JOIN USEnforce court orders on sex workers
In a landmark judgement, the Calcutta High Court recently ordered that a sex worker, who is exploited for commercial sex practices, should not be charged as accused for the offences under The Immoral Traffic (Prevention) Act, 1956 until and unless cogent materials on record proves that she was also involved as a co-conspirator in the crime.
The court held that sex workers are victims of crime and should be provided with all remedial measures available under the law including witness protection programme, grant of interim compensation and/or rehabilitative measures and protective custody.
In India, sex work or prostitution per se is legal. However, running of brothels, soliciting and working as a pimp are against the laws of the land. These fine differences entangle sex workers in a web of laws which makes them vulnerable to harsh police regulations in red-light districts. This is because sex work is often confused with trafficking for sexual exploitation.
The law which deals with human trafficking is the Immoral Traffic Prevention Act (ITPA), 1986 which is supported by Section 370-373 of IPC which criminalise practices around sex work.It is extremely unfortunate that ITPA is the only anti-trafficking legislation in India. More unfortunate is the Act’s interpretation of prostitution-related activities as trafficking. This is not in accordance with international policies and guidelines, including the Palermo Protocol of 2001, to which India is a signatory.
The ITPA provides for police and NGOs to conduct raids and rescue operations. Such raids and rescues do not distinguish between minors and consenting adults. Therefore, every woman who is “rescued” is placed in rehabilitation homes. These rehabilitation homes sport inhuman condition, sub-standard food and extreme state of confinement which includes strict restrictions, prohibition from meeting families etc.
Further, many times, authorities pick up on sex workers to maintain “morality” of an area. This leads to them being booked under ‘Public Nuisance or Obscene Conduct’ provisions of the Indian Penal Code (IPC).
They are usually released on fine. Most sex workers choose not to contest their arrest since they find it easier to pay fine and get released. They are often verbally abused using sexual innuendos by the people in authorities during their dealing with them. Such abuse manifest because of the perception of them being “criminals”.
The stigma attached to being a sex worker exposes them to violence in personal spaces. This violence is used as a mechanism of asserting sexual control over them and is normalised to them as a “punishment” for being a prostitute.
However, to protect them against such abuses, there are sanctions against profiting from forcing women without her will into the sex trade. According to Section 4 of the ITPA, any person above 18 living on the earning of the prostitution faces imprisonment of two years.
However, this open-ended nature of the Section leads to a wide interpretation which includes spouses, parents and children. This purposive interpretation often leads to the jailing of old parents, children and spouses of sex workers, leaving them desolate with a feeling of guilt.
To counter such exploitations, an effective policy framework and reformation of laws are required. This can start by forming two different laws for the trafficking of children and adult persons. This will ensure that consenting adults are not criminalised and children are given justice. Further, sex work-related activities should be fully decriminalised.
This is so because criminalising certain facet of it does not stop such activities from perpetuating in the dark realm. By decriminalising them at least they can be regulated to the best of the policies.
Repealing laws
Decriminalising includes repealing laws which include laws against “immoral” earning, “living off the earning” of prostitution and brothel-keeping among others. Additionally, certain existing administrative offences such as “loitering without purpose”, “public nuisance” and “public morality” should not be used to penalise sex workers.
Policies made for the welfare of sex workers and to prevent their exploitation should include strengthening of National Human Rights Instrument (NHRI) and increasing its accountability and transparency. NHRI should be provided with the power to initiate suo motu actions against the guilty for violating the rights of sex workers. Free trained legal aid should be provided to sex workers.
Another major policy action which must be taken is to implement the Supreme Court’s recommendations to issue identity documents and ration cards to sex workers at national, state, district and sub-district levels.Implementing these recommendations will provide sex workers with identity and will work as their accounting factor by the government in its policymaking.
It is high time the sex worker’s exploitation is brought to the forefront so as to reform laws and policies on it. As it is, only through laws and policies that substantive measures can be taken because, after all, law is a medium to control and regulate the behaviour of the people in a society.
(The writer is a student of the National Law School of India University, Bengaluru)