Adult victim rescued from immoral trafficking cannot be forced to live in correction home, Bombay HC

Source:barandbench.com

The Bombay High Court recently ruled in favour of the autonomy of adult victims rescued from immoral trafficking, observing that such persons cannot be forced to live in a correction home against their wishes.

A Single Judge Bench of Justice SS Shinde made the observation while ordering the release of a 22-year-old woman. The woman had been rescued with eleven others during a raid conducted by the Pandharpur Police under the Immoral Traffic (Prevention) Act.

Justice Shinde ordered her release from a correction home, emphasising that she is free to move freely within India as per her wish and to practice a vocation of her choice.

The Court said that the fundamental rights of the victim stand on a higher pedestal compared to statutory rights, and that keeping her at a correction home against her wishes infringes those rights. As noted in the judgment,

“Indisputably Respondent No.2 Victim XYZ is major, therefore it is imperative to consider her wishes…

I find considerable force in the submission made by the learned counsel for the Petitioner that the victim being major, her fundamental right to move from one place to another place, reside at the place of her choice and to chose her vocation has to be considered, and contrary to her wishes she cannot be asked to reside in the said Corrective Institution i.e. Shaskiya Mahila Rajya Gruh, Prerana Mahila Wasti Gruh, Baramati, Dist. Pune.”

After being rescued from prostitution racket, the victim was sent to a correction home in Baramati, Pune for a year by a Magistrate court in Pandharpur. This order was upheld by an Additional Sessions Judge.

Subsequently, a plea challenging the Sessions Court order was filed before the Bombay High Court by a woman who claimed to have raised the victim like her own child. The petitioner sought custody of the victim.

Appearing for the petitioner, Advocate Satyavrat Joshi argued that the victim, who had attained majority, could not be forced to live in a correction home against her wishes.

He argued that as per the amended objects of the Immoral Traffic Act, neither the victim nor the customer is liable to be prosecuted. It was pointed out that they could only be subjected to reformative mechanisms under the Act.

He further argued that since the petitioner had no role in forcing the victim into trafficking, there was no harm in releasing the victim into her custody.

Justice Shinde noted that the question before the Court was whether the mechanism provided under the Immoral Traffic Act could be used for the reformation of an adult victim in the absence of her willingness.

The Court ruled,

“I find considerable force in the submission made by the learned counsel for the petitioner that the victim being major, her fundamental right to move from one place to another place, reside at the place of her choice and to choose her vocation has to be considered. And contrary to her wishes, she cannot be asked to reside in the Corrective Institution.”

Justice Shinde, therefore, ordered the release of the victim and directed that the lower court orders sending the victim to a correction home for one year stand modified to the time already spent by her at the home.

The Court, however, rejected the petitioner’s plea  for custody of the victim, noting that it is up to the victim to choose where she would want to go after her release from the correction home. The plea was also dismissed considering that the petitioner was not the biological mother of the victim, a fact apparently concealed by the petitioner during earlier court proceedings.

Consequently, the Court ruled,

“… Victim XYZ should be set at liberty and to be released forthwith, however, after ascertaining her wish, whether she desires to continue her stay in the said Corrective Institution for remaining period or wants to be set at liberty/freed from the said Corrective Institution.“