Magistrate's Power to Order Removal of Prostitutes (Section 20)

Few provisions in the Immoral Traffic (Prevention) Act, 1956 sit as uneasily on the constitutional conscience as Section 20. It does not punish prostitution as such; it does not require a brothel, a customer, or even a completed offence. It empowers a magistrate, on mere information that a woman is a prostitute residing in or frequenting a place, to order her to pick up her life and leave - and to bar her from returning. The provision collides head-on with the fundamental rights to move freely and to reside anywhere in India under Article 19(1)(d) and (e), and with the equality guarantee of Article 14. For decades the High Courts of Bombay and Allahabad chipped away at it, until the Supreme Court in State of Uttar Pradesh v. Kaushaliya (AIR 1964 SC 416) settled the question by reading Section 20 as a judicial - not executive - power, hedged with a public-interest test and a right of revision. This chapter unpacks the text of Section 20, the procedural safeguards built into it, the leading authorities, and the criticisms that continue to dog this most paternalistic corner of the Act.

What Section 20 Does: Removal, Not Punishment

Section 20 is headed "Removal of prostitute from any place" (the original Suppression of Immoral Traffic in Women and Girls Act, 1956 used the words "woman or girl"; the gender-neutral 1986 amendment that renamed the statute substituted "person"). Its object is not to convict but to relocate. Where the punitive provisions of the Act - keeping a brothel under Section 3, living on the earnings of prostitution under Section 4, or procuring under Section 5 - require proof of a specific criminal act, Section 20 operates on status and location. The magistrate's order does not brand the woman a convict; it simply commands her to remove herself from a particular place, by a specified route, within a specified time, and forbids re-entry without his written permission.

This distinction matters. Because Section 20 is preventive and place-based rather than punitive, the challenge to it was never that it criminalised an innocent act - it was that it interfered with the most basic incidents of personal liberty: the right to choose where one lives and the right to move about freely. As the Supreme Court observed in Kaushaliya, "No right can be more important to a person than the right to select his or her home and to move about in the manner he or she likes. Even a depraved woman cannot be deprived of such a right except for good reasons." Section 20, then, is a study in how a welfare statute reconciles its protective ambitions with the constitutional dignity of the very people it seeks to regulate.

The Text and Structure of Section 20

Section 20 is built around a single power exercised through four stages. Sub-section (1) is the trigger: a magistrate, "on receiving information that any [person] residing in or frequenting any place within the local limits of his jurisdiction is a prostitute", may record the substance of that information and issue a notice requiring the person to appear and show cause why she should not be required to remove herself from the place and be prohibited from re-entering it. Sub-section (2) mandates fair notice: every such notice must be accompanied by a copy of the recorded information, and that copy must be served along with the notice on the person concerned.

Sub-section (3) is the operative heart. After service of the notice, the magistrate must "proceed to inquire into the truth of the information received", give the person "an opportunity of adducing evidence", and take such further evidence as he thinks fit. Only if, upon that inquiry, it appears to him both that the person is a prostitute and that it is "necessary in the interests of the general public" that she should be required to remove herself, may he by written order require her - after a date not less than seven days from the order - to remove herself from the place to a destination within or without his jurisdiction, by a specified route and within a specified time, and prohibit re-entry without his written permission. Sub-section (4) supplies the sanction: disobedience or unauthorised re-entry is punishable with fine up to two hundred rupees, and, in the case of a continuing offence, an additional fine up to twenty rupees for every day the default continues.

Two conjunctive conditions therefore gate every removal order: a finding of fact (she is a prostitute) and a finding of necessity (public interest demands removal). The Supreme Court in Kaushaliya seized on this twin requirement to hold that the magistrate functions as a court adjudicating two questions, not as an executive issuing a fiat.

"On Receiving Information": The Source Need Not Be a Special Police Officer

The first contested phrase in Section 20 is "on receiving information". In Kaushaliya, the respondents argued that because the Act creates a specialised functionary - the Special Police Officer under Section 13, appointed for each area to deal with offences under the Act - the "information" that sets Section 20 in motion must come from that officer. On the facts, the notices had been issued by the City Magistrate, Kanpur, on information received from a Sub-Inspector of Police who was not a Special Police Officer, and the respondents said the proceedings were therefore void.

The Supreme Court rejected the argument. Subba Rao J., delivering the judgment of the Court, reasoned that Section 13 creates the post of Special Police Officer for dealing with offences under the Act, whereas Section 20 does not deal with an offence at all - it initiates a judicial enquiry. "If the Legislature intended to confine the expression 'information' only to that given by a Special Police Officer, it would have specifically stated so in the section. The omission is a clear indication that a particular source of information is not material for the application of the section." Giving the words their natural meaning, the Court held that information under Section 20 "may be from any source". The distinction the Court drew is instructive: investigation and arrest of women carry "potentialities for grave mischief" and are therefore entrusted only to specially trained officers, but the mere giving of information that merely starts the machinery of a judicial enquiry carries no such danger and needs no such restriction.

The Magistrate Acts as a Court, Not as an Executive

The most consequential holding in Kaushaliya is that the magistrate exercising Section 20 acts in a judicial, not executive, capacity. The respondents had contended that the power was "uncanalised" - that the magistrate could discriminate between a prostitute and a respectable woman, interfere on flimsy and untested evidence, and arbitrarily decide who must leave - and that the provision therefore offended Article 14.

The Court answered that a close reading of Section 20 "reveals a clear-cut policy but also the existence of effective checks against arbitrariness". The procedure prescribed - recorded information, notice with a copy of that record, a public enquiry, the right to engage an advocate, to cross-examine the informant, and to adduce both oral and documentary evidence - "approximates, as nearly as possible, to that of a judicial enquiry". Crucially, the Court held that the very phrase "Magistrate" in the Act refers to a magistrate of comparatively high status exercising special jurisdiction, and that since the legislature conferred jurisdiction to restrict a fundamental right by following judicial procedure, "it is reasonable to hold that it conferred jurisdiction on him as a court". That the enquiry does not relate to an "offence" is not decisive: a magistrate acting under Sections 133, 144, 145 or 488 of the Code of Criminal Procedure (the 1898 Code then in force) is equally not dealing with an offence yet is never doubted to be functioning as a court. Once the magistrate is a court, his decision is open to revision before the Sessions Court or the High Court - the final safeguard against arbitrariness. "In the circumstances it is not possible to say that uncanalised power is conferred on the Magistrate as an executive authority to decide the fate of an alleged prostitute in an arbitrary manner."

Kaushaliya and Article 14: The Reasonable Classification

Having located Section 20 within judicial procedure, the Court in State of Uttar Pradesh v. Kaushaliya applied the settled twin test under Article 14: a classification survives if it rests on an intelligible differentia and that differentia bears a rational relation to the object of the law. Subba Rao J. identified not one but two valid classifications embedded in Section 20.

The first is between a woman who is a prostitute and one who is not - "differences which certainly justify their being placed in different classes". The second, more subtle, is between a prostitute whose conduct does not call for any restriction and a prostitute whose conduct does. "A prostitute who carries on her trade on the sly or in the unfrequented part of the town or in a town with a sparse population may not be so dangerous to public health or morals as a prostitute who lives in a busy locality or in an overcrowded town or in a place within the easy reach of public institutions like religious and educational institutions." The latter, the Court said, is "far more dangerous to the public, particularly to the younger generation during the emotional stage of their life". Because Section 20 in terms targets only the second category - it permits removal only where public interest so requires - the differentia bears a rational relation to the Act's object of suppressing immoral traffic and improving public morals by removing prostitutes from busy public places near religious and educational institutions. The Court therefore held that Section 20 does not offend Article 14, expressly approving the Bombay High Court's view in Begum v. State (AIR 1963 Bom 17) on the Article 14 point and disapproving the contrary observation in Shama Bai v. State of Uttar Pradesh (AIR 1959 All 57) that the provision prima facie offends Article 14.

Kaushaliya and Article 19(1)(d) and (e): A Reasonable Restriction

The harder question was Article 19. Under Article 19(1)(d) a prostitute, like any citizen, has the fundamental right to move freely throughout India, and under Article 19(1)(e) the right to reside and settle anywhere. A Section 20 order plainly restricts both rights: it compels her to leave, dictates her route, and bars her return. The issue was whether that restriction is "reasonable" and "in the interests of the general public" so as to be saved by Article 19(5).

The Court drew on two foundational free-speech-era authorities on the meaning of "reasonable restriction". In Chintaman Rao v. State of Madhya Pradesh ([1950] SCR 759), Mahajan J. had defined the phrase: the limitation "should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public", and "reasonable" implies "intelligent care and deliberation, that is, the choice of a course which reason dictates". In State of Madras v. V.G. Row ([1952] SCR 597), Patanjali Sastri C.J. had laid down that reasonableness must be tested against "the nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied" and "the prevailing conditions at the time". Measuring Section 20 against these tests, the Court held that the vice of prostitution is a rampant evil whose control is a legitimate object; that where prostitution in a locality is "so subversive of public morals and so destructive of public health" that removal is necessary, the restriction cannot be called unreasonable; and that because the restriction is imposed not by executive fiat but "through a judicial process on the basis of a clearly disclosed policy", it is "clearly reasonable".

The Court specifically rejected the "deportation" objection - the argument that the power to remove a prostitute outside the magistrate's jurisdiction is excessive and could, by successive orders of different magistrates, push a prostitute out of India altogether. That argument, Subba Rao J. said, "borders on fantasy"; if a Magistrate makes an order disproportionate to the actual demoralising influence, the prostitute has a remedy by way of revision. Accordingly, the Court overruled the Bombay High Court in Begum v. State insofar as it had held the "removal outside jurisdiction" portion of Section 20 to be an unreasonable restriction under Article 19(1)(d) and (e), set aside the Allahabad High Court's judgment, and restored the magistrate's proceedings.

The High Court Prelude: Shama Bai and Begum

The Supreme Court did not write on a blank slate. Two High Court decisions had already tested Section 20 and partly succeeded in cutting it down. In Shama Bai v. State of Uttar Pradesh (AIR 1959 All 57), a self-described prostitute challenged the parent Act as ultra vires, complaining that it unreasonably prohibited her trade and would leave her to starve. Sabai J. dismissed the petition without notice to the other side but observed in passing that Section 20 "prima facie offends Article 14" - an observation the Supreme Court later disapproved in Kaushaliya.

More substantial was the Bombay High Court's decision in Begum v. State (AIR 1963 Bom 17). There the Sub-Divisional Magistrate, Sholapur, had ordered the petitioners, alleged prostitutes, to remove themselves from the town of Barsi to Osmanabad within three days. A Division Bench upheld Section 20 against Article 14 but held that the specific portion of the section enabling a magistrate to direct a prostitute to a place outside his local jurisdiction was an unreasonable restriction under Article 19(1)(d) and (e), and was therefore severable and invalid. The Allahabad High Court in the proceedings that became Kaushaliya went further, striking down Section 20 in toto as offending both Article 14 and Article 19(1)(d) and (e). The Supreme Court agreed with the Bombay High Court on Article 14, disagreed with it on the Article 19 severance, and reversed the Allahabad High Court altogether - leaving Section 20 standing in full.

The Procedural Safeguards: Why the Section Survives

It is the procedure, more than the substance, that saved Section 20 from constitutional extinction. The Kaushaliya Court enumerated the steps the magistrate must follow, and each step is a safeguard. First, the enquiry can only be initiated on the magistrate receiving information that a person is a prostitute - it is not self-starting. Second, the magistrate must record the substance of the information, creating a written, reviewable basis for action. Third, he must serve a notice with a copy of that record, so the woman knows the precise case against her. Fourth, he must hold a public enquiry at which she may engage an advocate, cross-examine the informant, and adduce oral and documentary evidence. Fifth, he must decide two distinct questions - whether she is a prostitute, and whether public interest requires her removal - and record findings on both. Sixth, only then may he make the removal order, and even then for a date not less than seven days ahead, giving her time to arrange her affairs. Seventh, the order is subject to revision before the Sessions Court and High Court.

This architecture distinguishes Section 20 from a bare "externment" power. The seven-day minimum, the right to evidence, the twin findings, and the revisional remedy together convert what could have been an arbitrary executive eviction into a quasi-judicial determination. The lesson the Court drew - and which students must carry into the examination hall - is that a restriction on a fundamental right is far more likely to be held "reasonable" under Article 19 when it is administered through judicial procedure on a disclosed policy than when it is left to unguided executive discretion.

Section 20 in the Scheme: Distinguishing Sections 7, 8 and 18

Section 20 must be read alongside the Act's other place-based provisions, because the examiner loves to test the boundaries. Section 7 punishes prostitution carried on in or in the vicinity of public places - within a notified area, or within two hundred metres of a place of public religious worship, an educational institution, a hostel, a hospital, a nursing home, or any other public place notified by the Commissioner of Police or Magistrate. Section 7 is a punitive provision attracting imprisonment; Section 20 is a removal provision attracting only a fine for disobedience. Section 8 punishes seducing or soliciting for prostitution in any public place or within sight of, and in such manner as to be seen or heard from, any public place. Section 18, in turn, empowers a magistrate to order the closure of a brothel and the eviction of offenders from premises within two hundred metres of a public place mentioned in Section 7(1), where those premises are used as a brothel - a power directed at the premises, complemented by the offence of wrongfully detaining a person in such premises.

Section 20 differs from all of these in its target: it acts on the person of the prostitute, removing her from a locality irrespective of whether any specific brothel, solicitation or punishable act is proved. It is the only provision in the Act that lets the State physically banish an individual from a place purely on a status-plus-public-interest finding. That singularity is precisely why it drew the constitutional fire that the closure and punishment provisions never did. For the definitional building blocks - who is a "prostitute", what is "prostitution", what counts as a "public place" - the reader should consult the chapter on the key definitions.

Remedies: Revision, Not Appeal

A point frequently muddled by candidates is the nature of the remedy against a Section 20 order. The Act does not provide a statutory appeal against a removal order in the way Section 11 (subsequent order on conviction) or other provisions operate; the corrective mechanism the Supreme Court relied on in Kaushaliya is the ordinary power of revision. Because the magistrate functions as a court, his order is amenable to the revisional jurisdiction of the Sessions Court and the High Court - under Sections 435 and 439 of the Code of Criminal Procedure, 1898 (the corresponding provisions today being Sections 397 to 401 of the Code of Criminal Procedure, 1973). The Court treated this revisional supervision as the structural guarantee against both arbitrariness (the Article 14 concern) and excess (the Article 19 concern): "If in a particular case a Magistrate goes out of the way and makes an order which is clearly disproportionate to the evil influence exercised by a particular prostitute, she has a remedy by way of revision to an appropriate court."

The practical upshot is that the legality of every removal order is testable not on a fresh appeal on facts but on the narrower revisional grounds - jurisdictional error, perversity, failure to follow the prescribed procedure, or an order disproportionate to the demoralising influence shown. A magistrate who removes a woman without recording the twin findings, or without giving her the opportunity to adduce evidence, acts without jurisdiction and his order will not survive revision.

Criticism, Feminist Re-reading and the Reform Debate

Section 20 has not aged gracefully. Critics point out that it embodies a paternalistic, status-based logic: it targets the woman, not the men who run brothels, procure, or live off her earnings, and it treats her presence as a contaminant to be removed rather than a person to be rehabilitated. The reasoning of Kaushaliya itself - replete with the language of "contamination", prostitutes "demoralising" the young, and trade that "spreads diseases" - has been the subject of sustained feminist critique, including a notable academic "feminist rewriting" of the judgment that questions its purity-and-pollution framing of women in prostitution. The provision also sits awkwardly with the Act's professed welfare object: removing a woman from where she lives, without any corresponding duty to rehabilitate or provide for her, can deepen the very vulnerability the Act claims to address.

The Law Commission of India, reviewing the parent statute, recorded that the validity of Section 20 had been challenged and was partly successful before both the Bombay and Allahabad High Courts before the Supreme Court in Kaushaliya ultimately upheld it. Subsequent reform discourse - reflected in the unimplemented Immoral Traffic (Prevention) Amendment Bill, 2006 - moved towards deleting provisions that penalise the prostitute herself and refocusing the Act on traffickers and exploiters. While Section 20 technically remains on the statute book, its practical use has waned, and the modern emphasis on consent, rescue and rehabilitation has left this externment-style power looking like a relic of a more punitive era. For the foundational object-and-history context against which this shift must be read, see the introductory chapter on the Act's object, history and constitutional mandate.

Examination Takeaways

For judiciary and CLAT-PG purposes, Section 20 is best remembered as a cluster of tightly linked propositions. One: the provision empowers removal, not punishment, and operates on status-plus-public-interest, not on proof of a discrete offence. Two: the trigger is "information" from any source - it need not come from a Special Police Officer under Section 13 (Kaushaliya). Three: the magistrate acts as a court, following a quasi-judicial procedure, which is why the power is not "uncanalised" and survives Article 14. Four: removal requires two conjunctive findings - that the person is a prostitute, and that removal is "necessary in the interests of the general public". Five: the restriction on Article 19(1)(d) and (e) is saved by Article 19(5) as a reasonable restriction in the public interest, tested through Chintaman Rao and V.G. Row. Six: the safeguards are recorded information, notice with a copy, a public enquiry with the right to lead and test evidence, a minimum seven-day window, and revision to the Sessions Court and High Court. Seven: Kaushaliya approved Begum v. State (AIR 1963 Bom 17) on Article 14, overruled it on the Article 19 severance of the "outside jurisdiction" power, disapproved the Article 14 observation in Shama Bai (AIR 1959 All 57), and reversed the Allahabad High Court. Carry the case name, the citation AIR 1964 SC 416, and the twin-finding requirement, and you can answer almost any question this section throws at you.