Commercial sex work today, in India constitutes a Rs. 40,000 Crore annual business with nearly 10 million people, predominantly women, involved in it in one form or another. In light of the new Draft Policy for Women put forward by the Ministry of Women and Child Development, this article focuses on shedding some light on an important aspect of the policy, trafficking for sexual exploitation. To address violence against women the policy mentions strict and efficient implementation of guidelines, protocols and Standard Operating Procedures to prevent trafficking at source. However in order to address the overarching issue of human rights violation triggered by sexual trafficking, a holistic reformation in policies is required aimed at uplifting those already cemented in the sex work industry and integrate them into the mainstream society.
The profession of the sex-worker is perhaps as old as civilisation is itself, but the current scenario is a reflection of particular policies driven by a mind-set evolved during the colonial era. The moral connotation attached to the word Prostitute and the stigma attached to the profession has resulted in the formulation of policies sourced out of culture, morals and social belief systems which has led to the marginalisation of an already oppressed community. For example, referring to statements of Dr K. S. Patel, a health policy expert in the 1920s, it can be seen how recommendations were made to segregate commercial sex-worker population in order to create a ‘cleaner’ society, making constant references to the putative sexual needs of men. This was done as a health measure in order to prevent the spreading of STDs in residential areas. Hence the legal system and its recent amendments have not improved the situation for the sex workers who are being subjected to stigma, violence, and lack of opportunity for their children. The core issues underlying trafficking could be categorised into two sections.
The severe moral and social marginalisation faced by a commercial sex worker has resulted in the creation of a vicious cycle resulting in an inter-generational transference of the stigma from which the possibility of breaking free is dismal. Hence the children of sex workers are also very often pushed into the industry ripping them off their right to education and subsequently, a career of their choice. Also, the income generated by the sex workers themselves never give them a bargaining power or improves their socioeconomic conditions.
Commercial sex work industry is a space of human rights violation where the victims require protection and rehabilitation. Health issues arising from debilitating living and working conditions and lack of access to healthcare facilities threatens the health of the millions involved in the profession. Studies have revealed that nearly 10 out of every 100 female sex worker has experienced physical violence by the age of 18. Sexual violence and the vulnerability of those exposed to violence being much greater towards HIV and reproductive disorders. Community led intervention programmes have not been implemented anywhere else apart from Sonagachi area in Kolkata where the programme resulted in a significant decrease in HIV/AIDS prevalence. The medical services provision programmes extended by various state governments such as the Maharashtra Protection of Commercial Sex Workers Act (1994) were aimed at maintaining public order and well-being rather than for improvement of the lives and working conditions of sex workers.
Existing Policies and Provisions
Indian government’s policy towards sex work is enforced through the Indian Penal Code (IPC) 1860, Immoral Trafficking Prevention Act (ITPA), 1956 (amended in 1986) and provisions of the Indian Constitution. The provisions of ITPA that need to be highlighted are Sections 3, 8, 14 which describe maintaining brothels, soliciting and seducing for the purpose of prostitution as punishable and the offence cognizable. Section 5c also penalises clients. Such a prohibitionist and interventionist model has pushed the industry to darker nooks. The major consequence of such a model is that it has disrupted the delivery of government’s HIV prevention measures besides access to other public utilities. This could be seen from the rise in HIV and STDs cases in Chakla Bazaar, Surat after the eviction of nearly 600 sex workers from the brothels in the area.
The historical lack of legal protection that these policies uphold has increased the susceptibility of the trafficked to get arrested on the basis of ITPA. The policies which aimed at apprehending the offenders have resulted in cases being registered against the trafficked themselves than the traffickers.
Inefficiencies in law enforcement have risen due to ambiguity in the scope of involvement of institutions and multitude of Plan of Actions brought about by various ministries like MWCD and MHA. To add to this, the Central Government has direct responsibility for law enforcement but state governments have the authority to frame laws to tackle the issue within the state and no authority to tackle transnational and interstate trafficking crimes. Further, the rescue and rehabilitation programmes initiated by the state governments under the Ujjawala programme have not been successful as the government run shelter homes are highly under-resourced.
The Way Ahead
The definitional and legal ambiguity in the term ‘criminal’ in the existing policies has led to criminalisation of the victims themselves. The laws have neither legalised commercial sex work nor do they extend legal protection to commercial sex workers but don’t fall short of labelling sex workers as moral offenders. Hence, along with revamping the existing policies in a way as to remove ambiguities, the general outlook of the policies must shift from having a punitive approach towards commercial sex work to a participatory development approach. There should be shift away from the top-down system where the woman is alienated from her source of livelihood by rescuing her, assuming that she would be able to reintegrate herself into the market post rehabilitation.
Government intervention should focus on supplementing civil society organisations that work towards improving the lives of sex workers by helping them attain legal identity, health facilities, counselling, Education, day-care and night shelter for children and at building alternate capacities for the sex workers.
Although Ministry of Home Affairs has established an Anti-Human Trafficking Cell with Nodal Officers in each state and Union Territories, it is merely a task force that deals with law enforcement. Hence in order to maintain efficient enforcement and development mandate, an independent statutory authority should be set up through the Act with state level bodies that work with Ministries of Home Affairs, Women and Child Development, Health, etc. in consultation with civil society organisations. It should plan the development agenda and control enforcement process with respect to channelling funds and development aid, establishing alternative livelihood for commercial sex workers and establishing care and educational institutions for the children of commercial sex workers.
The issue of commercial sex workers needs a long term capacity building process leading to better living and health standards and equality. Justice and opportunities in a nation should not depend on a moral belief system. It should rest solely on the welfare of its citizens. As a nation therefore, it is high time we break the moral bubble that has engulfed millions of people in the sex work industry and enable them to lead a just life devoid of marginalisation.