[Reader-list] IFS'07 Displacement of Prostitutes- 8th posting -Oct '07

[SUROJIT SEN]

Hi all,
  This is my 8th posting of my project Displscement of prostitutes - a tale of two cities.
  Durbar Mahila Samanwaya committee is a major organization of sex workers in West Bengal. I attended a meeting convened by Durbar Mahila Samanwaya Committee, where they discussed the proposed Immoral Traffic Prevention Act. There they put an appeal to the conscious people to raise their voice for sex workers’ cause. Here is the appeal:            
   
   
  Dear Friends,
  We believe you are already acquainted with our objections against the proposed ITPA, which is going to be a self-defeating on all counts. With great relief we come to know the Bill is deferred for the time being. A 29 member Parliamentary Standing Committee (PSC) on Human Resource Development reviewed the Bill and made much insightful comments and suggestions, which for some unknown reasons the Ministry of Women and Child Development simply ignored or made some banal comments on the suggestions.
  India is already the second largest country of HIV positive people in the world, presently it’s around 5.2million. In this epidemiological context, we would like to reiterate how the Bill in its present form is going to jeopardize the strength, scale and effectiveness of HIV interventions in sex work settings and thus would spell disastrous effects on nation’s health. We are certain you would reconsider the Bill before you vote it, since, form the public health perspective, it is the call of the time. Moreover there is another important aspect – the Bill does not comply with the international legal standards specially with the UN Convention on trafficking in persons, Where ironically enough India is one of the signatories. In its present form the Bill is full of legal infirmities and is open to constitutional challenge for being vague and ambiguous.
  The Bill itself does not criminalize sex work or prostitution per se, but the way it has been implemented as if all acts of sex work are seen as sexual exploitation. Thus make the profession virtually impossible. This approach would single handedly drive the profession to underground and consequently from HIV intervention to anti-trafficking programme in sex work would be either futile or impossible.
  Let us probe the amendments in detail:
  ·         The new definition under section 2  (f ) brings within its ambit all contracts for sex that are neither organized for profit nor exploitative in nature. It is unclear whether the ITPA targets situations of exploitation within the sex work or sex work itself, which may not be exploitative, rather consensual in nature. The resultant ambiguity will expose the statute to judicial scrutiny and potential constitutional challenges.
  ·         Section 5C is to punish persons visiting brothels or found in brothels. First for the police the act of visiting a brothel or found in brothel is sufficient grounds for arrest, as the Section does not require the offender to have sex with the trafficked victim. How will the police determine that the person who visits or is found in a brothel is there for sexual exploitation of any victim of trafficking in persons? Simply based on its own interpretation. Is not it going to violate human rights? Second the term ‘sexual exploitation’ is not defined anywhere in the Bill. It goes against the cardinal principle of criminal law, which requires clarification of what constitute an offence. Thirdly, undefined terms and vague language under section 5C will pose serious problems in its implementation. The very Section will pose threat to the project stuff across the country; since they will not feel confident to move in and around the brothels – for fear of police
 harassment. It is unclear how the prosecution will prove that an offence was committed under section 5C. The only country that punishes clients of sex workers is Sweden. It is evident from the Swedish experience sex workers rarely testify against the customers. We are certain it will be the same in India. Without the sex worker’s testimony how the Section could be enforced? In practice, Police would certainly use it to interrupt, harass and extort money from the persons seen in and around brothels. The outcome of the Swedish act is that the profession completely went underground and is now run and control by criminal gangs, sex workers are fully stripped off rights and control over their profession and profession and body. Sweden with its mere 2500 sex workers fails to eliminate the profession by punishing clients and now in the perspective of HIV, is thinking other way. Observing the outcome of the Swedish act, other Scandinavian countries like Netherlands and Finland
 rejected such approach in their countries. How come that our Ministry of Women and Child Development copies the same act in such a vast country with such great diversity, in spite of the act’s utter failure in Sweden itself? In the perspective of this particular section, Parliamentary Standing Committee’s comment is prophetic, which is sincerely ignored by the Ministry. The PSC notes ‘ it would be difficult for a person visiting a brothel to distinguish between “ trafficked” and “ non-trafficked” persons. This ambiguity is further confounded, as the term “sexual exploitation” has not been defined in the Bill. The words “for the purpose of sexual exploitation of any victim of trafficking” would allow the enforcement agencies to determine “victims of trafficking” and the intention of the visitor to “sexually exploit” at the time of arresting.” You can easily understand how easy it would be for the police to harass and extort money from the sex workers, general people, who
 would be found in and around the brothel just by using the ambiguities of the Section. Moreover, the Ministry does not clarify how the Section would contribute anti-trafficking in sex work, since no sex worker – we know it for certain – would testify against any customer. With our utter surprise we observed the Ministry does not even bother to clarify why, in addition to the existing section 5(1), which deals with the trafficking of women and children in sex work, Section 5C is required. The committee also notes the Section itself goes against the cardinal principles of criminal law, since it does not spell out what constitute the office. It is ‘vague’ and ‘full of ambiguities’. We know today more and more women are entering the profession for economic reasons – due to the lack of sufficient livelihood options before them. For all the ambiguities of the Bill, now they would be treated as trafficked.
  ·         Moreover deletion of Section 8 which deals with soliciting customer is clearly in conflicting with this amendment. Selling is not illegal, but buying  - it is hypo critic and self-defeating, that too is not a first rated one, since it is copied from an absolutely different context.
  ·         The PSC notes how poorly the Section 13A and 13B are drafted, which deals with the setting up of Central and State Authorities for the purpose of ‘preventing and combating trafficking in person’. The PSC also provides valuable guidelines on its formation, staffing, functioning and significantly recommends that sex workers should have formal place in these bodies at Central as well as State levels. All these again are either ignored or by passed by making some banal comments.
  ·         There are number of recent studies, including one by National Human Rights Commission, which clearly point out that increasing punishment can not stop trafficking in sex work; it calls for innovative measures and mechanism. In this regard our Self- Regulatory Board is the most effective way so far.
  ·         Have a courser look at the General Comments of the PSC and you can understand how ineffective and incomplete the law is going to be! In its general comments, the PSC notes ‘The Committee strongly fells that there is an urgent need for having complete re-look at the ITPA, touching upon all conceivable aspects’. The Committee calls it ‘a half hearted attempt’. It notes, ‘Under the Act, a victim of commercial sexual exploitation can also be prosecuted because the law does not state whether children forced into prostitution are victims or offenders’. If it is not enough of the merits of the Bill, here is another observation  - ‘ the Committee, therefore, recommends that the law needs to be reviewed to make a distinction between living ‘on’ and the ‘off’ the earnings of a prostitute. While legal safeguards need to be provided to prevent extortion of money from a prostitute, her right to incur expenditure voluntarily has to be safeguarded’.
  The PSC questioned without adequate resource for rescue and rehabilitation, how the Bill could solve the problem of trafficking of women and girls in sex work? The Ministry has no answers, other than some vague and indefinite comments. Does the Ministry believe empowering Police more is enough? Clearly the members of PSC rejected such naïve attempt.
   
  Our Sonagachi project, one of the two WHO models in the world for HIV prevention, conclusively established that in the sex worker community effective HIV prevention requires rights based strategies, which would successfully enable sex workers to address structural barriers for safe sex, and it also calls for legal reforms that could influence risk reduction and behavior change among the sex workers and their clients for safe sex to prevent HIV. The same principle has been adapted by the Bill and Melinda Gates Foundation, USA for their HIV intervention programme in six high prevalence states of TamilNadu, Maharastra, Karnataka, AndhraPradesh, Nagaland and Manipur NACO adapted the same policy in its NACPIII. Institutes like WHO and UNAIDS are also persuading the same rights based approach for fighting HIV/AIDS. Emulating the successful self help group model, like in any other sector for the empowerment of women, sex workers can be collectivized into community based
 organizations to manage their own health including HIV risk.
   
  While all the stalwart institutes are reorienting themselves on a rights based approach, and in spite of the insights of the Parliamentarians and lessons of empirical studies and exemplifying projects our Ministry is determined to move backward. It seems either the Ministry of Women and Child Development knows India better than the Parliamentarian and any other groups, or they have a single agenda – that is to conflate adult consensual sex with trafficking, whatever tolls it may take.
  Now it is up to you! We believe you must not opt for endangering nation’s health. Come, repeal the ITPA, it is the call of our time.
   
  In expectation,
   
  Gouri Ray
  Secretary
  Durbar Mahila Samanwaya Committee
  Kolkata, West Bengal
  India.                                      
   

       
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