Bombay HC Affirms Liberty of Adult Trafficking Survivors, Limits ‘Protective’ Custody

Why in News?

The Bombay High Court set aside an order placing an adult trafficking survivor in a protective home for one year, holding that such custody without legal justification violates constitutional liberty.

The court clarified that protective homes under the Immoral Traffic (Prevention) Act (PITA) are meant for rehabilitation, not confinement. It stressed that an adult survivor’s fundamental rights under Articles 19 and 21 do not stand suspended merely because she was trafficked.

The case arose from a police raid in Maharashtra, where the petitioner alone was detained on the assumption that her lack of family support or income made her likely to return to sex work—an assumption the court found impermissible.

Limits of Custody Under the Immoral Traffic (Prevention) Act

What PITA Allows After Rescue

• Under Section 17 of PITA, a rescued person may be kept in safe custody only briefly if immediate production before a magistrate is not possible.
• This initial custody is capped at 10 days.

Magisterial Inquiry and Time Limits

• Once produced before a magistrate, the law mandates an inquiry.
• During this stage, interim custody may continue, but only up to three weeks.
• Any placement beyond this period is not automatic and requires strict statutory compliance.

When Long-Term Placement Is Permissible

• A longer stay in a protective home — one to three years — can be ordered only if the magistrate records a clear finding that the person is “in need of care and protection.”
• The Bombay High Court emphasised that these timelines reflect legislative intent to prevent rescue from turning into confinement.

Protective Homes vs Corrective Institutions

• PITA draws a clear distinction:
  • Protective homes (Section 2(g)): Meant for care and rehabilitation of victims.
  • Corrective institutions (Section 2(b)): Meant for detention of offenders and governed by Section 10A.
• Only persons found guilty of offences under the Act can be sent to corrective institutions.

Constitutional Rights of Adult Survivors

Fundamental Freedoms Remain Intact

• For adults, constitutional freedoms under Article 19 — including:
  • Freedom of movement,
  • Choice of residence,
  • Right to pursue a livelihood —
    remain intact even after trafficking.

Consent as the Core Principle

• The High Court held that “care” for an adult survivor must be voluntary.
• Once an adult clearly expresses a desire to leave a protective home, continued confinement ceases to be care and becomes unlawful detention.
• In this case, the woman’s repeated refusal to stay made consent central, not optional.

When Care Becomes Detention: The Court’s Test

Substance Over Labels

• The Court clarified that the difference between care and detention depends on effect, not terminology.
• Care involves voluntary support — counselling, shelter with consent, and assistance in rebuilding life.
• Detention is defined by compulsion and restriction.

Consent and Autonomy as the Core

• When an adult is kept in a protective home against her wishes, with restrictions on movement and choice, it amounts to detention.
• Such restraint on personal liberty must be justified by concrete material on record, not assumptions.

Victims Are Not Offenders

• The Court cautioned against treating trafficking survivors as offenders by default.
• PITA “was not meant to punish a victim of sexual exploitation.”
• In the absence of conduct attracting penal provisions, restrictions cannot be imposed.

Role of the Magistrate

• Under PITA, only a magistrate, after conducting a proper inquiry, can determine whether a rescued person genuinely requires care and protection.
• Any placement in a protective home must follow this satisfaction and statutory safeguards.

When Detention May Be Justified

Detention may be permissible only in limited situations, such as:

• Medical evidence of impaired decision-making capacity,
• Demonstrable danger to society if released,
• The person being an accused in a criminal case.

Why Detention Failed in This Case

• None of these conditions were met.
• There was:
  • No medical evidence of incapacity,
  • No finding of danger to others,
  • No criminal charge against the woman.
• The Court rejected speculative fears — including the possibility of returning to sex work — as insufficient grounds for confinement.

What the Law Penalises Under PITA?

Prostitution Is Not a Crime

• PITA does not criminalise prostitution itself.
• Courts have clarified that engaging in sex work does not automatically make a person an offender.

Focus on Exploitation, Not Individuals

• The Act targets the commercial exploitation surrounding prostitution.
• The law is aimed at those who control, profit from, or facilitate exploitation — not the individuals trapped within it.

Who the Act Criminally Targets

Criminal liability arises for:

• Managing or running a brothel,
• Living off the earnings of another person’s prostitution,
• Procuring or trafficking persons for prostitution, even with apparent consent,
• Detaining a person for sexual exploitation.

Limited Punishable Conduct

• Certain acts linked to prostitution are punishable only when they affect public order, such as:
  • Soliciting in public spaces,
  • Operating near schools, hospitals, or places of worship.
• Courts stress these are regulatory, not moral, provisions.

Poverty Is Not Grounds for Detention

• The Bombay High Court rejected the view that economic vulnerability justifies confinement.
• Lack of family support or fear of returning to sex work cannot override constitutional rights.
• Poverty may warrant assistance, but never the curtailment of liberty.