Comments on proposed ITPA amendments

[Guest guest]

Dear colleagues,

As you may know, the Department of Women and Child Development (DWCD), Ministry

of Human Resource development, Government of India, has proposed certain

amendments to the Immoral Traffic (Prevention) Act, 1956 (ITPA) (available at

http://wcd.nic.in/proamendment.htm ).

Although the objects and reasons for proposing amendments have not been formally

stated, from the text, it appears that the changes are being incorporated in

response to concerns that the existing legal framework is deficient to counter

trafficking for sex work. Even though the proposal is not rooted in sex worker’s

rights, it significantly impacts the community’s ability to negotiate legal

rights and claims.

Briefly, following are some of the key substantive and procedural changes sought

by the DWCD:

1. Section 2(aa): A consistent definition of “child” to mean a person below age

18 yrs is being incorporated replacing the existing classification of child

(below 16 yrs), minor (between 16 and 18 yrs) and major (above 18yrs)

2. New Section 2 (k): A new definition of trafficking is being introduced. The

proposed definition is adopted from the U.N Protocol to Prevent, Suppress and

Punish Trafficking in persons, especially women and children, supplementing the

United Nations Convention against transnational organized Crime 2000 (available

at www.unodc.org/unodc/en/trafficking_protocol.html)

3. Section 3 (1): The punishment for keeping or allowing premises to be used as

a brothel is being enhanced - both in terms of years of imprisonment as well as

the amount of fine

4. Section 8: Proscriptions against solicitation for sex work are being removed

5. Section 10: The maximum period for which a woman convicted for carrying on

prostitution in public may be detained is being increased from five to seven

years.

6. Section 13 (2): The rank of police officials entrusted with the task of

anti-trafficking operations is being lowered from Inspector to Sub-inspector.

7. Section 13 (3) (: It will be obligatory for incumbent Police Officer to

consult representatives from NGOs in planning anti-trafficking measures.

8. New provision: The property and assets of traffickers and agents of organized

prostitution will be liable to forfeiture.

9. New provision: NGOs assisting the police in anti-trafficking activities are

being offered protection/immunity.

We have been informed by the DWCD that they have closed in on submissions and

recommendations from civil society organizations. The amendments have been

forwarded to the Ministry of Law for approval, from where it will be sent to the

Cabinet for discussion. Hence, any representations on the ITPA amendments will

now have to be made to the Law Ministry.

Lawyers Collective HIV/AIDS Unit’s thoughts on the proposed amendments

I. Repeal of section 8

The proposal to repeal Section 8 is a welcome step. Seeking clients by

soliciting is, in many ways, indispensable to earning a livelihood out of sex

work. The criminalisation of soliciting by imposing fines and/or imprisonment is

one of the most obvious legal afflictions for sex workers, who are faced with

arrests, court hearings and convictions on a routine basis. Besides actual

application of the provision to apprehend sex workers, the section lends clout

to local police, who are known to harass sex workers by threatening to invoke

section 8. The section affects street workers and those operating in brothels

alike, as drawing attention of potential customers in public places and from a

conspicuous site such as a window/ balcony in a house, both are punishable. The

deletion of Section 8 from the ITPA, if the proposed amendment is approved, will

bring some respite to individual sex workers and it is hoped, will pave the way

for decriminalisation of sex work, one of the long standing demands of sex

worker’s rights organizations in India.

II. Inclusion of a separate definition of trafficking

The proposed provisions continue to conflate trafficking with sex work, which is

one of the many outcomes of trafficking but not the core cause of it and

certainly not trafficking itself. Not only does the proposed definition of

trafficking fail to segregate trafficking from sex work, it leaves scope for

reading all sex work within the meaning of trafficking thereby criminalizing sex

work per se. The new definition as proposed in section 2 (k) reads -

a) “Trafficking in persons shall mean the recruitment, transportation, transfer,

harbouring or receipt of persons, by means of threat or use of force or other

forms of coercion or abduction or fraud or deception, of the abuse of power or

of a position of vulnerability or of the giving or receiving of payments or

benefits to achieve the consent of a person having control over another person,

for the purpose of exploitation. Exploitation shall include, at a minimum, the

exploitation of the prostitution of others or other forms of sexual

exploitation, forced labour or services, slavery or practices similar to

slavery, servitude or the removal of organs;”

The consent of a victim of trafficking in persons to the intended

exploitation set forth in subparagraph a) shall be irrelevant where any of the

means set forth are used

c) The recruitment, transportation, transfer, harbouring or receipt of a child

for the purpose of exploitation shall be considered “trafficking in persons”

even if this does not involve any of the means set forth in subparagraph a).

Firstly, terms included within the definition such as “position of

vulnerability” do not have a clear legal meaning. The inclusion of such terms is

likely to render migration of poor persons, particularly women moving for

livelihood, even where such movement is not induced by coercion or deception

illegal. Further, terms like “exploitation of prostitution of others”, when read

conjointly with the existing definition of prostitution under section 2 (f) “

prostitution means the sexual exploitation or abuse of persons for commercial

purposes” can be construed to mean that all adult consensual sex work amounts to

trafficking. Such a construction of the law, it is feared, will further subvert

rights of sex workers, whose practice may be prohibited in the name of

intercepting trafficking.

Secondly, part (, of the definition negates individual autonomy and consent.

Under existing law, it is impossible to consent to something when such consent

is obtained by threat, force, coercion, fraud, deception or misconception. To

this extent, the clause is infructuous. Further, when read with terms like

“position of vulnerability” and “giving and receiving of payments or benefits to

achieve consent” as set out in sub clause (a), it may result in invalidating

otherwise legitimate consent of a sex worker.

Thirdly, despite the incorporation of a definition of trafficking, which is not

restricted to sex work on paper, in practice, the law will continue to primarily

target persons in sex work. The definition is stand-alone and there is no

reference to trafficking anywhere else in the Act. No offence of trafficking has

been created and the prosecution will have to continue to invoke provisions

against brothel keeping, earning from prostitution, procuring and detaining,

which are all related to sex work. Broadening the statutory meaning of

‘trafficking’ to cover practices other than sex work, without laying down

concurrent offences and penalties will have little, if any effect, on

implementation.

III. Extension of powers of the Police

The proposal to lower the rank of police officers, authorized to enforce the

ITPA from Inspector to Sub-inspector may result in increased police excesses

against sex workers. Anecdotally, it is well known that powers conferred on law

enforcement officials; both under the ITPA as well as local police enactments

such as Bombay Police are grossly misused to threaten and extract favours out of

sex workers. Reduction in the rank of the Special Police officer will aid police

personnel in lower ranks to abuse statutory powers, flout legal norms to violate

fundamental rights and civil liberties. Further, it will make it more difficult

than before to scrutinize the exercise of such powers.

Ideas for advocating reform

Overall, the proposed amendments to the ITPA are a mixed bag. While the

suggestion to scrap section 8 is, as noted earlier, an affirmative step that

will remove some obstacles to earning a living, the other provisions proposed by

the DWCD still leave scope for excessive legal intrusions in sex worker’s lives.

Additionally, we feel that the piecemeal approach to legislative change that the

government has adopted itself ought to be questioned. The ITPA needs to be

examined and transformed in its entirety instead of the fractional modifications

being resorted to. With the threat of the HIV/AIDS epidemic looming large,

effective and evidence based strategies for prevention and impact mitigation

call for a legal regime that protects and promotes the rights of sex workers.

We welcome inputs, comments and suggestions from sex workers’ collectives and

organizations supportive of rights such as yours both on the proposed

legislative amendments as well as the immediate and long term political strategy

to press for comprehensive legal reform.

In solidarity,

Lawyers Collective HIV/AIDS Unit

Tripti Tandon

Senior Project Officer

Lawyers Collective HIV/AIDS Unit

63/2, 1st Floor, Masjid Road

Jangpura, New Delhi 110 014

Phone - 2432 1101, 2432 1102, 2432 2237

Fax - 2432 2236

e-mail - aidslaw1@...