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"Immoral Traffic (Prevention) Amendment Bill 2005" In Plain Speak, The South and Southeast Asian Resource on Sexuality, Issue 2, 2006

NNSW and DMSC strongly urge that the government should defer the introduction of the ITPA Amendment Bill, 2005 until all affected constituencies including sex workers, health and HIV/AIDS organisations and human rights groups have expressed their views.

The Durbar Mahila Samanwaya Committee (DMSC) is an organisation with a membership of over 65,000 sex workers of West Bengal. They are a part of the National Network of Sex Workers (NNSW) that represents millions of female, male and transgendered sex workers in India. The DMSC, formed a decade ago, demands decriminalisation of adult sex, the right to retain and raise their children, form a trade union and be free of social stigma.

DMSC emerged out of the famous STD/HIV Intervention Project (SHIP) in Sonagachi, Kolkata, which started in 1992 and is now an internationally acclaimed model sexual health project. Today, SHIP and DMSC run HIV prevention projects in 49 districts of West Bengal. DMSC has set up Self Regulatory Boards to prevent the trafficking of adult and minor women into the profession. Currently, the DMSC, along with the NNSW has launched a nationwide campaign against the recent amendments to the Immoral Traffic (Prevention) Act (ITPA), 1956.

In India, sex work is regulated through the ITPA and certain provisions of the Indian Penal Code. The Act is based on a 1949 UN Convention wherein prostitution is not illegal but soliciting and exploiting prostitution are considered to be offences. The ITPA considers sex workers to be victims who have been forced to enter the trade and are therefore in need of rescue and rehabilitation. The ITPA has an ambivalent position about sex work in that it does not see sex work as illegal but criminalizes certain aspects of it.

The following are considered offences under ITPA

  • keeping a brothel or allowing a premises to be used as a brothel (section 3)
  • living on the earnings of prostitution (section 4)
  • procuring, inducing or taking persons for the sake of prostitution (section 5)
  • detaining a person in a premises where prostitution is carried out (section 6)
  • prostitution in, or in the vicinity of, public places (section 7)
  • seducing or soliciting for the purpose of prostitution (section 8), and
  • seducing a person in custody (section 9).

Recently, the Department of Women and Child Development (DWCD), Ministry of Human Resource Development, Government of India moved the Immoral Traffic (Prevention) Amendment Bill 2005.

Ironically the sex workers, the community most affected by ITPA, were not consulted during the process of drafting the amendments. If the Bill is passed by the Parliament, it will have serious repercussions on the lives and livelihoods of sex workers and consequently affect public health goals such as prevention and control of HIV/AIDS. To this end, NNSW and DMSC urge the consideration of the following points.

Introduction of New Section 5C

The new amendments repeal Sections 8 (that criminalised the soliciting of clients) and 20 (that allowed magistrates to evict sex workers from their premises) thereby taking a positive step towards decriminalisation of sex work. But the gains are reversed by the introduction of the new Section 5C that punishes the clients of sex workers. This provision will only serve to drive the clients and sex workers underground rendering them even more vulnerable to exploitation. It will prevent women from testifying against their clients and will invariably be used as a tool of harassment and corruption by law enforcement officers and others.

Section 13 (2) of the Amendment Bill

The proposed Bill lowers the rank of police from Inspector to Sub-Inspector under Section 13 (2). There has been a long history of the police harassing, extorting and exploiting sex workers through real and imagined provisions of the ITPA. In September 2002, Swapna Gayen, then President of DMSC was attacked and brutally assaulted by a mob of local hoodlums in Tollygunge, Kolkata in the presence of police officials. The proposed amendments will only encourage such incidents by granting excessive powers to the police.

The DMSC has urged the government to not only re-think the proposed amendments but also pay attention to existing provisions under the ITPA that undermine the rights and health of the sex workers. For instance:

Section 3 of the ITPA penalises brothels, including keeping, managing and renting out of premises for sex work. Since the vast majority of sex workers in India are poor and don’t own their own houses, they have no option but to rent rooms for sex work. By rendering lease agreements illegal, Section 3 makes sex workers vulnerable to eviction and penal liabilities. The DMSC strongly feels that a clause related to the tenant-landlord relations in the sex sector must follow the same logic that holds good for the rest of the society. The sex worker must get a receipt for all transactions regarding rents, taxes etc. so that all transactions are transparent and legally binding.

Section 4 of ITPA criminalises all those who live on the earnings of a sex worker. Initially enacted to discourage ‘pimping’, the law is now used to criminalise all dependents including aged parents and children over the age of 18 years. DMSC demands that like everyone else, sex workers should be able to support their families without having them face arrest or prosecution. In the absence of any social security measures for sex workers and their dependents, this clause only makes their situation even more vulnerable.

Organisations like the DMSC and NNSW have consistently urged that the legal regime around sex work needs careful and comprehensive review. They are distressed that the Union Cabinet approved such a controversial bill without considering its health and human rights implications. If the current United Progressive Alliance (UPA) government is really serious about ‘providing leadership to national AIDS efforts’ as expressed in its Common Minimum Programme, then it should stop and rethink the amendments.

NNSW and DMSC strongly urge that the government should defer the introduction of the ITPA Amendment Bill, 2005 until all affected constituencies including sex workers, health and HIV/AIDS organisations and human rights groups have expressed their views. Alternately, they should refer the Bill to a Standing Committee that invites community and civil society participation and feedback. Till then, NNSW and DMSC will conduct a public campaign to generate a debate around the issue.

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© Asiasrc.org. South and Southeast Asia Resource Centre on Sexuality, New Delhi, India.