When ‘care’ becomes confinement: Why Bombay High Court ordered release of trafficking victim from protective home

The matter pertained to five women who were rescued during a police raid from a lodge in Yeola, Maharashtra, followed by the arrest of two men under PITA. While other women were allowed to leave with their family members, the magistrate ordered that the petitioner be placed in the detention home as she had no family or steady source of income. It was assumed that, considering her circumstances, she was likely to return to commercial sex work and therefore required institutional “care and protection” under the PITA.

What the law permits after rescue

PITA provides a framework for custody after a rescue under Section 17. Immediately after a raid, a person may be kept safe in custody for a short period if they cannot be produced before the appropriate magistrate. This initial custody is capped at 10 days.

Once the person is produced before the magistrate, the law mandates an inquiry. During this period, interim custody can continue but only upto 3 weeks. A longer placement, anywhere between 1-3 years, can only be ordered after the magistrate records a finding that the person is “in need of care and protection”.

The Bombay HC noted that these timelines are not procedural formalities but a reflection of the legislative intent to ensure that rescue does not turn into confinement. For adults, any extension of this custody beyond these narrow limitations must pass constitutional scrutiny.

The Act draws a statutory distinction between protective homes and corrective institutions. While Section 2(g) deals with “protective homes” meant for victims requiring care and rehabilitation, Section 2(b) defines a “corrective institution” as one where persons “in need of correction” may be detained. Detention in a corrective institution is specifically governed by Section 10A, which applies to offenders found guilty of certain offences under the Act.

For children, the law permits wider intervention, with the State stepping in as a guardian. For adults, Article 19 — to move freely, reside where one chooses and pursue a livelihood — does not stand suspended merely because a person has been trafficked.

As a result, “care” for an adult might be voluntary. Once an adult expresses a clear wish to leave a protective home, continuing to confine them ceases to be care and becomes a detention. In the present case, the woman repeatedly stated that she did not wish to remain in the institution; the HC held that her consent was not optional but central.

How courts distinguish care from detention

The distinction, the court said, lies not in labels but in effect. Care involves support measures that respect autonomy, counselling, shelter offered with consent and assistance in rebuilding life outside exploitative settings.

Detention, on the other hand, is marked by compulsion. When an adult is kept in a protective home against her wishes with restrictions on movement and choice, the state must justify the restraint on liberty with concrete reasons.

“When an adult is kept in a protective home against her wish,” the court noted, “the restraint on personal liberty must be justified on the basis of material placed on record.”

The bench cautioned against treating victims as offenders by default. The PITA, the court said, “was not meant to punish a victim of sexual exploitation”. In the absence of material showing that the victim’s conduct attracted any penal provision, she could not be subjected to restrictions “on the basis of a bald assertion that the victim may again indulge in immoral acts”.

Under the Act, it is the magistrate who must determine, after conducting an inquiry, whether a rescued person requires care and protection. Only upon such satisfaction can a magistrate pass an order directing placement in a protective home, subject to the safeguards built into the provision.

Detention may be justified where there is evidence that the person suffers from a condition that impairs decision-making, or where release would pose a demonstrable danger to society. Another situation is where the person is also an accused in a criminal case.

In this case, none of these elements were present. There was no medical material suggesting incapacity. There was no finding that her release would endanger others. She was not accused of any offence under PITA.

The court rejected speculative fears, including the possibility that she might return to sex work, as insufficient to justify detention.

What the Act criminalises

PITA does not criminalise prostitution. What it targets is the commercial exploitation that surrounds it. Although the Act defines prostitution as sexual exploitation for commercial purposes, judges have clarified that this does not mean every person found in sex work is committing an offence, controlling or profiting from that exploitation. The focus of the law is the trade, not the individual caught within it.

This distinction runs through the Act. No provision punishes a person simply for engaging in prostitution. Instead, the offences are directed at brothel keepers, traffickers, and intermediaries.

Managing a brothel, living off another person’s earnings or procuring someone for prostitution, even with apparent consent, attracts criminal liability. Detaining a person in a brothel or premises for sexual exploitation is treated as a serious offence.

There are limited situations where conduct linked to prostitution is punishable. This applies when it takes place near public places such as schools, hospitals or places of worship, or when a person is found soliciting in a public space. Courts have described these provisions as measures to protect public order rather than moral policing.

A central plank of the magistrate’s reasoning was the woman’s economic condition. The High Court rejected this approach.

“The necessity of detention,” the court held, “ought to have been determined on the touchstone of constitutional rights of personal liberty and fundamental freedom.” The mere absence of a relative to take custody, or the fear that poverty may push a person back into sex work, could not justify confinement. Poverty, the court said, may require support, but it cannot be used to curtail liberty.