1. Short title, extent and commencement.—
This act applies to the whole of India.
2. Definitions.—In this Act. unless the context otherwise requires— (a) “brothel” includes any house, room, conveyance or place, or any portion of any house, room, conveyance or place, which is used for purposes of sexual exploitation or abuse for the gain of another person or for the mutual gain of two or more prostitutes; (aa) “child” means a person who has not completed the age of sixteen years; (b) “corrective institution” means an institution, by whatever name called (being an institution established or licenced as such under Section 21), in which persons, who are in need of correction, may be detained under this Act, and includes a shelter where undertrials may be kept in pursuance of this Act; (c) “magistrate” means a magistrate specified in the second column of the Schedule as being competent to exercise the powers conferred by the section in which the expression occurs and which is specified in the first column of the Schedule; (ca) "major" means a person who has completed the age of eighteen years; ( cb) "minor" means a person who has completed the age of sixteen years but has not completed the age of eighteen years; (d) “prescribed” means prescribed by rules made under this Act; (e) * * * (f) “prostitution” means the sexual exploitation or abuse of persons for commercial purposes, and the expression “prostitute” shall be construed accordingly; (g) “protective home” means an institution, by whatever name called (being an institution established or licenced as such under Section 21), in which persons who are in need of care and protection, may be kept under this Act and where appropriate technically qualified persons, equipments and other facilities have been provided but does not include,— (i) a shelter where undertrials may be kept in pursuance of this Act, or (ii) a corrective institution; (h) “public place” means any place intended for use by, or accessible to, the public and includes any public conveyance; (i) “special police officer” means a police officer appointed by or on behalf of the State Government to be in charge of police duties within a specified area for the purpose of this Act; (j) “trafficking police officer” means a police officer appointed by the Central Government under sub¬section (4) of Section 13.
This section will define certain key terms that will be used repeatedly throughout the Act. Whenever these terms appear in this Act after this section, they will have the meanings that are explained here.
What is prostitution?Prostitution is itself defined as sexual exploitation or abuse of a person for money. It is different from trafficking which is defined in the Indian Penal Code, 1860.
What is a brothel?A brothel is any place which is used for sexual exploitation or abuse for the gain of another person, or the gain of two or more sex workers.
What is a corrective institution?A corrective institution is any institution where people in need of correction, such as sex workers found guilty of certain crimes under this law, are kept. It includes shelters where under trials are kept under this Act.Under trials are people who have been arrested for a crime but have not been found guilty by any court, and whose trials are on-going.
What is a protective home?
- A protective home is any institution where people in need of care and protection are kept under this Act. Protective homes must have certain equipment, facilities and technically qualified people.
- A shelter where under trials are kept is not a protective home.
2A. Rule of construction regarding enactments not extending to Jammu and Kashmir.—Any reference in this Act to a law which is not in force in the State of Jammu and Kashmir shall in relation to that State, be construed as a reference to the corresponding law, if any, in force in that State.
3. Punishment for keeping a brothel or allowing premises to be used as a brothel.—
Is keeping a brothel a crime?Yes.
- Any person who manages a brothel in any way will be punished with jail time for one year and a fine up to Rs 2,000.
- If he or she is found guilty a second time, the jail time can be between 2 to 5 years, and fine can be up to Rs. 2,000.
What if you are in charge of a space, and someone else uses it as a brothel?
- You can be punished if you know it is being used as a brothel. The punishment is jail for up to 2 years and fine up to Rs 2,000.
- If found guilty a second time, punishment can go up to 5 years.
How will the authorities decide that you knew about the brothel?If:
- there is a newspaper report that says the premise is being used for prostitution, following a search, or
- the person is given a list of things found during the search
- the law will assume that a person allowed or knew that a premise was being used as a brothel.
- the person will have to prove that they did not know.
4. Punishment for living on the earnings of prostitution.—
Is it a crime to depend on money made through prostitution?Yes, if you are an adult, and you know the money is being made through prostitution. You can be jailed for up to 2 years or fined Rs 1000.If a child is being prostituted, the adult can be jailed for between 7 to10 years.This will include, for example, "pimps" or adult family members of sex workers.
When will the court think that you are living off money made by prostitution?If it is proved that an adult:
- lives or spends a lot of time with a sex worker
- helps or forces her prostitution, or influences her to do that work
- is a tout or pimp
5. Procuring, inducing or taking person for the sake of prostitution.—
Is it a crime to get someone to do sex work?Yes.
|Making a person work as a sex worker. It doesn't matter whether that person consented||Between 3 to 7 years||Up to Rs 2000|
|Convincing a person to move from anywhere to work as a sex worker, and live at or spend time in a brothel||Between 3 to 7 years||Up to Rs 2000|
|Making a person work as a sex worker, without her consent||14 years|
|Making a child (less than 16 years) do sex work||Between 7 years and life imprisonment||Yes|
|Making a minor (16-18 years) do sex work||Between 7 years and 14 years||Yes|
Where can the police and courts take action?The police and the courts can take action both in the place where the person used to stay, as well as the place where she was made to go.
6. Detaining a person in premises where prostitution is carried on.—
Is holding a person in a place where prostitution is carried on a crime?Yes. If someone is being held in such a place to make that person have sex with someone they are not married to, punishment can be jail time between 7 years and life, and a fine.However, the court can impose a sentence of less than 7 years, if there are good reasons.If a person below 18 years is found with a person in a brothel, court will assume that she was held there for the purpose of prostitution.If a person below 18 years is found in a brothel, and a medical exam shows he or she was sexually abused, then the court will presume that she was detained for prostitution. The opposite will have to be provedThe court will presume that a person has kept a woman or girl illegally in a brothel if the person:
- does not give her property to her,
- threatens her with legal action if she takes away any property given to her by this person.
7. Prostitution in or in the vicinity of public place.—
Is it a crime to carry on prostitution?Only in certain places.
| If prostitution is being carried out: ||Then both the person committing prostitution and her client can be jailed for up to 3 months.||No|
|If a person below 18 is involved in such areas||Between 7 years and life However, the court has the discretion to impose a sentence of less than 7 years' imprisonment||No|
|Is responsible for a public place and knows that sex workers stay there, or allows sex workers to use that place||Up to 3 months the first time. Up to six months the second time. A hotel's license can be suspended. If a person below 18 is involved, the hotel's license can be cancelled.||Rs. 200.|
- The State Government can order that prostitution should not be carried out in certain areas. This order will be published as a notification in the Gazette.
- The State Government must clearly define the limits of these areas.
- The notification will only come into effect 90 days after it was issued.
8. Seducing or soliciting for purpose of prostitution.—Whoever, in any public place or within sight of, and in such manner as to be seen or heard from, any public place, whether from within any building or house or not— (a) by words, gestures, wilful exposure of his person (whether by sitting by a window or on the balcony of a building or house or in any other way), or otherwise tempts or endeavours to tempt, or attracts or endeavours to attract the attention of, any person for the purpose of prostitution; or (b) solicits or molests any person, or loiters or acts in such manner as to cause obstruction or annoyance to persons residing nearby or passing by such public place or to offend against public decency, for the purpose of prostitution, shall be punishable on first conviction with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both, and in the event of a second or subsequent conviction, with imprisonment for a term which may extend to one year, and also with fine which may extend to five hundred rupees: Provided that where an offence under this section is committed by a man, he shall be punishable with imprisonment for a period of not less than seven days but which may extend to three months.
What is the crime of solicitation?Solicitation is defined as:
- tempting or attracting a person towards prostitution, or
- loitering in an area and disturbing public decency, or
- harassing any person for prostitution.
9. Seduction of a person in custody.—Any person who having the custody, charge or care of, or a position of authority over any person causes or aids or abets the seduction for prostitution of that person shall be punishable on conviction with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.
If a person who is in a position of authority over another person helps in their prostitution, shall be punished with imprisonment for 7 years to life and fine. This can include, for example, police officers who have detained women, or public servants in charge of children's homes. However, the court can give less than 7 years' jail time, if it has good reasons.
10. Release on probation of good conduct or after due admonition.—***
10A. Detention in a corrective institution.—
Where is a person found guilty of prostitution sent?The court can order that a woman found guilty of prostitution or solicitation is sent to a corrective institution for 2 to 5 years instead of prison.However, before sending to a corrective institution:
- The court will hear the offender and the report of the Probation Officer, and
- The court should feel that the offender will benefit from the corrective institution.
- If the authorities feel that the person can lead a productive life.
11. Notification of address of previously convicted offenders .—
Can details about offenders be made public?
Yes, but only in some cases -
|A person is found guilty of a crime under this law, or of kidnapping or trafficking under the Indian Penal Code||Is again found guilty within 5 years, of a crime with 2 years' jail time||The court can order that details about his address be made public for up to 5 years after his release.|
12. Security for good behaviour from habitual offenders.—***
13. Special police officer and advisory body.—
The State Government can appoint a "special police officer" to deal with offences under this Act in certain areas.This person could be a retired police or military officer of a certain rank.The special police officer can be helped by other police officers.The government has to set up an advisory body made up of 5 leading social workers to help the police.The Central Government can similarly appoint "trafficking police officers" to investigate offences which involve more than one state.
14. Offences to be cognizable.—Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence punishable under this Act shall be deemed to be a cognizable offence within the meaning of that Code: Provided that, notwithstanding anything contained in that Code,— (i) arrest without warrant may be made only by the special police officer or under his direction or guidance, or subject to his prior approval; (ii) when the special police officer requires any officer subordinate to him to arrest without warrant otherwise than in his presence any person for an offence under this Act, he shall give that subordinate officer an order in writing, specifying the person to be arrested and the offence for which the arrest is being made; and the latter officer before arresting the person shall inform him of the substance of the order and, on being required by such person, show him the order; (iii) any police officer not below the rank of sub-inspector specially authorised by the special police officer may, if he has reason to believe that on account of delay involved in obtaining the order of the special police officer, any valuable evidence relating to any offence under this Act is likely to be destroyed or concealed, or the person who has committed or is suspected to have committed the offence is likely to escape, or if the name and address of such a person is unknown or there is reason to suspect that a false name or address has been given, arrest the person concerned without such order, but in such a case he shall report, as soon as may be, to the special police officer the arrest and the circumstances in which the arrest was made.
Who can make arrests under this law, and when?All crimes under this law are 'cognizable' as per the Indian Penal Code. This means a police officer can make an arrest without a warrant and start investigations without the permission of a court.The arrest without warrant can only be made by the special police officer or with his permission.
- If the special police officer asks a junior officer to make the arrest, he must give this order in writing with details.
- The person being arrested must be told about this.
- If the person being arrested asks, this order must be produced.
15. Search without warrant.—
Can the police search a place under this law?
- Yes, the special police officer or the trafficking police officer has the power to search a place without a warrant if he or she thinks it necessary.
- Before any search without warrant, the special police officer or the trafficking police officer must call two people from their locality - one of who is a woman - to witness the search.
- A woman can also be brought from outside the locality.
- A person who refuses to witness the search when asked to is committing a crime under the Indian Penal Code, 1860 (Section 187 punishes "Omission to assist public servant when bound by law to give assistance".)
- The police officer has the power to remove persons found in the place being searched.
- Persons removed must be produced before a Magistrate.
- A medical practitioner should also examine any person produced before the Magistrate under this section.
- The relevant police officer as well as others involved in the search will not be liable for any legal proceedings for things done legally.
- The police officer making a search should be accompanied by 2 women police officers.
- If a woman is removed from the premise and interrogated, it should be done by a woman police officer.
- If no woman police officer is available, then it should be done in the presence of a woman member of a recognized welfare organization.
16. Rescue of person.—
What can a Magistrate order, if a person is found to carry on prostitution?If a Magistrate believes that a person is carrying out prostitution in a brothel, he can direct a police officer to remove this person from the brothel and have her appear in court.
17. Intermediate custody, of persons removed under Section 15 or rescued under Section 16.—
Measures relating to a person who has been 'rescued' or 'removed':
- If the police officer cannot produce the removed person before the Magistrate who gave the original order, he can produce her before the nearest Magistrate.
- This Magistrate should order her safe custody until the other Magistrate is available.
- This custody cannot last for more than 10 days.
- The person cannot be sent to a person or place that can cause harm to her.
- The Magistrate can make inquiries and directions regarding the rehabilitation of the person removed from the brothel.
- While this inquiry is happening, the Magistrate can pass an order for the safe custody of the person.
- If the person is below 18, then the Magistrate can place him or her in an institution recognized under children's laws.
- This custody cannot last for more than 3 weeks from the initial order, and the person cannot be sent to a person or place that can cause harm to her
- After the inquiry, the Magistrate can direct that a person be kept in a protective home or other place for 1 to 3 years.
- A person cannot be placed in the custody of someone of a different religious belief from them. The person in charge of the place of custody can be asked to enter into a bond to ensure that they take care of the person. This bond cannot be in force for more than 3 years.
- A Magistrate can ask for advice from 5 respectable persons, 3 of whom should be women.
- This order can be appealed to the Sessions Court, but this decision will be final.
17A. Conditions to be observed before placing persons rescued under Section 16 to parents or guardians.—Notwithstanding anything contained in sub-section (2) of Section 17, the magistrate making an inquiry under Section 17, may, before passing an order for handing over any person rescued under Section 16 to the parents, guardian or husband, satisfy himself about the capacity or genuineness of the parents, guardian or husband to keep such person by causing an investigation to be made by a recognised welfare institution or organisation.
The Magistrate can also send the person to their parents, husband or guardian. The Magistrate can make an enquiry to satisfy himself about the capacity of the parents, husband or guardian before making this order.
18. Closure of brothel and eviction of offenders from the premises.—
Can a Magistrate shut down a brothel?Yes. If a magistrate is given information that a certain space that is 200 metres from a public place is being used as a brothel, she can issue notice to the person in charge to explain within 7 days why the space should not be attached for improper use.If after hearing the person in charge, the Magistrate feels the space is being used as a brothel, she can pass an order:
- Evicting the occupier of the space within 7 days. This order cannot be appealed, and is valid for 1-3 years.
- Directing that permission from the Magistrate is necessary before the space can be leased to anyone else for the following year. Ignoring this can lead to a fine of Rs. 500.
- If a child has been found in the space, then the permission is necessary for the next 3 years
19. Application for being kept in a protective home or provided care and protection by court.—
A person carrying out prostitution may apply to a Magistrate to -
- Be kept in a protective home, or
- Be protected by an authority named by the Magistrate.
- Protective home, or
- In a corrective institution, or
- Under the supervision of some specific person.
20. Removal of prostitute from any place
Can a sex-worker be ordered to leave an area?Yes. Under the current law, a Magistrate can order a sex-worker to leave a neighbourhood or area.Before the Magistrate does this, he must
- hear from the sex-worker,
- give a copy of the information he has received to the sex-worker,
- look into the matter, and make an order in writing.
What happens if a sex-worker disobeys this order?She can be punished with Rs. 200 fine, and then Rs. 20 every day that she disobeys.
21. Protective homes.—
How are protective homes and corrective institutions set up and run?The State Government can set up protective homes and corrective institutions.Other entities need a license to do this. Licenses can be issued by the State Government. The State Government has a lot of power to regulate these homes and institutions. It can:
- Require a woman to be in charge
- Investigate the applicant before giving a license
- Transfer a person from one institution to another. However, the total time spent in an institution must remain the same.
- Change the terms of the license later on.
- Revoke the license if the institution breaks this law
21A. Production of records.—Every person or authority who is licensed under sub-section (3) of Section 21 to establish or maintain, or, as the case may be, for maintaining, a protective home or corrective institution shall whenever required by a Court, produce the records and other documents maintained by such home or institution before such court.
A court can ask anyone who maintains a protective home or corrective institution to produce their records.
22. Trials.—No Court, inferior to that of a Metropolitan Magistrate or a Judicial magistrate of the first class, shall try any offence under Section 3, Section 4, Section 5, Section 6, Section 7 or Section 8.
Only a court including or higher than a Metropolitan Magistrate or a Judicial Magistrate (First Class) can try the major crimes under this laws.
22A. Power to establish special Courts —
The State Government can set up special courts to try offences under this Act.These special courts can only try cases under this Act, unless the High Court says otherwise.The court will have power to try cases throughout the district or the metropolitan area it is in.
22AA. Power of Central Government to establish special courts.—
The Central Government can also set up special courts to try offences under this Act. They must consult with the relevant High Court.Section 22-A will apply to these courts as relevant.
22B. Power of court to try cases summarily .—Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the State Government may, if it considers it necessary so to do, direct that offences under this Act shall be tried in a summary way by a magistrate including the presiding officer of a court established under sub-section (1) of Section 22A and the provisions of Section 262 to 265 (both inclusive) of the said Code, shall, as far as may be, apply to such trial: Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year: Provided further that when at the commencement of, or in the course of, a summary trial under this section, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undersirable to try the case summarily, the Magistrate shall, after hearing the parties record an order to that effect and thereafter recall any witness, who may have been examined and proceed to hear or re-hear the case in the manner provided by the said Code.
A State Government can direct that certain offences under this Act can be tried through a summary trial, which is a short version of a criminal trial.Where there is a summary trial, the punishment cannot be more than 1-year imprisonment.If the Magistrate feels that a summary trial is not appropriate, he can call witnesses back.
23. Power to make rules .—
The State Government has the power to make rules to implement the ITPA.The subject matter of these rules can include: (for further guidance on any of these issues please check to see if the State Government has framed any specific rules)
- What is a public place?
- How persons should be put in custody?
- When an offender can be discharged from a corrective institution, and the nature of his / her license?
- How people should be kept in protective homes or corrective institutions?
- Implementing section 11 on the notification of released convicts.
- Appointing special police officers.
- Implementing section 18 on closing down brothels.
- Setting up protective homes and corrective institutions, and their employees.
- Details about licenses to set up and maintain protective homes and corrective institutions.
- Conduct of persons in protective homes and corrective institutions, and their transfers and discharge.
- Inspection of protective homes and corrective institutions.
24. Act not to be in derogation of certain other Acts .—Nothing in this Act shall be construed to be in derogation of the provisions of the Reformatory Schools Act, 1897 or any State Act enacted in modification of the said Act or otherwise, relating to juvenile offenders.
25. Repeal and savings .—
[See Section 2(c)]
|Section||Magistrate competent to exercise the powers|
|11(4)||Metropolitan Magistrate or Judicial Magistrate of the first class,|
|15(5)||Metropolitan Magistrate, Judicial Magistrate of the first class, District Magistrate or Sub-Divisional Magistrate.|
|16||Metropolitan Magistrate, Judicial Magistrate of the first class, District Magistrate or Sub-Divisional Magistrate.|
|18||District Magistrate or Sub-Divisional Magistrate.|
|19||Metropolitan Magistrate, Judicial Magistrate of the first class, District Magistrate or Sub-Divisional Magistrate.|
|20||District Magistrate, Sub-Divisional Magistrate or any Executive Magistrate specially empowered by the State Government.|
|22B||Metropolitan Magistrate or Judicial Magistrate of the first class.|