The Group of Ministers
(GoM) reviewing revised Amendments to the Immoral Traffic (Prevention)
Amendment Bill, 2006 concluded its deliberations in April 2008. Among
other concerns, the GoM was expected to examine if and how the proposed
Amendments will affect HIV prevention among sex workers and clients
under the National AIDS Control Programme. Despite objections by two
Ministers, the GoM failed to suggest any significant changes.
Contentious provisions such as criminalizing poverty induced sex work
as trafficking and penalty against clients appear to remain intact.
The Lawyers Collective HIV/AIDS presented the following letter of
protest to the Prime Minister, demanding rejection of the Bill.
-
9th June 2008
Shri Manmohan Singh
Honb’le Prime Minister of India
7, Race Course Road,
New Delhi
Re: Appeal to reject the Immoral Traffic (Prevention) Amendment Bill,
2008
Honb’le Shri Manmohan Singh,
I write to you on behalf of the Lawyers Collective HIV/AIDS Unit - a
public interest group working on HIV and law for over a decade. We
would like to 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
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:
1 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
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.
2 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.
We, therefore urge the Cabinet to take note of and deliberate on the
PSC’s observations before proceeding with ITPA Amendments.
3 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.
We, therefore, urge the Cabinet to direct the MWCD to hold open,
transparent consultations with sex workers and take their views on
board.
4 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 services. 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.
We, therefore, demand that the Cabinet instruct MWCD to review the
Amendments to address victims’ protection and welfare.
5 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. In fact Section 10A
deserves to be repealed completely.
In view of the above concerns, we ask the Union Cabinet to direct the
MWCD to revise the Amendments, in keeping with its commitment towards
women’s rights.
6 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.
We urge the Union Cabinet to be mindful of health considerations of
Amendments to ITPA. We also hope that learned Members of the Cabinet
will opt for rational policy rather than ideological propaganda/beliefs
on sex work.
7 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, which we hope will be deliberated on by
the Union Cabinet, we ardently appeal to you to reject the ITPA
Amendments in their current form.
http://www.lawyerscollective.org/content/sex-work-law-reform%E2%80%93-controversy-continues
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