Sex Work and Trafficking

Existing Statute on Sex Work

In India, the principal enactment on prostitution is the Immoral Traffic (Prevention) Act, 1956 (ITPA). The Act is a revision of the Suppression of Immoral Traffic in Women and Girls Act, 1956 (SITA) which was passed by Parliament in 1956 following India's accession to the United Nations International Convention for the Suppression of Traffic in Persons and of the Exploitation of the Prostitution of Others, 1949 . Prior to 1956, sex work was dealt with in accordance with State laws that varied in their approach towards prostitution. The Convention mandated State parties to punish third parties profiting from the prostitution of others, especially women and children without prejudice to how signatories address prostitutes themselves.

Provisions

SITA's enactment was preceded by extensive legislative debate on whether prostitution could be eradicated by penalising the sale and purchase of sex. At the time of passing SITA, the legislature made clear its intention of not proscribing prostitution, but restricting its practice and inhibiting it from being carried on a commercial scale. The law was amended twice; first in 1978 and later in 1986 when it was renamed ITPA. Acts currently punishable under ITPA include brothel keeping, living off earnings of sex work, procuring, inducing or detaining for prostitution. Sex workers and clients are punishable for prostitution in public places and for soliciting. All offences are cognizable i.e., police do not require a warrant to conduct searches or make arrests. Police personnel entrusted with the implementation of the Act locally (Special Police Officers) as well as at the national level (Trafficking Police Officers) are accorded special powers. Procedures for investigation and arrest including for conducting raids, rescue and search in premises suspected of serving as brothels override general procedure under the Criminal Procedure Code. Magisterial powers to order arrests and removal of persons, direct custody of rescued persons, closure of brothels and eviction of sex workers are also contained. Rehabilitation of rescued persons is provided in the Act and the Rules framed there under.

Despite legislative changes, ITPA has remained ineffective to counter trafficking for sex work. Provisions to counter exploitation in sex work remain unutilized. Maximum arrests and convictions are against sex workers for soliciting, as they have very little social or legal protection. State run homes set up under the Act are unable to 'rehabilitate' rescued persons.

Impediment to effective HIV/AIDS prevention

Most importantly, ITPA has created conditions that are antithetical to effective AIDS prevention programming in sex work. Fear of arrest and intrusion by police make it difficult for transactors to negotiate condom use and safer sex. Attempts to close down brothels in some cities have disrupted delivery of HIV prevention services thereby endangering public health. To illustrate, in 2003 in Surat, Gujarat, the Police Commissioner invoked ITPA and other supplementing legislations to evict 600 sex workers from the Chakla Bazar red light area. As a result of police raids, the government run HIV prevention programme among sex workers witnessed a decline in delivery of condoms and a concomitant rise in prevalence of sexually transmitted infections. Similarly, in 2004 in Baina in Goa , efforts to introduce risk reduction practices among sex workers were interrupted after the red light area was demolished. For several months, displaced sex workers were seen soliciting on the streets for survival, at the cost of condoms and HIV protection. In both cases, the Lawyers Collective HIV/AIDS Unit intervened legally on behalf of sex workers. Court orders, however, failed to restore sex workers' homes and livelihood.

In another incident, sex workers arrested for soliciting in Hyderabad were ordered to undergo HIV/AIDS testing without counseling or consent, under the pretext of medical examination mandated under Section 15 of ITPA. Arguing for sex workers before the Andhra Pradesh High Court, the Lawyers Collective HIV/AIDS obtained a stay against mandatory HIV testing. The case is pending adjudication. A similar order was passed by the Bombay High Court in Public at large v. State of Maharashtra , Writ petition No. 112 of 1996 against mandatory HIV testing of sex workers rescued from Kamathipura brothels.

Proposed Amendments to ITPA

In 2005, the then Department of Women and Child Development (WCD), Ministry of Human Resource Development, Government of India proposed changes to the ITPA. Sadly, the WCD failed to consult sex workers and AIDS service organisations in the process. The National AIDS Control Organsation (NACO) and Health Ministry too did not appear to have been consulted. Protesting their exclusion, sex workers from across the country, marched to Parliament on 8th March 2006 and resisted amendments to the ITPA. The Lawyers Collective HIV/AIDS Unit has been tracking these legislative developments and opposes the proposed Bill.

Notwithstanding protests, the Ministry of WCD introduced the Immoral Traffic Prevention Amendment Bill in Parliament on 22nd May 2006. The Bill includes several contentious provisions, including a new Section 5C that penalises persons visiting brothels. Given lack of consensus, the Bill was referred to the Parliamentary Standing Committee on Human Resource Development (the Committee) for scrutiny. Intervening in the legislative process, the Lawyers Collective HIV/AIDS Unit submitted both written and oral submissions [Click here for downloads] critiquing the Bill. The Unit has also convened community consultations to update sex workers' and facilitate collective action against the Bill.

On 23rd November 2006, the Parliamnetary Standing Committee presented its 182nd Report on ITPA Amendment Bill was presented to the Rajya Sabha. The document summarises arguments made against and in support of the Bill and presents the Committee's findings and recommendations on the proposed Bill. The Critique of the Standing Committee's report on ITPA bill is available here [Click here for downloads]. The WCD is currently reviewing the Bill in light of the Committee's suggestions.

The WCD revised the ITPA Bill, which came up for Cabinet approval on 6th September 2007. Owing to a lack of consensus, the Union Cabinet referred the Immoral Traffic (Prevention) Amendment Bill, 2007 ("revised Bill") to a Group of Ministers (GOM) for further consideration. One of the main issues that the GOM is expected to examine is if and how the proposed amendments will affect HIV prevention among sex workers and clients under the National AIDS Control Programme.

In order to inform the GOM of the experiences of HIV interventionists in reducing risk in commercial sex as well as of the public health and human rights concerns vis-à-vis sex work law reform, the Lawyers Collective HIV/AIDS Unit convened a meeting, in association with UNAIDS, to discuss, consolidate and present concerns on Sex work, HIV and the Law in India.

National Consultation on Sex Work, HIV and Law, 5th November 2007, New Delhi

On 5th November 2007, the Lawyers Collective HIV/AIDS Unit organized a day long National Consultation on Sex Work, HIV and the Law at the India Habitat Centre, New Delhi. Supported by UNAIDS and the National AIDS Control Organsation (NACO), the meeting brought together leading health and HIV agencies, community based organizations and experts from government, non-government and international development sectors to discuss changes proposed to the Immoral Traffic (Prevention) Act, 1956 will affect HIV prevention among sex workers and clients under the National AIDS Control Programme.

Introducing the meeting, Denis Broun, Country Director, UNAIDS India set out the public health context while Anand Grover, Project Director, Lawyers Collective explained the legal and human rights concerns vis-à-vis sex work. Delivering the inaugural address [Click here for downloads], J.V.R Prasada Rao, Director, Regional Support Team, UNAIDS Bangkok described the relationship between economic growth, migration and the HIV epidemic in Asia, drawing attention to the role of 'mobile men with money'. Rao stressed the importance of working with male clients, who, he said are "people like us" and not criminalizing them as proposed in the ITPA Amendments. Recollecting his days as Head of NACO, Mr Rao admitted to opposition against targeted interventions with sex workers at the start of the National AIDS Control Programme II. He called out for public debate and dialogue between sex workers, women's groups and HIV activists. In her key note address, K. Sujatha Rao, Additional Secretary and Director General, NACO, talked about ideology prevailing among proponents of the ITPA Amendments, that is - (i) that trafficking is the same as sex work, (ii) that empowering sex workers' means encouraging sex work and, (iii) that sex work is not a choice. She pointed out to the need for sensible legislation that balances trafficking and HIV concerns, hinting at possible negotiations between Health and Women and Child Development Ministries.

Thereafter, Dr. R. Ganga Khedkar of NARI presented the public health rationale for targeting sex work [Click here for downloads] citing clinical and behavioural data from sex work sites across India. He noted that sex workers were the first to adopt safer practices despite structural barriers including frequent dislocation. Gina Dallabetta of the Bill and Melinda Gates Foundation shared more findings [Click here for downloads] in support of focused interventions in commercial sex which correlated increased use of condoms by sex workers and clients to declining incidence among young, ante-natal women in Tamil Nadu. Richard Steen of WHO summarized global evidence for the effectiveness of sex work interventions. In his presentation [ See attachments Steen WHO.ppt below], Steen illustrated a modeling exercise from Nairobi to show that condom use of 80% among 500 sex workers averted nearly 10,000 HIV infections annually. From India, Sundar Sundaraman of Ashodaya Trust, Mysore demonstrated how community mobilization among sex workers led to promising health/HIV outcomes. The presentation also highlighted documented evidence of police intrusion disrupting peer outreach among street sex workers. Other speakers included Nandinee Bandyopadhyay, PATH, Lakshmi Shinde, Corridors Project, Meena Seshu, SANGRAM, Bharti Dey, Durbar Mahila Samanvay Committee and Dr. Smarajit Jana, NACO.

The penultimate session saw presentations from Tripti Tandon and Anand Grover of the Lawyers Collective HIV/AIDS Unit on the existing legal framework [See attachments Existing Legal Framework on Sex Work.ppt below] for sex work, the process of reform [Click here for downloads], ITPA Amendments and key concerns [Click here for downloads]. The discussion centred on changes introduced by the proposed statutory scheme that is - widening the ambit of prostitution and trafficking and penalizing clients of sex workers. Attention was also drawn TO clumsy drafting that will result in inconsistent application and interpretation of the law. It became clear that while the current law is unhelpful for HIV Prevention, the proposed changes will inhibit interventions even further.

The deliberations resulted in the adoption of a Statement [Click here for downloads] to be presented to the Group of Ministers (GOM) reviewing the ITPA Amendment Bill. Other actions for advocacy agreed on by participants included compilation of a dossier on Sex Work and HIV (with epidemiological data, evidence, best practice etc), generating public opinion through an open letter, media and other campaigns.

In the end, Member of Parliament and Representative from the Parliamentary Forum for HIV/AIDS - J D Seelam expressed support and assured the Forum's involvement in convening debates among Parliamentarians as well as the GOM.