Wrecktifying ITPA

October 2002

A Critique of the Proposed Amendments to the Immoral Traffic (Prevention) Act, 1956 by Aditi Thorat with inputs from Tripti Tandon of the Lawyers Collective HIV/AIDS unit.

Sex work is one of the oldest professions in the history of mankind, but it's a long way from being an acceptable one. Society has always looked at sex work as immoral and destructive, and treated women in sex work/ prostitution as "fallen women". Rarely, and only recently, has the discourse on sex work highlighted the perspective of women in the profession and their demands.

It is essential that any law dealing with a disenfranchised population like sex workers must be fundamentally aimed at empowering them. Particularly in the HIV/AIDS scenario, in order to successfully to tackle the epidemic, it is vital that these vulnerable/ high-risk groups are not treated as criminals and their rights are guaranteed. Effectively intervening by methods such as health education, distribution of condoms, vesting human rights and providing capacity for sex workers to organise themselves, would be possible only if a legislative strategy to deal with sex workers is rights-based.

However, there are fundamental ideological differences between the intent expressed in the Immoral Traffic (Prevention) Act, 1956 (ITPA) and the rights-based approach, and more recently, there are serious defects in the proposed amendments to ITPA.

The amendments to ITPA have renewed the focus on trafficking and third party involvement in prostitution, without recognising the inherent contradiction in a law, which is silent on the legal status of sex work but makes activities required for sex work illegal.

The addition of a definition of trafficking has been proposed, as per the International Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children: "a) Trafficking in persons shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of threat or use of force or other forms of coercion or abduction or fraud or deception, of the abuse of power or of a position of vulnerability or of giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purposes of exploitation. Exploitation shall include at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs; b) the consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph a) shall be irrelevant where any of the means set forth are used. c) the recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered "trafficking in persons" even if this does not involve any of the means set forth in subparagraph a) of this article".

The amendments also propose additional clauses to treat trafficking as a case of multiple rape, and to order confiscation/seizure of the property and assets of traffickers and agents.

Trafficking is in itself a human rights violation, irrespective of the end purpose, and involves a number of issues including mobility, migration within and across borders, and volition. However, the inclusion of a definition of trafficking in a law which deals with not only trafficking but also sex work itself, conflates the issues of prostitution (included under the category of exploitation in the definition) and trafficking, which according to a significant number of sex workers groups need to be looked at separately. The phrase "position of vulnerability" included in the definition of trafficking is highly ambiguous and could be interpreted to disregard the right to self-determination of a sex worker.

The suggestion to treat trafficking as a case of multiple rape is legally flawed, revealing ignorance of the definition of rape under the Indian Penal Code, 1860 (IPC). Rape under Section 375, IPC is defined as "sexual intercourse without consent, and with consent under specific circumstances like putting the woman or any person she is interested in under fear of hurt or death, deceiving her to make her believe it is her husband, intoxicating her etc., where penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape." Consent to sex is the primary issue here, which is defined in Section 90, IPC, as, "consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent ; unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age. "

How can we assume that an adult sex worker, who was trafficked at some early stage, and now in the trade, is being raped every time she has sex with a client, even if consent to sex is explicitly given, in the form of exchange of money etc? The reasoning behind the addition of this clause seems to be that the moral heinousness of trafficking allows it to be comparable to a case of multiple rape. However, will this reasoning hold weight in a court of law? Existing provisions under the IPC (Section 366 A and B, 367, 372, 373) already penalise kidnapping, abduction, and procurement of girls (minors and others) for prostitution with imprisonment, which may extend to ten years and fine. Therefore, is the provision to treat trafficking as a case of multiple rape at all necessary?

In the present context, the root of the problem is that traffickers are seldom identified, much less prosecuted. Prosecution requires that sex workers testify against traffickers and third parties like pimps and brothel owners. Since the livelihood of these women depend on these third parties, they are extremely unwilling to do so, which makes their prosecution almost impossible. The proposed amendments to ITPA do not address this issue at all.

On the positive side, the amendments to ITPA propose to delete sections that make outward manifestations of sex work such as 'soliciting' and 'public disturbance' illegal. In addition, the section allowing magistrates to order removal of prostitutes from any place (a complete violation of the fundamental rights of liberty, freedom of movement and right to reside) is also proposed to be deleted. However, this apparent step toward decriminalisation is accompanied with further criminalisation, in the form of enhanced punishment for activities such as brothel keeping. This is only one example of the confused stance towards sex work adopted by ITPA and its amendments, neither clearly criminalising nor decriminalising prostitution. Further, the amendment does not alter definition of the term "brothel" as a place "for the mutual gain of two or more prostitutes". This clause converts commercial sex workers who work voluntarily, into criminals who have to be penalised. The proposed amendment enhances their punishment, increasing their stigmatised and marginalised position. Also, in terms of HIV/AIDS and public health, the presence of captive locations like brothels makes prevention interventions easier. Enhanced punishment for brothel owners could drive sex work to be carried out in dispersed unorganised settings, which enhances vulnerability to the HIV/AIDS epidemic.

Increasing the maximum period of stay of female offenders in corrective institutions is another amendment proposed, which further criminalises sex workers. ITPA adopts an attitude that every woman, whose 'character', 'state of health' and 'mental condition' (all ambiguous terms undefined by ITPA allowing law enforcers to interpret these as they please) necessitates it, requires 'corrective treatment', whether or not they themselves seek such placement. In addition to being deeply gender-biased and moralistic, especially the use of a term such as "character", the placement of adult women practicing sex work in institutions is restrictive of a person's right to life, liberty and freedom of movement, a violation of Articles 19, and 21 of the Indian Constitution.

The most significant problems faced by sex workers across geographical locations are related to police harassment and detention. The amendments to ITPA, instead of recognising and addressing the issues of arbitrary police raids, seizure of money and material belongings, physical assault, torture and rape and other human rights violation of sex workers by police personnel, propose the lowering of the rank of the special police officer dealing with offences under ITPA from inspector to sub-inspector. This amendment is likely to worsen the situation, resulting in greater abuse of powers by the police. The amendments should have focused on increasing police accountability to ensure that sex workers rights are guaranteed.

Although the amendments to ITPA have recognized the inherent procedural flaws and delays in the legal process and delivery of justice, the steps taken to modify the same are grossly inadequate. It is now made mandatory for the State Government to consult a non-official advisory body consisting of five leading social welfare workers of that area on questions of general importance regarding the working of this Act. However, the composition criteria and membership procedures of the non-official advisory board are not specified, nor are the specific areas of consultation. It is essential that membership of the board should be carried out through transparent democratic procedures, and selection of social workers should be on a rotation basis. Also, the recommendations of the advisory board, merely on account of their non-official status, should not be dismissed without serious consideration.

The amendments make it mandatory to appoint honorary women judges specially empowered to hear cases under ITPA. This provision, in drawing a facile connection between the gender of the judge and the quality of justice rendered, has no empirical justification. The real issue is ensuring that legal aid, representation and the presence of a translator (if required) is available to sex workers and trafficked women during proceedings. Additional provisions for setting a time limit to be set for speedy record of evidence have also been proposed under amendments to this Act. While there is a need for speedy access to justice, there should be safeguards to ensure that procedures are followed and that human rights are not violated in the process, as necessitating speedy record of evidence may lead to practices violative of statutory procedures. Also, a clause ensuring that the court protects the dignity and privacy of the indicted through the provision of mandatory in camera proceedings has been added. However, crucial issues like the sensitisation of the judiciary and law enforcement officials to modify their "moralistic" attitude to sex workers has not been addressed by the amendments to ITPA.

An additional clause to provide protective mechanisms, immunities and safeguards for members of voluntary agencies taking initiatives for preventing trafficking, facilitating rescue and carrying out victim protection activities has also been included in the amendments to ITPA. The treating of sex workers as "victims" who require protection, although a highly objectionable attitude, is reflected in several clauses of ITPA. Although the role of voluntary workers is crucial, their activities should not be restricted to merely rescue, but also to the empowerment, both legal and socio-economic of sex workers. Also, the conduct of these "rescue" voluntary organisations should not be above scrutiny, in case they violate human rights in the process of carrying out protection of sex workers.

In conclusion, the amendments to ITPA do not alter its fundamental quasi-abolitionist character. The law remains as punitive as ever. It continues to stigmatize sex workers, by punishing people who live off their income, which although aimed at middle-men, pimps and traffickers, targets basically the husbands, lovers, partners and children of sex workers, thus depriving sex workers of their only means of support and family. Coercive strategies support structures that limit access to social support systems and health care services for sex workers. Additional human rights violations, including denial of housing, the right to self worth and dignity and the right to bear and rear children (the definition of "child in need of care and protection" in the Juvenile Justice Act can be interpreted to include children of sex workers) only add to the vulnerability. Very importantly, forced testing for HIV/ AIDS, although not permitted under the National AIDS Control and Prevention Policy, continues to be allowed under ITPA, through a clause that enables magistrates to order mandatory testing for sex workers. This clause is a total violation of the right to privacy of a person under Article 21 of the Constitution. For the sex worker, amended ITPA or not, the state still remains an adversary.

Aditi Thorat is a student at the University of Oxford currently interning with the Lawyers Collective HIV/AIDS Unit,

Mumbai.