About the author:
Keya is an ambitious student of the 12th grade at The International School, Bangalore. With a focus on gender rights and public policy, Keya has considerable experiencing working with her community on fostering an inclusive society for everyone. She hopes to make an impact in the legal field as a practitioner in the future.
Abstract
This paper aims to conduct an analysis of the legislation surrounding sex work in India, focusing on the Immoral Traffic (Prevention) Act of 1986 (ITPA). The paper argues that stigmatizing policies like the ITPA exacerbate the perilous conditions faced by sex workers. The central argument advocates for a paradigm shift, recognizing prostitution as a legitimate, or at least necessary, form of livelihood, accompanied by robust legal reforms to ensure the protection and well-being of sex workers.
Introduction
A comprehensive understanding of sex work in India necessitates an exploration of the diverse factors that propel women, often involuntarily, into this profession. The findings, derived from personal interactions with 33 sex workers in rural areas of Nat Purwa district, Uttar Pradesh, reveal both voluntary and involuntary motivations. For centuries, prostitution has been the tradition in this village of 5000 people. The entire village consists of the Nat community who were patronised by the zamindars of neighbouring villages in return for sexual favours from the women (Albarracin, Kumkale & Johnson, 2004). This became entrenched in the customs and history of the village and continues even today. Before prostitution became the norm for the Nat community, they were historically performers and a few still carry on this tradition. In 1871, the British passed the Criminal Tribes Act classifying certain tribes as engaging in “criminal activities”. The Nat community was also targeted by this law. Denied the right to pursue their profession as performers, they were forced to take to prostitution. For several communities in Uttar Pradesh, prostitution has become a means of survival for this reason (Evans & Lambert, 2008).
Voluntary factors encompass issues such as poverty, dire economic conditions, family illnesses, debts, sex for pleasure, peer association, family neglect, domestic conflicts, and substance abuse in spouses (Wallerstein, 2006). On the other hand, involuntary reasons include forced rape, sexual assault, early marriages, human trafficking, family deception, and betrayal by partners.
The repercussions of involvement in sex work are profound and often deleterious to the health and well-being of the workers. Unwanted pregnancies, abortions, HIV/AIDS, drug addiction, ovarian problems, physical injuries, mental health issues, and social stigmatization are among the harsh realities faced by many sex workers. Additionally, their children may experience adverse effects, including limited educational opportunities, a challenging socio-economic environment and societal prejudice (Aidala, Cross, Stall, Harre & Sumartojo, 2005).
The intertwining of societal attitudes and legislative frameworks concerning sex work in India is evident in the trajectory of the Immoral Traffic in Women and Girls Act, 1956 (SITA). Rooted in colonial-era morality, the SITA criminalized aspects of sex work. SITA was amended in 1986 and the Immoral Traffic Prevention Act (IA) was passed. The act states the illegality of prostitution and the punishment for owning any such related establishment. Any person involved in any phase of the chain activities like recruiting, transporting, transferring, harbouring, or receiving of people for the purpose of prostitution is also liable to be punished. This was subsequently followed by more progressive amendments and bills. Despite this, these changes often mirrored the conflicting perspectives within society and the government, contributing to the ambiguity surrounding the legality of sex work. The continuous legislative evolution failed to provide a clear stance, perpetuating the vulnerability of sex workers.
Policy Review
The Immoral Traffic (Prevention) Act of 1986, while originally formulated to combat trafficking, exhibits a dangerously dichotomous approach. While the act remains silent on the legality of sex work itself, it adopts a strict stance on addressing trafficking issues and penalizing brothel owners. This dual approach reflects broader societal perceptions that view sex work as both immoral and exploitative. The nomenclature of the legislation further perpetuates the stigma attached to sex work, framing it as inherently immoral. The IPTA act later post 1986 underwent a series of amendments that reflected the societal attitudes prevailing during different periods. Subsequent amendments to the IPTA attempted to address the complexities associated with sex work.
The Immoral Traffic Prevention Amendment Bill, 2006 is a revised version of the Immoral Traffic Prevention Act, 1986. The Bill deletes provisions that penalised prostitutes for soliciting clients. It penalises any person visiting a brothel for the purpose of sexual exploitation of trafficked victims. It also punishes trafficking for the purpose of prostitution. Trafficking for other purposes (such as bonded labour and domestic work) are not covered by the Bill. The Bill constitutes authorities at the centre and state level to combat trafficking but it does not elaborate on their role, function, and composition.
Recent legislative developments, particularly the Criminal Law Amendment Act, 2013 (CLA), reveal the relationship between sex work and abolitionist rhetoric surrounding trafficking. The CLA, enacted in response to the heinous gang rape and murder in Delhi, initially criminalized recruitment, harbouring, and transport for purposes of prostitution (Benoit, Jansson, Smith & Flagg, 2018). This reflected a view that all forms of prostitution were inherently exploitative. However, Indian sex workers’ groups successfully protested, leading to a revision of the definition of exploitation in the CLA (Mitra, Hill, Chaudhuri & Chaudhuri, 2022). This revision acknowledged that sex work is not inherently exploitative and allowed for a distinction between consensual sex work and sexual exploitation. While the law still criminalizes trafficking for sexual exploitation, the acknowledgment of voluntary sex work represents a significant, albeit partial, victory for sex workers.
Furthermore,the criminalization of aspects of sex work under the ITPA significantly hampers the protection of sex workers in India. The vague language and ambiguity within the legislation provide a breeding ground for abuse by law enforcement authorities. Rather than safeguarding the rights of sex workers, the ITPA often becomes a tool for harassment, extortion, and exploitation. The prohibition against public solicitation, for instance, is inconsistently enforced and leaves sex workers vulnerable to abuse. Constitutional safeguards that are intended to protect civil liberties often fall short when applied to sex workers. The criminalization of sex work pushes it underground, making it difficult for workers to access healthcare, legal recourse, and protection from exploitation. The inherent contradiction within the legal framework, where sex work is granted a quasi-legal status while simultaneously restricting certain aspects, creates an ambiguous situation restricting their ability to access constitutional protections.
Policy Recommendations
Reframing the Issue
To understand the trajectory of prostitution law reform in postcolonial India, it is crucial to unpack the policy vocabularies and reconceptualize anti-sex work laws. The domestic strain of abolitionist thought, institutionalized by state bodies like the National Commission for Women and the National Human Rights Commission, has historically limited possibilities for comprehensive law reform. The international momentum of abolitionism, fueled by the Trafficking in Persons Reports, influenced the ITPA Amendment’s pursuit of partial decriminalization. However, the recent passage of the CLA in 2013 showcased a significant shift by decoupling the link between sex work and trafficking. The state’s recognition that persons can be trafficked into various labor sectors, not just sex work, indicates a growing awareness that prostitution is not inherently exploitative (Benoit, Jansson, Smith & Flagg, 2018). Rather, the profession is dangerous and insufficiently protected.
Human Rights Approach
Advancing towards a human rights-focused approach, this section examines the role of NGOs like the Durbar Mahila Samanwaya Committee (DMSC) and Sampada Grameen Mahila Parishad (SANGRAM).
The human rights approach, as championed by NGOs, becomes crucial in addressing the gaps left by legislative frameworks. Organizations like DMSC and SANGRAM play a pivotal role in advocating for the rights of sex workers, emphasizing the need for dignity, safety, and fair treatment (Rao, Gupta, Lokshin & Jana, 2003). The specific actions and initiatives undertaken by these NGOs underscore the importance of a comprehensive human rights perspective in shaping policies related to sex work.
The success stories of organizations like Durbar Mahila Samanwaya Committee (DMSC) in Calcutta and Sampada Grameen Mahila Parishad (SANGRAM) in Southern Maharashtra serve as crucial case studies in understanding the positive outcomes of a human rights-focused approach (Aidala, Cross, Stall, Harre & Sumartojo, 2005). DMSC’s active engagement with sex workers since the early 1990s has led to improved condom usage, economic empowerment, and overall enhanced well-being. SANGRAM’s initiatives in the Sangli district further exemplify the potential benefits of combining activism with legal recognition, showcasing a pathway toward a safer and more dignified environment for sex workers (Mitra, Hill, Chaudhuri & Chaudhuri, 2022).
Scaled Policy Changes
In addition to grassroots efforts and NGO advocacy, large-scale policy changes at the governmental level are imperative to address the multifaceted issues surrounding sex work in India. One notable policy initiative is the National Health Policy (NHP) of 2017, which recognizes the healthcare needs of marginalized communities, including sex workers. Under this policy, the government aims to provide comprehensive healthcare services, including HIV prevention, testing, and treatment, to vulnerable populations, thereby addressing some of the health-related challenges faced by sex workers.
Furthermore, the Ministry of Women and Child Development introduced the Ujjawala Scheme (2007), which focuses on the prevention of trafficking and rescue, rehabilitation, and reintegration of victims. Through this scheme, efforts are made to provide alternative livelihood options and skill development opportunities to individuals vulnerable to trafficking, including sex workers (Benoit, Jansson, Smith & Flagg, 2018). By addressing the root causes of sex trafficking, such as poverty and lack of economic opportunities, initiatives like Ujjawala contribute to reducing the incidence of involuntary involvement in sex work.
Additionally, legal reforms such as the bill titled Trafficking of Persons (Prevention, Protection, and Rehabilitation) Bill, 2021, seeks to emphasize a victim-centric approach. The proposed bill presents a comprehensive framework to combat trafficking, including sexual exploitation, by outlining stringent measures across prevention, protection, rehabilitation, and prosecution domains. Notably, the bill mandates the establishment of protection homes and specialized rehabilitation centers, ensuring trafficking survivors, including coerced or deceived sex workers, receive tailored support such as medical care, counseling, legal assistance, and vocational training (Benoit, Jansson, Smith & Flagg, 2018). Additionally, provisions for witness protection seek to encourage victims to testify against traffickers without fear of reprisal, bolstering the prosecution efforts. If enacted, the Trafficking of Persons Bill, 2021, promises significant strides in safeguarding the rights and dignity of sex workers along with trafficking victims in India (Mitra, Hill, Chaudhuri & Chaudhuri, 2022).
Conclusion
This paper provides a detailed exploration of stigmatizing policies, with a specific focus on the Immoral Traffic (Prevention) Act of 1956. It contends that these policies, particularly the ITPA, contribute to the hazards faced by sex workers. The examination conducted in this paper underscores the intricate interplay between legislation, societal attitudes, and the lived experiences of sex workers in India. It also underscores the pressing need for a holistic revaluation of legislative frameworks, including more progressive laws Human Rights approaches (Sen, 1990). At minimum a clear and cohesive stance on the legality of sex work and its related activities is to be established. This could potentially result in a major shift in societal perceptions. Such changes are essential to ensure the protection and empowerment of sex workers, paving the way for a more inclusive and just society.
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