Protective Custody under PITA (Completely Explained)

Context

The Bombay High Court set aside an order that placed an adult trafficking survivor in a protective home for one year. The Court held that detaining an adult survivor without consent or constitutional justification violates personal liberty. It clarified that protective homes under the Immoral Traffic (Prevention) Act, 1956 (PITA) are meant for rehabilitation and care, not confinement.

Q1. What triggered the Bombay High Court’s intervention?

1. The case arose from a police raid in Maharashtra related to trafficking.
2. Only one adult woman was placed in a protective home for a year.
3. The justification given was that:
   1. She lacked family support.
   2. She had no independent income.
   3. There was a possibility she might return to sex work.
4. The woman repeatedly expressed her desire to leave the protective home.
5. The High Court found these assumptions legally impermissible and constitutionally untenable.

Q2. What does the Immoral Traffic (Prevention) Act allow after rescue?

1. Section 17 of PITA permits temporary safe custody only in limited circumstances.
2. Initial custody without producing the person before a magistrate:
   1. Permissible only if immediate production is not possible.
   2. Capped at a maximum of 10 days.
3. Once produced before a magistrate:
   1. A formal inquiry is mandatory.
   2. Interim custody during inquiry can extend up to three weeks.
4. The statutory time limits reflect legislative intent to prevent indefinite confinement.

Q3. When is long-term placement in a protective home legally permissible?

1. Placement for one to three years is allowed only if:
   1. The magistrate conducts a proper inquiry.
   2. A clear finding is recorded that the person is “in need of care and protection.”
2. Such placement is not automatic after rescue.
3. The Court emphasised that rescue cannot become a gateway to prolonged detention.

Q4. How does PITA distinguish between protective homes and detention?

1. PITA makes a clear legal distinction:
   1. Protective homes (Section 2(g)): Intended for care, rehabilitation, and voluntary support of victims.
   2. Corrective institutions (Section 2(b) read with Section 10A): Intended for detention of offenders convicted under the Act.
2. Only persons found guilty of offences can be sent to corrective institutions.
3. Victims of trafficking cannot be treated as offenders by default.

Q5. What constitutional rights of adult survivors did the Court emphasise?

1. Adult survivors retain full constitutional freedoms, including:
   21. Right to personal liberty under Article 21.
   22. Freedoms under Article 19, such as:
       1. Freedom of movement.
       2. Choice of residence.

• Right to pursue a livelihood.

2. Unlike children, adults cannot be subjected to extended state control merely for “protection.”
3. Trafficking does not suspend or dilute constitutional rights.

Q6. Why did the Court place consent at the centre of ‘care’?

1. The Court held that:
   1. Care for an adult must be voluntary.
   2. Consent is the defining element distinguishing care from detention.
2. Once an adult clearly expresses a desire to leave, continued confinement becomes unlawful detention.
3. In this case:
   1. The woman repeatedly refused to stay.
   2. Her consent was absent and could not be presumed.

Q7. How did the Court distinguish between care and detention?

1. The Court adopted a substance-over-label approach.
2. Care involves:
   1. Voluntary shelter.
   2. Counselling and rehabilitation with consent.
   3. Support for rebuilding life choices.
3. Detention involves:
   2. Restrictions on movement and autonomy.
4. If an adult is confined against her wishes:
   1. The arrangement amounts to detention.
   2. Such detention must meet strict constitutional standards.

Q8. What role does the magistrate play under PITA?

1. Only a magistrate can determine whether: A rescued person genuinely requires care and protection.
2. This determination must follow:
   1. A proper inquiry.
   2. Application of mind to individual circumstances.
3. Administrative or police assumptions cannot substitute judicial satisfaction.

Q9. When can detention of an adult survivor be justified?

1. The Court identified limited situations where detention may be permissible:
   1. Medical evidence showing impaired decision-making
   2. A demonstrable threat to society if the person is released.
   3. The individual being an accused in a criminal offence.
2. Absent these conditions, detention lacks legal basis.

Q10. Why did detention fail the legal test in this case?

1. There was no medical evidence of incapacity.
2. There was no finding that the woman posed a danger to others.
3. She was not an accused in any criminal case.
4. The fear that she might return to sex work was speculative.
5. Speculation and moral assumptions cannot justify curtailment of liberty.

Q11. What conduct does PITA actually criminalise?

1. Prostitution per se is not a crime under PITA.
2. The Act targets:
   1. Commercial sexual exploitation.
   2. Systems and actors who profit from or facilitate exploitation.
3. Criminal liability arises for:
   1. Running or managing a brothel.
   2. Living off earnings of another’s prostitution.
   3. Procuring or trafficking persons, even with apparent consent.
   4. Detaining persons for sexual exploitation.
4. Some acts are punishable only when they affect public order, such as soliciting near schools or hospitals.

Q12. Why did the Court reject poverty as a ground for detention?

1. The Court categorically held that:
   1. Economic vulnerability does not justify confinement.
   2. Lack of family support or income cannot override liberty.
2. Poverty may warrant:
   1. Welfare assistance.
   2. Rehabilitation support.
3. It can never justify:
   1. Forced custody.
   2. Loss of autonomy.

Conclusion

The Bombay High Court reaffirmed that trafficking survivors are rights-bearing individuals, not subjects of state control. Protective custody under PITA must remain exceptional, time-bound, and consent-based for adults. The judgment strengthens constitutional liberty, victim-centric justice, and prevents rescue from turning into punishment.