SEARCH CLAUSE: Protestors demand the arrest of Somnath Bharti

The recent midnight raid at the house of a few African women in Delhi’s Khirki extension area by state law minister Somnath Bharti has caused widespread outrage. Bharti alleged there was a thriving prostitution and drug racket in that house and insisted on a raid without a search warrant. While the illegal nature of the minister’s act is beyond doubt — he could be imprisoned for a year for house trespassing — legal experts point out that the incident is also a violation of the Immoral Traffic Prevention Act (ITPA), 1986.

“Even though it is not yet proven if the women were prostitutes, the raid clearly brought out the prevailing mindset that prostitutes may be harassed at will because they are considered evil for society. It is shocking that even the law minister didn’t know that what he was doing was a violation of the existing prostitution law,” says Supreme Court advocate K.T.S. Tulsi.

The ITPA does not criminalise the practice of sex trade as long as it is done in private. Soliciting clients in public is considered illegal. The point, however, is that these women were not caught doing that.

“There was no evidence to suggest that any of these African women who were dragged out of their house that night was soliciting clients in public,” senior advocate Pinki Anand says.

Experts also point out that the ITPA does not allow the police to conduct a search without a warrant, something that Bharti had exhorted them to do that night.

A search without a warrant is allowed under Section 15 of the ITPA only if the special police officer or the trafficking police officer has reasonable grounds to believe that an offence punishable under the act has been or is being committed. But in this case, the cops didn’t have an iota of information about what was going on there. “The cops at the local police station didn’t even know what they were called for! How could they just raid a house like that,” a senior Delhi police official asks.

But even if the police were aware that unlawful activities were taking place in the house, a search without a warrant would have been legal only if two women police officers had accompanied them in the search, say experts.

“In the absence of women cops, the interrogation of the residents of the house should have been done only in the presence of a lady member of a recognised welfare institution. In this case, none of these things was done,” says Priti Patkar of the NGO Prerana in Mumbai that works for the rights of sex workers and the prevention of human trafficking.

What was done that night was nothing short of unbelievable. The women — one Nigerian and two Ugandan — have stated in their first information report (FIR) that Bharti and his men barged into their house at 3am. They added that they were assaulted by the crowd and were subjected to a cavity search during their medical examination at the All India Institute of Medical Sciences (AIIMS), which was a humiliating experience. They have also alleged that the minister and his people had asked them to give urine samples in public.

“Bharti could be arrested without a warrant under Section 41 of the Code of Criminal Procedure because a reasonable complaint has been made against him by the women,” says Tulsi. “He could also be imprisoned for a term of one year on the charge of house trespassing under Section 447 of the Indian Penal Code,” he adds.

Of course, harassment of prostitutes is nothing new in our country. Taking note of it, the Supreme Court in 2011 said that sex workers had the right to live with dignity. In their order in 2011, Justices Markandey Katju and Gyan Sudha Misra had said that sex workers were also “human beings” and nobody had the right to assault them and referred to several classics to underline the fact that a person did not become a prostitute by choice.

Later, a bench comprising Justice Altamas Kabir and Justice Misra said the court had from the beginning lay special emphasis on the rehabilitation of sex workers. Subsequently, a committee was constituted by a Supreme Court order to look into the prevention of trafficking, the rehabilitation of sex workers who wished to leave sex work, and the creation of conditions conducive for them to live with dignity in accordance with the provisions of Article 21 of the Constitution.

“Creating a conducive environment for sex workers to let them live a life with dignity is the least that we can do,” Patkar stresses.

Indeed, after the Criminal Law (Amendment) Act, 2013, which keeps sex workers out of the purview of punishment, there is now a demand for doing away with Section 8 of the ITPA that punishes sex workers for soliciting in public. “Section 370 of the amended act supersedes the ITPA. It is based on the UN protocol to prevent, suppress and punish trafficking in persons, especially women and children. It decriminalises the victims. So we want the ITPA to be made defunct,” says Ruchira Gupta, who runs the NGO, Apne Aap Women Worldwide.

That demand is bound to gain momentum. For, examples of police harassment of prostitutes abound. In fact, sex workers often get picked up by the police on the charges of committing nuisance.

Patkar points to the regular harassment of prostitutes in Mumbai. “Since lodging an FIR under the ITPA is cumbersome, sex workers in Mumbai get picked up under Section 110 of the Bombay Police Act for behaving indecently in public. We need to change this attitude towards sex workers.”

Others say that the answer lies in the legalisation of prostitution. “These outdated laws concerning prostitution are the biggest problem in society. Prostitution should be legalised to save a large section of women from being exploited and harassed,” Tulsi says.

Until that happens — or at least until the IPTA decriminalises sex work — men like Somnath Bharti may be counted upon to charge any woman who does not conform to their personal ideas of morality with prostitution — and heap harassment upon her.