinghundreds of questions : how will repay,how much do you earn per client, howmany clients you do in a day, etc. Theydenied the loan saying that they will bequestioned by their auditors for nothaving recovery surety. None of themwas able to avail the loan. The officialrecord says that 77 of them have takenthe loan and stopped sex work, but thereality is something else.”

For a process that seeks to save womenfrom exploitation, the raid, rescue andrehabilitation process only served toaccentuate the cycle of debt bondageand increase their vulnerability.

Fear, Alienation and Destitution

The experience of incarceration is atraumatic one for many women whoemerge with a sense of increasedalienation from their families andcommunities. Not only are they arescared to reaching out to the collectivesor groups that they were part of before

being raided, they lose faith in thecollective process and reject allassistance. Saheli Sangh which hasbeen working in the Budhwarpeth andhas seen the impact of long durations ofincarceration on the women when theyreturn.

Meenatai one of the older members ofSaheli Sangh and its board membersummarizes this, "Many women havestopped coming to the collective aftertheir return. It has become much moredifficult to communicate with them. Thefear of the police is very high. Theyprefer to hide their identities from eventhe collectives and so remain out of theservices provided by us."

Mahadevitai, another Board Memberfrom Saheli Sangh adds, "A lot of themare alsoangrywith us for not helpingthem during the raids. They ask us,“where were you when we were beingraided by the police? What did you doto help us? We came out after payingbribes. The brothel owners helped us.So why should we come to you?"Ironically, the raid and rescue measurehas also pushed them into the clutchesof brothel owners more than ever andpushed them underground.

Shakuntalatai founder member of SaheliSangh says, "Brothel keepers payregular 'hafta' to the police in order toprevent these women from beingharassed and getting picked up by thepolice again. A lot of money has beenpaid to the police to ensure that theydon’t raid these women again. So theyare very reluctant to send those womenfor attending regular clinic services atthe collective."Sindhu (name changed) from Jalgaonhad her own home but after her homewas sealed more than 10 familymembers were affected as they lost

Many women havestopped coming to thecollective after theirreturn. It has becomemuch more difficult tocommunicate with them.The fear of the police isvery high.

- Meenatai, Pune


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their residence. She is repeatedly calledto the police station and court for whichshe spends a lot of money. Her earningshave gone down tremendously.

There were six cousins and friends ofSindhu and they were living together asa family when the brothel was raided.They lost that support and kinship as aresult of the brothel being shut down. Kasturi (name changed) one of the sexworkers in the Jalgaon raids was soscared after the raid that she left thearea. When she was with us, we hadcounselled her a lot to start usingcondoms and to be safe. After the raid,we have lost contact with herRadhika (name changed) was picked upin one of the raids in Jalgaon. Localgoons have destroyed her home.Because of the goons, the police hadraided the community saying that therewas trafficking happening. Radhika hassince lost her home and is living undera bridge in Jalgaon in a temporarysqualid shelter made of cloth mats.

Marked by the Law

The spectre of another rescue andincarceration looms large on thewomen even after they come of thecorrectional home.

Bharathi, Sangli says, " My father wasasked to sign a paper that I will not letmy daughter do sex work again. Thepolice used to keep telling me that ifyou leave sex work, we will release you.So we told them we will leave sex workand not come back. I went back to thevillage and I was frightened that if thepolice see me they will arrest me. Theyused to come to my house and take mysignature. They used to come in policevans and check whether I was there orwhether I had gone to another villagefor sex work. They checked three or four

times. Twice I was in the fields whenthey came. I did not have a puccahouse. Fearful of being arrested Iremained in the village for 1 ½ years.Once I had gone to a wedding nearbyand was not there to sign. Myorganization asked me to come toSangli court and sign. The judge said“why do you have mehndi (colour) onyour hands and nail polish – Have youhave started doing sex work againsomewhere else?”"

In the context of raid and rescueoperations that serve only to increasethe vulnerability of women in sex workand do not penalise traffickers,collectives of sex workers have madeseveral successful interventions. TheFocus group discussions brought out

F. Combating Trafficking through Collectives

They (police) used tocome to my house andtake my signature. Theyused to come in policevans and check whether Iwas there or whether Ihad gone to anothervillage for sex work. Theychecked three or fourtimes. Twice I was in thefields when they came. Idid not have a puccahouse. Fearful of beingarrested I remained in thevillage for 1 ½ years.

- Bharathi, Miraj


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many examples of effective solutions bythe collectives.

Sakina of Kumta related one instance oftheir intervention, “Two girls from ourcommunity were married to families inRajasthan. Initially they treated the girlswell. But, when they reached home, thegirls were forced to get into sex work.One girl kept informing her mother andtelling her about the torture she wassubjected to. Her mother tried toconvince her to stay, reassuring her that

she would speak to her son-in-law andhis family. One day the girl called me forhelp as her mother was not doinganything. She told me that her husbandsends her to clients, and if she refusesto go, her mother-in-law beats her up,and denies her food. The girl’s motherdidn’t seem to want to take up theissue. I got a sense of trafficking andinsisted on talking to the girl. We gother phone number and reached her. Thegirl requested us to free her from thefamily, she did not want to stay there orgo back to her mother. We helped herget a job in a clothing shop. Now, she is

on her own and happy.”

Mohini related another story, “I sent mydaughter for a maid’s job to Karwar asthat family was known to one of ouroffice staff. To avoid her communicatingwith me, they had sent her to Pune,from there to Mumbai. Once in a whileshe used to call me and tell me thatthey harassed her a lot. Once, she toldme that they must have tranquilized herand when she was on her bed, she felt aman sitting on her bed. I informedMahila Kranti [an NGO] to help to gether back. Three of them went to therethey did not let them know the placeand instead made them wait near thebus stand. They waited patiently andfreed her.”

Hazrat Bi shared an incident thatoccurred in Gadag, “A boy had broughta girl from Naragund town. There was afair in Gadag that day. They were sittingjust outside a brothel, he was planningto sell her there. I happened to go thereto get something in a nearby shop.Somehow, she escaped from him andcame to me, and started crying andpleading with me to save her. The boycame along with four more men,searching for the girl. He told me thatshe was his lover, but, she told me thathe was trying to sell her to those men. Istarted beating him in public. There is apolice station just opposite to thisplace. A policeman came running to thespot, but stood by like he was notbothered. I took all of them to thepolice station asked them to takeaction. They started giving reasons. I didnot take the girl to the police station,we arranged to send her off to herhome. The police beat all of them upbut did not register a case.”

Mahadevi from Kumta related the caseof a woman who wanted to leave sex

Suppose I go to a policestation and ask for helpand tell them that I camefrom Budhwargalli (redlight area) they will saygo back to where youcame from. You have notasked us when you camehere.

- Sudha, Pune


work and get married, “Two womentook her to Pune saying that they wouldget her married. When she went therewith them, they were trying to sell heroff to someone. She got to know thatthey had sold many girls like this before.I knew her well, so I called her a weeklater. She did not even have currency (inher phone) to speak to me, she was inthat state. Somehow, she reached here.Similarly, they had sold another womanwhose child was left behind. Initially,they did not file a complaint, but sheinsisted on filing a case and went tocourt two or three times. The policehowever closed the case and she didnot get justice.”

Meenakshi of Koppal narrated anincident in Delhi, “In the brothel inDelhi, a girl of about 15-16 was broughtthere. She kept crying continuously. Thepeople at the brothel threatened, beatand did everything to stop her. I toldthe girl to keep crying so that theywould get scared of the police gettingto know. Even after so much of beatingsand convincing, she did not agree tocontinue there. I was coming back to myplace then. They sent the girl along withme. I dropped her her home in AndhraPradesh and came back. There is somuch trafficking happening.”

Said Deepak an NGO worker fromGumla, “When we take an actual case oftrafficking, the police does not want tohelp us at all, they call us pimps. Theyare not serious at all and instead theyblame us and say that we must have ahand in this.”

Sudha (name changed) from Puneconcurred that the police do notrespond to sex workers who say theywant to quit, “Suppose I go to a policestation and ask for help and tell themthat I came from Budhwargalli (red light

area) they will say go back to where youcame from. You have not asked us whenyou came here.”

Amrita (name changed) of Pune added,“Once, a girl was travelling by train. Shewas going for someone’s wedding. Aman lured her into the red-light areainstead. He already had a girl in thearea. She saw the new girl and startedbeating her. I and some other women inthe area took that new girl to the policestation. She told her entire story. Thenwe released her from that man. We gaveher some money to go back to herhome and sent her back. We haverescued two or three girls like that.”

However, rescuing minors is alsofraught with risks, revealed Rukmini ofSangli, “Once there was a girl whomsomeone had got from somewhere tosell in the area. She was good lookingand small in build. So, we told her to sitin one room and went and got thepolice. The police arrested the womanwho had gone to inform the policesaying that you have kept her in thatroom so you are the one who got herhere for selling it to someone. Seven or

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When we take an actualcase of trafficking, thepolice does not want tohelp us at all, they call uspimps. They are notserious at all and insteadthey blame us and saythat we must have a handin this.”

- Deepak, Gumla


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eight of us went and told the truth butthe police did not listen to us. So howwe should help such girls?”

Lakshmi narrated the story of a girl inDesai Camp, Karnataka, “They hadbrought a village girl with false hopes ofgetting her anganwadi teacher’s job.Out peer educator got to know aboutthis when she had been there for thefield work. She informed the CBO, we,went there immediately and enquiredwith the couple who had brought thegirl. They said that they have broughther for maid’s work, but when we spoketo the girl, she said that she had beenpromised that she would get ananganwadi worker job, but, here theyare forcing me to do sex work. We tookaction immediately. We called herparents there and asked them to takeher home. They appreciated our helpsaying that we had saved their daughterwhose life could have ruined.”

Explaining why they did not approachthe police, Lakshmi said, “We discussed

the case and we were ready to go topolice, but, we also had to think aboutthe girl’s future. If a case is registered,we know how much harassment shewould face during the enquiry, thatcould trouble even her marriage later inlife or it might affect her chances ofmarriage. Hence, we all decided not togo to the police.”

Nillavva of Karad highlighted thesignificance of support from gharwalis(brothel owners), “The gharwali takescare of girls from problem of goondas,and HIV. If anyone is forcing someoneto enter into sex work at that time westop that too. We are not allowing thethings which are problematic to girls.We stop those at our doorstep. Thegharwali takes care like a mother.” If thepresence and role of gharwali isrecognized, there will be more safety forgirls in the community was theconsensus.

Said Lakshmi of Koppal, “ITPA issupposed to prevent childrentrafficking. But, some women also arebeing forcefully brought into sex work.They bring young women from villagesby giving false hopes of jobs and pushthem here into sex work. This is realtrafficking. If organizations like ourscome to know about such incidents, wego there and inform them about ITPAand inform parents not to send theirchildren without having enquired andconfirmed information about the job.We inform both parents and peopleinvolved in trafficking about ITPA andsend the children back to parents. Weare there in the first instance to stopsuch things.”

VAMP has developed a systematicapproach to prevent and respond toforced and minor entry into sex work.Until 2000, there were several under-

The gharwali takes careof girls from problem ofgoondas, and HIV. Ifanyone is forcingsomeone to enter into sexwork at that time we stopthat too. We are notallowing the things whichare problematic to girls.We stop those at ourdoorstep. The gharwalitakes care like a mother.

- Neelavva, Karad


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age sex workers in the communitiesVAMP works with. Today there is acomprehensive system, monitored bythe sex workers themselves, to ensurethat no trafficked women or underagegirls are working within the community.Every mohalla (site) in which VAMPworks, has a committee, which acts as adispute redress mechanism amongstsex workers. The VAMP mohallacommittee monitors trafficking andliaises with the police.

When a new entrant wants to work inthe VAMP areas, she must provide abirth certificate or other proof of age.Alternatively, she is encouraged to visitthe local government hospital whereshe receives a certificate of agefollowing a physical examination. Theonus is on each gharwali (brothelowner) to ensure that the womenworking in her house are over 18 andcopies of the birth certificates aremaintained by VAMP. 124

Minor girls who come to thecommunities to work are broughtbefore the VAMP committee. Thecommittee members explain why sheshould not enter sex work and give herinformation about her rights as a child.Counselling is a critical part of thisprocess since some traffickers mayexploit her vulnerability; it is notenough to just turn them away.

The committee then tries to establishwho has sent the girl to the community.If they suspect that the girl has beentrafficked, the issue is referred to thepolice, who acknowledge that womenfrom the VAMP collective inform themwhenever young girls are trafficked intothe area.125

In 2015, this approach enabled theVAMP team to identify a young womanfrom Nepal who had been duped intomarriage, taken to Allahabad and sold.When she came to Sangli, the youngwoman was supported by the brothelowner who was a member of VAMP toexit sex work and return to her village inNepal. The brothel owner not onlysupported her to exit but alsoaccompanied her.126 To date, VAMP’sstrategies have enabled it to respond to26 incidents of trafficking in its areas.

124. Interview with sex worker from VAMP, Sangli, India. 5 August 2008.125. M. Gupte et. al., “In the Name of Rescue: A Report of the Fact-Finding Committee Investigation into theAlleged Molestation/Rape of a Minor Girl by a Decoy Customer in Uttam Nagar, Miraj, Maharashtra”. May2007, 3.126. Her story is captured as a graphic narrative to educate sex worker collectives about fighting exploitativepractices in sex work https://www.sangram.org/resources/Daughter-Of-The-Hills-Sangram.pdf

VAMP has developed asystematic approach toprevent and respond toforced and minor entryinto sex work.


Endnote :

Why Raid, Rescueand RehabilitationStrategies Backfire

89

90

The experiences of sex workers picked up duringraids reveal that this strategy rarely addresses theissue of trafficking, but instead results in large-scale human rights violations, and in factincreases vulnerabilities such as falling into debtbondage and other exploitative practices.

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Why raid, rescue andrehabilitation strategies backfire

Anecdotal information that manywomen return to sex work even afterbeing ‘rescued’ and ‘rehabilitated’provided the impetus to collectnarratives to inquire into thisphenomenon.

We began to search for evidence toanswer crucial questions :If women entered sex work by forcethen why would they want to return tosex work voluntarily?

If they entered because of lack of skillsto do other jobs, why did they returnafter they were taught skills that couldhave helped them earn?

If they entered sex work due to ‘force ofcircumstance’ why would they returnwhen those circumstances had changedfor the better?

If they entered because of deception,lure, by unscrupulous persons who theytrusted, why would they return whenthey were given a chance to make a‘new’ life?

If they entered because of lack oflifechoices, why would they ‘choose’ toreturn?

The bedrock of the problem is the law,The Immoral Traffic Prevention Act(ITPA) which in its name itself conflates‘immorality’ and ‘traffic’ in women, theinterpretation on the ground being ananti-sex worker approach.

The law states that a woman who is‘"rescued" as a consequence of raid andrescue operations can be handed overinto the "safe custody" of her husbandor parents or guardian and this includesadult women who have consented tobeing in sex work.

Once the magistrate is satisfied on theantecedents and "suitability" of thehusband, parents or guardians, he orshe may make an order grantingcustody to them.

This section in ITPA which infantilizeswomen is debilitating for women whoare in sex work as adults livingindependent of parents or family.

Many are heads of their households andprimary providers for their families. Inone instance the younger brother wasthe only family member. He had to ‘takecustody’ of his older sister with the helpof an elderly relative who was‘produced' for the purpose.

Endnote Why Raid, Rescue & Rehabilitation Strategies Backfire

“They say sex work is bad and that weshould stop sex work. They speak gently,give you food, medicines, toiletries, clothes,and everything but the freedom to be whatyou want to be”.

- Padmawwa,(In rehabilitation for eight months)

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In many cases adult women do notinform their families that they are in sexwork. When directed by the magistrateto produce husband/parents/guardiansin court they are forced to contactfamily members in humiliatingcircumstances.

In many cases such custody isaccompanied with an affidavit of thewoman undertaking that she will not dosex work in future.

Raid and rescue are the most commonlyused strategies to address trafficking inwomen and girls. However, theexperiences of sex workers picked upduring these operations reveal that thestrategy rarely addresses the issue oftrafficking, but instead results in large-scale human rights violations, and infact increases vulnerabilities such asfalling into debt bondage and otherexploitative practices.

In the raid, rescue, rehabilitationscheme, women who want to remain insex work are picked up and detained,which explains the high rate ofreturnees to sex work.

This research has also revealed theinherent violence during the raidscarried out in the name of rescue. Whenaided by a violent police force incollusion with the ‘outsiders’ - antitrafficking units or ‘saviours’ who treatthe community like criminals andbelieve they part of the traffickingnexus, there is a total loss of trust andhope in the women thus ‘rescued’.

The narratives and quantitative data inthis study demonstrate a failure toachieve both the objectives of the raid,

rescue and rehabilitation strategy:rescuing victims of trafficking andcreating better livelihood options orprosecuting traffickers.

The research data validates theexperience of women in sex work,realities and experiences that have notbeen heeded by policy makers and anti-trafficking NGOs alike.

Listen! The Numbers Speak,the Women Speak

Today if you pick me up in a raidand say that you are rescuing me

for being trafficked 25 years back, andtell me ‘you are being exploited’, Icannot accept that. I am happy todayand my life is settled. Opening up anold story and saying that I amvictimized is incorrect.

- Kiran, Sangli,trafficked into sex work in 1992

��They seek to rake up what hashappened in the past. They don’t

listen to us. Even if we scream and saythat I am not victimized and exploitednow, they don’t agree with us.

- Maya, Sangli

The police, NGOs and others involved inordering and conducting raids aregenerally not sensitive to the complextrajectory of the individuals theyencounter during raids.

The persistence of the ‘victim mode’runs through the entire enterprise,along with a refusal to listen to thosewho are purportedly being rescued.

Contrary to one of the usualjustifications put forth for raids – minors


in sex work –, the research found thatonly a minuscule percentage of thoseraided were minors.

Additionally, the research revealed thatan overwhelming percentage of sexworkers who had been picked up and‘rescued’ in raids had returned to sexwork after release. The returnees to sexwork included both those who hadearlier been trafficked as well as thosewho had entered sex work of their ownvolition.

Post-raid and rescue, many hadreturned to sex work at great risk tothemselves, given that they had signedundertakings that they would quit sexwork.

What do these numbers tell us, and arewe willing to listen to the womenbehind the statistics?

• 0.82% (2 out of 243) were minors atthe time of the raid, the rest wereadults

• 79% (193 out of 243) of the womenstated that at the time of the raidthey were voluntarily in sex work andhad not wanted to be ‘rescued’.

• 36% (13 out of 36) of women whohad been trafficked were currentlydoing sex work and stated that theywanted to remain.

• 77% (168 out of 218) women whowere released, returned to sex work.

The evidence thus indicates that rescueand restore missions have not onlyproven to be indiscriminate, violent, anddestructive of invaded communities, buthave also been ineffective in addressingthe problem of minors in sex work andadult persons forced into sex work.Generations of police raids have notbeen able to combat the menace oftrafficking in persons.

The only light at the end of this darktunnel comes from the collectives ofvigilant sex workers who are organizingthemselves to root out the violence andabuse in their own lives and that ofminors and women trafficked into sexwork.

In any community, the idea that arescue can be orchestrated from the‘outside’ using an oppressive policeforce that incites violence rather thanprotection, compounds the problem.

The strategy of raid and rescue withoutthe participation of women in sex workfrom that particular brothel orcommunity offers no protection to thewomen forced into sex work.

This would perhaps be more evident ifthe voices of the women at the centre ofthe debate are amplified.

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� � �

Annexures1

Status of Ratificationof Human Rights

Instruments

2Analysis of

individual cases

3List of Cases

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ANNEXURE 1.Status of Ratification ofHuman Rights Instruments

Annexure-1 Status of Ratification of Human Rights Instruments

Key International Human Rights Treaties,Optional Protocols, ILO and other Conventions

Status

1. International Covenant on Civil and PoliticalRights (ICCPR), 1966

Acceded - 10 April 1979

2. International Covenant on Economic, Socialand Cultural Rights (ICESCR), 1966

Acceded - 10 April 1979

3. International Convention on the Eliminationof All Forms of Racial Discrimination (ICERD),1965

Ratified - 3 December 1968(With Reservations)

4. Convention on the Elimination of All Forms ofDiscrimination Against Women (CEDAW),1979

Signed - 30 July 1980, Ratified9 July 1993 (With Reservations)

5. Convention on the Rights of the Child (CRC)1989

Acceded - 11 December 1992

6. Convention on the Rights of Persons withDisabilities (CRPD), 2006

Ratified - 1 October 2007

7. Optional Protocol to the Convention on theRights of the Child (CRC) on the Involvementof Children in Armed Conflict 2000

Ratified - 30 November 2005

8. Optional Protocol to the Convention on theRights of the Child (CRC) on the Sale ofChildren, Child Prostitution and ChildPornography, 2000

Ratified - 16 August 2005

9. UN Convention against TransnationalOrganized Crime (UNTOC)

a. Protocol to Prevent Suppress and PunishTrafficking in Persons especially Women andChildren

b. Protocol against the Smuggling of Migrantsby Land, Sea and Air

Ratified - May 2011

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10. ILO Forced Labour Convention, 1930 (No. 29) Ratified - 30 November 1954

11. ILO Equal Remuneration Convention, 1951(No. 100)

Ratified - 25 September 1958

12. ILO Abolition of Forced Labour Convention,1957 (No. 105)

Ratified - 18 May 2000

15. International Convention on the Protection ofthe Rights of All Migrant Workers andMembers of their Families (ICMRW), 1990

Not Signed

16. International Convention for the Protection ofAll Persons from Enforced Disappearances(ICPAPED) 2006

Signed - 6 February 2007Not Ratified

17. First Optional Protocol to the InternationalCovenant on Civil and Political Rights (ICCPR),1966. Op Prot -1

Not Signed

18. Second Optional Protocol to the InternationalCovenant on Civil and Political Rights (ICCPR),1989. Op Prot - 2

Not Signed

19. Optional Protocol to the InternationalCovenant on Economic, Social and CulturalRights (ICESCR), 2008

Not signed

20. Optional Protocol to the Convention on theElimination of All Forms of DiscriminationAgainst Women, CEDAW, 1999

Not signed

13. ILO Discrimination (Employment andOccupation) Convention, 1958 (No. 111)

Ratified - 3 June 1960

14. Convention Against Torture and Other Cruel,Inhuman or Degrading Treatment orPunishment (CAT), 1984

Signed - 14 October 1997


Status

c. Protocol against the illicit Manufacturing ofand Trafficking in Firearms, their Parts andComponents and Ammunition

Ratified - May 2011

Not Ratified

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21. Optional Protocol to Convention AgainstTorture and Other Cruel, Inhuman orDegrading Treatment or Punishment (CAT)2002

Not Signed

22. Optional Protocol to the Convention of theRights of Persons with Disabilities (CRPD), 2006

Not signed

23. ILO Freedom of Association andProtection of the Right to OrganizeConvention 1948 (No. 87)

Not ratified

24. ILO Right to organize and CollectiveBargaining Convention, 1949 (No. 98)

Not ratified

25. ILO Minimum Age Convention 1973 (No. 138) Not ratified

26. ILO Worst Forms of Child Labour Convention,1999 (No. 182)

Not ratified



Status

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This section narrates relevant facts, thedecisions by the High Court and criticalcomments with respect to each of thecases.

2010-2012

1. Tara versus State W.P. (Crl)296/2012 (Delhi High Court)

Facts : The Andhra Pradesh policeconducted a raid in the red light area ofDelhi and detained 41 women on thebasis of a search warrant dated20.2.2012 issued in a criminal case bythe Magistrate, Anantpur, AndhraPradesh.

The women were produced before theMagistrate in Delhi asking for transitremand to be taken to Anantpur inAndhra Pradesh. The women wereadults and did not want to go toAnantpur.

The Delhi Magistrate passed an orderdated 22.2.2012 under Section 17(1)ITPA granting permission to the policeto keep the women in safe custody andtake them to Anantpur. The womenwere sent to the Nari Niketan (rescuehome) in Delhi to await beingtransported to Anantpur.

The Delhi Magistrate Order waschallenged in Delhi High Court on theground that the petitioners lived inDelhi and the ‘rescue’ made by A.P.Police uprooted them and forciblytransported them against their consentand violates the fundamental rights to

equality under Article 14 and life underArticle 21 of the Constitution. The National Commission for Womenwanted the women kept in intermediatecustody for counselling and till a planfor their rehabilitation was formulated.

Note : In a similar operation by the A.P.Police in January 2008, 150 women hadbeen picked up from Delhi where theyhad been residing, out of which 75 wereforcibly transported to Andhra Pradesh.

Decision : The Delhi High Court heldthat the case was not covered bySection 15 as it was not a case of searchwithout warrant. Neither was the casecovered under Section 16 where amagistrate authorizes ‘rescue’ onreceiving a complaint.

The High Court held that the coercivemanner in which the police acted wasviolative of the fundamental rights toequality and life and ordered therelease of the women detained in theWomen’s Home in Delhi.

Comment : The case is illustrative of :

(a) The fact that adult persons, in thepresent case women who haveattained majority, are forcibly pickedup without their consent from theirresiding place by the police, eventhough they are not accused of anyoffence in the the guise of ‘rescue’under the working of ITPA.

(b) The fact that adult women are thendetained against their will and

ANNEXURE 2.Analysis of individual cases

Annexure-2 Analysis of individual cases

101

forcibly transported to placesagainst their consent under theworking of the legislation.

(c) That it is likely that had therequirements of Sections 15 and 16of ITPA been fulfilled the adultwomen may have been forciblytransported to Andhra Pradesh.

(d) That the women were picked up on22.2.2012 and spent about a monthand a half in detention till theirrelease by the High Court orderdated 13.4.2012.

(e) The importance of access of sexworkers to the higher judiciary. Themagistrate in Delhi had ordered theirdetention and forcible transportationto Anantpur.

2. Sangeeta Ashok Sanap versus Stateof Maharasthra 2011 Crl.L.J. 2206(Bombay High Court)

Facts : The Commissioner of Police,Mumbai sealed the premises on theground that illegal activities attractingthe provisions of the ITPA were beingcarried out. The power of theCommissioner to order sealing waschallenged as well as the issue of beingwithin 200 meters of any public placewas disputed.

Decision : The Court held that thepower to attach and evict included thepower to seal the premises. The HighCourt refused to go into the disputeabout the premises being situatedwithin 200 meters of a school.

Comment : The case is illustrative ofthe fact that the interpretations of lawby courts coloured by moral disapprovalof sex work generally favourcriminalizing activities around it.

3. Renu Bansal versus U.T.Chandigarh 2010 Crl.L.J. 600 (Punjaband Haryana High Court)

Facts : Three women were sitting in acar and one man was standing outsidethe car. The police sent a ‘decoy’customer with marked notes who wentto the car and gave the money. Thepolice immediately apprehended themand recovered the notes from thewomen.

Decision : The trial court convicted twowomen of soliciting for prostitution andthe man for living off the earnings ofprostitution and procuring, inducing ortaking a person for prostitution. Theappeal was dismissed by the SessionsJudge.

The High Court held that none of thewomen were offered to the decoycustomer.

The women did not come out of the caror offer their bodies for sexualintercourse and could not be held to besex workers. The High Court acquittedall three of the charges against them.

Comment : The case is illustrative of - (a) The importance of access to higher

courts. In this instance two lowercourts had on specious evidencewrongly convicted the persons underITPA.

(b) The discrimination against sexworkers evidenced in the practice ofsending ‘decoy’ customers toapprehend persons. The moraldisapproval of sex work leads to theacceptability of such a practice whichwould otherwise fall withinentrapment. Such a practice wouldnot be considered acceptable to


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establish other offences like theftand robbery.

4. Yogesh versus State of Rajasthan2010 Crl.L.J. 629 (Rajasthan HighCourt)

Facts : The accused person lured aminor who got separated from herparents in a train and took her to hisvillage, raped her and compelled her toprostitution.

Decision : The accused was convictedof abduction, procuring a minor forprostitution, rape under the IndianPenal Code and for using premises as abrothel and seduction of a person incustody for prostitution under the ITPA.

Comment : The case has no bearing onthe question of discrimination againstsex workers.

5. N. Vijaya versus State of Karnataka2010 Crl.L.J. 1050 (Karnataka HighCourt)

Facts : The accused man was convictedof abducting, rape, criminalintimidation, hurt under the IPC and forthe offence of taking a person forprostitution under ITPA by the trialcourt. The woman had alleged that shewas taken to various lodges andcompelled to prostitution.

Decision : The High Court maintainedthe conviction under the IPC butacquitted the accused of the offenceunder ITPA.

Comment : Under the ITPA, a lawpurportedly brought in to check exploitation and trafficking, theconvictions predominantly are of sexworkers. Rarely are traffickers,hotel/lodge owners or pimps convicted

under the legislation.

6. Narmada Govind Kamble versusState of Maharashtra 2010 Crl. L.J.1220 (Bombay High Court)

Facts : International Justice Mission anNGO, reported that a minor girl A whowas previously rescued was againworking as a prostitute in the samebrothel. The police raided the premiseson 3.5.2002 and found two girls withmakeup sitting there, A and B. The casepertains to B.

In the statement to the police at thetime B stated that she was 18 years ofage and was voluntarily working as aprostitute and no one had forced her. Bwas sent to a rescue home.

On 20.7.2002 B gave a statement to theProbation Officer that she had beenbrought on the promise of domesticwork and forced to prostitution. Fivepersons were charged with variousoffences based on the statement.

Decision : The High Court confirmedthe conviction of three persons forrunning a brothel and living off theearnings of prostitution under ITPA. Thepersons were also convicted forprocuring, wrongfully confining, sellingand buying a minor girl for prostitutionunder the IPC.

The court held that : “Even if it ispresumed that she was 18 years of ageat that time, she was brought in theprostitution about 5 to 6 months beforethat and therefore it can be held thatshe was minor at the time when she wasfirst put in prostitution”.

Comment : The case is illustrative of:(a) The discriminatory nature of the

working of ITPA in the context of B at


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the time of raid stating that she was18 and was voluntarily doing sexwork, yet being ‘rescued’ and sent toa rescue home.

(b) The working of ITPA in the context ofthe consent of an adult person at thetime of the raid. The court evenpresuming that B was 18 at the timeof the raid held that she ‘was a minorat the time she was first put in theprostitution’.

(c) The working of the raid and rescuepolicy. A had been rescued threemonths back and was back at thesame place.

(d) The role of NGOs who without anyconsultation with sex workers mayinitiate operations of ‘raid andrescue’.

(e) The working of ITPA in practiceleading to detention of sex workers,not charged with any offence, butrescued under the Act.

7. Smt. L versus State of U.P. CriminalMisc Application No. 30421 of 2010(Allahabad High Court)

Facts : A First Information Report (FIR)was lodged by a social organizationSankalp and charges of running abrothel, living off earnings ofprostitution, procuring and detaining aperson for prostitution were madeunder ITPA.

The petition in the High Court was forquashing the charges as under ITPAspecial police officers are to beappointed for dealing with offencesunder the Act and the FIR had beenfiled by a private person.

Decision : The Court observed thatunder ITPA the Special Police Officer is

to hold the investigation and carry outsearches and seizures, however, the Actdoes not specify the manner of lodginga FIR. The Court declared that anyperson can lodge an FIR and refused toquash the charges, holding that the FIRby the NGO was maintainable.

Comment : Like the previous case, thecase is illustrative of the role of socialorganizations in ‘raid and rescue’operations, which at times can lead tolong periods of detention of sex workersin rescue homes.

8. Nitu vs Government of NationalCapital Territory of Delhi, W.P. (C)4414 of 2012Delhi H C

Facts : The Sub-Divisional Magistrate,Paharganj, Delhi by order dated21.7.2012 issued notices toowners/manager to four kotha/brothelowners under Section 18 (1) ITPA foreviction as premises were being used asa brothel. The manager/owners filedreplies and were heard by the Sub-Divisional Magistrate and evictionorders came to be passed. Theconstitutional validity of Section 18(1)ITPA was challenged as arbitrary,unreasonable and violative of the rightto equality under Article 14 of theConstitution. The orders were alsochallenged on the ground that noticehad not been issued to theoccupiers/residents of the premises.

Decision :i. The High Court held that the power

of to issue notice for eviction for useas a brothel under Section 18(1) ITPAwas conferred on the DistrictMagistrate or the Sub-DivisionalMagistrate as a preventive measureto minimize the chance of a brothelbeing run within 200 metres of apublic place.


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ii. The power under Section 18(2) topass order of eviction was conferredon a Judicial Magistrate exercisableafter conviction under Section 3 or 7of the ITPA.

iii. The Court declared that the powerconferred under Section 18(1) ITPAwas not arbitrary and upheld theconstitutional validity of theprovision.

iv. The Court held that under Section18(1) ITPA it was not mandatory toissue notice to theoccupants/residents and the noticecould be issued to any of thepersons mentioned in the provision -owner, agent of owner, landlord,person-in-charge, tenant, lessee oroccupier.

v. The four orders of the SDM wereupheld as valid.

vi. However, opportunity was given tothe petitioners to submit theirobjections to the SDM within fourweeks and the SDM directed to passorders in accordance with law.

Comment :a) In the arena of sex work morality

plays a role in the interpretations ofthe provisions as well as theirvalidity.

b) The provision under Section 20 ITPAgiving power of removal of aprostitute from a locality is blatantlydiscriminatory and violative ofequality. However, the SupremeCourt in 1964 in the case of State ofUP versus Kaushalya Bai upheld theconstitutional validity of theprovision reflecting the stigmatizedposition sex workers in society.

2013

9. Shila Devi vs The State of Bihar,Criminal Appeal (SJ) No. 428 of 2013,Patna H C

Facts : According to the prosecutionShila Devi was apprehended along withthe victim, a minor girl, while going ona rickshaw. There was a verbalaltercation and protest by the victimwhich attracted the attention of thepolice and they were taken to the policestation. The police found that there isvariation in the statement of the ShilaDevi and the minor girl and suspectedthat the girl was being taken for illegalpurposes. A case under ITPA was filedand Shila Devi was convicted underSection 5 ITPA. Shila Devi appealedagainst her conviction to the HighCourt.

Decision :(i) The High Court held that the finding

that the girl was being taken forprostitution is mere conjecture and ithad not been established that shewas being taken for prostitution.

(ii) There were grave materialcontradictions in the testimony ofthe girl before the Magistrate andthe Court.

(iii)Shila Devi was given the benefit ofdoubt and acquitted of the charges.

Comment :(a) Apprehending and charging persons

indiscriminately under ITPA is acommon practice.

(b) The case illustrates that at timesmere suspicion and conjecture leadto arrest and detention with noconcrete evidence.


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10. State Vs Deepak, Sessions CaseNo. 57 of 2013 Additional SessionsJudge Special FTC-2 (Central), TisHazari Courts Delhi

Facts : The case was of a refugeewoman from Rwanda who waskidnapped, robbed, beaten up andraped by four persons in a car. Sheinitially went to the police station butthey disbelieved her, refused to take herto hospital and did not file an FIR. It wasafter two days with the help of an NGOthat she was taken to hospital and amedical examination done. There wasmedical evidence in the nature ofinjuries, matching of DNA samples, therecovery of the articles robbed from theprosecutrix from the accused. Thetestimony of the prosecutrix as to theidentity of the accused was not cleardue to her semi-conscious state anddue to darkness at the time of theincident. One of the defences put forthby the accused was that thecomplainant was doing the work ofprostitution and had falsely implicatedthe accused.

Decision :(i) The Sessions Court held that “even if

it is accepted that prosecutrix wasdoing the work of prostitution, inview of her claim that accusedestablished sexual relations with herwithout her consent, the same has tobe accepted by virtue ofpresumption under Section 114A theIndian Evidence Act.

(ii) The Court held that the mere factthat she was working as prostitutedoes not in any manner confer anyright whatsoever upon the accusedto violate her in any manner.

(iii)The Court convicted the accused forthe offences of kidnapping, robberyand gang rape.

(iv)The Court awarded ten yearsimprisonment as sentence andreiterated that “simply because thevictim was working as a sex workerbefore the incident in question, doesnot confer any right upon anyone toviolate her dignity or to rob her andcan certainly not be a ground toaward lesser than the minimumprescribed punishment”.

Comment :(a) Criminal Law is uniform and makes

no distinction based on theprofession of the person. In law thefact that a person is a sex workershould not impact a complaint ofrape. However, in practice it isextremely difficult to get the policeto lodge an FIR and prosecute casesof violence and rape against a sexworker.

(b) In the present case the police initiallydisbelieved the complainant, refusedto take her to hospital and did notlodge an FIR.

(c) The statement by the Sessions Courtthat a person being a prostitute/sexworker does not give anyone toviolate her dignity is unequivocaland clear.

(d) Similar pronouncement by courtsmay contribute to a change inmindset in the context of violenceagainst sex workers.

11. Preeti Vs. State of Punjab, Crl.Misc. No. M-10378 of 2013, Punjab &Haryana HC

Facts : The petition was filed forquashing of FIR under Sections 3, 4, 5 ofthe ITPA and Sections 420 and 377 ofthe IPC. The sole ground submitted wasthat that the Assistant Commissioner of


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Police, Model Town, Jalandhar, is notcompetent to conduct investigation inregard to offences registered under theAct as the investigation in these casescan be conducted by a Special PoliceOfficer appointed in this behalf by theState Government in compliance withthe provisions of Section 13 of the Act.The State submitted that all ACPs wereauthorised by the Government asSpecial Police Officers under Section 13ITPA.

Decision :(i) All DSPs were authorised as Special

Police Officers under ITPA.(ii) After introduction of

Commissionerate system DSPs werere-designated as AssistantCommissioners of Police and,therefore are competent toinvestigate offences under the Act.

(iii)The petition to quash the FIR wasdismissed by the Court.

Comment :(a) The passing of blanket notifications

by State Governments authorising allpolice officers of a rank as SpecialPolice Officers under ITPA detractsfrom the precautionary purpose tobe served by the provision toprevent undue harassment of sexworkers.

12. Hotel Sooriya Heritage Inn versusCollector-cum-District Magistrate,Puducherry, 2013 Crl.L.J. 359 (MadrasHigh Court)

Facts : There were allegations by awoman that she was being compelledto stay with two persons at HotelSooriya which she refused and wasthreatened with dire consequences. District Magistrate ordered closure ofthe hotel as falling within the definitionof ‘brothel’.

Decision : No material to show anyonein the management of hotel hadknowledge of the room being used for“sexual exploitation or abuse”. The orderof closure set aside by the Madras HighCourt.

Comment : The case without goinginto the merits of the decision isillustrative of the fact that a law (ITPA)brought in to penalize exploitation andtrafficking, in practice overwhelminglyresults in the conviction of sex workers.The number of hotel owners or ‘agents’convicted under the law is negligible.

13. Court of its own motion throughShakti Vahini Vs State. W.P. (Crl) 891of 2013 Delhi H C

Facts : The Delhi High Court on its ownmotion took up the issue of rescue andguidelines of human trafficking with theassistance of the NGO Shakti Vahini. On10.7.2013 it noted the rescue andsending back of a girl to her parents inWest Bengal as well as the rescue of agirl from Nepal lodged in Nari Niketanand ongoing efforts to locate herparents. In addition, the court directedthat a status report regarding thenumber of rescue operations between1.1. 2012 and 10.7.2013, the FIRsregistered and the fate of the cases befiled in court within four weeks.

The case came up on intervening dateswithout any significant order beingpassed. The case was listed on27.11.2013 and the counsel for theGovernment of the National CapitalTerritory of Delhi submitted that DelhiGovernment shall notify in the Gazette,Minimum Standard of Care, taking intoaccount of the guidelines issued by theState of Andhra Pradesh within eightweeks. She also stated that in additionto the guidelines which were issued by


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the Government of Andhra Pradesh,Delhi Government wants to add someadditional features to the same.

The counsel further assured the Courtthat the membership of the StateAdvisory Committee shall be prunedwithin a period of four weeks and themeeting of the reconstructedCommittee shall be called once amonth.

Decision : The Court by order dated27.11.2013 accepted the statement andthe assurances by the counsel for theGovernment of the National CapitalTerritory of Delhi and noted that it wassatisfactory to the petitioners anddisposed of the writ petition.

Comment :(a) The interim court orders do not

indicate any data about the numberof rescue operations during theperiod 1.1.2012 and 10.7.2013 or thefate of any cases filed in this regard.

(b) After initially taking up the issue ofthe number of rescue operations andfollow up proceedings, the HighCourt seems to have moved awayfrom the subject.

(c) The short order dated 27.11.2013indicates that there was a consensusamong the Delhi High Court, theNGO Shakti Vahini and the DelhiGovernment that the AndhraPradesh guidelines with specialfeatures added by Delhi Governmentwere satisfactory and acceptable.

2014

14. M. Ramakrishna VsThe Sub-Divisional Magistrate &anr. 2014 CrLJ2013 Andhra Pradesh H C

Facts : Ramakrishna was a managingpartner of a lodge situated at

Jaggaiahpet, Krishna District of AndhraPradesh. The Inspector of Police,Jaggaiahpet Circle raided the lodge on3.5.2010 and registered offences underSections 3, 4 and 5 of the ITPA. Basedon the information furnished by thepolice, the Sub-Divisional Magistrateissued a notice dated 2.6.2010 underSection 18(1) of the Act calling forexplanation of the petitioner as to whythe lodge should not be attached onthe ground that it was used as a brothel.The petitioner submitted hisexplanation on 8.6.2010. The Sub Divisional Magistrate &Revenue Divisional Officer Vijayawadaheld that:

(a)The explanation given by theindividual is not correct and hisversion that the hotel is being run byemployees shows his irresponsibilityand is not convincing.

(b) That prostitution is being carried outin the hotel and the hotel ownerswere also aware of the matter.

The Sub Divisional Magistrate &Revenue Divisional Officer, Vijayawadaordered immediate closure of the 2ndand 3rd floors of Hotel Indu,Jaggaiahpeta U/s. 18(1) of the ITPA.

Decision :(i) Section 18 ITPA clearly shows that

the Magistrate on receipt ofinformation from the police orotherwise that a house is being runas a brothel, after issuance of noticeto the owner or lessor, may passorders directing eviction of theoccupier of house and directingbefore letting it out during theperiod of one year the landlordshould obtain the previous approvalof the Magistrate.

(ii) The Magistrate was not given anypower for attachment of the


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premises directly. The order of theSDM of closure of the 2nd and 3rdfloors of the lodge with immediateeffect was held to be illegal and setaside.

Comment :(a) Arbitrary action taken by the

Executive without following theprovisions of the law.

(b) Shows that there is space ofcorrective action if persons are ableto approach the High Court,although in a number of casespersons may not be in a position topursue remedies in higher courts.

15. The State of MaharashtraVs.Chatish Arunachalam Das2014(3)BomCR(Cri)438 Bombay H C

Facts : A father and two of his friendswere accused of rape of his minordaughter aged nine years and chargedunder Section 376(2)(g) of the IndianPenal Code and under Section 5 of theITPA. The trial court acquitted theaccused of the offences. The Stateappealed against the decision.

Decision :(i) The High Court upheld the

acquittal of the accused.(ii) The testimony of the child that her

father would take her on Sundayand send her to two of his friendswas tutored by the grandfather.

(iii) That the grandfather had a disputewith his son-in-law, the father ofthe minor girl.

(iv) Medical evidence given did notsupport the allegation ofsystematic sexual abuse of the childover a period of time.

Comments :The case is illustrative of :(a) The insensitivity of law to trauma

survivor testimony. (b) The difficulties of child testimony in

the context of the requirements oflaw, more so in incestuous childsexual abuse.

(c) The subjection of humiliatingprocedures like the ‘two-finger test’leading to trauma in survivors incases of rape.

(d) The application of doubtfulprocedures and norms of medicalevidence accepted by courts as lackof corroboration of the survivortestimony.

16. Ranjana Pathak Vs. State.2014ALLMR(Cri)2895, Bombay H CGoa Bench

Facts : A minor girl from Bangladeshaged about 14 years was lured by thepromise of a job in Dubai and smuggledinto India. She was taken from Howrahto Mumbai and thereafter toAhmedabad. The girl was beaten, rapedand forced by the accused Ranjana tohave sexual intercourse. Thereafter, shewas taken to a brothel in Gandhigram,Gujarat. The girl requested the wife ofthe brothel owner to help her and thatshe was not willingly doing such work.The wife convinced her husband not touse the prosecutrix as a prostitute andsent the girl to Mumbai with the hopethat the person who brought her wouldhelp her to return to Bangladesh.Instead, she was taken to Goa andraped. At the hotel she was taken to,there was an altercation between thehotel manager and the three personswho had taken here there and thepolice entered the picture. On the basisof the testimony of the girl, variouspersons including Ranjana werecharged with offences under the ITPAand IPC. The Trial Court believed the girland held that at the relevant time, she


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was less than 16 years. Ranjana wasconvicted and sentenced for offencespunishable under Section 4(1), 5(1)(d) ofthe ITPA and under Section 323 and 342of the IPC. She was sentenced to themaximum imprisonment of 7 years andalso directed to pay compensation ofRs. 50,000 to the victim girl under theprovisions of the ITPA.

Decision :(i) The High Court believed the

testimony of the girl and held thatthe girl was a minor and upheld theconviction.

Comment :(a) The wife of the brothel owner helped

the minor girl on getting to knowher story. Compared to raids andrescue by police resulting in large-scale violation of rights, sex workerscollectives have advocated controlthrough Self Regulation Boards tocheck the entry of minors andtrafficking. The present caseillustrates that self-regulation maybe a method worth exploring.

17. Delhi High Court Legal ServicesCommittee Vs. UOI. 214(2014)DLT1.Delhi High Court

Facts : Two young girls A and B, aged14 years and 16 years respectively, wererescued by the Delhi Police on July, 29,2009 and a First Information Report(FIR) was registered under Sections366A, 368, 373, 323, 376, 109 read withSection 34 of the IPC and sections 3, 4and 5 of the ITPA. As per the complaint,it appears that A and B, hailing fromextremely poor families of South 24Paraganas in West Bengal, werefraudulently lured to Delhi, sold andcompelled into prostitution by theircaptors till they were rescued by thepolice. After the rescue the girls were

then produced before the Child WelfareCommittee for Care and Protection andlodged in the Children's Home for Girls.

A person claiming to be the father of Bfiled an application before theMetropolitan Magistrate, seekingcustody. The Magistrate scrutinised thevoter identification card, ration card andtransfer certificate of the applicantconcluded that the applicant was thefather of one of the girls and passed theorder for handing over her custody tothe applicant as he was her naturalfather.

The High Court stayed the order of theMagistrate and directed the Delhi LegalServices Authority to file a petition. Thegrievance made by the petitioner inthese proceedings, was an objection tothe failure of the learned MetropolitanMagistrate to conduct the inquirypostulated under section 17A of the ITAct, 1956 before directing release of thevictim by the Magistrate. Thereafter thepetitioner pointed out that the matterwas to be examined in the light of theJuvenile Justice (Care & Protection ofChildren) Act, 2000 (JJ Act 2000) and notby the Magistrate under section 17A ofthe IT Act, 1956. It was submitted thatonly the Child Welfare Committeeconstituted under Section 29 of thestatute would have the jurisdiction torule on the issue of the competence ofthe application for custody by a personclaiming to be the parent.

Decision :(i) A person under eighteen years of

age who is recovered in policeaction under Sections 15 and 16 ofITPA has to be treated as a ‘child inneed of care and protection' withinthe meaning of the expressionunder the JJ Act 2000.

(ii) A person under the age of eighteen


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years, if found involved in anyaspect of trafficking or prostitutionunder ITPA or is rescued in policeaction under Section 15/16 of theIT Act cannot be treated as ajuvenile in conflict with law' andhas to be treated as a child in needof care and protection' under the JJAct, 2000.

(iii) It is only the Child WelfareCommittee constituted underSection 29 of the JJ Act, 2000 whichhas the final authority in respect ofthe custody and restoration of achild victim, a child in need of careand protection.

(iv) A person rescued by the policeunder the IT Act, 1956 andproduced before the Magistrateappears to be under 18 years ofage, then the person mustforthwith be transferred to theChild Welfare Committee.

(v) The order by the Magistrate givingcustody to the father was held tobe contrary to law and set aside.

Comment :(a) The case illustrates the fact that the

practice followed by the police andmagistrates is often at variance withthe law.

(b) At times, regardless of thebenevolent provisions of law theminors ‘rescued’ experience it asarrest and are treated with stigmaas an accused with their rights tolife and liberty violated.

(c) A person who is an accused can bepunished with confinement of afixed period depending on thespecific offence for which he/she isconvicted.

(d) A person ‘rescued’ can be kept inconfinement up to the age ofeighteen years. While a personaccused of other crimes has a rightto be released on bail, an accused

does not have any right to releasefrom the juvenile home.

18. State of H.P. Vs. Shiv Chand. Cr.Appeal No. 485 of 2011. HimachalPradesh H C

Facts : Shiv Chand and Lalita Tamangare alleged to have committed offencesunder Sections 363, 366, 368, 120-B ofthe Indian Penal Code and Section 6ITPA. However, accused Shiv Chandabsconded and could not beapprehended and was declared aproclaimed offender. Lalita Tamangstood trial and was convicted foroffences punishable under Sections 365,368, 109, 376 read with Section 34 ofthe IPC and Sections 5 and 6 of theITPA. In the meantime, co-accused ShivChand was apprehended and producedfor the first time, on, 31.8.2010 beforethe Learned Sessions Judge, KinnaurDivision, at Rampur Bushahr. Shiv Chandrecorded, a statement before thelearned Sessions Judge to the effectthat the statements of the prosecutionwitnesses as recorded, in his absence,be read against him. The sessions judgeaccepted this and acquitted Shiv Chand.

Decision :

(i) The High Court held that theprocedure adopted in thecircumstances was not valid, setaside the acquittal and remandedthe case back to the Sessions Courtfor re-recording of evidence.

Comment :(a) The judgment has to do with

procedural law pertaining toevidence and does not haverelevance from the point of view ofsex work.


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19. Ashok Rai Vs. State. CriminalPetition No. 5718 of 2014.Karnataka H C

Facts : Ashok Rai, owner of a bar andrestaurant filed a petition seekinganticipatory bail in the event of arrestfor offences punishable under Sections188, 370(3), 370A, 294, 109 of IPC andSection. 35 of Excise Act. The accusedargued that the case under Section 188,370(3) and 370A are not applicable tothe case and that admittedly no casehas been registered under the ITPA.That the girls were majors and that hewas innocent and not involved in thecrime to the alleged offences and maybe enlarged on bail.

The prosecution submitted that the girlswere not entrusted with the work ofsupplying drinks to the customerscoming to the bar and restaurant butwere instead asked to dance in“obscene dress”, “giving provocation tothe sex feelings” and thereby they havebeen exploited by the accused persons.

Decision :(i) The High Court held that prima facie,

the material collected by the raidingparty shows that mikes were fixedand lights were also put in the roomleaving the space in the middle fordance.

(ii) These materials go to show that theyhave been used and exploited todance in the presence of thecustomers and rejected theanticipatory bail application.

Comment :(a) The issue of bail is discretionary and

leaves room for the judge’s ownbiases, prejudices and stereotypes toplay out.

(b) There is no allegation that therewere minor girls.

(c) The dancing was in the bar andrestaurant and not a public place.

(d) It could hardly be said that thepatrons of the bar were offendedand that the dance constitutedpublic nuisance.

(e) The raid as well as the rejection ofanticipatory bail application seems adirect reflection of the moraldisapproval the activity.

20. Bidhu Bhushan Mahapatra Vs.State of Karnataka. Criminal PetitionNos. 1628, 1637 and 1979/2014,Karnataka H C

Facts : These petitions were filedseeking release on bail of the allegedoffences punishable under Sections 4, 5and 7 of the ITPA and under Section 14of the Foreigners Act, under Section 67of the Information and Technology Act,2000 and also under Sections 370-A(2),370 and 292 of the IPC.

The case of the prosecution is that thecomplainant received the informationthat through international website somepersons are indulged in humantrafficking in Bangalore city by takingIranian girls for prostitution and earningmoney. A decoy was selected to arrangefor girls and accordingly, at 6.30 p.m.they went to the specified apartment.The petitioner and two Iranian womenwere found and taken into custody. Itwas ascertained that two websites werebeing run and through it customerswere attracted.

The accused petitioners submitted thatas per the provisions of the ITPA, aspecially authorized officer has toconduct raid in the matter. In thisparticular case, no such authorizationwas made and the alleged raid is said tohave been conducted by the policeofficer who was not authorized by any


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order. Therefore, the whole raidproceedings are vitiated. Further that itis not the case of the prosecution thataccused were indulging in prostitutionat the time of raid. According to thecase of the prosecution accused Nos. 1to 3 were present and no clients werethere at the time of the raidproceedings. That the investigation ofthe case is almost completed and thepetitioners be released on bail.

Decision :(i) The High Court observed that as per

the prosecution case when theyconducted raid proceedings theyhave seized incriminating materialsat the time of raid. Nothing further isto be seized from the petitioners.

(ii) The Court held that according toboth sides, investigation is almostcompleted and charge is to be filedthe next day and directed release ofthe petitioners on bail.

Comment :(a) The Court chose not to comment on

the crucial issue of the police officernot being authorised under ITPA andtherefore the proceedings beingvitiated.

(b) Investigation was almost completewas agreed to by the prosecutionand this was a factor which weighedin favour of release on bail.

(c) Generally, even where no recoveriesare to be made and investigation iscomplete, the prosecution does notadmit the state of affairs thuscreating obstacles in getting bail forthe accused persons.

21. Antony Vincent Vs. State ofKerala, 2014(3)KLJ517, Kerala H C

Facts : A Police Officer got informationthat prostitution was going on in KeralaAyurveda Chikitsakendram, housed in

building No. 39/1440 of CochinCorporation. On receiving theinformation, the City PoliceCommissioner, Kochi authorised theCircle Inspector of Police, ErnakulamTown South Police Station to conduct araid. He prepared a search memo andforwarded it to the concerned court.According to the prosecution in the raidconducted thereafter, it was found thataccused 1 and 2 were engaged inprostitution and accused 3 and 4 wereconducting the brothel. 5th accused waswaiting for his chance of prostitution.The accused were charged undersections 3, 4 and 7 of ITPA.

Decision :(i) The essential ingredients to

constitute an offense under Section3 of the Act are that the accusedmust keep or manage or act or assistin the keeping or management of abrothel. The Court found that thereis no allegation either in the FIR or inthe final report that the petitionerswere found keeping a brothel ormanaging a brothel or acting orassisting in the keeping ormanagement of a brothel and heldthat the basic ingredients in Section3 of the Act were not applicable.

(ii) Section 4 of the Act deals withpunishment for living on theearnings of prostitution. The Courtfound that it cannot be held that thepetitioners ever indulged in the actsprohibited by Section 4 of the Act.

(iii)ITPA requires that the investigationinto the offences be done by anauthorised Special Police Officer. TheCourt held that the Commissioner ofPolice is not competent to grant aspecial power conferred by anystatute to an Officer beyond hisjurisdiction, thereby permitting him


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to exercise powers beyond hislimits

.(iv)The High Court quashed the charges

under Sections 3, 4 and 7 of theITPA.

Comment :(a) The case illustrates the tendency of

the police to charge under severalheads regardless of the specific factsof a case.

(b) The judgment is a good example ofan interpretation in keeping with theobject of ITPA which permits onlyauthorised Special Police Officers toinvestigate the offences under thestatute.

(c) The measure is meant as a salutarymeasure to prevent abuse andharassment of sex workers by thepolice.

(d) Governments have time and againsought to sabotage this by issuingblanket notifications authorising allpolice inspectors as Special PoliceOfficers and making a mockery ofthe salutary provision.

22. C.P. Raju Vs. State of Kerala,2014CriLJ2936, Kerala HC

Facts : The petition was filed to quashcharges under Sections 4 and 5 on thegrounds that there was violation ofmandatory provision of the Act and theinvestigation was conducted not by aspecial officer appointed by theGovernment under the Act.

Decision : (i) Under Sections 13(1), 14 & 15 - A

special officer appointed under S.13(1) cannot delegate his powers toother subordinate officers otherthan on the grounds mentioned inSs. 14 & 15 of the Act.

(ii) Though a Special Officer can seekassistance of a police officer underhim, it does not mean that theassistant police officer is competentto investigate the offence, since heis not specially appointed by theStatute.

(iii) A delegated power cannot befurther delegated unless otherwiseexpressly authorised in the specialStatute.

(iv) The Court observed that the casewas registered by a Special Officer,but further investigation wasentrusted to the S.I. of Police andquashed the final report submittedagainst the accused petitioners.

Comment :(a) The judgment furthers the object of

ITPA which specifically authorisesSpecial Police Officers to investigateoffences under the statute.

(b) The decision lays down an importantprinciple that the Special PoliceOfficer can take assistance butcannot further delegate his power toanother police officer under the Act.

23. Madhu V.T. Vs. State of Kerala,2014CriLJ3257, Kerala H C

Facts : The case of the prosecution isthat the victim girl, who was aged about16 years, was coerced and threatenedby her own father to have illicit sexualintercourse with other persons tellingher that she would get an opportunityas an actress in cinemas and serials. Thepetitioner submitted that apart from theallegation of the prosecution that healso entered the room evidently to havesexual intercourse with the victim girl,there is no other material to connectthe petitioner and he should bedischarged from the case.

The father and several others werecharged with offences under Sections 4,


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5 and 6 ITPA, Sections 366A, 372, 373,506(i), 511 of 376 and 354 read with 34

IPC and Section 23 of Juvenile Justice(Care and Protection of Children) Actand a total of 52 criminal cases wereregistered.

Decision :(i) The High Court held that as per the

facts of the case the actions of theaccused could well fall within thedefinition of ‘attempt’ to commitrape and refused to discharge thepetitioner.

Comment :(a) The judgment in the present case

deals with the definition of attemptto commit rape and does not haverelevance for the provisions of ITPAand trafficking under the IPC.

24. Shajahan Vs. State of Kerala,2014CriLJ2261, Kerala H C

Facts : The petitioners were accused ofoffences under Section 3, 4, 5 and 7 ofthe ITPA. The case of the prosecutionwas that accused numbers 1 & 4 andaccused 2 & 3 were found engaged insexual activities in a rented house andthereby have committed the aboveoffences.Decision :(i) The investigation was done and the

final report was submitted by theSub-Inspector of Police, who is noteven an empowered officer toconduct the investigation of suchcases and that vitiates the finalreport filed.

(ii) Except the fact that these personswere engaged in sexual intercoursein a rented building, there is noother material collected by theinvestigating agency to prove thataccused were really engaged in

prostitution and none of theingredients of the above sectionshave been established in this case.

(iii) In order to attract an offence underSection 7 of the ITPA, it must beproved that, there is plurality andsingle instances would not fallwithin the ambit of the provision.

(iv) The Court quashed the proceedingsagainst the accused petitioners.

Comment :(a) The decision is in tune with the

object of the act and affirms that therequirement of the investigationbeing done by a specially authorisedSpecial Police Officer has to bestrictly followed.

(b) The decision negates the attemptsby the State to dilute the provisionsof the ITPA which attempt to providesome safeguards against abuse andharassment.

25. Sreejith @ Ayyappan Vs. State ofKerala, Crl. M.C. No. 4994 of 2013,Kerala H C

Facts : The petitioners were accused ofoffences under Sections 3, 4, 5 and7(2)(c) of the ITPA. The prosecution caseis that the police conducted a search ina building at Karunagappally and foundcertain other persons indulging inpromiscuous sexual intercourse, and thetwo petitioners were found just sittingthere inside the building. It is not knownwhether these two petitioners had infact indulged in such a sexualintercourse or whether anybody hadseen them involved in such activities.Along with other accused, thesepetitioners were also arrested by thepolice and crime was registered underthe above sections.

Decision :(i) Even as per the allegations in the


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final report, they were found simplysitting inside the building, eitheraiting for their turn, or after theirpurpose was over.

(ii) The prosecution has no case thatthese petitioners have control ordominion over the alleged place ofincident or that they were foundkeeping a brothel, or allowing theirpremises to be used as a brothel.

(iii)The prosecution has no case thatthese petitioners are persons livingoff the earnings of prostitution.

(iv)There is also no allegation that theladies found in the premises werebrought or procured by thesepetitioners for the purpose ofprostitution.

(v) That in these circumstances, aprosecution under Sections 3, or 4, 5or 7 of ITPA will not lie and the Courtquashed the charges against thepetitioners.

Comment :(a) The case illustrates the practice of

the police of indiscriminatelyarresting and charging personsfound in raids.

(b) There was no material to charge thepersons with any offence and yetthey were accused under foursections of ITPA.

(c) The judgment is an example of animpartial interpretation of theprovisions of ITPA not coloured bymoral disapproval.

26. P. Shanmugavel Raj Vs. State,2015(1)Crimes536(Mad.), Madras H C

Facts : This was a case of sexual assaultof a thirteen-year-old child. The accusedwere charged under Sections 376, 109,506(ii) I.P.C. and Section 5(1)(D) of ITPAand Section 4 of POCSO Act. The only issue in the present case waswhether the public prosecutor of the

Mahila Court designated as Children’sCourt could be validly accepted asSpecial Public Prosecutor under POCSO.

Decision :(i) The High Court held that the public

prosecutor of the Mahila Courtdesignated as Children’s Court couldbe accepted as Special PublicProsecutor under POCSO.

Comment :(a) The judgment is on a technical law

point and does not have muchrelevance in the context of ITPA, sexwork and trafficking.

27. Mangamma Vs. State of TamilNadu, 2014CriLJ3420, Madras HC

Facts : The case involves detention as“Immoral Traffic Offender” under the Tamil Nadu Act 14 of 1982 on theground that the detenue may bereleased on bail. The detenue had caseregistered against him by the Anti ViceSquad-II Police Station for offencesunder Sections 3(2)(a), 4(1), 5(1)(a) and6(1)(a) of I.T.P. Act. The detention waschallenged by the mother of thedetenue.

Decision : (i) The High Court held thatthe detaining order had wronglyequated the case of the detenue withanother case and quashed thedetention.

Comment :(a) The judgment does not have

relevance from the point of view ofITPA, sex work and trafficking, exceptin Tamil Nadu.

(b) Tamil Nadu Act 14 of 1982 is the‘Goondas, Immoral Traffic Offendersand Slum grabbers Act, 1982’.


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(c) A separate study of cases pertaining to‘Immoral Traffic Offenders’ may be useful.

28. Ravi @ Ramkumar Vs. Government ofTamil Nadu, 2014(2)MLJ(Crl)317,Madras H C

Facts : The case involves detention as“Immoral Traffic Offender” under the TamilNadu Act 14 of 1982 on the ground that thedetenue may be released on bail. The detenuehad case registered against her for offencesunder Sections 3, 4 and 5 of ITPA. Thedetention was challenged by the husband ofthe detenue.

Decision : (i) The High Court held that the detaining

order had wrongly equated the case of thedetenue with another case and quashedthe detention.

Comment :(a) The judgment does not have relevance

from the point of view of ITPA, sex workand trafficking except in Tamil Nadu.

(b) Tamil Nadu Act 14 of 1982 is the ‘Goondas,Immoral Traffic Offenders andSlumgrabbers Act, 1982’.

(c) A separate study of cases pertaining to‘Immoral Traffic Offenders’ may be useful.

29. T.K. Sadhananthan Vs. The Sub-Divisional Magistrate Cum RevenueDivisional OfficerW.P. No. 25663 of 2013 and M.P. Nos. 1 and2 of 2013 Madras HC

Facts : The petitioners hotel was closed underSection 18 (1) ITPA. The prosecution submittedthat during the spot inspection, it was foundthat the said hotel is being used as brothelplace for carrying on prostitution and theorder of closure was passed. A case wasregistered against the petitioner underSections 3(1), 4(1), 5(1), 6(1), 7(1) and 9 ITPA.The petitioner denied the allegations andchallenged the closure order as no notice was

issued to him as required under Section 18(1)of ITPA.

Decision :(i) The High Court held that the closure order

was issued in violation of principles ofnatural justice as notice required underSection 18(1) was not issued to thepetitioner and set aside the closure order.

(ii) The Court observed that the authoritieswere free to continue criminal proceedingsand issue order after complying withSection18 (1) of ITPA.

Comment :(a) The judgment affirms the necessity of

complying with the provisions of the law ofgiving notice and opportunity to theaccused to be heard before passing apunitive order of closure of premises underSection 18(1) ITPA.

(b) After setting aside the closure order, theobservations pertaining to continuation ofcriminal proceedings and passing of futureorders under Section 18(1) ITPA against thepetitioner seem indicative of moral valuesentering the picture.

30. S. Rangaraj Vs. The Commissioner ofPolice, 2015(1)CTC702, Madras H C

Facts : The petitioners in all these writpetitions are running beautyparlours/massage centres/Spas in and aroundthe city of Chennai. The massage parlours/spawere regularly subjected to raids by Anti-ViceSquad of the Chennai City Police. Thepetitioners submitted that such raids and thefrequent interference by the police spoiledtheir business, projected them in poor lightand amounted to an interference with theirfundamental right to carry on a lawfulbusiness.

The respondents do not contend that themassage centres/spas run by the petitionersare prohibited by law. They do not evencontend that these are regulated by any


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special law enacted by the CentralGovernment or the State of Tamil Naduor that the petitioners are running thesecentres in violation of such law. The onlybasis on which the raids are conductedin these establishments is that policethink that some of these establishmentsare indulging in offences punishableunder the ITPA.

Decision :(i) Section 15 of the ITPA permits search

without warrant by undertaking thefollowing steps:(a) recording the grounds of belief

that an offence is beingcommitted in any premises,

(b) recording the grounds of beliefthat a search with warrant cannotbe made without undue delay,

(c) causing the search in thepresence of two respectableinhabitants of the locality and

(d) removing the persons from theplace of search and producingthem before the Magistrate aftermedical examination.

(ii) The police do not ensure that all therequirements of Section 15 arecomplied with:(a) The Special Police Officer or the

Trafficking Police Officer is notcalled upon to produce recordsto show whether he hasdocumented the grounds of hisbelief that an offence punishableunder the Act is committed orhas been committed in respect ofa person living in any premises;

(b) to produce records to show hissubjective satisfaction that thesearch of the premises withwarrant cannot be made withoutundue delay;

(c) to produce records to show thattwo respectable inhabitants ofthe locality attended andwitnessed the search;

(d) to show that persons removedfrom such premises weresubjected to medical examinationand produced before theappropriate Magistrateimmediately; and

(e) to produce proof to show thattwo women Police Officersaccompanied them and theinterrogation of any woman wasdone only by them.

(iii)the police habitually carry outsearches in a manner not prescribedby Section 15 and it is tantamount toan unlawful interference with thefundamental right of the petitionersto carry on any business orprofession which is not declared asunlawful by any legislation.

(iv)The judgment goes on to discuss thelaw to govern massage parlours inSingapore and California and directsthe government to bring new lawsand/or rules to govern massageparlours/spas and report back to theCourt.

Comment :(a) The case illustrates the widespread

harassment of establishmentsconsidered ‘immoral’, even thoughnot prohibited by law.

(b) It illustrates the exercise of arbitrarypower by the police to raid andsearch without following procedureslaid down by law.

(c) The exceptional provision of searchwithout warrant under ITPAauthorises Special Police Officersand lays down certain precautionaryrequirements to be followed to avoidundue harassment by police. Theseare openly flouted, leading toviolation of rights in indiscriminatesearch and raids.

(d) The direction to the government tobring in new law and/or rules toregulate massage parlours/spas and


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report back seems reflective of moralvalues of the court, as the matterfalls within the domain of thelegislature.

30. S. Masthan Reddy Vs. The State ofTamil Nadu 2014(2)MLJ(Crl)257

Facts :The petitioner has been branded as an‘Immoral Traffic Offender’ under theTamil Nadu Act 14 of 1982 and detainedThe ground of detention is theregistration of case for offences underSections 3(2)(a), 4(1), 5(1)(a), 6(1) and7(1) of ITP Act and Section 292(a) IPC.The main ground for seeking release isthat the detaining authority failed to askclarification from the sponsoringauthority about non serving of arrestmemo in a proper manner to the familymembers, relatives or friends of thedetenu. There was no proof to showthat the intimation of arrest was given,as the arrest was communicatedthrough cell phone to the brother of thedetenu.

Decision :(i) In order to meet fairness, justness

and reasonableness, after a person istaken in custody in pursuance of anorder of detention, the members ofthe household, preferably the parent,the child or the spouse, must beinformed in writing of the passing ofthe order of detention and of thefact that the detenu has been takenin custody, by duly intimating as tothe place of detention, including theplace where the detenu is transferredfrom time to time, which wouldensure the right of the personarrested under preventive detention.

(ii) If such intimation of arrest has notbeen made effectively it would

confer a right upon the arrestee toimpugn the arrest effected on him orher.

(iii) In the case on hand, detainingauthority has stated that the arrest ofthe detenu had been communicatedthrough cell phone to the brother ofthe detenu, but, there is no proof toexhibit such intimation of arrest

(iv)The detention order would bevitiated on the ground of deprivationof right guaranteed under Article22(1) of the Constitution of India andthe detenu was ordered to be set atliberty.

Comment :(a) The judgment deals with the

requirements of preventivedetention law and does not haverelevance for sex work, trafficking,IPTA except in Tamil Nadu.

31. Goenka Sajan Kumar Vs. The Stateof A.P. 2015(3)Crimes281(A.P.),Telangana & Andhra Pradesh HC

Facts : The petitioner was charged withcommitted offences under theprovisions of Sections 3, 4 and 5 of theITPA. The petitioner submitted thataccording to the prosecution, thepetitioner is one of the customers of abrothel house. That he is not a personrunning the brothel house or acting as apimp for the personnel in the brothelhouse. That under the provisions of acustomer 'to the brothel house is notpunishable.

Decision :(i) The petitioner does not fall under

the provisions of Sections 3 to 7 ofthe Act, as the petitioner was notrunning a brothel house nor did heallow his premises to be used as a


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brothel. Neither is alleged to beliving on the earnings of prostitution.It is also not the case of theprosecution that the petitioner wasprocuring, inducing or enticing anyperson for the sake of prostitution.

(ii) The Court held that the petitioner isnot liable for punishment andquashed the charges under Sections3, 4 and 5 of IPTA.


the police to round up, arrest andcharge everyone on the premises ofa brothel.

(b) The arrest of persons regardless oflack of culpability in law is areflection of morality at playtransgressing the rights ofindividuals.

(c) There is a consistent move tocriminalize customers in law.

(d) The sex workers’ collectives havepublicly opposed this move pointingout that it will serve to drive theprofession underground, lead to lesssafe working conditions, makeinsistence on condom use by thecustomer more difficult and hindersteps for HIV prevention.

2015

32. Amarpreet Kaur Chawla vs TheState of Jharkhand, Cr. Revision No.1265 of 2015Jharkhand HC

Facts : On the basis of informationreceived a raid was conducted andAmarpreet Kaur Chawla wasarrested. Amarpreet was convicted bythe Judicial Magistrate 1st Class,Jamshedpur under sections 3, 4 and 5 ofITPA.The District and Sessions Judge,Jamshedpur dismissed her appeal andconfirmed the conviction. Amarpreet

approached the High Court. Theinvestigation and search was notconducted by a Special Police Officer orTrafficking Police Officer as laid down inITPA. The Investigation Officer and theinformant were not examined aswitnesses in the trial.

Decision :The Jharkhand High Court judgmentrefers to Madras High Court judgmentin Ratnamala versus State 1962 (1)Cri.L.J. 162, while speaking ofSuppression of Immoral Act, 1956(presently rechristened ITPA) whichsuccinctly articulates that the idea of theAct was not to render prostitution perse a criminal offence, or to punish awoman merely because she sex workersherself.The Madras High Court observed: "Idesire to emphasise that a carefulscrutiny-of the Central Act 104 of 1956clearly reveals that the Act was aimed atthe suppression of commercialized vice,and not at the penalization of theindividual prostitute, or of prostitutionin itself. This is of some importance inconsidering the case against theappellant Ratnamala."

(i) The Special Police Officer or theTrafficking Police Officer under ITPAdid not conduct the raid andinvestigation.

(ii) The police officer and the informantwere not competent to conduct theinvestigation and raid.

(iii)The Investigation Officer and theInformant were not examined aswitnesses by the prosecution.

(iv)The High Court acquitted AmardeepKaur Chawla of all charges declaringthat there was a fundamental defectin the initiation of the prosecution


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which goes to the root of thecase.

Comment :(a) The 1962 judgment of the Madras

High Court is an important one withregard to the approach to beadopted by Magistrates and Courtsin interpreting provisions of ITPA.

(b) The judgment categorically holdsthat investigations not carried out bythe Special Police Officer orTrafficking Police Officer vitiate theinvestigation.

33. Ashok Hazra Vs. State of WestBengal. 2015(1) CHN (CAL) 289,Calcutta H C

Facts : Raids were conducted, personsarrested and articles seized from a hoteland on the basis of a written complaint.The accused were charged undersections 3/4/5/6/7 of the ITPA.

The Additional Sessions Judge, 3rd FastTrack Court, Lalbagh, Murshidabadacquitted the accused onthe groundthat the Investigating OfficerDebabrataDuboy, Inspector-of-Policewas not competent to investigateoffences under the Act of 1956 in viewof Section 13 of the said Act.

Decision : The High Court remandedthe case back to the trial court and held:

(i) That the illegality in the course ofinvestigation would not vitiate thetrial unless the same hasoccasioned miscarriage of justice.

(ii) That State of West Bengal hasempowered all police officers notbelow the rank of Inspector ofPolice under the West Bengal Policeand Calcutta Police Authority, to actas Special Police Officers in theirrespective local jurisdiction for

dealing with offences under theImmoral Traffic (Prevention) Act,1956.

(iii) That the investigating officer wasan Inspector of Police and thereforeauthorised.

Comments : (a) Measures introduced in the law toprevent harassment by the police, suchas authorising only Special PoliceOfficers appointed under the ITPA aresabotaged by blanket empowering of allpolice officers.

34. Chandni Yadav Vs. Adhikshika,RajkiyaNariSanrakshanGrih, WritPetition No. 34964 of 2015,Allahabad HC

Facts : The petition was filed for releaseof a woman detained in GovernmentWomen Protection Centre, Kalindikunj,Agra without her consent illegally. It wassubmitted that the petitioner is anadult, 25 years of age. She is not wantedin any criminal case nor is accused inany such matter. She has never indulgedin immoral trafficking etc. A false storywas set up and FIR was registered atPolice Station Kotwali, DistrictAllahabad. It was stated that fromanother house, Allahabad policerecovered a large number of girlsindulged in immoral trafficking whichincluded the name of petitioner also.FIR was registered under Sections 3, 4,5, 6, 7 and 9 ITPA, Section 4, 8 ofProtection of Children From SexualOffences Act, 2012 and Sections 370,370-A, 372 read with Section 34, 120-BIPC. The Chief Judicial Magistratepassed an order for medicalexamination and further investigationunder Section 17(3) ITPA and keepingthe petitioner and the 22 girls atGovernment Women Protection Home,Kalindikunj, Agra.


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The woman was produced before theHigh Court and stated that she is majorand has been illegally kept atGovernment Women Protection Houseat Agra, without her consent. That shewants to stay and reside with herhusband, Palash Das, son of Sri SukumarDas, who is also present in the Court.The State submitted that she had beenkept in the Home pursuant to the orderof the Magistrate under Section 17 ITPA.

Decision :(i) The proviso to Sub Section 17 ITPA

authorises the Magistrate to pass anorder of detention of a person for aperiod not beyond three weeks.

(ii) The petitioner has been kept atGovernment Women ProtectionCentre for the last more than sevenmonths.

(iii)The petitioner has been detained inGovernment Women ProtectionCentre, Agra for the last about sixmonths, illegally and without anyauthority of law, is condemnable andviolation of her right to life andliberty.

(iv)The petitioner was free to go to anyplace of her choice.

(v) The Court awarded compensation ofRs. 5,00,000 for her illegal andunauthorized detention.

Comment :(a) It is a rare case where the Court has

ordered a compensation for illegaldetention in a case of alleged‘rescue’ and confinement.

(b) Generally, the Court at best ordersrelease of the ‘girl’ in case ofunauthorised detention.

(c) The case illustrates the fact ofpractice of the police in raid and‘rescue’ operations being at variancewith the provisions of law.

(d) The case illustrates the practice ofmagistrates routinely directing

detention of persons withoutapplication of mind and at times inviolation of law.

(e) The case illustrates the practice ofthe shelter homes set up for thewelfare of the ‘rescued’ continuing todetain girls in violation of provisions,rather than offering them legal aidand help to be set at liberty.

35. Momin Muzammil Anwar Vs.State of U.P. 2015(2)ACR1244,Allahabad HC

Facts : A raid was made in the red lightarea in Agra in which two girls, namely,Soni, Anita and two persons, Akash andRam Bharat were arrested by the policean FIR was lodged under sections3/4/5/6 ITPA and 342, 294 I.P.C. Whilethe applicant was going to buymedicine, all of sudden there was a raidand she was also taken away by thepolice on account of suspicion that shewas carrying on illegal activities in thearea. She was produced before theAdditional Chief Judicial Magistrate whosent her to Nari Niketan. The petitionwas filed by the husband of the womanfor quashing of order and release.It wassubmitted that under Section 17(3) ITPA"a person can be kept in custody for amaximum period of three weeks fromthe date of the order for an inquiryunder section 17(2) of the ITP Act", butthe applicant No. 2 Smt. Shakina @Babita is confined in NariNeketan since10.11.2014. That Smt. Shakina hasneither been named in the FIR nor achargesheet submitted against her.

Decision :(i) Applicant No. 2 is not an accused in

the FIR nor any charge-sheet hasbeen submitted against her, hence, itis evident that she has not been


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found indulging in illegal flesh trade.(ii) As per the provision of 17(3) of I.T.P.

Act, "a person can be kept in custodyfor a maximum period of threeweeks from the date of order for anenquiry under section 17(2) of theAct", but the applicant No. 2 isstated to be confined in Nari Niketansince 10.11.2014.

(iii)The applicant No. 2 is aged about 23years old as is evident from her PANCard and she is at the age ofmajority and capable of making herown decisions and is also notsuffering from any sexuallytransmitted diseases.

(iv)The Court set aside the order ofdetention and held that applicantNo. 2, namely, Smt. Shakina @Babita shall be set at liberty to goaccording to her own wishes.


the police conducting raid and‘rescue’ operations andindiscriminately arresting persons.

(b) It also illustrates the practice ofmagistrates’ routinely directingdetention of persons withoutapplication of mind and at times inviolation of law.

(c) It further illustrates the practice ofthe shelter homes set up for thewelfare of the ‘rescued’ continuing todetain girls in violation of provisions,rather than offering them legal aidand help to be set at liberty.

(d) It shows that granting ofcompensation for illegal detentionand violation of the fundamentalrights of persons in sex work cases israre and at the most the courtsdirect release.

36. Abhishek Mishra Vs. The State ofGoa, Writ Petition No. 717 of 2015,Bombay HC Goa Bench

Facts : The application of the petitionerfor a liquor licence of the applicant wasrejected on the ground of ‘criminalbackground’. The petitioner had anumber of cases registered against himincluding under Sections 3, 4, 5, 6 and 7ITPA.

Decision :(i) The High Court remanded the case

back to the competent authority forreconsidering the issue of grant oflicence as per law.

Comment:(a) The case has no relevance from

the point of view of sex work,ITPA and trafficking and dealspurely with discretionary powersfor grant of liquor licence.

37. SumeerRamdayal Sabharwal Vs.The State of Maharashtra,CriminalPublic Interest Litigation No.43 OF 2015

Facts : Applications for interventionwere filed by Ekveera DeviSahakariMachimar Sangh stating thatpolice action was necessary sinceseveral complaints have been filed bythe residents of area that prostitutionracket activities are being run in someof the hotels in the said area. That theresidents of the said areas have beentroubled because of the immoraltrafficking and illegal activities ofvarious hoteliers and cottage owners inthe said areas in active connivance withthe syndicate of anti-social elementswhich includes auto rickshaw owners/drivers.

Decision :(i) The Court permitted the

interventions in the ongoing publicinterest litigation.

(ii) The Court in an earlier order hadasked the State Government to


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specify its power for taking action. Itclarified that the police may bejustified about the action beingtaken in case a complaint is receivedregarding prostitution racket andillegal activities run in the hotels butshould mention the provisions underwhich the raid had been conducted.

Comment :(a) The case reflects the hostility

encountered by sex workers amongresidents of localities.

(b) It is possible that due to moralityassociated with sex work the Courtissued a clarification that itsdirections in no way meant that thepolice was unjustified in conductingthe rail after receiving complaints.

38. Latabai Keshav Maundekar vsState of Maharashtra, Writ PetitionNo. 1185 OF 2015 Bombay H C Nagpur Bench

Facts : The petitioners are the residentsof Ganga Jamuna 'redlight' area inNagpur for the past several years.According to the petitioners, out of thesaid 177 petitioners, around 47petitioners are the owners of theproperties and houses in the saidlocality and the rest of the petitionersare the tenants. It was submitted by thepetitioners that on 29.1.2015 abouttwenty to thirty police officials came tothe aforesaid locality and startedmercilessly beating the petitioners andtheir family members.

Further that on 16.2.2015, five or sixpolice officials came to the house of thepetitioner Minu Rajesh Kalkhor andasked her to remove herself from thehouse. The petitioners made complaintsagainst the illegal action of the policeauthorities, but the police officials havenot acted upon the complaints.

The petitioners asked the High Court fora direction restraining the police fromentering their premises and removingthem. Further direction was soughtrestraining the State from restricting thepetitioners-owners of the propertiesfrom leasing their properties to thetenants. It was also prayed that therespondents be restrained from treatingthe petitioners inhumanly.

The police submitted that the area inwhich the petitioners reside is a'redlight' area and some of the womenare sex workers and a few petitionersare also involved in activities prohibitedunder ITPA. The petitioners weredirected to file necessary documents toprove their ownership or tenancy,details of family members includingtheir age and occupation and theauthorities were permitted to verify thesame.

After the submission of documents andverification, the police submitted anaffidavit that the area in which thepetitioners reside falls within the limitsof Lakadganj Police Station and isknown for prostitution business in thecity of Nagpur. That out of the 137petitioners, 32 petitioners are theproperty owners and 105 petitioners aretenants and relatives. Offences wereregistered against the petitioner nos.1,9, 16, 46, 49, 61, 94, 97, 102, 112, 113and 123 under the provisions of ITPA. Achart was annexed mentioning thenames of the 12 petitioners and theoffences that are registered againstthem. The police submitted that theconcerned petitioners are involved inprostitution. The police tried to curb theactivities and thereafter, the petitionersfiled the petition with the prayer thatthe respondents should be preventedfrom taking action against them. Theincident in respect of Minu Kalkhor was


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denied by the police. It was submittedthat the respondents rescued two minorgirls about 14 and 16 years of age fromthe custody of the petitioner no.7, whoforced the minor girls to do the samebusiness for her profit. Cases areregistered against some petitionersunder ITPA, IPC and Protection ofChildren from Sexual Offences Act, 2013(POCSO). The police submitted thatthere was no intention whatsoever todispossess the petitioners from theirhouses or evict the tenants, if thetenancy is lawful and if the petitionersare not indulging in illegal activities.Appropriate action would be takenagainst the erring petitioners only inaccordance with the procedureprescribed by law. The respondentsundertook not to evict the petitionerswithout following the due procedureprescribed by law.

Decision :(i) The undertaking of the police that

they would not dispossess if thetenancy is lawful and there is noillegal activity and would not evictwithout following the procedureprescribed by law redresses thegrievances of the petitioners.

(ii) General directions against the policesought by 177 petitioners from thearea cannot be issued.

(iii)The police authorities are required toperform their duties and whileperforming their duties, action couldbe initiated against the petitioners,who are involved in illegal activitiesprohibited under ITPA or POCSO.

(iv)The undertaking that the policewould not evict the petitionerswithout following the due procedureprescribed by law was held to bebinding on the respondents.

Comment :(a) Beating up sex workers and large-

scale violation of their rights isconsidered ‘normal’. There is noprocedure of law which permitsbeating up and yet this commonpractice in raids with no redress bycourts.

(b) The Courts take no cognizance orsteps to redress complaints of beingbeaten up in raids, including in thepresent case.

(c) Courts essentially rely on documentsand go by affidavits placed beforethem.

(d) The realities are starkly differentfrom that reflected in the papersproduced by the State, police andprosecution.

(e) The Court held that the undertakingby the police to go by dueprocedure of law redresses thegrievance of the petitioner sexworkers.

39. Bhakti Ram Pandey vs State, Crl.A. 679/2015, Delhi H C

Facts :According to the prosecution ASI HariParkash of Police Station Kamla Marketwas present at a Kotha (brothel) in G.B.Road for investigation of a case. 'X'(identity hidden) surfaced there andrecorded her statement. Eleven othergirls present also recorded theirstatements. In her complaint 'X'implicated the appellant Bhakti RamPandey, Uma and Vishnu for committingvarious offence under Sections363/366/368/372/373/376/342/506/109/120-B IPC and Sections 3,4,5 & 6 ITPA. Vishnu expired the Trial court acquittedUma of all the charges. The appellantwas also acquitted of the charges underSection 366 read with Section368/376/506 IPC and Sections 4 & 5 ofthe ITP Act. The appellant wasconvicted under section 109 read withSection 376 IPC and filed appeal before


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the High Court. The State did notappeal against the acquittals.

Decision :(i) None of the victims had lodged the

FIR on their own. The complaint of‘X’ was not produced before theCourt despite multiple opportunities.

(ii) No independent public witness wasassociated despite their availability.The police officers admittedly usedto visit the said kotha routinely andthe complainant or other witnessesever came forward on earlieroccasions.

(iii)The prosecution witness ‘S' (assumedname) herself had not lodged anycomplaint any time to bring policemachinery in motion. Theprosecution did not produceprosecutrix/complainant and othervictims.

(iv)‘S’ aged 22 years on the day ofincident was major and continuedto stay for sufficient duration in thesaid kotha and nothing emerges toinfer if she ever attempted to comeout of the kotha or was forciblyprevented to do so by the appellant.'S' did not explain why shecontinued to remain in the kothadespite having the opportunity toescape

(v) Statement of the victim 'S' was founddeficient by the Trial Court to convictthe appellant for committing rapeupon her at his residence and he wasalso acquitted of the offences underSections 3,4,5 & 6 ITP Act.

(vi)In the cross- examination, ‘S’introduced a new story that afterDilip had given her something toeat, she became unconscious andwas brought to Delhi. She said thatshe was left at appellant's housewhere he sexually assaulted her.

(vii) There was no evidence that theappellant was the owner of Kotha

No. 56 or used to remain presentthere or abetted 'S' to have physicalrelations with any customer. On thedate of raid on 10.07.1999, theappellant was not present in thekotha.

(viii) 'S' did not elaborate as to when theappellant had aided, abetted orfacilitated the commission of rapeupon her. She never lodged anycomplaint any time to allege if shewas black-mailed any time by theappellant by adopting any means.

(ix)The Court held that it is unsafe toconvict the appellant on thewavering statement of the witness 'S'who was not found reliable toconvict the appellant for commissionof offence under Sections 363/376IPC at his residence. The Trial Courtwas of the view that it was not at allbelievable that the appellant wouldcommit rape upon 'S' in thepresence of his wife and sister.

(x) The Court allowed the appeal ofBhakti Ram Pandey and acquittedhim of the offence.

Comment :(i) The case illustrates the functioning

of the police in the context of usingthe methodology of raids and‘rescue’ to prevent entry of minorsand/or trafficking.

(ii) The facts do not make clear anycohesive story or the motivations forthe raid or launching of the cases bythe police.

(iii)There was no FIR by the allegedvictim-survivor and the police whileon a visit to the kotha record thecomplaint ‘A’ which was neverproduced before the court. Thecomplainant and the witnesses werenot examined in court by theprosecution.

(iv)The entire conduct of the case seemsto illustrate the fact that generally


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the police have their own agendaprimarily oriented towards makingmoney and tailor cases.

(v) The ground realities of policefunctioning make a case for tryingout self-regulation through Self-Regulatory Boards to prevent theentry of minors and trafficking intosex work.

40. Freedom Firm vs Commissioner ofPolice, Pune CR. Public InterestLitigation NO. 4 OF 2015, CRPIL 4/15(J), Bombay H C

Facts : The main grievance of thepetitioner relates to misuse of theprovisions of bail, which results installing the proceedings under the ITPAand deprives the victims of their rightfulclaim to rehabilitation. It also has theeffect of indirectly encouraging illegaltrafficking. The petitioner has proposedto lay down certain guidelines for thePolice Officers and the Judicial Officersto be followed at the time of dealingwith such cases; especially whiledeciding the applications for bail. The petition deals with 42 cases oftrafficking in Faraskhana Police Station,Pune in which FIRs have been registeredand in which the accused are stated tobe absconding upon being released onbail. The petitioner seeks to assist, oftenwithout reciprocation, the State in itsdifferent avatars of the police, theprosecution, remand homes andrehabilitation centres etc. The maingrievance of the petitioner is that afterthe accused are released on bail andmore specially after the trial begins andin most of the cases if satisfactoryevidence is recorded, the accusedabscond. The petitioner gave illustrationof eight priority cases in which theaccused have absconded resulting inthe above described situation.

Decision :(i) The contentions of both the

petitioner and the State have shownthat the bane of the trafficking casesis grant of injudicious bail and oncethat is granted, the road to slip awayis open to the accused. The HighCourt laid down guidelines for thegrant of bail in cases of humantrafficking and held that theapplication for bail must take intoaccount:(a) The fundamental right of the

victim not to be trafficked. (b) The antecedents of the accused.(c) The repetitiveness of the offence

since it is a career in crime. It isbound to be repeated upon theaccused being released on bailthus trafficking further victimswhich is the State's duty toprevent.

(d) The intimidation and threat thataccompanies the relationshipbetween the accused and thevictim.

(e) The economic position of theaccused, if a trafficker, This wouldreflect in the brothel that he orshe runs and which is statutorilyrequired to be sealed and closedby the police.

(f) The violence involved in the casereflected from the statement ofthe victim and the otherwitnesses, if any. The violencesuffered by the victim wouldshow the strength in the positionof the accused.

(g)The subterfuge deployed by theaccused in diverting the policemachinery from himself or herselfwhen non traffickers and otherdocile persons who may beworking for the accused invarious positions may be kept inthe frontline for arrest and whoneed to be released on bail as


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harmless co-accused.

(ii) Bail should be denied to habitualoffenders (traffickers) except uponexceptional, special andcompelling reasons upon the moststringent conditions.

(iii) The Court shall call for andconsider the antecedents report ofthe accused in all trafficking casesbefore passing any order of bailmaintained by the Anti-HumanTrafficking Unit and the localpolice.

(iv) Bail should be refused to brothelowner until the brothel is closeand sealed under Section 18 of theITPA.

(v) Bail should also be denied if thevictim is a minor except in case ofany extraordinary, compelling orspecial circumstances to beexplained in the order itself andupon the most stringentconditions.

(vi) Bail should also be denied its caseof violent offence which would beseen from the statements of thevictims and witnesses. The Courtwould do well to take into accountthe expected intimidation andthreat to the victims and/orwitnesses.

(vii) If bail is applied on the ground ofdeath of a family member theCourt should ensure that cleardocumentation is produced toprove the genuineness of theground.

(viii) Bail, upon stringent conditions (ifat all), be granted to the traffickeror the brothel owners only afterthe statement of the victim isrecorded under Section 164 of theCode of Criminal Procedure.

(ix) This would include a victim impactstatement which may beconsidered with regard to the

violence, if any, suffered by thevictim or the other psychologicaland mental trauma having beenfaced by her whilst granting bailand fixing the conditions of suchbail.

(x) Anticipatory bail should be deniedin ITPA cases.

(xi) The Court shall specify thecondition of at least weeklyattendance of the accused pendingthe trial with a further rider thatfailure of the accused to attend thepolice station shall be a ground forcancellation of bail.

(xii) The accused must never beallowed to gain access to thevictim as the safety of the victim isof prime concern when theaccused is released on bail. TheCourt shall give directions andmake special conditions andprovisions for supervision toensure that there would be nocontact between the accused andthe victim.

(xiii) The Court may also consider thecondition of externment in the bailorder.

(xiv) The victim shall not be allowed tosign any Vakalatnama(authorization of the lawyer by thelitigant) without the permission ofthe Court.

(xv) No Advocate shall be allowed toappear in ITPA cases on behalf ofthe accused as well as the victim.

(xvi) The victim deserves to have legalrepresentation and emotionalsupport. The victims of ITPAoffences and should not be treatedas criminals or solely as a source ofevidence.

(xvii) The Court shall permit any of theknown NGOs and legal officers towork for assisting victims andprosecution and to represent thevictims.


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(xviii) The Court shall provide a lawyerfrom the Legal Services Authorityor from any organization of serviceproviders to represent the victimsfrom the stage of the first remandof the accused and the applicationof bail itself or whenever an orderof detention is passed against thevictim under Section 17 of the ITPAas such an order is appealable.

(xix) The police shall appoint speciallytrained and sensitized policeofficer as special police officer fordealing with offence under theITPA as mandated under Section13 of the ITPA.

(xx) Upon the first remand, the victimsshall be sent to the relevantstatutory authorities being theChild Welfare Committee (CWC) incase of child victims and theNational/State Commission forwomen in case of adult victims.

(xxi) No victim shall be released to anyperson who claims her custodyexcept upon verification of theidentification of the claimant alongwith photograph and details ofname, age, local address, nativeaddress and contact details of suchclaimant and after consent of thevictim is obtained.

(xxii) A woman accused of being atrafficker, brothel keeper or pimphas the benefit of not beingarrested after sunset. Hence if shehas to be arrested the next day orhas to be directed to report to thepolice station the next day, itshould NOT be stated to be areason for granting bail; sheshould be arrested during thelegally permissible hours and herapplication for bail must beconsidered on the foresaidparameters the next day.

(xxiii) If a manager, a sweeper, who hasbeen charged or “framed upon a

raid being conducted is releasedon bail, which would be justifiablygranted, the main accused who isthe trafficker or brothel owner,cannot claim or be granted‘parity’, he/she is not on par.

(xxiv) The Magistrates and Judges shalluse the following bail checklistproforma while deciding theapplication for bail :

(a) Whether antecedents of the bailapplicant have been checked.

(b) Whether antecedent report hasbeen submitted before the Court.

(c) Whether the address of the bailapplicant and the local surety hasbeen verified by the police andwhether a report has beensubmitted before the Court.

(d) Whether the bail applicant hashad bail cancelled in the past.

(e) If bail is applied for on medicalgrounds, whether treatmentwithin the jail is possible.

(f) Whether accused is likely to havecontact with the victim andintimidate or threaten her.

(g) Whether the accused is likely torepeat the offence; i.e. whetherhe/she would be able to return toand run the brothel.

(h) Whether the brothel is alreadysealed (and if not to undergo theprocess of sealing before anyorder of bail is passed).

(i) Such proforma check list shall beduly completed and kept in therecord & proceedings of thecases along with the order of bail.

(xxv) The State shall create a databaseof offenders, who are humantraffickers under the ITPA in theentire State of Maharashtratogether with their Post Card sizephotograph name, age, localaddress, native address, names oftheir parents or guardian, contact


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details etc. as also details of theirantecedents maintained by thePolice Department more speciallythe Social Security Branch of theoffice of the Commissioner ofPolice in each city which shall bemade known and available to allthe police officers, prosecutors asalso the NGOs who run servicespro bono or otherwise in supportof the victims so that they are inturn made known to Court.

(xxvi) The State shall prepare adatabase of all the abscondingoffenders under the ITPA in theentire State of Maharashtra. Thepolice shall thus maintain anactive centralized databasestoring antecedents of humantrafficking offenders.

(xxvii) The Court also issued guidelineswith regard to sureties for releaseon bail:

(a) Legal sureties must be provided;Cash bail shall as far as possiblenot be allowed.

(b) There shall be 2 sureties to beprovided. At least 1 surety shallbe a permanent resident andhaving at least 1 property withinthe jurisdiction of the Court.

(c) No surety shall be acceptedexcept upon proof of record ofbirth, residence, education,identity, property, contact detailsamongst other requirements.

(d) The permanent address includingthe native address of the accusedas also the surety along withcopies of their originalidentification documents such asVoter's Card, Ration Card, AadharCard, Passport and Post Card sizephotographs of the accused andthe surety etc. along with theiridentification features in detail becollected and maintained by thepolice and verified before the

accused is released from custody.Passport and type of visa offoreign nationals e.g. Nepalese,Bangladeshis etc. must also beverified.

(e) The details of their immovableproperty, if any, be collected andthe relevant entry be made in theRevenue Record.

(f) The verification report of thesureties must have thepermanent address of thesureties shown in their AadharCard, etc verified with theircurrent residence by the localpolice and attested and approvedby the Anti Human TraffickingUnit AHTU) / Social ServiceBranch (SSB) / Crime Branch.

(g) The Registrar of District Courtsshall prepare a computerisedalphabetical register maintainingthe details of the accused and thesureties of all ITPA cases. Thesedetails can be fruitfully sharedwith the NGOs who renderservices to the victims, thelawyers who represent the victimsas also the Centralised Database,showing the antecedents of theaccused as and when established.

(h) The Court shall appreciate thatthe prices of all the commoditiesescalate. So shall be the amountsfor bail i.e. for sureties, (as wouldalso be for imposing fines andcompensation) which should becommensurate with thedeterrence required not to jumpbail.

(i) A person shall stand surety onlyfor 1 accused at a time i.e. till theend of his / her trial. Such suretycannot be allowed to be a suretyfor any other accused. Thisdirection would rule out themenace of “professional surety”.The database/ computerised


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register of the sureties whichwould show if the applicant hasbeen a surety before in any otherITPA case.

( j) The sureties shall not have anyprior criminal antecedents.

The High Court directed that: A copy ofthis judgment is to be forwarded to allthe Magistrates, Special Court of ITPA,Sessions Judges, Additional SessionsJudges dealing with the cases of ITPA byway of appeal or revisions, the DirectorGeneral of Police for circulation to allthe police stations, the Directorate ofPublic Prosecutors for circulation to allAdditional Public Prosecutors as alsothe Maharashtra Judicial Academy(MJA), Uttan, District Thane,Maharashtra and the District LegalServices Authority (DLSA), to be used inthe periodical training of Police Officers,Prosecutors and Judicial Officers.

Comment :(a) As in the case of most PILs the

decision is taken without sex workersand their collectives having any sayin the matter.

(b) The courts are in the enviableposition of passing orders withouthaving the responsibility ofimplementing them.

(c) The judgment has given sweepingdirections governing various aspectsfrom protection of victim/survivorsto the release on bail of variousactors including detailedprescriptions for sureties,identification papers and preparationof various data bases.

(d) The impact of the judgment onground realities needs detailed studyand scrutiny to assess the results.

41. Ranjeet Kaur vs State (NCT Govt.of Delhi), 2015(152) DRJ653, Delhi HC

Facts : The prosecution alleged thatAccused 1 after administeringstupefying substance to the prosecutrix'X' (identity hidden) aged around 20years at New Delhi Railway Station tookher to her residence with an intention tofacilitate the commission of rape by heracquaintance. Thereafter, 'X' wasconfined inside the house and A-2committed rape upon her and Accused-1 and Neelam @ Billo abetted thecommission of offence of rape upon theprosecutrix.

The accused were charged underSections 376, 376 read with Section 34and 109 IPC and Section 5 ITPA Act.Accused 1 was convicted under Sections109/34 IPC r/w Section 376 IPC andSection 328 IPC. A- 2 was convictedunder Section 376 IPC and appealed tothe High Court.

Decision :(i) The testimony of ‘X’ was found to be

cogent and without materialcontradictions and reliable.

(ii) Suggestions that ‘X’ was a prostituteand was falsely implicating theaccused were disbelieved by thecourt.

(iii)‘X’ had undergone treatment formental trauma for two months butsuggestions that her testimony couldnot be relied on were rejected.

(iv)The convictions of the accused wereupheld by the High Court.

Comment :(a) The case deals with testimony in

case of rape and as there was noconviction under ITPA. It isinteresting to note that the accusedattempted to discredit the testimonyof the complainant by alleging shewas a sex worker, who is alwaysassumed to consent to sexualintercourse.


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42. G.S. Madusudan vs State, Crl. P.Nos. 5297, 5439 and 5632 of 2015,Karnataka H C

Facts : On receipt of a telephone callfrom the victim to the PoliceCommissioner of Mysore, the ChildWelfare Committee of Mysore Districtvisited the house of the victim, rescuedthe minor girl and sent her to thechildren’s home. The victim-survivorstated that she was forced by hermother, Accused No. 1 and her friendGeetha, Accused No. 2 and otheraccused persons for sexual assault andwas subjected to sexual assault byAccused Nos. 4 to 9.

The petitioners were accused ofoffences under Sections 376, 366(A),343 r/w Section 149 of IPC and Sections3, 4, 5 and 6 of the ITPA and Section 23J.J. Act and filed bail applications. It wassubmitted that the prime witnessnamely the victim girl herself turnedhostile and there is nothing left to theprosecution to prove the case and thepetitioners be given bail.

Decision :(i) The minor girl resisted and made the

complaint that she was subjected tosexual assault with the co-operationof the mother.

(ii) The case is based on materialwitnesses and the persons areaccused of heinous offences.

(iii)Bail was granted to the accused theground that they had already spenttwo years in jail but with thecondition that they would notcontact the minor girl.

Comment :(a) The judgment establishes that entire

case does not go out of the windowbecause the minor victim/survivorturned hostile, prosecution and trial

can continue on the basis of otherevidence.

43. Karthik Hegde vs State ofKarnataka, Criminal Petition Nos.1007/2015 and 1642/2014 and WritPetition No. 60129/2014, KarnatakaH C

Facts : The petitioners in three differentcases were all charge-sheeted foroffences punishable under Sections 3, 4,5 and 7 of the ITPA and approached theHigh Court for quashing of the cases.

Decision : (i) There is no incriminating material

against the petitioners provingcommission of offences underSections 3, 4, 5 and 7 of the ITPA.

(ii) None of the witnesses have givenstatements showing involvement ofthe petitioners in the offences.

(iii) The cases against the petitionerswere quashed by the Court.


the police to arrest and chargewhoever is found in the place duringraids regardless of involvement inthe commission of offences.

44. Madhu vs. State of Karnataka,2015(3) AKR 784, Karnataka H C

Facts : The petitioner, accused No. 3 forthe offences punishable under Sections399, 366-A, 366-B, 370, 370(A), 372,373 r/w 34 of IPC and u/Ss. 3, 4, 5, 6, 7,9ITPA & under Sections 3, 4, 7, 8, 17 ofPOCSO Act and applied for bail. It wassubmitted that the petitioner waspresent at the particular address buthad no involvement in any offence.

Decision :(i) The victim/survivor does not name


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the petitioner in her statement.(ii) There is no reference to the

petitioner in materials produced.(iii)The petitioner was released on bail

with the condition that he would notthreaten witnesses or tamper withevidence.

Comment :(a) The case illustrates the routine

practice of the police of arrestingand charging any person presentwhile conducting raids, regardless ofculpability.

45. Satish vs State, Criminal AppealNos. 1019 and 1322/2010,Karnataka H C

Facts : Reshma, 20, committed suicideby hanging. The accused were chargedunder Section 498-A IPC, Sections 3 and4 of Dowry Prohibition Act, Section304B of IPC read with Section 5(b) and(d) of ITPA read with Section 34 of IPCand Section 306 of IPC. The District andSessions Judge, Mysuru convictedAccused No. 1 under Section 498-A ofIPC and acquitted the other accused.Accused No. 1 appealed against thedecision in the High Court. The motherof the deceased Reshma appealedagainst the acquittals.

Decision :(i) The conviction of Accused No. 1

under section 498 A IPC wasconfirmed.

(ii) In addition Accused No. 1 wasconvicted under section 306 IPC forabetment to suicide.

(iii) The acquittal of the other accusedwas upheld by the High Court.

Comment :(a) The case deals with analysis of

evidence for the offences underSections 498 A and 306 IPC.

(b) The case does not have relevance

from the point of view of sex workand trafficking.

46. State of Karnataka vs Farzana,2015(6)KarLJ 617, Karnataka H C

Facts : The prosecutrix, the prosecutionwitness 1, living at Kadapa in AndhraPradesh State, came about 15 days priorto 22.08.2006 to Bengaluru in order tomeet her sister Smt. Kamalbee.Kamalbee's husband (CW-6) wasrunning a watch shop in the City Market,Bengaluru. Prosecutrix got down fromthe bus at city bus stand and went toher brother-in-law's watch shop.However, the watch shop was closed. Asshe could not get the address of thehouse of her sister, so she went to thehouse of her sister's friend Smt. Farzana(accused No. 1) at Avalahalli and toldher that she wants to meet her sister;Farzana (accused No. 1) took theprosecutrix to the house of Smt. Hasina(accused No. 3) at Anepalya and askedP.W.-1 to stay in the house of accusedNo. 3 till she meets her sister.Prosecutrix came to know that accusedNos. 1 to 3 were carrying the businessof prostitution.

Accused Nos. 2 and 3 confined P.W.-1 intheir house. Accused No. 4 subjectedP.W.-1 to forcible sexual intercourse;subsequently, number of other personshad sexual intercourse with the victimagainst her will for about 10 days.Thereafter she was taken to Mumbaiand managed to escape, wasintercepted by the police and narratedthe facts and cases were registered. Theaccused-respondents were acquitted ofthe offences punishable under Sections342, 366A, 376 read with Section 34 ofIPC and Sections 3, 5 and 6 ITPA. TheState of Karnataka appealed against theacquittal.


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Decision :(i) The High Court held that the

detailed evidence given by thevictim is reliable and established thatthe accused forced her toprostitution.

(ii) The High Court convicted AccusedNos. 1 to 3 under Sections 3,5 and 6ITPA and section 342 IPC (wrongfulconfinement).

Comment :(a) The evidence in a case remains the

same.(b) It is in the appreciation of evidence

that subjective factors of theindividual judge come into play.

47. T. Sundar vs The Superintendentof Police, Crl. O.P. Nos. 225, 330, 384,657, 840, 841, 1331 and 2387 of 2015,Madras H C

Facts : This case relates to PuducherrySex Racket/Scandal involving severalpersons. The Chairperson, Child WelfareCommittee, Puducherry enquired fromtwo minor girls aged about 14 and 16respectively it came to light that theywere subjected to sexual harassment,initiated in prostitution by certainpimps. Based on the report, the GrandBazaar Police, Puducherry registered acase under Sections 4, 6 and 16 ofProtection of Children from SexualOffences Act, 2012 (POCSO Act) andSections 3, 4 and 7 of the ITPA. The HighCourt while hearing a bail petitiondirected conducting of TestIdentification Parade through videoconferencing in the presence of a ladymagistrate with respect to policemenwho were also alleged to have beeninvolved in this sex racket. In theirstatement, the victim girls havedescribed the policemen who haveraped them. In the Test IdentificationParade, the victim girls had identifiedthe eight police officers who were

petitioned the High Court foranticipatory bail.

Decision :(i) The High Court observed that it was

only at the intervention of the Courtthat Test Identification Parade wasconducted and the victim girlsidentified the petitioners.

(ii) The petitioners are not ordinarypersons and have long experience ofcrime and criminal law and arefamiliar with many hideouts andescape routes.

(iii)The petitioners are policemen andhave the men, money and materialat their disposal and can overawethe poor victim girls.

(iv)The petitioners can interfere with theinvestigation of the case.

(v) The incriminating materials againstthe accused require custodialinterrogation.

(vi)The anticipatory bail applications ofthe policemen were dismissed by theHigh Court.

Comment :(a) Generally, the police are well aware

of the activities in their area and arecomplicit for financial and othergains.

(b) It is a rare case where the complicityand the role of the police in theentry of minors into sex work cameto light and they are arraigned asaccused in the case.

48. ApneAap Women WorldwideTrust India vs The State of Bihar,2015(1)PLJR 268, Patna H C

Facts : ApneAap Women WorldwideTrust India was established to providefor education, health care, legalprotection and job skill to women andchildren found in the red light area. Thetrust filed a petition to direct the State


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to carry out its constitutional obligationenshrined in Article 23 of theConstitution (Prohibition of traffic inhuman beings and forced labour) bystrictly enforcing the provisions of theITPA and to conduct operations in redlight area and other areas in presence ofwomen social worker, to appoint SpecialPolice Officers not below the rank ofInspector for dealing with the offencesunder the Act and to maintain thevictims rescued in shelter homescertified by the State Social WelfareDepartment as per ITPA norms.The State of Bihar submitted that theDepartment of Social Welfare hasformulated State Plan of Action called‘Astitva’ providing for integratedapproach by several Departments of theGovernment (Education, RuralDevelopment, Social Welfare, Labour,Human Resources, Health, Police,District Administration etc.) videresolution of the Government issuedfrom Social Welfare Department. Thebasic objectives of ‘Astitva’ were:i. To prevent, control and eradiate

human trafficking, ensure qualitativeaction at source, transit anddestination areas of trafficking.

ii. Ensure and prioritize proper rescue,rehabilitation and sustainablerepatriation with special emphasison livelihood, socio-economicempowerment.

iii. Human trafficking is an organizedcrime, therefore, ensuring legalaction against pimps, traffickers etc.

iv. Ensuring sensitization, mobilizationand capacity building ofGovernment/Non-Governmentbodies for minimizing thevulnerability of human trafficking inthe State.

It was submitted by the State of Biharthat a District Level Anti HumanTrafficking Unit has been formed in all

the districts of Bihar which meet onregular basis to deal with the issuesrelating to human trafficking, such as,prevention, raid & rescue andrehabilitation of trafficked victims.Further that to build the capacity ofdifferent functionaries involved in theAnti Human Trafficking Programmesteps are being taken in the light of theguidelines of the Government of Indiato sensitize, develop the capacity of theofficers by imparting training to notonly the officers but also to the trainers.

Decision :(i) The Court gave directions under four

sub-headings, namely, Prevention,Raid & Rescue, Rehabilitation andProsecution

A. Prevention:The State, District Level Anti HumanTrafficking Body has already beenconstituted but till date no such body atthe Village level has been constituted toprevent trafficking at grass-root level.Accordingly, it is directed that in everyvillage/ward of Gram Panchayat/Urbanagglomeration including red light areawhere an Anganwadi Centre is alreadyestablished Village/Ward Level AntiHuman Trafficking Body be constitutedwithin a reasonable time not exceedingtwo months from the date of thisjudgment.

Anti Human Trafficking Body soconstituted may be the sameVillage/Ward Level Child ProtectionCommittee, which is required to beconstituted at the village level in termsof the Integrated Child ProtectionScheme, Chapter-2 Paragraph 3(i).Itshall be the duty of the Village/WardLevel Anti Human TraffickingBody/Village/Ward Level ChildProtection Committee to collect allrelevant data concerning the children


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aged between 0-18 years residingwithin its jurisdiction i.e. date of birth,gender, family's income, status of thechild attending Anganwadi or schooland to draw the individual Child CarePlan for each child residing within itsjurisdiction

B. Raid & Rescue:(i) To eliminate the menace of traffickingfor sexual purposes there should beregular raid/search and rescue frombrothel(s) as defined under Section 2(a)of the Act as also in other premiseswherever women, children are indistress by the Special Police Officersappointed under Section 13 of the Actand duly trained so that whileconducting search they comply with therequirement of sub-section (2) ofSection 15 of the Act and conductsearch of the premises/in presence oftwo or more respectable inhabitants ofthe area.

One of whom should be a woman neednot be a resident of the same area.During search, the Special Police Officerleading the search party should alsoobserve the mandate of sub-section(6A) of Section 15 of the Act.

C. Rehabilitation:In order to protect, provide vocationaltraining to the trafficked victims SocialWelfare Department should establish anadequate number of Protective Homesand Corrective Institutions in eachdistrict of the State. To begin with theDepartment must establish oneProtective Home, Corrective Institutionand One Stop Crisis/Nirbhaya Centre ineach district as early as possible, in anycase within a reasonable time.

The Protective Home, CorrectiveInstitution, One Stop Crisis/NirbhayaCentre must be managed by a person or

authority who is licensed undersubsection (3) of Section 21 of the Actwith the help of trained staff.

D. Prosecution :For successful prosecution of thetrafficker, it is necessary that the casesregistered under the Act areinvestigated by the Special PoliceOfficer and also prosecuted before theSpecial Court constituted under Section22-A of the Act within a time frame soas to ensure that the prosecutionwitnesses do not become hostile.

Comment :(a) As in the case of most PILs the

proceedings are conducted withoutany participation by sex workers andtheir collectives.

(b) This leads to directions which do nottake into account the large scaleviolation of the human rights of sexworkers in the raid and ‘rescue’operations and coerciverehabilitation measures.

(c) The judgment has given sweepingdirections as to prevention, raid andrescue, rehabilitation andprosecution.

(d) The problem with sweepingjudgments is implementation andthe actual impact, if any, on groundrealities.

49. Salma Bibi vs State of Rajasthan,S.B. Criminal Misc. Petition No.3158/2015, Rajasthan H C

Facts : Salma Bibi,the accused-petitioner filed this criminalmiscellaneous petition under Section482 Cr.P.C. for the following reliefs:"(a) The impugned cognizance order


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dated 22.5.2015 passed by learnedChief Judicial Magistrate, Kota inCriminal Case No. 333/2015 maykindly be quashed and set aside;

(b) The respondents may kindly bedirected to pay immediate interimrelief of Rs. 5 lacs and finalcompensation of Rs. 10 lacs for theunlawful detention and mentalharassment of the petitioner;

(c) The respondents No. 1, 2 & 3 maykindly be directed to declare thepetitioner as a victim and not anaccused;

(d) To quash and set aside the entireproceeding against the accused-petitioner;

(e) The respondent-State may kindly bedirected to record the statement ofthe petitioner under Section 161Cr.P.C.;

(f) The respondent-State may kindly bedirected to follow the due process oflaw as enshrined under Section15(5A) of the Immoral TrafficPrevention Act, 1956;

(g) The respondents may kindly bedirected to follow the due process oflaw as enshrined under Section 17 ofthe ITPA.

Decision :(i) The High Court held that the

petition cannot be entertained underSection 482 CrPC for quashing ofcharges and has to be preferredunder other criminal revisionprovisions of the CrPC.

Comment :(a) The petition raised interesting issues

especially given the conception ofITPA which is meant to treat sexworkers as victims but in practiceends up treating them as accused.

(b) The judgment is on a technicaljurisdiction point of law.

50. KatamoniNagaraju vs State ofTelangana, Criminal Petition No.1536 of 2015, Telangana & AndhraPradesh H C

Facts : The petitioner, accused No. 4along with Al, A2 and A3 is accused ofcommitting offences under Sections 3, 4and 5 ITPA. The police raided a flat inKothapet and found the premises beingused for prostitution. A.1 and A.2 weresaid to be the brothel house organizers,whereas A.3 and A.4 are the customers.

A.4 filed the petition in the High Courtand submitted that none of the Sections3, 4 and 5 or other sections of ITPAdescribe a customer as offender andtherefore, the prosecution of thepetitioner is a abuse of the process oflaw and hence the proceedings againsthim may be quashed. However, takingrecourse to powers granted to providedirections under the Criminal ProcedureCode under Section 482; the courtdirected the Magistrate to initiateproceedings against the petitioner forsexual exploitation of a victim oftrafficking.

Decision :(i) The High Court held that a customer

is not an offender under ITPA andquashed the criminal proceedings.

(ii) Magistrate directed to takecognisance and initiate proceedingsagainst petitioner for offence ofsexual exploitation of victim oftrafficking.

Comment : (a) Without ascertaining whether the

woman was sexually exploited;proceeding against the client forsexually exploiting her as a victim oftrafficking has set a precedent forcriminalization of clients.


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(b) The automatic presumptionthat any individual visiting a sexworker is liable to be proceededagainst as a sexual exploiter of atrafficked victim is problematic“in my considered view, to secure theends of justice, the High Court canexercise its inherent powers whenthe material placed by theprosecution i.e. charge sheetdiscloses the commission of offenceunder Section 370A.”

(c) The case illustrates the practice ofarresting and charging personsfound in the premises in raidsregardless of culpability.

51. Mohammed Shaeed vs The State ofTelangana, 2015 (1) ALD(Crl.) 992 (AP),Telangana & Andhra Pradesh H C

Facts : Mohammed Shaeed, thepetitioner, accused No. 5 along with A. 1to A. 4 and A. 6 were accused ofcommitting offences under Sections 3, 4and 5 ITPA. The police raided aresidential and found the premisesbeing used for prostitution. A. 2 and A.4 were said to be the brothel houseorganizers. A. 1 and A. 3 were pimpswhereas A. 5 and A. 6 were thecustomers. The petitioner submittedthat that none of the Sections 3, 4 and 5or other sections of the Act describes acustomer as offender and therefore, theprosecution of the petitioner, A. 5 is aabuse of process of law and hence theproceedings against him may bequashed.

Decision : (i) The High Court held that a customer

is not an offender under ITPA andquashed the criminal proceedings.

Comment :(a) The role of morality at play can be

seen in the observations of the judgewhile acquitting the accused:

“In my considered view, it is unwise tosay that a customer who lurks in dayand night in search of hiddenavenues to quench his sexual lust isa hapless victim of a crime to placehim out of the reach of the tentaclesof the law which is intended toeradicate the pernicious practice ofimmoral trafficking of women. Suchan unwarranted sympathy on acriminal will not help achieve desiredresults though aimed at high”.

(b) The case illustrates the practice ofarresting and charging any personfound in the premises on a raidregardless of culpability under law.

52. S. Naveen Kumar vs The State ofTelangana, 2015 (2) ALD(Crl.) 156 (AP),Telangana & Andhra Pradesh HC

Facts : The police registered an FIR afterraiding a flat. They found two ladies andone person and on their confessioncame to know that A1 was running thebrothel house on the premises and A2 islooking after the maintenance of thesame on the instructions of A1. A1brought victim lady (LW1) and recruitedher for prostitution and A1 sent A3customer and A2 took Rs. 2,500 andshowed the victim. Charge-sheet wasfiled against A1 and A2 for the offenceunder Section 370A IPC and Sections 3,4, 5 and 6 ITPA and against A3 underSection 4 ITPA. S. Naveen Kumar A3filed petition for quashing of chargesand submitted that assuming thatcharge sheet allegations are true, stillthey would reveal that petitioner, A3 isonly a customer and not an organizer ofthe brothel house or pimp andtherefore, charge under Section 4 of theITPA is not applicable to him, since thesaid section relates to the person wholives off the earnings of prostitution.


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Decision :(i) The High Court held that a customer

is not an offender under ITPA andquashed the criminal proceedingsunder Section 4 of ITPA.

(ii) The High Court directed that theMagistrate should proceed againstthe petitioner under Section 370 A,IPC (Exploitation of traffickedperson).

Comment :(a) The case illustrates the moral

disapproval and values of the judgeat play.

(b) The State had not charged thepetitioner Naveen Kumar underSection 370A IPC.

(c) The petition was by Naveen Kumarfor quashing the charge underSection 4 ITPA and not by the Stateseeking any relief.

(d) The decision of the High Court on apetition by the accused for relief todirect proceeding against him underSection 370A is unprecedented andneeds adjudication.

2016

53. Abdul Nazar vs State of Kerala,2016 SCC Online Ker 8673, KeralaHigh Court

Facts : It was alleged that the petitioneraccused engaged in internationaltrafficking of minors and adult womenby luring them with attractive salariesand then taking them to brothelsabroad.

The petitioners were accused of theoffences of trafficking of person underSection 370 of the Indian Penal Code,1860 (hereafter referred to as IPC);Exploitation of a minor trafficked person(Section 370A (1) IPC); Exploitation of atrafficked person (Section 370A (2) IPC);

Criminal conspiracy to commit andattempt to commit these offences underSections 120B and 511 of the IPC. Theoffences are punishable with amaximum of seven years imprisonment.In case investigation is not completedwithin 60 days a person is entitled to bereleased on bail after 60 days foroffences punishable with less than tenyearspunishment under Section 167(2)of the Criminal Procedure Code, 1973(hereinafter referred to as CrPC). Thepetitioners had been in custody forabout two months and applied forrelease on statutory bail as more than60 days had passed.

Decision :i. The Court held that the petitioners

had not been charged withtrafficking of more than one personunder Section 370(3) IPC;Thepunishment under Section 370(3) IPCis ten years and may be extended tolife imprisonment.

ii. The Court held that the materialdiscloses that the accused personwere involved in the trafficking ofmore than one person which ispunishable with life imprisonmentunder Section 370(3) IPC;

iii. Therefore there is no statutory rightto be released after the lapse of 60days.The offences are very seriousand there is material to connect theaccused with the offences.If releasedon bail, the accused may repeatoffences; may flee from justice andintimidate or influence witnesses.Thebail plea of the accused was rejected.

Comment :The accused were charged with offencespunishable with up to seven yearsimprisonment and entitled to releaseafter 60 days.The judge used his


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discretion and concluded that thematerial shows that accused traffickedin more than one person andpunishable with up to life imprisonmentunder Section 370(3) IPC and so there isno right to statutory bail.Likelihood ofrepeating offences, fleeing andintimidating or influencing witnessesare valid grounds for rejection of bail.

54. Col (Retd) Ajay Ahlawat versusState 2016 SCC Online Del 5833

Facts : The petitioner was alleged to beinvolved in human trafficking andinternational sex racket. The petitionerwas accused of illegal confinement(Section 341 and 342 IPC) andexploitation of trafficked person(Section 370A (2)). The petitionerapplied for anticipatory bail in the HighCourt alleging false implication becauseof filing complaints against Income Taxofficers.

Decision : i. The court observed that there were

serious allegations against theaccused by the prosecutrix aboutillegal confinement.

ii. The prosecution produced variouscommunications and Whats Appmessages that the accused wasinvolved in procuring girls andsupplying them to various persons.

iii. The anticipatory bail application wasrejected by the trial court by acomprehensive order.

iv. The petitioner withdrew an earlieranticipatory bail application beforethe High Court.

v. There are no new developmentsafter the withdrawal of the earlieranticipatory bail application.

vi. The petitioner did not joininvestigation and cooperate with thepolice and proceedings to declarehim an absconder are going on.

vii. The anticipatory bail application wasrejected by the High Court.

Comments :The petitioner did not join investigationeven after the rejection of theanticipatory bail by the trial court andproceedings to declare him anabsconder and attach property wereinitiated against him.The petitioner withdrew an earlieranticipatory bail application andfurnished no new developments forbringing a fresh application.There is presumption of innocence inlaw, however, the above factorscontributed to rejection of theanticipatory bail application.

55. Ali AK versus State of 2016 SCCOnLine Ker 19846Kerala High Court

Facts : The accused was charged withtrafficking of minors and adults andapplied for bail.

Decision : The petitioner was releasedon bail after being two months incustody with stringent conditions toreport to police station and not tamperwith evidence and witnesses.

Comment : Even though there is apresumption of innocence, courts tendto favour custody of under trials for aperiod and then are more inclined torelease on bail.

56. Ashok versus State of Karnataka2016 SCC Online Kar 2522

Facts : The petitioners were charged forrunning a brothel under Section 3 of theImmoral Traffic Prevention Act, 1956(ITPA) and for procuring or taking aperson for prostitution under Section 5ITPA and applied for anticipatory bail.


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Decision : The anticipatory bail petitionwas rejected as the offences wereagainst society and there wasapprehension of tampering withwitnesses. There was no material toshow that the police had the intentionto humiliate the petitioners.

Comment : Apprehension of tamperingwith witnesses is a valid ground forrejection of anticipatory bail.All offences are against society in law.Probably the stigma and outrageassociated in cases of sex work thefactor of offence against society playsmore of a role in denying bail.

57. Sandhya versus State of TamilNadu2016 SCC OnLine Mad 20416

Facts : The accused was detained underSection 3(1) of a local Tamil Nadupreventive detention law Act 14 of 1982as an ‘Immoral Traffic Offender’.A habeus corpus petition was filed bythe wife to set aside the detention. Theaccused has nine cases under ITPApending against him. The only groundurged in court was an illegible page inthe reasons for detention supplied.

Decision : i. The Court held that the reason to

supply the grounds for detention isto make a representation against thedetention.

ii. The accused had made norepresentation against the detentionand so could not have a grievancethat one page was ineligible.

iii. The petition of the wife of theaccused was rejected.

Comment : Courts are to beapproached after exhausting otheralternative remedies provided in law. In this case the alternative remedy ofrepresentation against the preventive

detention order was not attempted.58. Central Bureau of Investigationversus Raja Bhatacharya, 2016 SCCOnLine 249

Facts : The trial court had granted bailto the accused in case of humantrafficking. The CBI approached theHigh Court for cancellation of the bailgranted.

Decision :(i) The accused had been in custody for

a sufficient period of time.(ii) There are no allegations that the

accused tampered with witnessesafter release on bail.

(iii)There is a list of more than 100witnesses and the trial is going totake a long time.

(iv)There are no previous convictions orcriminal cases pending against theaccused.

(v) The High Court refused to cancel thebail granted and dismissed the CBIpetition.

Comment :i. The presumption of innocence

demands that persons not be kept incustody until convicted.

ii. Cancellation of bail already grantedrequires substantial grounds liketampering with witnesses by theaccused after release on bail.

59. Dilip Khan KM versus State ofKerala 2016 SCC OnLine 7938

Facts : It was alleged that the petitioneraccused engaged in internationaltrafficking of minors and adult womenby luring them with attractive salariesand then taking them to brothelsabroad. The petitioners were accused of theoffences of Trafficking of person underSection 370 of the Indian Penal Code,


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1860 (hereafter referred to as IPC);Exploitation of a minor trafficked person(Section 370A (1) IPC); Exploitation of atrafficked person (Section 370A (2) IPC);Criminal conspiracy to commit andattempt to commit these offences underSections 120B and 511 of the IPC. The offences are punishable with amaximum of seven years imprisonment.In case investigation is not completedwithin 60 days a person is entitled to bereleased on bail after 60 days foroffences punishable with less than tenyears punishment under Section 167(2)of the Criminal Procedure Code, 1973(hereinafter referred to as CrPC). The petitioners had been in custody forabout two months and applied forrelease on statutory bail as more than60 days had passed.

Decision :(i) The Court held that the petitioners

had not been charged withtrafficking of more than one personunder Section 370(3) IPC;

(ii) The punishment under Section370(3) IPC is ten years and may beextended to life imprisonment.

(iii) The Court held that the materialdiscloses that the accused personwere involved in the trafficking ofmore than one person which ispunishable with life imprisonmentunder Section 370(3) IPC;

(iv) Therefore there is no statutory rightto be released after the lapse of 60days.

(v) The offences are very serious andthere is material to connect theaccused with the offences.

(vi) If released on bail, the accused mayrepeat offences; may flee fromjustice and intimidate or influencewitnesses.

(vii) The bail plea of the accused wasrejected.

Comment :(a) The accused were charged with

offences punishable with up to sevenyears imprisonment and entitled torelease after 60 days.

(b) The judge used his discretion andconcluded that the material showsthat accused trafficked in more thanone person and punishable with upto life imprisonment and so there isno right to statutory bail.

(c) Law is also technical and theomission to charge with an offencepunishable with ten yearsimprisonment would generally go infavour of the accused.

(d) Likelihood of repeating offences,fleeing and intimidating orinfluencing witnesses are validgrounds for rejection of bail.

60. Dolee Ranglal Rangu versus Stateof Maharashtra 2016 SCC OnLine Bom12560

Facts : It was alleged that the applicantwas acting as an agent in the vocationof prostitution and earning herlivelihood from it. Accordingly, theapplicant was accused of trafficking ofpersons (Section 370 IPC) and forkeeping a brothel (Section 3 ITPA);Living off the earning of prostitution(Section 4 ITPA) and detaining a personwhere prostitution is carried on (Section6 ITPA). The applicant applied forrelease on bail.

Decision :i. The victim girls stated that they were

facing financial crisis. The applicantadvised them to enter prostitution towhich they willingly agreed.

ii. That they used to get a certainquantum of money and theapplicant got a commission.

iii. That the victims were indulging inthe vocation of their own free will.


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iv. The applicant was released on bail.

Comment :a) It is one of the rare court orders

recognizing the womanvictim/survivor women entered andwere engaged in the vocation of sexwork of their own free will.

b) Generally, the law as well as itsworking in practice takes no accountof the will of the persons in sex workand does not treat them as adultpersons who can choose to exerciseagency and will.

61. Gheesabai versus State of M.P.2016 SCC OnLine MP 7516

Facts : The petitioner parents of a minorfiled a habeus corpus writ petition inthe High Court for the production oftheir minor girl. The girl was recoveredin a raid in a dera of the Banjaracommunity, by the police pursuant toan FIR registered under Sections 3, 4and 5, ITPA, Sections 3(c) and 4 of theProtection of Children from SexualOffences Act, 2012 and Section 372 IPC.The parent petitioners did not turn upfor custody and the minor girl was sentto the Kundan Kutir Balika Grah, Jaura,District Ratlam under the JuvenileJustice (Care and Protection of Children)Act, 2000. The petitioners pleaded thatit was a case of Immoral Trafficking andthe minor girl was not involved inimmoral trafficking.

Decision :The High Court dismissed the petitionin view of the order under the JuvenileJustice Act.

Comment :(a) In raids often minors are sent to

juvenile homes despite the protestsof the parents.

(b) In the present case as the parents

did not turn up for custody – theJuvenile Welfare Board may have feltthat the parents may have beencomplicit.

(c) The general stigma and stereotypeof the Banjara community is of beinginvolved in crime and prostitution.

(d) This stereotype colours the workingof the laws and is likely to come intoplay in parents of the communityseeking custody of minors.

62. Miss Hanumavva versus State ofKarnataka 2016 SCC OnLine 1971

Facts : The petitioner Miss Hanumavvawho worked as a coolie introduced herminor neighbour to two persons whocommitted rape on the girl. Thepetitioner approached the High Courtfor bail. It was alleged that she indulgedin child trafficking for sexualexploitation.

Decision :i) Introducing the victim girl to the

alleged offenders by itself does notestablish the involvement of thepetitioner in trafficking.

ii) The petitioner was released on bail.

Comment :(a) Courts many times mechanically

deny bail in cases where the chargesare grave, more so in the highlysurcharged area of trafficking.

(b) In the present case the court lookedinto the facts and observed thatprima facie the offence of traffickingmay not be made out.

63. Haseena versus State (NCT ofDelhi), 2016 SCC OnLine Del 3500

Facts : Haseena was convicted forkeeping a brothel (Section 3 ITPA),causing or inducting a person to carryon prostitution (Section 5(1)(d) ITPA)


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and for detaining a person whereprostitution is carried on (Section 6ITPA). The conviction was challenged inthe High Court. The FIR was registeredon a complaint of a minor girl who waslured from Darjeeling with the promiseof a job and sold.

Decision : i) The High Court held that the

testimony of the victim/survivor wasclear that she was forced against herwishes into prostitution.

ii) That the counselling of the girl is asper law and cannot be said to taintthe testimony as improvement.

iii) The convictions were upheld by theHigh Court.

Comment :(a) The consensus view of sex workers

collectives is that no minors are tobe allowed in the profession.

(b) Similarly, that no person is to becoerced or forced into the professionagainst their wishes.

(c) The clear testimony of a person thatas a minor she was forced into sexwork against her wishesunequivocally establishes thecommission of the offences.

64. Indian Rescue Mission versusState of Maharashtra, 2016 SCCOnLine Bom 10248

Facts : James Verghese of the NGOIndian Rescue Mission filed a FIR and araid was conducted and two minor girlsrescued. One of the minor girls wasreleased in the custody of the father bythe Sessions Court. The release waschallenged by the India Rescue Missionin the High Court. The High Courtinterviewed the girl and found her to bearticulate and clear as to the facts andcircumstances.

Decision :i) The girl was not well vered in Hindi

at the time of rescue and herstatement recorded the same day inHindi had inaccuracies as to herhome situation.

ii) The girl had sharp cognition and hadpicked up Hindi and was quitearticulate and clear as to her homewith her grandmother and stepfather to take care of her.

iii) The High Court released the minorgirl to the custody of the father anddismissed the India Rescue missionpetition.

Comment :(a) In the working of criminal law like

the ITPA it is the State which has theresponsibility take steps.

(b) Third parties generally have no rolein the working of criminal law.

(c) Increasingly, NGOs like the IndiaRescue Mission initiate actions andlitigations in courts infringing therights of individuals.

65. Jai Singh versus State, 2016 SCCOnLine Raj 3898

Facts : Two girls from Alwar District inRajasthan had been sent to Dubai forearning through dancing by oneTinkuraj.

Decision :i) The woman sent had no connection

with sex work and prostitution.ii) The court felt that action should be

taken against Tinkuraj.iii) The police sought two weeks time to

investigate as the accused may beinvolved in human trafficking.

Comment :(a) Trafficking has been for long

conflated with sex work.(b) In the present case the Court


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categorically recorded that the twogirls had no connection with theprofession, yet the investigation wasto proceed further.

(c) Perhaps an indicator of the effortstowards de-linking the conflation ofsex work and trafficking.

66. Jayashree versus State ofMaharashtra, 2016 SCC OnLine 10079

Facts : The applicant was charged underSections 3, 4 and 5 of the ITPA andapplied for anticipatory bail. The majorground pleaded was that all the girlswere major and had volunteered for theprofession. There were 18 other similarcases against the applicant and she hadbeen arrested in one such matter.

Decision :i) The Court rejected the anticipatory

bail application of the applicant.

Comment :(a) The ground pleaded for anticipatory

bail that all the woman were majorsand were voluntarily in sex work is apositive step.

(b) It was not accepted in the presentcase and the factor of 18 othercriminal cases played a role in thedenial of anticipatory bail.

(c) However, it makes strategic sense totake this ground in applications forbail and anticipatory bail.

67. Kuriakose versus State of Kerala,2016 SCC OnLine Ker 2050

Facts : The petitioner was charged withoffences of keeping a brothel; living offthe earnings of prostitution; procuringor taking for prostitution andprostitution in the vicinity of a publicplaces under Sections 3, 4, 5 and 7 ITPArespectively. The petitioner pleaded thatthere was no legally conducted search.

That under Section 15(2) ITPA thereshould be at least two respectableinhabitants of the locality – one ofwhom should be a woman - to witnessthe search. There were no suchwitnesses in the case.

Decision :i) There was no legally conducted

search as per the requirements oflaw.

ii) Prosecution cannot prove that abrothel was running from thepremises.

iii) Offences against the petitioner arenot legally sustainable since thebasic premise that a brothel wasrunning from the premises is notestablished.

iv) The Court quashed all furtherproceedings against the petitioner.

Comment :(a) In many cases due to social mores

and stigma attached to sex work andactivities around it like running abrothel, the courts do not takeseriously the violations of theprovisions of law committed in raidsand rescue operations.

(b) It is a rare case where seriouscharges under ITPA were quashed asthe search provisions were notfollowed by the police.

68. Lonakaran Chotamaiji Parmarversus State of Maharashtra, 2016SCC OnLine Bom 9851

Facts : A woman Sunita approached themother of the complainant with aproposal for marriage of the complaint.The boy was stated to be fromAhmedabad with a job in Mumbai.Parmar the applicant for bail in thepresent case and Sunita took thecomplainant and her mother to


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Ahmedabad and got her married toNitin Jain. After the marriage Nitin informed thecomplainant that he was a resident ofRajasthan. That he had purchased herfor Rs. 5 lakhs. The complainant was illtreated, harassed and sexually abusedand not given the status of a wife. Thecomplainant bore two children. Afterfive years Nitin abandoned thecomplainant who was 20 years old now,she came back to her mother’s houseand lodged a complaint about theevents which has occurred five yearsback. Case was registered for illegalconfinement (Section 342 IPC);Kidnapping and Kidnapping to compelmarriage (Sections 363 and 366 IPCrespectively); Selling minor forprostitution (Section 372 IPC); Buyingminor for prostitution (Section 373 IPC);Rape (Section 376 IPC) and penetrativesexual assault; sexual assault and sexualharassment under sections 4,8 and 12 ofPOCSO. Parmar applied for bail urgingthat there was inordinate delay of fiveyears in filing the complaint.

Decision :i) Prima facie it was a case of

trafficking under the garb ofmarriage.

ii) The delay was due to the helplesseconomic condition of thecomplainant and is not fatal to theprosecution.

iii) The applicant and his agent Sunitahad cheated the complainant andruined her life.

iv) The bail application was rejected.

Comment :(a) Trafficking has been for long

conflated with sex work.(b) The Court took recognition of

trafficking under the garb ofmarriage.

(c) A positive indicator of the efforts

towards de-linking the conflation ofsex work and trafficking.

69. Mahesh Madhurkar Pawar versusState of Maharashtra, 2016 SCCOnLine 11233

Facts : A couple desirous of a childadopted a child from a ShishuGriha atNanded and payed 1, 92000/- to theinstitution. The child was with themfrom the age of 11 days for a period ofone year and nine months. The childwas well looked after and good careand medical treatment provided for theailments by the parent couple who werevery attached to the child.Subsequently, a complaint was lodgedof trafficking under Section 370 IPC. Thechild was taken away from the coupleand sent to a children’s institution bythe Child Welfare Committee. Thecouple approached the High Court forquashing the case against them.

Decision :i) The Court admitted the case to

examine whether in the facts andcircumstances a case of traffickingwas made out.

ii) Interim custody of the child wasgiven to the couple in the bestinterests and welfare of the child.

iii) An undertaking was taken from thecouple about providing medicaltreatment to the child.

iv) The couple were free to initiateproceedings for appointment asguardians of the child.

v) The couple were to take regularcounselling suggestions at TataInstitute of Social Sciences, Mumbai.

Comment :(a) A mechanistic application of the law

at times does not lead to anyresolution of the issues.

(b) An innovative approach adopted by


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the Court in the present case maylead to a more humane resolution inthe facts and circumstances.

(c) Increasing recognition by courts oftrafficking for objects other than sexwork.

70. Mamta Akash Raju versus State ofMaharashtra, 2016 SCC OnLineBom4188

Facts : The applicants were convictedfor illegal confinement and wrongfullykeeping kidnapped person underSections 344 and 368 IPC. They werealso convicted under Sections 3, 4, 5and 6 ITPA. The applicants prayed forsuspension of sentence and release onbail. The FIR was lodged by one AnsonThomas. The applicants and the twowomen who were the main prosecutionwitnesses were residing in JamunaMansion – a brothel whose activitieswere known to the police. That in thepast several years not a single personhad approached the police station,which was barely half-a-kilometre fromthe Mansion, on their own complainingof being detained against their will. Thatit was at the behest of NGOs that raidswere conducted at the premises. Thecomplainant in the FIR was harassingthe residents to convert to Christianity.The applicants had filed complaints andeven a writ petition about theharassment by the complainant in theFIR and that they have been falselyimplicated in the case.

Decision :i) The two prosecution witnesses were

majors when they entered JamunaMansion.

ii) There is no evidence that they wereforced into prostitution against theirwill or illegally confined by theApplicants.

iii) The applicants had lodgedcomplaints against the complainantin the FIR and this prompted him tofile the case.

iv) The Applicants while on bail wereresiding in Jamuna Mansion which isa brothel, and the plea that theycommitted similar offences while onbail cannot be taken intoconsideration.

v) The sentence of the Applicants wassuspended and they were releasedon bail.

Comment :(a) The case illustrates the phenomenon

of NGOs having vested interestsusing the criminal law for their ownagendas.

(b) That even in cases where the personsare majors and have entered sexwork of their own volition, NGOsfoist false criminal cases.

(c) The order clearly takes judicial noticeof the role of NGOs in the area of sexwork and the instigation to conductraids and rescue and lodge falsecases.

(d) The stigma associated with sex workhas not coloured the decision in thepresent case.

71. Manjunath P. Versus State ofKarnataka, 2016 SCC OnLine Kar 255

Facts : A bar and restaurant were raidedby the police and the customers werearrested and charged with traffickingunder Section 370 IPC and Exploitationof trafficked person under Section 370AIPC amongst other lesser sections likeObscene acts and songs. The petitionersmoved the High Court for quashing thecharges. It was argued that it was notthe case that the petitioners hadtrafficked persons and were merelyenjoying food and drinks. That if


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incidentally there were women dancingit was not at the instance of thepetitioners.

Decision :i) The Court observed that petitioner

No. 5 was Accused 106 and it wasevident that there were more than ahundred persons at the bar andrestaurant.

ii) That it was not the case of theprosecution that each of them wastrying to befriend a particularwoman or exploit a particularwoman.

iii) That it was unclear and vague as towho was trying to exploit whom.

iv) That characterizing the women assex workers was unfair to the womenemployed as waitresses to servefood and drink.

v) The criminal proceedings werequashed by the High Court.

Comment :(a) The case is illustrative of the

approach of the police in applyingthe trafficking provisions.

(b) The role of morality coming into playto indulge in moral policing toharass customers at bars andrestaurants.

(c) At times the mere mention of sexwork and trafficking serves toprejudice the courts.

(d) The fair Court order also illustratesthat the stigma associated with sexwork and trafficking has not come inthe way of interpreting the law.

72. Priya Gopa Saha versus State ofMaharashtra, 2016 SCC OnLine Bom6939

Facts : Priya Gopal Saha was rescuedand sent to shelter home NavjeevanMahila Vasatigruha, Deonar, Mumbai bythe Metropolitan Magistrate for one

year for training in skills like stitching,paper bag making, paper dish making,fancy bag making. Saha, an adult, hadno parents and was unmarried. Theorder was confirmed by the SessionsCourt. Saha approached the High Courtfor quashing of the order and hadalready spent 10 months in the shelterhome. The Applicant stated that she is28 years old, has been living with hermaternal sister since birth atKamathipura and is capable of lookingafter herself and was ready to give anundertaking that will not indulge insimilar activities in future.

Decision : i) Applicant is a major and capable to

take care of herself.ii) Applicant had voluntarily indulged in

prostitution and was not forced byanyone.

iii) Applicant was sent to the home hashad no parents and was unmarried.

iv) Applicant is ready to give anundertaking that will not indulge insimilar activities in the future.

v) Applicant has already spent 10months in the shelter home.

vi) The order sending Saha to theshelter home was quashed and herrelease ordered by the High Court.

Comment :(a)The facts illustrative of the

undermining the consent of an adultand being rescued in ‘raid andrescue’ operations under ITPA.

(b) The working of the law not takinginto account that the individual sentto the shelter home against her willis an adult capable of taking her owndecisions and managing her life.

(c) Illustrates that the natures of skillsbeing taught in the shelter homesfor rehabilitation at best generatevery poorly paid work.

(d) The total lack of taking into account


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the reality of the Saha living inKamathipura since birth and themockery of taking an undertakingthat will not indulge in similar acts.

(e)The manner of functioning of courtswhich because of lack of parents andunmarried status sent Saha to theshelter home.

(f) The injustice suffered as theApplicant had already spent 10months out of the one yeardetention ordered by the time of thequashing and release by the HighCourt.

73. Sukhendu Nath Bhatacharjee vsState of WB, 2016 SCC OnLine Cal6574

Facts : The Deputy Magistrate andDeputy Collector, Diamond Harbousconducted inspection in Hotel RiverView, found ‘immoral trafficking werebeing carried on’ and sealed rooms inthe hotel. FIR was lodged for wrongfulrestraint (Section 141 IPC), disobeyingpublic servant (Section 188 IPC) andcriminal intimidation (Section 506 IPC).The rooms were sealed to avoid filthyenvironment under Section 133 of theCriminal Procedure Code (CrPC) whichempowers a District Magistrate or Sub-Divisional Magisrate to make orders forremoval of nuisance. Under Section 144CrPC which empowers to pass orders inurgent cases of nuisance or dangerorders were passed prohibiting anyperson to enter and reside in the roomssealed. The petitioner applied to the JudicialMagistrate for opening of the roomswhich was turned down and the matterreached the High Court.

Decision :i) The High Court rejected the petition

of the applicant.ii) The petitioner did not take steps

against the orders passed underSection 133 and 144 CrPC in theappropriate forum.

Comment :(a) Rooms were sealed under the CrPC

provisions to prevent nuisance onthe grounds as steps to avoid filthyenvironment on the suspicion ofimmoral activity being carried out atthe premises.

(b) The powers under the CrPCprovisions are to prevent nuisance orapprehended danger and have noapplication in sealing rooms as‘immoral trafficking were beingcarried on’ in the premises.

74. Sahil Patel versus State of A.P.2016 SCC OnLine Hyd 24

Facts : The petitioners approached theHigh Court to quash charges againstthem under ITPA on the plea that theinvestigations at best reveal they werecustomers and were not running thebrothel or living off the earnings ofprostitution.

Decision :i) The Court took the view that the

provisions of ITPA are not applicableto customers.

ii) However, Sections 370 and 370A ofthe IPC have been introduced by the2013 amendment.

iii) The High Court refused to quash thecharges.

iv) The petitioners were free toapproach the trial court fordischarge on merits.

Comment :(a) Illustrative of the practice of the

police arresting and charging anyonepresent during raids regardless ofthe provisions of law.

(b) An indicator that courts inclined to


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prosecuting customers underSection 370A IPC – Exploitation oftrafficked person.

75. Shaiyra versus The State, 2016SCC OnLine Del 2352

Facts : Shaiyra was convicted ofoffences under Section 3, 4 and 5 ofITPA and appealed to the High Court.Section 13 ITPA envisions theappointment of Special Police Officersto carry out investigations under theAct. A major part of the investigationswere carried out by a police officer whowas not a Special Police Officer underITPA. The persons rescued mentionedvarious men with whom they had comeaway from their respective hometowns.At the time of the raid most of thewomen rescued were majors or on theverge of attaining majority.

Decision :i) Investigations conducted by an

officer not designated as SpecialPolice Officer under ITPA werewithout jurisdiction andunsustainable.

ii) Victims had accompanied strangersfrom different places on the pretextof a good job without informingtheir parents.

iii) There was nothing to show that theappellant Shaiyra had any nexuswith the persons who abducted orkidnapped the victims.

iv) It was not established that any ofthe victims were minors at the timeof the incident.

v) It was not established that thevictims were forcibly subjected toprostitution against their wishes.

vi) The possibility that the victims wereconsenting parties cannot be ruledout.

vii) The identity of customers whoallegedly abused the victims was

not ascertained. viii) Shaiyra was acquitted by the High

Court in appeal.

Comment :(a) The judgment clearly takes on board

that ‘victims’ ‘rescued’ may beactually consenting parties.

(b) Rescued women may have enteredthe profession on their own and notforced into it.

(c) That the stigma and prejudiceassociated with sex work andprostitution must not be allowedplay and the burden of proving thevarious facts to establish offences ison the prosecution in law and isequally applicable to ITPA cases

(d) Evidence must be produced toestablish abuse and coercion andmere bald allegations are notsufficient for conviction in law.

76. Shankar Gowda versus State, AIRKant R 353

Facts : The petitioner was chargesheeted under Sections 3, 4, 5, 6, 7, 8 &9 of ITPA and applied for quashing ofcharges. Section 13 of ITPA mandatesthe appointment of a Special PoliceOfficer under the Act not below therank of Inspector of Police. Theinvestigation, search and arrest in thepresent case were carried out by a Sub-Inspector of Police.

Decision : i) Investigation was not steered by a

Special Police Officer appointedunder Section 13 of ITPA was held tobe illegal and vitiated.

ii) The charges were quashed by theHigh Court.

Comment :(a) The following of procedures for

investigation and search as laid


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down under ITPA are many timesdisregarded by the investigatingagencies.

(b) The registration and investigationwithout following the procedurespecified under ITPA must be setaside by courts.

77. Abhijit Kallianpur vs State ofKarnataka, Criminal Petition No.1959 of 2017 Karnataka H C

Facts : The petitioner was arrested in araid at the Shivai Thai Massage Spa,Bengaluru as a customer and chargedwith offences under Section 370 IPC andSections 3, 4, 5, 6 and 7 ITPA. The raidwas carried out on the suspicion thatsex work was being carried out at theSpa. It is after the raid and thepreparation of panchnama that an FIRwas registered. The petitionerapproached the High Court forquashing of charges.

Decision :(i) The petitioner was present on the

spot at the time of the raidindicating that he had gone there asa customer for massage.

(ii) A customer is not covered under anyof the provisions like running abrothel (Section 3 ITPA); earning offthe livings of prostitution (Section 4ITPA); Procuring a person forprostitution (Section 5 ITPA);Detaining a person whereprostitution carried out (Section 6ITPA) and prostitution in vicinity ofpublic place (Section 7 ITPA).

(iii)Registration of FIR after the carryingout of the investigation raid andpreparation of panchama vitiated theproceedings.

(iv)The FIR was quashed holding thatallegations made do not constituteany of the alleged offences.

Comment :(a) There is no law prohibiting spas and

massage parlours.(b) Raids by police on the suspicion that

sex work being carried out.(c) The practice of the police to make

any persons present at the time ofthe raid an accused, regardless ofthe facts and law.

(d) Investigation and raids before an FIRvitiate the proceedings in law.

(e) The stigma and discriminationassociated with sex work getsattached to spas and massageparlours leading to harassment.

78. Abhishek Mishra vs State of Goa,Criminal Writ Petition No. 77 of2017, Bom HC (Goa Bench)

Facts : The police conducted a raid onthe massage parlour run under thename and style as "Venus & Mars Salon-Spa Body Care" in Mapusa, Goa on thepremise that the girls engaged thereinwere carrying on prostitution in the spaby way of cross massage. Charge sheetwas filed under Sections 3, 4, 5 ITPA andSection 370 IPC. The petitionerapproached the High Court forquashing the charges arguing that therewas no material to connect him with theoffences.

Decision :(i) There is no mention of the petitioner

in the FIR.(ii) The petitioner is not mentioned by

the victims amongst the customers.(iii)There is no reason to force the

petitioner to stand the trauma of atrial.

(iv)The charge sheet against thepetitioner was quashed.

Comment :(a) Raids on the suspicion of sex work

being carried out causing


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harassment of the establishmentsand the customers, even thoughSpas and Massage parlours are legal.

(b) Routine practice of arresting anypersons present on the spot at thetime of the raid and making them anaccused, regardless of the factualand legal position.

(c) The stigma and discriminationassociated with sex work getsattached to spas and massageparlours leading to harassment.

79. Anju Devi versus State of WestBengal, 2017 SCC OnLine Cal 809, CalHC

Facts : A minor girl was kidnapped. Thegirl was not recovered and the mainaccused could not be arrested. Themother of the minor pleaded ineffectiveinvestigation and approached the HighCourt for proper investigation.

Decision :(i) The minor girl appeared to have

been taken out of the State of WestBengal.

(ii) The case wastransferred to the Anti-Human Trafficking Unit attached toCID, West Bengal.

Comment :(a) Cases of inter-state trafficking of

minors require co-ordination withother states.

(b) A specialized unit familiar withpatterns may be more equipped toinvestigate rather than the localpolice station where the offencecommitted.

80. Arun Baburao Chavan vs State ofMaharashtra, 2017 SCC OnLine Bom7331, Bom HC

Facts : A raid was organized on a lodgein Karad and the owner of the lodge

was arrested and charged with offencesunder Sections 3, 4 and 7 ITPA andSection 370 IPC. The applicant hasalready spent one and a half years in jailand applied for bail which was rejectedby the Sessions Court. The applicantapproached the High Court.

Decision :(i) The four victims found in the lodge

were all above 21 years of age andnone of them was a minor.

(ii) The victims/survivors have not statedthat the accused had induced orforced them into prostitution.

(iii)Bail was granted to the accused.

Comment :(a)Sustained campaign by sex workers

that adult women may enter sexwork without being induced orforced seems to be having animpact.

(b) The Courts appear to be taking onboard the fact of adult womenentering sex work on their ownvolition specially in the context ofreleasing the accused on bail.

81. Firoja vs The State ofMaharashtra, Criminal Appeal Nos.534 and 597 of 2010, Bom HC

Facts : The accused were charged withoffences under Sections 3, 4, 5 and 6ITPA and for procuration of a minor girlfor illicit intercourse under Section 366Aof the IPC. The trial court held that asthe provisions for appointment of andraids by Special Police Officers underSection 13 and 15 ITPA had not beenfollowed and the offences under ITPAwere not established. The trial Courtconvicted the accused underSection366A IPC and the case reachedthe High Court in appeal.


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Decision :i) The girls state that they are minors

but without giving the reasons forthis estimate and oral testimonycannot be relied on.

ii) The evidence of the doctor merelystates the conclusion that the girlswere minors.

iii) The basis of the conclusion that thegirls were minors has not beendeposed to by the medical doctor.

iv) There can be an error of two years inthe estimates based on boneossification test.

v) The prosecution has neither takensteps to get birth certificates orschool leaving certificates norexamined the parents of the girls orthe Principal of the School.

vi) The girls/ woman being minorsunder the age of 18 years has notbeen established beyond reasonabledoubt.

vii) The accused were acquitted of thecharge.

Comment :(a) The Trial Court took on board that

the fact that the provisions as toappointment of and searches bySpecial Police Officers were notfollowed and therefore offencesunder ITPA were not established.

(b) The bone ossification test relied onin prosecution in a number of caseshas wide variation and a two yearmargin of error and is not conclusivein establishing that a girl is a minor.

82. Gudia Swayamsevi Sansthan vsSatyabhama, 2017 SCC OnLine 417,Supreme Court

Facts : The accused were arrested forhuman trafficking and forcing minorgirls into prostitution. In a raid in May2016, forty-one minor girls wererecovered. There were allegations of

giving growth hormones to small girlsfor prostitution.

The accused were charged underSections 370 to 373 IPC for trafficking,buying and selling minors forprostitution. They were also chargedwith offences under Section 3, 4, 5, 6, 7& 9 of the ITPA. The Allahabad HighCourt released the accused on bail. Anappeal was lodged in the SupremeCourt for the cancellation of bail.

Decision : i) Given the seriousness of the

allegations, the High Court shouldnot have granted bail in amechanical manner without noticingthe facts of the case.

ii) The girls were kept hungry, givendrugs and kept intoxicated.

iii) There is a gang involved in humantrafficking and operating to forceminor girls into prostitution.

iv) The approach of the High Court wasnot proper given the seriousallegations.

v) The release of the accused on bailwas cancelled.

Comment :(a) The factors in a decision to cancel

bail are different from those involvedin granting bail.

(b) Generally, bail is cancelled due toconduct after release like influencingwitnesses and tampering withevidence.

(c) The Supreme Court has named aminor in the order, despite the lawbeing clear about not identifyingminors.

83. Jitendra Kumar vs State ofUttarakhand, Criminal Appeal Nos.29, 34 and 41 of 2014,Uttarakhand HC


153

Facts : Occupants of a room in a hotelcomplained to the receptionist aboutruckus in adjoining room. Thereceptionist informed the Manager whocontacted the police. The police raidedthe room found men and two women innaked and semi-naked position andarrested the three accused, while afourth ran away. The doctors opinedthat the age of the girls recovered fromthe room was 16-17 years and 17 yearsrespectively. The Manager and theReceptionist turned hostile and did notidentify the accused. The accused wereconvicted under Section 373 IPC forbuying minor for purpose ofprostitution and appealed in the HighCourt.

Decision :i) The prosecution should not keep

back eye witnesses as their evidenceis likely to go against theprosecution.

ii) It is the duty of the prosecution topresent the best evidence and assistthe court in reaching a properconclusion.

iii) If persons who have witnessed theincident are deliberately kept backthe Court may draw an adverseinference and record it as a seriousinfirmity in the proof of theprosecution case.

iv) The Court held that in the presentcase the two girls and the occupantof the neighbouring room wholodged the compliant were materialwitnesses and were not examined bythe prosecution.

v) The High Court drew an adverseinference against the prosecution,held that the offence was not provedbeyond reasonable doubt andacquitted the accused persons.

Comment :(a) The judgment makes an important

point about the duty of theprosecution to lead the bestevidence to assist the court.

(b) This needs to be kept in mind whenthe prosecution chooses to producewitnesses in its favour and hold backwitnesses which are likely to goagainst the prosecution case.

(c) That an adverse inference ought tobe drawn against the prosecutionand it should be counted as aserious infirmity in the prosecutioncase.

84. Kamala Thusang Lama vs State ofMaharashtra, 2017 SCC OnLine 5160,Bom HC

Facts : The applicant for anticipatorybail was moved apprehending arrest bythe accused in a FIR with charges likewrongful confinement (344 IPC),Kidnapping, Procuration of minor girl,trafficking, buying and selling of minorsunder sections 344, 363, 366A, 370 A,372, 373 IPC; Sections 3, 4, 5, 6, 7 ITPAand Sections 4 and 17 POCSo. TheApplicant pleaded that she was theowner but was unaware of the activitiesof the co-accused. That the girls werebetween 17 and 19 years of age and thePOCSO sections are to be deleted. Thatthe applicant has been cooperating withthe police during the interim pre-arrestbail.

Decision : i) The main allegations are against the

co-accused.ii) There are no criminal antecedents of

the applicant-accused.iii) The anticipatory bail granted was

confirmed by the High Court.

Comment :(a) Generally the grave nature of the

charges weighs heavily with thejudge in deciding the question of


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bail and more so anticipatory bail.(b) It is rare for anticipatory bail to be

granted in such cases particularlythose involving allegations oftrafficking of minors.

(c) Rarely are other factors given dueweight in the decision to grant orrefuse bail and anticipatory bail asseems to have been done in thepresent case.

85. Liyakat Ali Mansab Ali Chaudharyvs State of Maharashtra, 2017 SCCOnLine 7073 Bom HC

Facts : A girl was rescued in a raid on abrothel named “Sheesh Mahal”andclaimed that she had merely gone tothe place to meet a friend. The claimwas disbelieved by the trial court as thegirl was found in a room with the decoycustomer sent by the police. The girlgave two names of her mother andgave the ages and names of fourbrothers and two sisters. The ProbationOfficer of the NGO Rescue Foundationgave different names and ages of thesiblings. As the information given bythe girl did not match the informationcollected by the NGO Rescue the trialcourt sent the girl to a rescuefoundationfor protection, safety,vocational training and rehabilitation.The victim woman challenged thedetention order in the Sessions Court.The appeal was dismissed noting thediscrepancy and mismatch of namesand ages of siblings, the lack of anyrelative of the woman approaching toclaim her and asking for setting asidethe detention order and thegenuineness of the documentsproduced like Aadhar card was alsodoubted. Thereafter, a petition wasfiled in the High Court by two personsclaiming to be the father and mother ofthegirl.

Decision :i) The name given by the mother

Anjuma did not match the namegiven by the girl as Anjuman or Fico.

ii) The girl had not referred to father inher statement.

iii) The court observed that there wasserious doubt about the petitionersbeing the relatives of the girl anddismissed their petition.

Comment :a) Minors at times sent to juvenile

homes against the wishes of theparents.

b) At times names and documents ofpersons living at the margins ofsociety are not so clear cut and fixed.

c) The anxiety of the court is thatpersons falsely claiming to berelatives are seeking custody andintend to send the girl back into sexwork.

86. Navin Kumar Chhotelal Tiwari vsState of Maharashtra, 2017 SCCOnLine 5261, Bom HC

Facts : A fifteen year old girl fromBangladesh was found in HotelRatnagar in Daman where the applicant-accused was working as manager.According to the girl one person Rajubrought her to Ahmedabad and kepther there for eight days.

Thereafter, she was handed over toanother person who brought her toHotel New Ratnagar in Nani Daman.The accused was working as Manager inthe hotel.

The applicant and other hotel staff hadforcible sexual intercourse with her. On18/4/2016 at about 1.30 am, sheopened the flap of the window andshouted for help. The patrolling policeon hearing her shouts came to the hotel


155

and found her. The accused wascharged with Sections 3, 5, 6, 7 &8 ofITPA and sections 3 & 4 of POCSO andapplied for bail.

Decision :i) The girl has made specific

allegations against the accused andthree others of forcible sexualintercourse.

ii) The medical report categoricallyrecords forcible sexual intercourse.

iii) The manner in which the girl wasfound were also held against theaccused.

iv) The High Court denied bail to theaccused.

Comments :(a) Sex workers collectives have

consistently taken a stand againstthe entry of minors.

(b) Similarly sex workers collectives havebeen against forcible induction intothe profession.

(c) The circumstances of the rescuesuggest that the minor girl wasillegally confined in the hotel.

87. Neeli Mathiya vs State ofKarnataka, Criminal Petition No.4242/201, Kar HC

Facts : A Sub-Inspector of policeconducted a raid on a spa in Bengaluru,after sending a decoy customer andarrested the accused persons who werecharged under Sections 3, 5 and 7 ITPAand 370 IPC. The accused filed thepresent petition for quashing of chargesagainst them on the ground that theentire investigation was done andcharge sheet filed by a person who hasnot been appointed as Special PoliceOfficer under Section 13(1) of ITPA.

Decision :i) The investigation was vitiated due to

legal infirmity as it was notconducted by a Special Police Officermandated by Section 13(1), ITPA.

ii) The charges against the accusedwere quashed by the High Court.

Comment :(a) Continuing trend of raiding Spa and

Parlours on the suspicion ofprostitution.

(b) Courts are increasingly taking theview that compliance of therequirements of ITPA with regard toinvestigation by Special PoliceOfficers appointed under the law ismandatory.

(c) Investigations conducted by policeofficers who are not appointed asSpecial Police Officers are withoutjurisdiction and are liable to be setaside.

88. P. Saraswathi vs State ofTamilnadu, 2017 SCC OnLine 8299,Mad HC

Facts : Case under section 4(2)(c) ITPAfor acting as a pimp or tout of aprostitute was filed against threepersons. The rescued girl was sent tothe government Malhir Home,Combaitore by the Magistrate and aninquiry by a Probationary Officerordered. The girl had done SSLC and theAyurveda Nursing Certificate Course.The petition by the mother for custodyof the girl was dismissed by theMagistrate and the matter reached theHigh Court.

Decision :i) Section 17(3) of ITPA allows a

maximum custody of three weeks.ii) The period of three weeks had long

lapsed even by the time theProbationary Officers report wasfiled.

iii) The order dismissing the mother’s


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petition for custody records: “Onpersusal of the Probationary Officersreport, it is stated that theneighbours of the victim have notstated any satisfactory remarksabout the victim girl and her mother,and somebody told that they are notleading law abiding and peacefullife.”

iv) The High Court allowed the petitionof the mother for custody anddirected the release of the girl fromcustody.

Comment :a) Illustrative of ‘rescue’ of adult

persons against their will.b) The violation of ITPA which allows a

maximum of three weeks custodywhich is habitually not adhered to bythe court.

c) It also illustrates the stigma againstsex workers that on the basis of avague statement that neighbourshave not stated ‘satisfactory’remarks, the girl was sent intocustody at a detention home by theMagistrate.

89. Periayasamy vs DeputySuperintendent of Police,AntiTrafficCell, CBCID MANU/TN/ 1965/2017:2017(2) MLJ(C rl)675, Mad HC

Facts : The petitioner was convicted forliving on the earnings of prostitutionunder section 4(1) and procuring aperson for purpose of prostitutionunder Section 5(1) of the ITPA by thetrial court. The conviction was upheldby the Sessions Court. The accusedappealed in the Madras High Court. The allegation was that Accused 1 & 2engaged the petitioner to procure girlsfor them. The petitioner engaged thetwo girls and instructed them to go tothe hotel. At the hotel Accused 1 & 2

instigated them for prostitution and hadsexual intercourse with them. Thepetitioner submitted that there was nomaterial to show that he induced thegirls to involve in prostitution. The medical report put the age of thegirls as between 18 and 20 years.One of the girls ‘rescued’ turned hostile.The second girl in her statement beforethe Magistrate did not name thepetitioner. The police did not seize thephones of the two girls or produce callrecords to show that the petitionercalled the two girls. An NGO appears tohave been involved in the raid and hasgiven evidence as a prosecutionwitness.

Decision :i) The victim girls did not support the

case of the prosecution and havemerely stated that they were arrestedby the police on suspicion.

ii) There were lot of discrepanciesbetween the police and NGO aboutthe time of arrival at the hotel andthe arrest of the petitioner.

iii) The prosecution has not shown anyevidence to establish that there wasmeeting of minds between thepetitioner and the girls prior to theincident.

iv) The High Court acquitted thepetitioner of all charges.

Comment :(a) It appears to be a case of consensual

sex work by an adult.(b) Appears to be illustrative of the role

of NGOs in pushing their agendaand pushing a reluctant police toraid and ‘rescue’.

(c) The reluctance of the police reflectedin not collecting phones or callrecords to establish the ingredientsof the offence.


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90. Prashant Shambhu Shetty vs Stateof Maharashtra, 2017 SCC OnLineMah 7273, Bom HC

Facts : The police raided Sai Lodge,Pune and ‘rescued’ 14 ‘victims’. Casewas filed under Section 3, 4 and 5 ITPAagainst the owner and managers.Prashant Shambu Shetty, the ownerfiled the present application foranticipatory bail claiming that he hadno knowledge of the running of thebrothel at his lodge.

Decision :i) The court observed that none of the

fourteen girls was a minor.

ii) The statements of the girls do notreveal that they were forced orcompelled into sex work.

iii) It is difficult to believe from thestatements of the girls that theapplicant owner of lodge was notaware of the running of a brothelfrom his lodge.

iv) The High Court granted anticipatorybail to the petitioner.

Comment :(a) Sex workers campaigns have been

focusing for taking cognizance of sexwork undertaken on own volition byadult persons.

(b) In matters of bail and anticipatorybail, the courts appear to be takingon board the fact that the persons‘rescued’ were not minors.

(c) That the adult persons ‘rescued’ intheir statements are not claiming tohave been forced or compelled intosex work is being considered as animportant factor in granting bail andanticipatory bail by courts.

91. R.A.H. Siguran vs ShankareGowda, MANU/SC/1086/2017: 2017(101) ALLC C 281, Supreme Court

Facts : The Magistrate had committedthe case for trial and charge sheet hadbeen filed in the Sessions Court underSections 3, 4, 5, 6, 7 and 8 ITPA andsections 366A and 372 IPC. The accusedShankare Gowda approached the HighCourt for quashing of the case. TheHigh Court quashed the criminalproceedings on the ground that theInvestigating Officer was not competentto investigate as he was not a SpecialPolice Officer as mandated by ITPA. Thematter reached the Supreme Court inappeal.

Decision :i) The High Court was wrong in

quashing the criminal proceedingsmerely on the ground that theinvestigation was invalid.

ii) In case where the police report isvitiated due to breach of mandatoryprovision, criminal proceedings canbe set aside, only if it can be shownthat the illegality in investigationresulted in miscarriage of justice.

iii) The Supreme Court set aside theHigh Court order and directed thetrial court to proceed with thematter in accordance with law.

Comment :(a) The high courts had been treating

breach of the provision of ITPArequiring that investigation be doneby Special Police Officer under theAct as enough to quash criminalproceedings.

(b) The Supreme Court in a reversal haslaid down that for criminal cases tobe quashed it must be shown thatthe illegality in investigation resultedin miscarriage of justice.


158

92. Ramakrishnamma vs State ofKarnataka, 2017 SCC OnLine Kar1299, Kar HC

Facts : The petitioner woman wascharged as co-accused with subjecting a16 year old girl to sexual abuse andtrafficking while the victim was in herhouse for four days and then selling herto another accused. She was chargedwith serious charges of wrongfulconfinement, rape, trafficking,exploitation of a trafficked person underthe IPC, Sections 3, 4, 5, 5A, 6 and 9 ofthe ITPA and sections 4, 7 and 16 ofPOCSO. The petitioner applied for bail.It was argued that the applicant is alady and given the nature of allegations,she may be released on bail.

Decision :i) The punishment for exploitation of a

trafficked person under Section 370AIPC was five years extendable toseven years.

ii) Given the role attributed to theapplicant her continued detentionwas not required.

iii) The petitioner was given bail by theCourt.

Comment :(a) Presumption of innocence in law

operates for all offences.

(b) However, in offences particularlywith allegations involving buyingand selling of minors, trafficking,sexual abuse and rape – theseriousness of the charge weighsheavily in deciding the issue ofdeciding the issue of release on bail.

(c) Contrary to the law with regard tonon-disclosure of the identity, theHigh Court has named the minorgirl.

93. Sandeep Bhai Karathia vs State ofChhatisgarh, 2017 SCC OnLine Chh200, Chh HC

Facts : There were allegations of luring22 villagers to work in a factory inMalyasia promising high wages, medicaland other facilities. The workers werebonded, forced and tortured to workwith no high wages and facilities. Theaccused were charged with trafficking ofmore than one person under Section370(3) IPC and approached the HighCourt.

Decision :i) There was enough material to show

that a prima facie case is made outagainst the petitioner.

ii) The case was sent back to theSessions Court with a direction forexpeditious disposal.

Comment :(a) Trafficking was for years totally

conflated with sex work. (b) Sex workers campaigns have been

consistently trying to de-linktrafficking from sex work.

(c) The efforts may have an impact withthe investigating agencies and thecourts taking an increasing numberof cases of human trafficking forpurposes other than sex work likethe present case.

94. Sandhya vs State of Kerala andOrs., MANU/KE/0862/2017: ILR2017(3)Kerala171, Kar HC

Facts : The accused were charged underSections 3, 4, 5, and 7 ITPA. Theyapproached the High Court forquashing of criminal charges. Thesearch had been carried out and thearrest effected by a Sun-Inspector ofPolice and not by the Special PoliceOfficer mandated under ITPA.


159

Decision :i) The search conducted by the Sub-

Inspector was without any authorityand illegal.

ii) The criminal case against thepetitioners was quashed by the HighCourt.

Comment :(a) In a strict interpretation, the non-

compliance of the provisions of ITPAwith regard to investigation, searchand seizure by Special Police Officersheld as undermining the base of thecriminal case itself.

95. Vinod vs State of Maharashtra,2017 SCC OnLine Guj 466, Bom HC

Facts : The accused Vinod a customer,was found sitting in a room waiting forhis turn in a raid on a brothel wascharged under sections 3, 4, 5 ITPA andsection 370 IPC. Vinod approached theHigh Court for quashing of charges onthe plea that customers are not liableunder the provisions. Attention wasdrawn to the clarification issued by theVerma Committee to Ms. Seshu onbehalf of the National Network of SexWorkers that the proposed section wasnot intended to harass sex workers whoundertake it of their own free will ortheir clients.

Decision :i) Sections 3, 4 and 5 ITPA were held to

be inapplicable to the accusedcustomer.

ii) Even taking into account that section370 IPC is not applicable to sexworkers who are in it of their ownvolition and not due to inducement,force or coercion – the court heldthat it is a question of fact to beinvestigated by the InvestigationOfficer.

iii) Charges under Section 370 IPC werenot quashed.

Comment :(a) Regardless of the provisions of law,

the opinion of judges that customerscannot go scot free and must bepunished impacts the interpretationplaced by courts.

(b) Naveen Kumar versus State ofTelangana decision in 2015 is alongsimilar lines and was approvinglyquoted in the present judgment.


162

2010

1. Renu Bansal versus U.T. Chandigarh2010 Crl.L.J. 600 (Punjab andHaryana High Court).

2. Yogesh versus State of Rajasthan2010 Crl.L.J. 629 (Rajasthan HighCourt).

3. N. Vijaya versus State of Karnataka2010 Crl.L.J. 1050 (Karnataka HighCourt).

4. Narmada Govind Kamble versusState of Maharashtra 2010 Crl.L.J.1220 (Bombay High Court).

5. Smt. L versus State of U.P. CriminalMisc Application No. 30421 of 2010(Allahabad High Court).

2011

6. Sangeeta Ashok Sanap versus Stateof Maharashtra 2011 Crl. L. J. 2206(Bombay High Court)

2012

7. Tara versus State W.P. (Crl) 296/2012(Delhi High Court).

2013

8. Court of its own motion throughShakti Vahini vs State Writ Petition(Crl) 891/2013 Del HC

9. Hotel Sooriya Heritage Inn versusCollector-cum-District Magistrate,

Puducherry, 2013 Crl.L.J. 359(Madras High Court).

2014

10. M. Ramakrishna versus Respondent:The Sub-Divisional Magistrate &anr.2014 CrLJ 2013

11. The State of Maharashtra versusChatish Arunachalam Das2014(3)Bom CR(Cri)438

12. Ashok Hazra versus State of WestBengal 2015(1) CHN (CAL) 289

13. Ranjana Pathak versus State2014ALL MR(Cri)2895

14. Delhi High Court Legal ServicesCommittee versus UOI.214(2014)DLT1

15. State of H.P. versus Shiv Chand. Cr.Appeal No. 485 of 2011

16. Ashok Rai versus State. CriminalPetition No. 5718 of 2014

17. Bidhu Bhushan Mahapatra versusState of Karnataka. Criminal PetitionNos. 1628, 1637 and 1979/2014

18. Antony Vincent versus State ofKerala. 2014(3) KLJ517

19. C.P. Raju versus State of Kerala.2014 CriLJ2936

20. Madhu V.T. versus State of Kerala.2014 CriLJ3257

21. Shajahan versus State of Kerala.2014 CriLJ2261

22. Sreejith @ Ayyappan versus. Stateof Kerala. Crl. M.C. No. 4994 of 2013

ANNEXURE 3.List of Cases

163

23. P. Shanmugavel Raj versus State.2015(1)Crimes 536(Mad.)

24. Mangamma versus State of TamilNadu. 2014CriLJ3420

25. Ravi @ Ramkumar versusGovernment of Tamil Nadu.2014(2)MLJ(Crl)317

26. T.K. Sadhananthan versus The Sub-Divisional Magistrate Cum RevenueDivisional Officer. W.P. No. 25663 of2013 and M.P. Nos. 1 and 2 of 2013

27. S. Rangaraj versus TheCommissioner of Police. 2015(1)CTC 702S.

28. Masthan Reddy versus. The State ofTamil Nadu. 2014(2)MLJ(Crl)257

29. Preeti versus State of Punjab. Crl.Misc. No. M-10378 of 2013

30. Goenka Sajan Kumar versus TheState of A.P. 2015(3)Crimes 281(A.P.)

31. State versus Deepak. Sessions CaseNo. 57 of 2013 Additional SessionsJudge, Special FTC -2 (Central), TisHazari Courts, Delhi

2015

32. Chandni Yadav versus Adhikshika,Rajkiya Nari Sanrakshan Grih. WritPetition No. 34964 of 2015

33. Momin Muzammil Anwar versusState of U.P. 2015(2)ACR1244

34. Abhishek Mishra versus The State ofGoa. Writ Petition No. 717 of 2015

35. Sumeer Ramdayal Sabharwal versusThe State of Maharashtra CriminalPublic Interest Litigation No. 43 of2015

36. Latabai Keshav Maundekar versusState of Maharashtra. Writ PetitionNo. 1185 OF 2015

37. Bhakti Ram Pandey versus State.Crl. A. 679/2005, Cr. Public InterestLitigation No. 4 of 2015 [ HC ofDelhi]

38. Freedom Firm versus Commissionerof Police, Pune (1) CRPIL 4/15 (J)

39. Ranjeet Kaur versus State (NCTGovt. of Delhi). 2015(152) DRJ653 [HC of Delhi]

40. State of Himachal Pradesh versusReeta Devi. Cr. Appeal No. 734 of2008

41. G.S. Madusudan versus State. Crl. P.Nos. 5297, 5439 and 5632 of 2015

42. Karthik Hegde versus State ofKarnataka. Criminal Petition Nos.1007/2015 and 1642/2014 and WritPetition No. 60129/2014.

43. Madhu versus State of Karnataka.2015(3) AKR 784

44. Satish versus State. Criminal AppealNos. 1019 and 1322/2010

45. State of Karnataka versus Farzana.2015(6)KarLJ 617

46. T. Sundar versus TheSuperintendent of Police. Crl. O.P.Nos. 225, 330, 384, 657, 840, 841,1331 and 2387 of 2015

47. Shila Devi versus The State of Bihar.Criminal Appeal (SJ) No. 428 of2013

48. Apne Aap Women Worldwide TrustIndia versus The State of Bihar.2015(1)PLJR 268

49. Salma Bibi versus State ofRajasthan. S.B. Criminal Misc.Petition No. 3158/2015

50. Katamoni Nagaraju versus State ofTelangana. Criminal Petition No.1536 of 2015

51. Mohammed Shaeed versus TheState of Telangana. 2015 (1)ALD(Crl.) 992 (AP)

52. S. Naveen Kumar versus The Stateof Telangana. 2015 (2) ALD(Crl.) 156(AP)

164

Annexure-3 List of cases

201653. Abdul Nazar vs State of Kerala,

2016 SCC OnLine Ker 8673, KeralaHigh Court

54. Col (Retd) Ajay Ahlawat versusState, 2016 SCC OnLine Del 5833

55. Ali AK versus State of 2016 SCCOnLine Ker 19846, Kerala HighCourt

56. Ashok versus State of Karnataka,2016 SCC OnLine Kar 2522

57. B. Sandhya versus State of TamilNadu, 2016 SCC OnLine Mad 20416

58. Central Bureau of Investigationversus Raja Bhatacharya, 2016 SCCOnLine 249

59. Nitu vs Government of NationalCapital Territory of Delhi, W.P. (C)4414 of 2012, Delhi H C

60. Dilip Khan KM versus State ofKerala, 2016 SCC OnLine 7938

61. DoleeRanglal Rangu versus State ofMaharashtra, 2016 SCC OnLineBom12560

62. Gheesabai versus State of M.P., 2016SCC OnLine MP 7516

63. Miss Hanumavva versus State ofKarnataka, 2016 SCC OnLine 1971

64. Haseena versus State (NCT ofDelhi), 2016 SCC OnLine Del 3500

65. Indian Rescue Mission versus Stateof Maharashtra, 2016 SCCOnLineBom 10248

66. Jai Singh versus State, 2016 SCCOnLine Raj 3898

67. Jayashree versus State ofMaharashtra, 2016 SCC OnLine10079

68. Kuriakose versus State of Kerala,2016 SCC OnLine Ker 2050

69. LonakaranChotamaiji Parmar versusState of Maharashtra, 2016 SCCOnLineBom 9851

70. Mahesh MadhurkarPawar versusState of Maharashtra, 2016 SCCOnLine 11233

71. Mamta Akash Raju versus State ofMaharashtra, 2016 SCC OnLineBom

418872. Manjunath P. Versus State of

Karnataka, 2016 SCC OnLine Kar255

73. PriyaGopaSaha versus State ofMaharashtra, 2016 SCC OnLineBom6939

74. Sukhendu Nath Bhatacharjee vsState of WB, 2016 SCC OnLine Cal6574

75. Sahil Patel versus State of A.P., 2016SCC OnLineHyd 24

76. Shaiyra versus The State, 2016 SCCOnLine Del 2352

77. Shankar Gowda versus State, AIRKant R 353

2017

78. Abhijit Kallianpur vs State ofKarnataka, Criminal Petition No.1959 of 2017

79. Abhishek Mishra vs State of GoaCriminal Writ Petition No. 77 of2017

80. Amarpreet Kaur Chawla vs TheState of Jharkhand, Cr. Revision No.1265 of 2017

81. Anju Devi versus State of WestBengal, 2017 SCC OnLine Cal 809

82. ArunBaburao Chavan vs State ofMaharashtra, OnLineBom 73312017

83. Firoja vs The State of Maharashtra,Criminal Appeal Nos. 534 and 597of 2010

84. GudiaSwayamseviSansthan vsSatyabhama 2017 SCC OnLine 417

85. Jitendra Kumar vs State ofUttarakhand, Criminal Appeal Nos.29, 34 and 41 of 2014

86. Kamala Thusang Lama vs State ofMaharashtra2017 SCC OnLine 5160

87. Liyakat Ali Mansab Ali Chaudharyvs State of Maharashtra2017 SCCOnLine 7073

88. Navin Kumar Chhotelal Tiwari vsState of Maharashtra2017 SCC

165

Annexure-3 List of cases

OnLine 526189. Neeli Mathiya vs State of

KarnatakaCriminal Petition No.4242/2017

90. P. Saraswathi vs State of TN2017SCC OnLine 8299

91. Periayasamy vs DeputySuperintendent ofPolice,AntiTraffick Cell, CBCIDMANU/TN/1965/2017:2017(2)MLJ(Crl)675

92. Prashant Shambhu Shetty vs Stateof Maharashtra2017 SCCOnLineMah 7273

93. R.A.H. Siguran vs Shankare Gowda,MANU/SC/1086/2017: 2017 (101)ALLC C 281

94. Ramakrishnamma vs State ofKarnataka 2017 SCC OnLine Kar1299

95. Sandeep Bhai Karathia vs State ofChhattisgarh 2017 SCC OnLineChh200

96. Sandhya vs State of Kerala andOrs.MANU/KE/0862/2017: ILR2017(3)Kerala171

97. Vinod vs State of Maharashtra, 2017SCC OnLineGuj 466.

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