July 5: The Immoral Trafficking (Prevention) Act, 1956 (ITP) has failed to prevent sexual exploitation of women for prostitution as the law lacks a “stringent punishment regime”, the Orissa High Court said in a recent order while dealing with the bail plea of a man arrested on trafficking charges.

“There seems to be an all-pervasive puritan, moral, anti-prostitution posture of the Government, but in practice, there is a yawning gap between the law and its enforcement which results in abysmally low conviction rates,” said Justice S.K. Panigrahi in his order of 29 June, The Print reported.

The court was hearing a bail application of one Panchanan Padhi, who was accused of trafficking girls from Kolkata for prostitution. He was charged under Sections 4 and 5 of the ITP Act, besides some provisions of the Indian Penal Code (IPC).

While Section 4 punishes a person of over 18 years with two years in jail if he or she is indicted for living on the earnings related to prostitution, Section 5 prescribes a punishment of three years and more, but not more than seven years, if it’s proven that a person induced someone to carry on prostitution. Imprisonment under Section 5 can be extended up to 14 years if the court finds that inducement was against the will of the victim.

The law, the judge noted, was framed to make trafficking and sexual exploitation of persons for commercial purpose a punishable offence. However, the term “trafficking in persons” is not defined in the ITP Act, the court said.

The bench ordered release of Padhi since his accomplices were already enlarged on bail. However, it directed the judicial magistrate to impose strict bail conditions on him.

The bench ordered release of Padhi since his accomplices were already enlarged on bail. However, it directed the judicial magistrate to impose strict bail conditions on him.

According to the United Nations Palermo Protocol, the State is under obligation to devise an adequate mechanism to prosecute perpetrators, protect victims and prevent trafficking, the court noted in its order.

The protocol says “trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.

The court felt the law framed is not rigorous enough to stop prostitution. “Though it involves clandestine and unlawful trafficking of girls but the law makers have missed the opportunity to prescribe a stringent punishment regime, even though the present offence is far more heinous than drug trafficking.”

The judge said enforcement of the law is even more challenging because “flesh trade” has evolved into varied forms with the advent of new technologies.

Even as the judge granted bail to Padhi, he asked the court to exercise caution while granting such a relief as it can “embolden the hardened criminals”.

“The kingpins behind such sex rackets exert considerable influence in the area and are bound to intimidate the victims. The nature of crime is such that grant of bail will only embolden such hardened criminals, who keep evading the law and punishment, to perpetuate such heinous crimes,” said the bench.

No leniency can be shown to those involved in selling victims or in the prostitution business. “It would amount to an affront to the statutes which govern the field and, more importantly, the Constitution of India,” said the bench.

The bench suggested courts take into account the definition of “trafficking” as laid out in the UN Protocol while framing charges against an accused.

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