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This article is authored by Richa Jain, a 2nd Year student pursuing BA LLB(Hons) at Dr. Ram Manohar Lohiya National Law University, Lucknow.
“If the police or Sarkar (government) intended to increase the welfare of victims (of trafficking), they would have then provided alternative income sources or work. What they do is lock us in shelter homes or send us back to our villages.”
Human Trafficking, a pernicious and shameful crime, is a global issue affecting multitude of lives of their dignity and trust in humanity. A crime which must have a zero-tolerance policy should be handled with a sleight of hand by the society and the government. Every year, hundreds of thousands of women, children are deceived, abducted, or sold into forced prostitution for the clan of men who victimize them into the horrors of sexual exploitation. Recently, the center released the draft Trafficking in Persons (Prevention, Care and Rehabilitation) Bill, 2021 which emphasize on criminalizing and policing rather than proposing welfare measures.
The most unpleased section with this draft is the community of sex workers. India is a hub of over 3 million sex workers according to a 2007 MoWC Report, majority of them being adults. When any raid and rescue operation is conducted, many women, who made consensual business agreement are also detained and sent back. The current draft nullifies the consent of the victim as irrelevant and immaterial which means that those who are willingly in this profession now feel threatened of being held for criminal charges. Framing trafficking as an issue of morality precariously put human rights at stake forging the stigma of woman not entering into sex work of her own violation.
The anti-trafficking discourse has been on International Regimes from the turn of 20th century. The adoption ofPalermo Protocol (United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons) in 2000 triggered the recent spate of “trafficking” in legal arena. Since then the anti-trafficking initiatives have been expansive to sex work exceptionalism taking into realm the concepts of forced labor (Forced Labour Protocol 2014) and modern slavery (Walk Free Foundation 2015). By 2009, the visualization of trafficking not just involved cross border movement but the re-invigorated focus was on internal migration and trafficking without movement (for e.g., bonded labor). The elasticity in the concept of trafficking forces authorities and civil society to have a discursive view into the relationship between anti-sex work laws, general criminal laws, labour laws, corporate laws, and immigration laws. Unfortunately, the Indian government has taken recourse to conservative thinking, marked by sex work exceptionalism and less focus on forced and bonded labor.
INDIAN LEGISLATION AT HAND: THE DRACONIAN ITPA 1986
The Immoral Traffic Prevention Act, 1956 is the main legislation that aims to stop immoral trafficking and prostitution in India. The definition of trafficking is drawn primarily from Section 370 IPC, which includes “any act of physical exploitation, sexual exploitation, slavery or practices similar to slavery and servitude”. There are many shortcomings with this archaic ITPA last amended in year 1986 and never reviewed since.
One, inclusion of the term “immoral” creates a pathway to a morality aspect whereas handling of such cases should be purely legal in tandem with criminal laws. The interpretation at hand takes an anti-sex worker approach.
Human Rights Watch supports the decriminalization of consensual adult sex including commercial exchange of services. In their report, they have analysed the grave impacts of criminalization: exposes vulnerability of sex workers, are subjected to abuse and exploitation by law enforcement officials, coerced into physical, verbal and sexual harassment, bribery and mental health issues. In a 2012 report of HRW, sex workers’ mere possession of condoms is marked as evidence to put up charges, thus the practice of having unsafe sex leads to higher risk of contracting HIV-AIDS. Decriminalising sex work provides a sense of equality and maximises legal protection in terms of accessing justice and health care system and exercising other rights freely.
Two, the ITPA in its section 17(2) fosters the “raid-rescue-rehabilitation” model which is highly backlashed in international regime. In India too, the norm of assuming sex work to be a result of trafficking with workers needing rescue has proven to be misleading.
Sex work in India is practically illegal and such laws are unintentionally putting a gordians’ knot on human rights. These people are seen less of a worker and more of a victim or criminal. One-size-fits-all approach towards all sex workers leads to creation of a “racket” where these “rescued” individuals (mainly women and transgender) are detained into rehabilitation homes for years. Such places are funded by state and have harsh living conditions. Such forceful detainment is a blot on human rights as many have described living in such places as “worse than a prison”.
Article 19(1)(g) of the constitution, which guarantees fundamental right to work is violated as there is no provision for the ‘victims’ if they do not want to get rehabilitated or accept repatriation. The harsh reality is that the “rescued and rehabilitated” women invariably return to sex work. And the reasons lie within the system, the societal stigmas don’t let these workers to live in a safe space with full dignity. Their family members are being robbed of their reputation, forcing those workers to find a place and make a living on their own.
Three, the ITPA ignores the reality of bonded labor victims who are daily trafficked accross borders under exploitative situations concerning terrific usage of young people for organ removal, girls and women for domestic servitude or forced marriage. The act fails to provide the much-needed attention in such draconian issues.
Four, the ITPA defines prostitution as “the sexual exploitation or abuse of persons for commercial purposes”. The law essentially means that prostitution in general is sexual exploitation and abuse where consent has no role to play. But research has shown that the law is applied moralistically to punish more women hence more arrests are made of women soliciting in public. The authorities grossly misuse Section 8 of ITPA which prohibits soliciting harassing streetwalkers.
Five, Section 4 of the act says “an individual over 18 years of age, dependent on the income of a sex worker shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to Rs.1000”. This provision is deliberately used to punish an innocent who is barely out of school and cannot be financially independent at such an age.
The act does not prohibit sex work prima facie but keeping brothels, living on earnings of sex workers and soliciting in public places are considered criminal offences. The legitimization of sex work in India has a long way to go and it cannot happen with only one archaic legal act which favours the criminals and puts victims, transgender community and migrant labors into a much more dilapidated position. What does the new draft says, or does it address the current issues?
REVISED DRAFT OF “ANTI-TRAFFICKING” LAW 2021
The Trafficking in Persons (Prevention, Care And Rehabilitation) Bill, 2021 is largely welcomed by anti-trafficking activists, lawyers and researchers and is aimed at preventing and countering trafficking in persons especially women and children. It fortifies the provision of care, protection, and rehabilitation to the victims and also respect their rights while creating a supportive legal, economic and social environment for them, also ensuring prosecution of offenders.
The proposed bill has been built after due revision of feedbacks and criticisms raised for the 2018 draft. The bill defines human trafficking as an organised crime with international implications. It attempts to part ways with conflating trafficking with sex work and upholds rights of survivors to rehabilitation and compensation independent of criminal proceedings. It also states that the National Investigation Agency will act as a “nodal agency to guide prevention and combating of trafficking in persons and other offences under this act as well as for investigation, prosecution and coordination in cases of trafficking in persons”.
Although certain communities and activists have raised concerns about absence of community-based rehabilitation, funds for rehab homes, and a mechanised rescue protocol. Thus, the concern of victims being rescued unwillingly can lead to being held in remand homes for upto 3 years. The bill has also mixed up the issue of trafficking and sex work with its callous texts. “Prostitution and Pornography have been added as definition of exploitation and sexual exploitation and is considered to be Trafficking in Persons. Consent of the victim has been made irrelevant” says representatives of Durbar (the largest sex workers collective based out of Kolkata).
People who engage in voluntary sex work usually come from a marginalised background surrounded by social stigmatization and discrimination. They do not get access to job offers due to prevailing casteism and illiteracy. When these people are “rescued/rehabilitated”, their will to live dies with their dignity. First step into a better governance would be to normalize consensual sex between adults even for business purposes. Some measures to improve their situation would be to provide welfare measures such as financial aid, job training and opportunities, social services and information. The government has to address the sexual orientation, gender-discrimination and identity, race, ethnicity, or immigration status affecting sex workers.
A rights-based approach that facilitates sex work in a legal manner and criminalises those who are actually backfiring justice. The authorities such as police and politicians should also go through proper training to have an understanding of psychological mind-state of sex workers in India and those who have immigrated. Trafficking and migration are mutually dependent on the economic policies of a nation and shouldn’t be overlooked creating high inequalities in the status quo.