Conflict of Justice in Context to Sex Work in India
THIS ARTICLE WAS WRITTEN BY ANJALI MEHROTRA, A STUDENT OF RGNUL.
Introduction
The Ministry of Woman and Child Development, in 2007, reported that approximately 30 lakh or 3 million female sex workers in India[1]. According to the National AIDS Control Organisation (Phase 3 in 2007-2012), there are more than 800,000 sex workers in India[2]. The figures changed a little, when in 2016, the UNAids (United Nations Programme on HIV and AIDS) estimated that 657,829 prostitutes work in India[3]. However, the unauthenticated or the real figures are much higher, they have not yet been included in the calculation of these estimates.
Such is the condition of the research or the even the concern towards sex workers. Social awareness and acceptance go hand in hand with legislative or judicial assent. Both are majorly lacking, in our country, with respect to sex workers. Moreover, according to UNDP, decriminalisation is an essential pre-requisite to guarantee the physical and emotional inviolability of sex workers, right to freedom of labour, health and reproductive and sexual rights and their right to life.
India has always been considered ‘a timid follower of a failed carceral approach to trafficking’[4]. The response model followed regarding sex workers is based on a prosecution-driven raid–rescue–rehabilitation model. After Independence, the Suppression of Immoral Traffic in Women and GirlsAct, 1956 (SITA) was enacted, following the sanction of the UN Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (1949) which focussed upon trafficking for sex work.India’s main anti-sex work criminal law, SITA, was revised in 1986to strengthen the framework penalties and remedies. It was also renamed as the Immoral Traffic Prevention Act,1986.
The primary legislation governing the practise is the Immoral Traffic Prevention Act,1986. It is supported by Section 370 to Section 373 of the Indian Penal Code,1860.In addition to that on July 18, 2018, the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 was introduced in Lok Sabha by the Minister of Women and Child Development, Maneka Gandhi which was passed by the lower house on 26 July, 2018. The said bill provides for the rescue, rehabilitation and prevention of trafficking and consists of provisions pertaining to sex workers.
Why was there a need for a new law?
In 2011, the India had signed and assented to the United Nations Convention Against Transnational Organised Crimes, 2000, including its Protocol to prevent, suppress and punish trafficking of persons[5]. So, the Parliament had to frame a legislation in consonance with the convention.
The Supreme Court of India, in the case of BudhadevKarmaskar v. State of West Bengal[6]had heldthat sex workers are empowered to right to life and hence, should be give the protection that is guaranteed to every citizen. The Court also instructed the State to implement propositions on the rehabilitation of sex workers who are willing to leave this profession on their own accord and to arrange for those who choose to continue working as sex workers favourable conditions in consonance with Article 21 of the Constitution of India. A Supreme Court panel also recommended that Central government and the Election Commission issue voter ID cards, and that state governments and local institutions issue ration cards to sex workers.
The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 was compiled by a committee under the Ministry of Woman and Child Development. The committee, in question, was formed post a Supreme Court order, in 2015, in the case of Prajwala vs. Union of India[7]and its central purpose was toinvestigate the expediency and utility of anextensive and comprehensive law on trafficking.
Furthermore, as per the National Crime Records Bureau[8]:
- Number of cases of human trafficking that were reported in India in 2016 (under the Indian Penal Code, 1860- 8132. This was 15% more than the cases reported in 2015.
- Number of trafficking victims rescued in 2016- 23117.Among these, about 46% of the people were trafficked for forced labour, approximately 22 % for prostitution and 12 % for other forms of sexual exploitation.
There were a few developments on the international front that may have motivated the Government of India to acknowledge the necessity for a legislation pertaining to sex workers :
The Special Rapporteur on Violence Against Women (SR – VAW) stated that the “measures to address trafficking in persons should not overshadow the need for effective measures to protect the human rights of sex workers”. The SR-VAW has also called for a review of the Immoral Traffic Prevention Act, 1956 in India that criminalizes sex work[9]”
In 2012, the UNDP asked the National Human Rights Institutions of the respective countries to hold the governments responsible for the protection from exploitation, discrimination, injustice, harassment, abuseand violence perpetrated by police or other government officers towards sex workers.
Several UN organisations along with International agencies and Commissions asked for the acceptance of trafficking of people for Sex Work and sexual exploitation as two varied concepts that should be approached, legislated and understood appropriately[10]. A review of the existing laws, on this subject, which criminalise the third parties who support sex workers to operate within safe and secure surroundings was also asked for by organisations[11].
The purview of Article 6 of CEDAW was elaborated upon as General Recommendation 19 directed the States to ‘recognise that their (sex worker’s) unlawful status makes sex workers vulnerable to violence and hence need equal protection of laws against rapand other forms of violence[12]’. The States were also asked to report on the steps taken to protect women in sex work and the performance and effectivity of those steps.[13]
Issues with the law.
The bill highlighted, once again, that the solution to the problem of human trafficking lay in the draconian strategies of forced and mandatory raids, rescue, rehabilitation and criminalisation. The major concern from the implementation of the Immoral Traffic (Prevention) Act, 1986 was that the sex workers have constantly been at the receiving end of erroneous policies and laws. Now, on again, this bill does not consider or acknowledge that sexwork can or is or maybe undertaken by consenting adults, within its ambit. It will remain a matter of large-scale human rights violations if sex work between consenting adult, that is between, sex workers and their clients, is removed from the scope of the bill.
All over the world, the sex workers are invariably always put on the brink of violence inflicted by law enforcers and anti-trafficking groups by the anti-trafficking policies and laws. Sometimesviolations against sex workers took place during raids and during ordinary times since the law enforcement agencies can exercise arbitrary powers. Many women who are rescued and rehabilitated, often, return to sex work.
Research was conducted by Aarthi Pai, Meena Saraswathi Seshu and Laxmi Murthy which attempted to collect proof to answer important questions like if the women had entered the profession by coercion, then why would they choose to return to it after rehabilitation, voluntarily? Often the reason given was that it was the lack of skill that forced them to turn back to prostitution to earn their livelihood. However, here, another question emerges that if they had initially joined the sex work due to lack of skill for doing their jobs then, why they return post being taught the skills that would have assisted them in earning via other jobs. It is also a point of contention that if they had entered sex work because of terrible circumstances or emergencies then why would they go back when the circumstances had changed for the better? Furthermore, if they had been deceived and lured into it, then why would they voluntarily go back when given a chance to change their lives for the better
The evidence from theresearch, in question, showed that the foundation of the problem is remains in the law and its implementation at the ground level. The ITPA, itself has the words “immoral” and “traffic” in its title which clearly states that trafficking is an issue of morality rather than a criminal offence. The interpretation of the law on the field itself is flawed as it assumed that no women would enter sex work voluntarily or on her own accord.
Critical Analysis of the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018.
Even though the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018, tries to expand the cancel out Section 370 of the Indian Penal Code,1860 to various sectors, among other things, work related to forced labour and bonded labour. It fails to develop its relationship with several other laws dealing with bonded and contract labour, interstate-migrant law and sex work. This is very likely to lead to definitional and operational discrepancies. In addition to this, no where does the bill exclusively pertains to sex work while several of its provisions are based in the skeleton of the Immoral Traffic (Prevention) Act (ITPA) and have been applied, thoughtlessly, to trafficking into other labour sectors.
The bill largely commits to criminal law without many of the procedural or substantive safeguards that are essential to criminal law systems all over the world. The bill even creates a few new offences that are completely unrelated to trafficking, constructs ambiguously formulated offences with superfluous sentencing. It also reverses the concept of burden of proof and introduces absolute liability offences which are constitutionally suspect. It introduces strict liability offences which impose high burdens on defendants (particularly third parties like owners of property where trafficking is committed), and create offences that are cognisable, non-bailable and punishable with high, often minimum, mandatory sentences, including life imprisonment for the remainder of one’s natural life. No clear sentencing policy is discernible in the bill.[14]Moreover, the bail provision assumes guilt rather than assuming innocence. The bill also has a very restrictive non-criminalisation clause which is contrary to defence of duress under the IPC,1860. In the other drafts of the bill, the victim’s rights were actively protected, this bill does not grant any such protection.
In June 2018, consultation in Delhi took place where activists from various movements (representing sex workers, transgender persons, trade unions, domestic workers, civil liberties groups and migrant rights’ groups ) where they expressed concern that the bill has been framed during a time when criminal law is being used to address complex social problems like child rape, child marriage, stalking, triple talaq and crimes committed by juvenile sex offenders.
The bill is quite disappointing even when compared to those criminal laws as it definitely violates the rights of the defendants to a fair trial with overbroad definitions of offences, the lack of right to anticipatory bail, presumptions of burdens of proof, stringent minimum sentences, cognisable and non-bailable offences, inconsistent gradation in offences, and the creation of absolute liability offences [15]. It can be equated with anti-terror laws in this respect.
It is quite clear that the bill lacks in deliberation and advise from the primary stakeholders i.e. the sex workers, workers’ groups, migrant rights’ groups and even government ministries such as the Ministry of Law and Justice, Ministry of Labour and Employment, Ministry of Skill Development and entrepreneurship, Ministry of Micro, Small and Medium and the Ministry of Social Justice and Empowerment.
The bill is indifferent to the causes that make the community vulnerable to trafficking like the growing agrarian crisis, the high levels of distress migration and increasingly precarious forms of labour across the country, the loss of jobs due to demonetisation and tax reforms, faulty development projects, long-raging conflicts, local migration due to caste bias, poverty and poor work conditions or wages. [16]
While the Bill is a well-timed attempt by the Indian Government to provide comprehensive legislation that will tackle human trafficking, it has fundamental problems. The Government was supposed to adopt a broader perspective towards trafficking in accordance with expert committee recommendations, unfortunately, it has failed to do so. It is hoped that the Bill is referred to the Parliamentary Standing Committee to bring all stakeholders on board to enact a people-centred social legislation which addresses some of the problems identified here and in line with the expert committee recommendations.
Conclusion
This unsatisfactory bill, at this second, poses to be a difficult problem for the government as it portrays deep incongruity within the government. Especially so when the international efforts are driven towards achieving the SDG (Sustainable Development Goals) 8.7 gain strength.
The NITI Aayog is responsible for the implementation of SDGs, and it has been highly critical of the ILO Global Estimates on Modern Slavery of 2017and the imminent expansion of “modern slavery” to include forced marriage as a part of the index. Whereas, the Ministry of Woman and Child Development, has been influenced by Indian neo-abolitionist groups, which align with Walk Free Foundation’s reliance on a highly carceral approach to eradicating a problem of deep socio-economic inequality. This dissonance must be managed as India sets up empirical baselines and benchmarks for realising the SDGs. [17]
The dissonance can be managed by strengthening the National Human Rights Instruments (NHRI’s) and increasing their accountability to respond to complaints or initiate suo moto action reports of violence and rights violations by state and non-state actors against sex workers. By ensuring free legal aid services are available in rural areas for sex workers and offered by lawyers who have been trained in issues faced by sex workers. Prohibition of mandatory HIV and STI testing of sex workers following arrest. Ensuring implementation of the Supreme Court recommendations to issue identity documents and ration cards to sex workers at the national, state, district and subdistrict levels.
In addition to that, the participation of sex workers in legislations concerning them should be done. The empowerment, active participation and leadership of sex work networks, federations and collectives in designing policies and processes for accessing social entitlements is imperative. The participation of sex work organisations in drafting/ amending relevant laws, policies and programmes and in their implementation. [18]Hence, there is need for a legislation solely for sex workers.
[2] National AIDS Control Organisation, Phase 3.
[4] Rethinking the anti tracfficing bill 2018.
[5]United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, 2000, OHCHR, https://www.ohchr.org/en/professionalinterest/pages/protocoltraffickinginpersons.aspx
[6]BudhadevKarmaskar v. State of West Bengal (2011) 11 SCC 53.
[7]Prajwala vs. Union of India 2016 (1) SCALE 298.
[8]‘Crime in India’ 2016, National Crime Records Bureau.
[9]UNHRC (2014) Report of the Special Rapporteur on violence against women, its causes and consequences, Mission to India, p 19. A/HRC/26/Addl.1.
[10] Global Commission on HIV and the law (2012), op. cit., p 43; UNDP (2012), op cit., p 24; Human Rights Council (2010), op. cit., p 15.
[11]Global network of sex work projects (2013), Third parties briefing paper. http://www.nswp.org/sites/nswp.org/files/thirdparties3_0_0.pdf.
[12]UN Committee on the Elimination of Discrimination Against Women (CEDAW), CEDAW General Recommendations Nos. 19 and 20, adopted at the Eleventh Session, 1992 (co. ntained in Document A/47/38), 1992, A/47/38, available at: https://www.refworld.org/docid/453882a422.html [accessed 14 September 2019]
[13]UN Committee on the Elimination of Discrimination Against Women (CEDAW), CEDAW General Recommendations Nos. 19 and 20, adopted at the Eleventh Session, 1992 (co. ntained in Document A/47/38), 1992, A/47/38, available at: https://www.refworld.org/docid/453882a422.html [accessed 14 September 2019].
[14]Aarthi Pai, Meena Saraswathi Seshu and Laxmi Murthy “In Its Haste to Rescue Sex Workers ‘Anti-Trafficking’ Is Increasing Their Vulnerability” Economic and Political Weekly, ISSN (Online) – 2349-8846.
[15]Aarthi Pai, Meena Saraswathi Seshu and Laxmi Murthy “In Its Haste to Rescue Sex Workers ‘Anti-Trafficking’ Is Increasing Their Vulnerability” Economic and Political Weekly, ISSN (Online) – 2349-8846.
[16]Aarthi Pai, Meena Saraswathi Seshu and Laxmi Murthy “In Its Haste to Rescue Sex Workers ‘Anti-Trafficking’ Is Increasing Their Vulnerability” Economic and Political Weekly, ISSN (Online) – 2349-8846.
[17]Aarthi Pai, Meena Saraswathi Seshu and Laxmi Murthy “In Its Haste to Rescue Sex Workers ‘Anti-Trafficking’ Is Increasing Their Vulnerability” Economic and Political Weekly, ISSN (Online) – 2349-8846.
[18]Human Rights Council, Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Anand Grover, A/HRC/14/20, 27 April 2010.
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