The government's proposed amendments to the Immoral Traffic (Prevention) Act (PITA), 1956 - earlier titled SITA (Suppression of Immoral Traffic Act) - have whipped up an expected maelstrom due to their flawed nature.
The Immoral Traffic (Prevention) Amendment Bill, 2006 - introduced in the Lok Sabha last year - proposes, among other things, to 'decriminalize' prostitution by treating sex workers as 'victims' rather than 'criminals', thereby presuming that they opt for the profession under compulsion and not out of choice. The changes also push for punitive action against pimps/brothel owners/clients by implying they are traffickers.
While the ostensible aim of the amendments is noble (to check human trafficking within India and from neighboring regions, primarily Nepal and Bangladesh), experts argue that the government's method of going about this is skewed. According to the UN Protocol on Human Trafficking, trafficking is deemed a crime "when a person/migrant labor is moved against his/her will from one place to another to be pushed into a situation of exploitation".
However, while the recommended changes may deter wrongful/illegal movement of migrant labor, they won't do much for sexual trafficking or sex workers' rights. On the contrary, by criminalizing clients, the law will push prostitution underground as punishing clients will amount to outlawing sex work. The Bill will empower the police to arrest clients who, if convicted, will be liable to serve a six-month jail term and pay a fine of Rs 50,000 (US$1=Rs 39.45).
Already, a high degree of legal ambivalence and contradictions cloud prostitution laws in India. According to the law, though prostitution per se is not illegal, brothels are outlawed. However, it is perfectly legitimate for sex shops to function in certain pockets of a city. Also, though the profession does not have official sanction, little effort is made to abolish it. So, while prostitution is allowed to thrive, attempts are made to camouflage it from the public. According to PITA, sex work is neither legal nor illegal; it is tolerated - prostitutes can practice their trade privately but cannot legally solicit customers in public (the law forbids sex workers from conducting their profession within 200 yards of a public place).
According to the UN Human Watch Report (2005), Indian anti-trafficking laws are designed to combat commercialized vice. While removing from PITA the section that makes soliciting an offence is a welcome step, its effect is nullified by the introduction of a clause that makes clients punishable. Not surprising, then, that the National Network of Sex Workers (NNSW) has raised a serious objection to this clause and sent protest letters to the Ministry of Women and Child Development, deeming it as a direct attack on their livelihood. Says Bhanwri Devi (name changed) of NNSW, "By attacking our clients, the law will force us to resort to clandestine methods to service them. This will further complicate our wretched and disadvantaged lives."
Experts argue that there ought to be a distinction between consensual sex work and the menace of human trafficking. As Mumbai-based social activist Rita Jamval puts it, "The government is treating the symptom rather than the disease. Its reaction is a typically knee-jerk one. By assuming clients/brothel owners to be traffickers and making them punishable, the law will make it impossible for sex workers to earn their livelihood in peace."
In any case, unlike other professions, sex workers in India do not come under the ambit of regular workers' laws, making them disentitled to minimum wage benefits, compensation for injury or other professional benefits that commonly apply to other types of work. They do, however, possess the right to rescue and rehabilitation and the rights of ordinary citizens. However, in real life, this rarely works. In fact, the Indian Penal Code (IPC), which predates PITA, is known to charge sex workers with nebulous crimes such as 'public indecency' or being a 'public nuisance' without explicitly defining these terms.
Research done by NGO Sanlaap (in 2000) indicates that the majority of sex workers in India work as prostitutes due to a resource crunch - usually the fallout of a marriage gone awry - and to support themselves and their children. Most do not choose this profession out of preference, but out of necessity. Also, sex workers' children too get sucked into this profession.
According to the Ministry of Women and Child Development, over three million women are involved in sex work in India in some 400 red light areas. Out of these, 30 per cent are children and a majority are Dalits (lower caste) and tribals. Every day, about 200 girls and women in India enter prostitution, 80 per cent of them against their will. Karnataka, Andhra Pradesh, Maharashtra, Tamil Nadu and Uttar Pradesh are the high-supply zones for women in prostitution, while Belgaum, Bijapur, and Kolhapur are some common districts from where women migrate to cities, propelled through organized trafficking networks or due to socio-economic forces. In addition, 90 per cent of the Mumbai's 100,000 women prostitutes are indentured slaves.
On an average, one Indian sex worker daily services six men, each of who pay a trifling US $1 to US$ 2 per sex act. To pay for movies, clothes, make-up and additional food, the girls have to borrow from moneylenders at a whopping interest rate of up to 500 per cent. Little wonder, then, that they are perpetually in debt.
The conventional position adopted by the government is that prostitution is female sexual slavery; ergo, the practice should be abolished. Feminists have raised concern over issues such as a woman's control over her body and its subsequent 'commodification'. In fact, American author Kathleen Barry in her book, 'Sexual Slavery' has spoken explicitly of Indian prostitutes who are subjected to extreme violence, rape and abuse.
Social activists have often lobbied for the legalization of prostitution as they feel the laws are insensitive to sex workers and the enforcement agencies apathetic to the prostitutes' cause. Once legalized, the advocates claim, they will not be harassed by the police, permitted to work in certain zones and issued licenses. Their names will also feature in government records and it will be mandatory for them to undergo health check-ups and pay taxes. Apart from streamlining the profession, they feel this move will also check the AIDS menace.
However, an equally strong lobby has been countering this demand, saying that in the Indian context, legalization will trigger increased trafficking of young girls and boys. Further, it will only make women in sex work more vulnerable to state control and to policemen eager to extract their pound of flesh, quite literally.
Whether it is legalization or decriminalization, prostitution is a no-win situation for women in brothel-based sex work. While legalization would lead to exploitation by authorities who issue licenses, decriminalization is unlikely to free prostitutes from the clutches of avaricious pimps/brothel-owners. Either way, millions of prostitutes, including lakhs of child sex workers, will be impacted negatively by PITA's amendments.
In the light of just how staggering the impact of PITA's amendments can be, perhaps the government would have done better to first set in motion a national debate on the issue, factoring in the viewpoint of bodies representing the sex workers' interests.