What's wrong with ITPA Amendments?

[Guest guest]

Contrary to perceptions that Amendments to the Immoral

Traffic (Prevention) Act, 1956 is a protective legislation, the Bill flouts women’s

rights and does little to support survivors of trafficking. Besides threatening

HIV prevention, the Bill remains deficient on several other counts. The Lawyers

Collective HIV/AIDS Unit submits the

following critique.

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Shri Manmohan Singh

Honb’le Prime Minister of India

7, Race Course

Road, New Delhi

Honb’le Prime Minister,

We draw your urgent

attention to Official

Amendments to the Immoral

Traffic (Prevention) Amendment Bill, 2006 (“ITPA”),

which are due for Cabinet approval in the coming days. Proposed by the Ministry of Women and Child Development

(MWCD) in response to Recommendations of the Parliamentary Standing Committee

and subsequent deliberations by a Group of Ministers (GoM), the revised

Amendments fail to address concerns raised time and again over the amending

sections.

Despite

consideration, the ITPA Amendment Bill

remains flawed on many counts:

Riddled with legal infirmities

Sections

of the proposed Amendments are poorly drafted; likely to result in improper

implementation. It is important to bear in mind that the ITPA is a penal

statute imposing mild to severe punishment on offenders. A cardinal principle

of criminal law is that what constitutes an offence must be clear and not

vague. Yet, sections of the proposed Amendments violate this basic rule. Terms

such as “or for consideration of money

or in any other kind” that expand the meaning of prostitution

under Section 2(f), and “position of

vulnerability” as a means to criminalize recruitment into sex

work as trafficking in Section 5A are examples of vague language, incapable

of meaning and/or precise interpretation.

We

are aware that Ministers on the GoM have objected to ambiguous clauses in the

Amendments. We confirm their apprehension and believe that portions of the ITPA

Amendments are “bad” in law and could expose the statute to attacks

on constitutional grounds.

Non compliance with Parliamentary Standing

Committee Recommendations

You

may be well aware that the original Amendment Bill, 2006 was reviewed by

Parliamentary Standing Committee (PSC) on Human Resource Development through

discussions with stakeholders including anti-trafficking agencies and sex

workers. The PSC made pertinent observations on the Amending Bill as well as on

ITPA generally in its 182nd Report on the Immoral Trafficking

(Prevention) Amendment Bill, 2006.

Disappointingly,

the revised Amendments ignore a number of key submissions of the PSC. These

include recommendations to - (i) adopt clearer definitions in keeping with legislative

intent, (ii) prevent further victimization, (iii) improve facilities for

rehabilitation, (iv) participation of sex workers in anti-trafficking

activities, (iv) decriminalise voluntary spending by sex workers, and, most

importantly, review the ITPA in its entirety. Refusal to accept the PSC’s

verdict not only shows disrespect for democratic institutions but smacks of

contempt for participatory democracy, itself.

No protection for victims of

trafficking

The

ITPA Amendments are ostensibly intended to streamline the law on human

trafficking. Yet, the nature of reforms proposed disprove the avowed objective.

Firstly,

the bill restricts penalties to trafficking of persons for prostitution only,

leaving other sectors unlegislated. This narrow scope flouts India’s commitment under

international law, notably, the Protocol to Prevent, Suppress and Punish

Trafficking in Persons, Especially Women and Children, 2000 which mandates

States to penalize human trafficking in all areas and not just commercial sex.

Secondly,

the Amendments do not provide statutory protection to victims of human

trafficking. Provisions for medical assistance, counseling and legal aid are

conspicuously absent. The Amendments also do not recognize the victim’s

right to compensation – a ’must’ in progressive

anti-trafficking legislation around the world.

Thirdly,

the Amendments do little to improve opportunities for rehabilitation of

trafficked persons. There is no denying that existing facilities for

rehabilitation are woefully inadequate, both in terms of capacity as well as delivery.

The thrust on rehabilitation ought to have been stronger as millions of sex

workers risk losing their livelihood due to penalization of clients under 5C.

In this scenario, the lack of attention on rehabilitation exposes the falsity

in MWCD’s claims that the ITPA Amendment will protect victims of human

trafficking.

Antithetical to Women’s Rights

The

ITPA, indisputably, seeks to protect women and girls from harmful practices of

trafficking, coerced prostitution and other forms of sexual violence. However,

in its implementation, the Act has done just the opposite. Police records and

empirical studies confirm maximum use of Sections 7 and 8 that penalize women

for prostitution in public and soliciting, respectively. While the MWCD had

rightly proposed repeal of Section 8 in the original Amendment Bill of 2006, we

have come to know that penalties under Sections 7 and 8 are being reintroduced

in the Official Amendments, 2008. This will only inflict more harm on women

without having any impact on trafficking and related abuses.

Secondly,

the proposal to lower rank of Police tasked with ITPA implementation from

Inspector to Sub-Inspector under Section 13(2) will escalate abuse and

harassment of poor women. The PSC too, had advised against the suggested

amendment for reasons outlined above.

Thirdly,

the proposal to increase detention of female offenders convicted under sections

7 and 8 from five to seven years under Section 10 A is shocking, to say the

least. While female offenders convicted under sections 7 and 8 serve

imprisonment for three months and six months respectively, corrective detention

proposed to be increased from five or seven years is grossly excessive. There

is no gain in enacting the suggested change, which offends dignity and civil

rights of women. This amendment was rejected by the PSC as well.

Disregards views of the most affected

constituency

As

you know, the existing ITPA consolidates the law on prostitution or sex work.

As a result, it is sex workers

who are significantly and directly impacted by the Act. Democratic governance

demands that the most affected community be consulted first and foremost on

decisions that vitally affect their lives. Yet, it is this very community whose

voice has been ignored in the Amendment process. The MWCD has repeatedly

declined requests for dialogue with sex workers. Where the community has made

its views known, that is, before the PSC, recommendations for reform have been

squarely rejected.

Hampers HIV prevention; threatens the

nation’s health

The

proposed amendments have severe implications for prevention and control of HIV,

which, according to epidemiological surveys is driven by unprotected commercial

sex. Countries that have successfully averted large scale HIV epidemics in

Asia, namely -Thailand and Cambodia,

have done so by promoting condom use in sex work. Though politically

unappealing, programs to encourage condom use in commercial sex are imperative

for protection of public health. These finding are affirmed by the Commission

on AIDS in Asia headed by noted economist Prof. Chakravorty Rangarajan, in a

report titled ‘Redefining AIDS in Asia: Crafting an Effective Response”

We

are aware that the National AIDS Control Organisation (NACO) and the Ministry

of Health have expressed reservations over the proposed criminalization of

clients visiting brothels under Section 5C. Like the aforementioned agencies,

we too apprehend that punishing clients and/or sex workers will drive them

underground away from HIV prevention.

Warning: Anti-trafficking law in Cambodia

We

take this opportunity to alert you to similar and disturbing developments in Cambodia

– a country that recently enacted a “Law on Suppression of Human

Trafficking and Sexual Exploitation” under international

pressure. Intended to counter human trafficking, the law has had severe

negative repercussions on sex workers’ health and human rights. To quote

from a Cambodian organization – Women’s Network for Unity: -

“The law was introduced to eliminate trafficking

by stamping out the sex industry. Since then brothels, bars, street areas, and

karaoke clubs across the country have been closed or gone underground.

Hundreds of women have been arrested and imprisoned,

or have had to move. Dozens have been raped and beaten by

police and prison guards. HIV prevention and care programs have collapsed.

This law makes us easier prey for traffickers, and makes it impossible for

us to use condoms.”

Like the ITPA

Amendments, the Cambodian legislation also moots a wider meaning of

prostitution besides containing ill-defined offences of buying, selling and

exchanging of human beings. We seek an assurance from the MWCD and the Union

Cabinet that mistakes from Cambodia

will not be replicated in Indian

law on trafficking and sex work.

In light of the

above concerns, we appeal to you to reject

the ITPA Amendments in their current form. We earnestly hope

that in debating sex work law reform, the Cabinet will act sensibly and not on

ideological belief/propaganda.

Yours sincerely,

Lawyers Collective

HIV/AIDS Unit

Tripti Tandon

Lawyers Collective HIV/AIDS Unit

63/2, 1st Floor, Masjid Road

Jungpura, New Delhi 110014

India

Phone:+91-11-24377101/02, 24372237

Fax:+91-11-24372236

www.lawyerscollective.org