Bombay High Court on Protective Custody Under PITA: Care vs Detention

Protective Custody under PITA Latest News

• The Bombay High Court set aside an order placing an adult trafficking survivor in a protective home for a 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. 
• The court stressed that an adult survivor’s fundamental rights to personal liberty and freedom under Article 19 prevail over statutory powers, and do not stand suspended merely because she was trafficked. 
• The case arose after 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 the Immoral Traffic (Prevention) Act, 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 requires an inquiry. During this stage, interim custody can continue, but only up to three weeks. Any placement beyond this period is not automatic.

When Long-Term Placement Is Permissible

• A longer stay in a protective home — ranging from 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 stressed 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)) are meant for care and rehabilitation of victims.
  • Corrective institutions (Section 2(b)) are for detention of offenders and are governed by Section 10A.
• Only persons found guilty of offences under the Act can be sent to corrective institutions.

Constitutional Rights of Adult Survivors

• For adults, constitutional freedoms under Article 19 — including the right to move freely, choose residence, and pursue a livelihood — remain intact even after trafficking. 
• Unlike children, adults cannot be subjected to extended state control without consent.

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 her consent central, not optional.

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When Care Becomes Detention: The Court’s Test

• Substance Over Labels – The Bombay High Court clarified that the difference between care and detention depends on effect, not terminology. 
  • Care involves voluntary support — counselling, shelter with consent, and help in rebuilding life — while detention is defined by compulsion.
• 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 with concrete material on record, not assumptions.
• Victims Are Not Offenders – The court cautioned against treating trafficking survivors as offenders by default. 
  • The Immoral Traffic (Prevention) Act (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:
  • Evidence of a condition impairing decision-making capacity
  • A 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, and the woman was not accused of any offence. 
• 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 – The PITA does not criminalise prostitution itself. Courts have clarified that being engaged 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 or 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.

Source: IE | LL