In a move that could have far-reaching implications for sex workers, the Indian government recently proposed significant amendments to the Immoral Traffic Prevention Act 1956 (ITPA). The amendments aim to protect sex workers from exploitation at the hands of clients and police.
Two crucial amendments are the removal of Section 8, ITPA, which allows the police to book a sex worker on charges of seducing or soliciting customers in public places, and Section 20, which relates to the removal of a sex worker from "any place". Another significant proposal is the insertion of a new section 5C, which would, for the first, time, punish a person visiting or found in a brothel for the purpose of sexual exploitation.
The Human Resources Development Ministry's Department of Women and Child Development (DWCD) has approved the Immoral Trafficking (Prevention) Amendment Bill 2005. Even as the Bill is posed for introduction in Parliament, strong criticism against the proposed legislation comes in from an unexpected quarter - the sex workers themselves.
"What will happen to our families if clients are punished, and stop coming to us for fear of imprisonment," asks Mala Singh, a sex worker from Sonagachi, the red light area in Kolkata, West Bengal. Her opinion, shared by many other sex workers, is that the removal of Section 8 is self-defeating if Section 5C is introduced.
Perturbed by what they see as a real threat to their livelihood, sex workers from across India converged in New Delhi on December 7 to protest the proposed legislation and demand that the government gives them fair hearing before framing laws for their benefit. The meeting was jointly organised by New Delhi-based National Network of Sex Workers, the Kolkata-based collective of over 65,000 sex workers Durbar Mahila Samanvay Committee (DMSC), and the Delhi-based NGO Lawyer's Collective.
"Unknown to us, the DWCD is pushing for a law that penalises clients visiting brothels," says Malashree, a sex worker from Andhra Pradesh.
Rajni, a eunuch sex worker from Bangalore, Karnataka, is also plainly sceptical. "How many people are aware that, in the southern states of India 'Hijras' (eunuchs), can survive only by doing sex work. In Bangalore, at least 10 Hijras are arrested every month under the Act. How is the new law going to help us when we have not even been consulted in its framing," she objects. As a sex worker activist, Rajni works with 2,000 hijra sex workers in Bangalore.
The government's contention, however, is that before any amendments are carried out, an opportunity is given to different stakeholders to give their comments and suggestions on the draft amendments. This is always done either through an advertisement in all major daily newspapers or through a notification in the official Gazette, an official source said.
Delhi-based human rights activist Joseph Gathia agrees. "There was a notification on this and some other Bills in the major dailies sometime in March 2005. I distinctly remember seeing it, because there was also a notification regarding the Domestic Violence Bill, for which I had made a representation," he says.
He also points out that, for years, women's organisations in India and across the world have been demanding that laws should target clients, and not sex workers. "Nowhere in the world is there a law punishing clients.
Now, when the Indian government is taking the unprecedented step of making clients accountable, as demanded by so many groups, these same people are raising a hue and cry against it," Gathia says.
Sex workers' organisations and those who support their cause, however, have a range of other objections as well.
The move to punish clients is not in accordance with the existing legislative policy as understood in the ITPA, which is to punish third parties who profit from prostitution, explains Anand Grover, Director, Lawyers Collective. He stresses that the ITPA does not criminalise prostitution per se.
Sex workers' organisations acknowledge DWCD's attempt to review the law. In fact, Section 8 - which the DWCD seeks to delete - is used extensively to harass sex workers who carry safe sex tools, such as condoms. "This is a welcome move, but what is the point of removing penalties against soliciting if the police can continue to harass us under the new Section 5C?" argues Mala Singh.
"The prohibitionist model has failed to protect sex workers, who are driven underground by clients wanting to avoid the police. Sex workers are known to have experienced loss of control over their working conditions and, as a result, have become vulnerable to violence, exploitation by pimps and to sexually transmitted diseases and HIV infection," adds Tripti Tandon of the Lawyers Collective's HIV/AIDS Unit.
Another amendment - to Section 13 (2) - proposes to give the powers of Special Police Officer under the ITPA from the Inspector of Police to the Sub-Inspector. This is cause for alarm among sex workers, who are worried that this will give the local police additional power to harass them.
"Police powers under the law should be brought under scrutiny. Trafficking thrives not because sex workers are party to it, but because of the nexus between the police and the mafia," says Satyawati, a sex worker from Andhra Pradesh.
The police disagree. "Most police stations have only one inspector but at least two or three sub-inspectors. By delegating Special Police Officer powers to sub-inspectors, who are also senior-level officers, cases can be registered more quickly and taken cognisance of," says O P Mishra, Additional Deputy Commissioner of Police, Delhi.
In his opinion, this is a convenient generalisation. "You have to look at the police not as a whole, but in their different individual approaches.
The Delhi police has taken the lead, not only in the country but in South-East Asia, by securing convictions against brothel owners based on complaints from sex workers. This has led to the sealing of 11 brothels in the city so far," he claims. Mishra, who was the Special Police Officer in charge during some of the convictions against brothel owners, stresses that instead of condemning the police, civil society should work with them.
"All police officers are not involved in anti-trafficking drives. I agree, however, that rigorous orientation and sensitisation training is essential for all police personnel working in this area," he adds.
This echoes Gathia's concerns as well: "The police and civil society have to mutually agree on how to implement the Act. The problem lies here, not in the provisions themselves."
Meanwhile, the general consensus among the sex workers' organisations and public health organisations is that the target group, namely the sex workers, have been ignored in the policy framing process, as a result of which their genuine and real issues have not been properly addressed.