Selling and Buying Children for Prostitution

Explanation 2 to section 98 defines "illicit intercourse" as sexual intercourse between persons not united by marriage or by any union or tie which, though not amounting to a marriage, is recognised by the personal law or custom of the community to which they belong, or of both communities where they belong to different ones, as constituting a quasi-marital relation.

Section 99, buying a child. Whoever buys, hires or otherwise obtains possession of any child with the same intent, or knowing it to be likely, is punished with imprisonment of not less than seven years extending to fourteen years, and fine.

Explanation 1 to section 99 presumes, until the contrary is proved, that a prostitute or a person keeping or managing a brothel who obtains possession of a female under eighteen did so with intent that she be used for prostitution. Explanation 2 gives "illicit intercourse" the same meaning as in section 98.

Broken down: the common ingredients of sections 98 and 99

One: a child. By section 2(3), any person below eighteen. Both sections apply to a child of either sex.

Two: the transaction. Selling, letting to hire or otherwise disposing of, in section 98. Buying, hiring or otherwise obtaining possession of, in section 99. "Otherwise" in both is what defeats an argument that no money changed hands.

Three: the purpose. That the child shall "at any age" be employed or used for prostitution, illicit intercourse, or any unlawful and immoral purpose. The words "at any age" matter: an intention that the child be used when older is enough.

Four: intent or knowledge. Intent that the purpose be achieved, or knowledge that it is likely.

The two presumptions

They shift the burden on one ingredient only. Once it is proved that a female under eighteen was disposed of to, or obtained by, a prostitute or a brothel keeper, the intent is presumed. Everything else must still be proved.

They apply only to a female under eighteen. A male child sold to the same person attracts no presumption, and the intent must be proved in the ordinary way.

They are rebuttable. The words are "until the contrary is proved", so the accused may displace the presumption on the balance of probabilities.

Distinctions that carry marks

A worked example

Ramabai, in severe debt, hands over her fifteen-year-old daughter to Shakuntala, who manages a brothel in a nearby town, in exchange for the cancellation of a loan.

Is Ramabai within section 98? Yes. She has otherwise disposed of a child, and the cancellation of a debt is consideration though no money passed. By Explanation 1 the intent is presumed, because a female under eighteen was disposed of to a person who manages a brothel, and Ramabai must prove the contrary. The maximum is ten years and fine.

Is Shakuntala within section 99? Yes. She obtained possession of a child, Explanation 1 to section 99 presumes her intent because she manages a brothel and the girl is under eighteen, and the punishment is not less than seven years extending to fourteen, with fine.

Does it matter that the girl was not in fact used for prostitution? No. Both sections punish the transaction accompanied by the intent or the knowledge, and the words "at any age" show that the purpose need not be immediate.

Change one fact. Suppose the child is a boy of fifteen sold to a man who runs a workshop, with the intention that he be used for sexual exploitation. Section 98 still applies, because it protects a child of either sex, but neither Explanation does, because both presumptions are confined to a female under eighteen, so the prosecution must prove the intent.

Change it again. Suppose nobody was sold, and a man simply persuaded a fourteen-year-old to travel to another town intending that she be seduced there by a third person. That is section 96, procuration of a child, with a maximum of ten years and fine.

What beginners get wrong

Thinking money must pass. "Otherwise disposes of" and "otherwise obtains possession of" cover any transaction, including one for a debt or a favour.

Thinking the purpose must be immediate. The words "at any age" defeat that. An intention that the child be used years later is within both sections.

Thinking the presumptions apply to any child. They apply only to a female under eighteen, and only where the counterparty is a prostitute or a person who keeps or manages a brothel.

Thinking these sections are the whole law. They are the penal statute. The Immoral Traffic (Prevention) Act, 1956, the Protection of Children from Sexual Offences Act, 2012 and the Juvenile Justice Act all operate on the same facts, and a prosecution will usually be under several.

Limits and criticism

Section 97 is narrow to the point of oddity. It is confined to a child under ten and to an intention of taking movable property from the child's person, which reflects a specific nineteenth century mischief and leaves the general case to the kidnapping provisions in Chapter VI.

The presumptions are gendered. They protect a female child and not a male one, although both sections protect children of either sex, and there is no evident reason in the mischief for the difference.

"Unlawful and immoral purpose" is undefined. It is a phrase of Victorian origin carried into a modern statute, and its content depends entirely on what a court is prepared to call immoral.

Quick revision

Section 96. Inducing a child by any means to go from a place or do an act, with intent or knowledge that the child will be forced or seduced to illicit intercourse: up to ten years and fine.

Section 97. Kidnapping or abducting a child under ten with intent to take movable property dishonestly from its person: up to seven years and fine.

Section 98. Selling, letting to hire or otherwise disposing of a child for prostitution, illicit intercourse or any unlawful and immoral purpose, at any age: up to ten years and fine.

Section 99. Buying, hiring or otherwise obtaining possession of a child for the same purposes: seven to fourteen years and fine.

The presumptions. Explanation 1 to each section, against a person disposing of, or a prostitute or brothel keeper obtaining, a female under eighteen. Rebuttable, until the contrary is proved.

Illicit intercourse. Defined in Explanation 2 to section 98 and carried into section 99.

Test yourself

1. Why is the buyer punished more heavily than the seller? Section 99 carries a minimum of seven years and a maximum of fourteen, against no minimum and ten years under section 98. The buyer is ordinarily the person in the business of exploitation, and the demand is what sustains the trade.

2. What do the two Explanation 1 presumptions do, and to whom do they apply? They presume, until the contrary is proved, the intent that the child be used for prostitution. They apply only where a female under eighteen is disposed of to, or obtained by, a prostitute or a person who keeps or manages a brothel.

3. What is the significance of the words "at any age" in sections 98 and 99? They make it immaterial that the intended use is not immediate. An intention that the child be employed or used when older is within both sections.

4. Does section 98 protect boys? Yes. It applies to any child, and by section 2(3) a child is any person below eighteen of either sex. Only the presumption in Explanation 1 is confined to females.

5. How is "illicit intercourse" defined? By Explanation 2 to section 98, as sexual intercourse between persons not united by marriage or by any union or tie which, though not amounting to marriage, is recognised by their personal law or custom as constituting a quasi-marital relation.