IS CONSENSUAL SEX WORK A CRIME?

an evil law? The idol of Mahishasur (right) was depicted as the embodiment of the Immoral Traffic (Prevention) Act at a Durga Puja pandal this year

The Puja adjoining Calcutta’s Sonagachhi red light area had a novel twist this year. Mahishasur was depicted as a demon embodying the Immoral Traffic (Prevention) Act. And Goddess Durga was shown ripping the demon-legislation apart with her trident.

One is not sure how many visitors to the pandal got the significance of the symbolism. What’s clear, though, is that the sex workers of Sonagachhi would like to see the Immoral Traffic (Prevention) Act (ITPA) of 1956 and the proposed amendments to it torn apart and thrown away.

The bill to amend the ITPA has been hanging fire since 2006. But the ministry of women and child development (WCD) which mooted it is likely to dust it out of cold storage soon. “A long time has passed and therefore some changes need to be made to the bill,” says a top official with the WCD ministry in Delhi, who doesn’t wish to be named. “Consultations are being carried out with other ministries. The bill will be reintroduced,” she adds.

When that happens, depend on yet another storm of protests from sex workers and other stakeholders. “We are demanding that the law be scrapped altogether as ITPA provisions serve only to harass sex workers and the ITPA bill does not alleviate their suffering in any way either,” says Bharati De, secretary, Durbar Mahila Samanway Samity, an NGO working for the welfare of sex workers. The outfit supported the Sonagachhi Durga Puja this year.

“We have met representatives of the WCD and home ministries and reiterated our stand. In fact, whenever Parliament sits, we will go to Delhi with our demand,” adds De.

The 2006 bill aims to give more teeth to the anti-trafficking law and lay down harsher punishments for traffickers. Among other things, it seeks to define “trafficking in persons” and provides for and raises penalties for some offences. Moreover, it calls for the setting up of authorities at the central and state levels to curb trafficking.

So far so good. However, what raises the hackles of sex workers and those who work for their welfare is Section 5C of the bill. The latter states: “Any person who visits or is found in a brothel for the purpose of sexual exploitation of any victim of trafficking in persons shall on first conviction be punishable with imprisonment for a term which may extend to three months or with fine which may extend to twenty thousand rupees or with both and in the event of a second or subsequent conviction with imprisonment for a term which may extend to six months and shall also be liable to fine which may extend to fifty thousand rupees.”

In other words, although it stops short of making sex work illegal, the proposed legislation criminalises clients visiting brothels.

This has drawn strong protests from activists and legal experts alike. “We are committed to the creation of laws that respect individual autonomy and do not criminalise consensual sex between adults. We see sex work also as a facet of sexuality and sexual expression, where consenting adults engage in sexual activity in return for money or kind,” says Tripti Tandon, head, advocacy, Lawyers Collective (LC), working under the aegis of legal luminaries such as Indira Jaising, additional solicitor general, and Anand Grover, Supreme Court advocate and legal activist. “Therefore, LC (which was part of the inter-ministerial group deliberations on the bill) supports the demand for a law that decriminalises adult consensual sex work while simultaneously prohibiting coerced and underage sex work,” she adds.

Others argue that preventing clients from visiting brothels is tantamount to depriving sex workers of their livelihood. “Moreover, it will lead to more and more harassment by the police,” says De of Durbar.

Others echo the view. “We will oppose this section as it leaves ample scope for abuse and threatens sex workers’ livelihood,” says Anjum Sayyed, a senior official of Astitva Sansthan, an NGO in Rajasthan’s Udaipur. Astitva Sansthan is a member of the Network of Sex Work Projects, a global organisation aimed at ensuring the human rights of sex workers.

LC agrees that this section could be abused by the police and vague definitions would only ensure poor implementation. It feels that for the police, the act of visiting a brothel is sufficient grounds for arrest, as the section “does not require the offender to have sex with the trafficked victim”.

What’s more, experts say that this section will hamper HIV/AIDS campaigns in red light areas. It will force sex workers and clients to go underground in order to avoid arrests, thereby affecting interventions against HIV/AIDS.

However, the government has so far stood firm on the issue. The parliamentary standing committee on human resource development, headed by senior Congress member of Parliament, Janardan Dwivedi, submitted a report on the bill which said that apprehensions about Section 5C hampering HIV/AIDS work may not be fully justified. It also suggested that such interventions should target sex workers who are not brothel-based as well.

That said, the report does admit that it is very unlikely that a distinction can be made between a trafficked person and a person who is there voluntarily, “as victims do not confess to be trafficked, being constantly under blackmail, threat and intimidation... The Committee, therefore, recommends that Section 5C needs to be revisited for removing all the ambiguities and addressing the concerns expressed in respect thereto.”

In the West, Sweden was the first country to penalise clients for paying or offering to pay for sex. But experts say that this has not succeeded in wiping out prostitution in Sweden.

“The ministry of women and child development has been wanting to amend the ITPA to address trafficking in women and children. That has been done in the recent amendments to the Indian Penal Code (Sections 370 and 370A) which penalise trafficking in persons,” says Tandon of Lawyers Collective. “From that perspective, the ITPA may well be redundant.”

She goes on to add that the other reason the bill ought to be scrapped is the lack of consensus. “While most people agree that trafficking should be punished, there is no agreement in different sections of society as well as of government on whether or not adult consensual sex work should be criminalised.”

Clearly, the ball is now in the Centre’s court.