Adult trafficking victim can't be detained in protective home for being alone, poor: Bombay High Court

The Bombay High Court observed that an adult victim of sex trafficking cannot be forced to stay back at a protection home merely because she is poor, without family, or perceived to be at risk of returning to commercial sex work if she were released.

Justice NJ Jamadar, therefore, quashed an order detaining a 20-year-old woman at a Nashik protective home for up to a year, after she was apprehended in connection with a case under the Immoral Traffic (Prevention) Act (PITA).

The Court held that in the absence of concrete material, such detention amounts to an impermissible restriction on personal liberty and fundamental freedoms guaranteed under the Constitution of India.

Justice Jamadar reiterated that PITA was aimed at preventing immoral traffic and not to punish the victim of the sexual exploitation.

“In the absence of material to show that the role attributed to the victim would fall within the dragnet of any of the penal provisions, the victim cannot be subjected to unreasonable restrictions on the basis of a bald assertion that the victim may again indulge in immoral acts”, the Court said.

The case was tied to the rescue of five victims from a Nashik hotel after a police raid. A case was registered under PITA against two alleged exploiters.

Two of the five rescued victims were released to their relatives. The remaining three victims, including the petitioner, were placed in a protective home on orders by a magistrate.

In the petitioner's case, the magistrate ordered that she be kept at a women’s shelter home for a year after observing that she had been living alone after her parents separated and that her lack of income may compel her to again indulge in immoral activities if she were released.

This order was upheld by an additional sessions judge, Nashik. Thereafter, the woman moved the High Court with a plea for her release.

She argued that she was an adult, that she was not an accused and that her fundamental rights had been trampled upon by the detention order.

The High Court eventually held that her detention was not justified.

“The learned Magistrate could not have directed the detention of (the petitioner) for the reason that there was nobody to take care of (her), who was a major, and, thus, there were chances of (the petitioner) again indulging in commercial sex work, if she was released without providing her necessary counseling and training. The mere fact that (petitioner) was alone, by itself, could not have been a justifiable ground to detain (her) in a protective home," the Court noted.

The Court further observed that the prosecuting agency had neither found the petitioner indulging in the offences under PITA, nor was there material to show that she was a threat to society. The Court proceeded to order her immediate release.

"In the absence of any material to justify an inference that the interest of the society and the victim could only be protected by detaining her in a protective home, the impugned orders cannot be sustained," the Court said.

Advocates Abhijeet Jangale and Nikita Bordepatil appeared for the petitioner. Additional public prosecutor RS Tendulkar appeared for State.

[Read order]