Delhi HC dismisses challenge against S.18 Immoral Traffic (Prevention) Act- says it is intended to minimise prostitution activities near public place

A proceeding under Section 18 is a preventive measure and it is intended to minimise the chance of a brothel being run or prostitution being carried on in a premises within a distance of 200 mtrs. of any public place, the Bench said.

The Delhi High Court in Nitu vs. GNCDT, has dismissed the challenge to the vires of Section 18 of Immoral Traffic (Prevention) Act, 1956. First bench comprising of Chief Justice G. Rohini and Justice Rajiv Sahai Endlaw also held that show-cause notice under Section 18(1) is not mandatory to the occupants/residents before evicting them.

The Challenge

Four ladies who are engaged in in the profession of singing and dancing called ‘mujra‘, which is traditional art form practiced by the courtesans in North India since centuries, were asked to evict themselves from the premises ‘Kothas’ within seven days. The petitioners pleaded that though they engage in transactional sex, i.e. sex for money, none of them carry out prostitution. They challenged these orders on the ground that no notice were issued to them. Vires of Section 18 of the Immoral Traffic (Prevention) Act, 1956 was also challenged.

The petitioners submitted that in A.C.Aggarwal & Anr. vs. Ram Kali AIR 1968 SC 1, the Supreme Court had held that the magistrate must at the first instance proceed against the persons complained against under the penal provisions in Sections 3 or 7 as the case may be, and only after the disposal of those cases take action under Section 18 if there is occasion for it. They contended that the Amendment Act which amended certain provisions of the Act, has nullified the judgment in Ram Kali case and that the present law virtually goes back to pre-Ram Kali procedure conferring unguided and unbridled power and discretion on the police to initiate proceedings for closure of the premises and eviction of the occupants under Section 18 (1) of the Act by adopting the pick and choose method.

Section 18 independent from other penal provisions

Dismissing the challenge, the Court said that, Sections 3 and 7 of the Act are concerned with the culpability of the accused persons, Section 18 is concerned with the misuse of the premises in question and both these provisions are independent as held in Ram Kali case. The court observed that Sections 3 and 7 of the Act provide for the punishment of persons guilty of the offences mentioned therein and thus hence punitive in nature, but a proceeding under Section 18 is a preventive measure and it is intended to minimise the chance of a brothel being run or prostitution being carried on in a premises within a distance of 200 metres of any public place. The Amendment to Section 18 has a nexus with the object of making the exercise of powers under Section 18(1) independent so as to regulate the sanctity of residential units in public places, the bench said.

Section 18(1) to prevent misuse of premises near public places

The object of Section 18(1) is to minimize the chance of brothel being run in public place which would offend the moral conscience or tend to spread disorder in the immediate society which is habited by temples and mosques or educational institutions. Apparently, Section 18(1) is aimed at addressing the issue of misuse of the premises immediately without waiting till the trial of the cases under Section 3 or Section 7 is concluded.

The Court however allowed the petitioners to submit their objections to the Sub-Divisional Magistrate, Paharganj, Delhi within four weeks, who shall consider the same and pass appropriate orders and till such time, the petitioners shall not be evicted from the premises.

Read the Judgment here.