18.3 million people in India fell prey to human trafficking in 2016, and the flesh trade in our country far surpasses all others. Yet, when it comes to effective legislation to address these alarming numbers, the law is clearly inadequate, and at times, works against the interests of people – especially the roughly 3 million female sex workers.
Presently, the only act that addresses these cases is the Immoral Trafficking (Prevention) Act (ITPA). While trafficking takes on many forms – like organ harvesting and child labour – the act in its current form only deals with prostitution. The law, in fact, fails to make clear distinctions between sex work and trafficking.
“Trafficking is extremely dangerous,” says Sapna Gayen a founding member of Muktadhara Nari Sangathan, a Kolkata-based sex worker organisation. “It should be stopped wherever it is happening. But trafficking and sex work are not the same.”
Despite the community’s best efforts, this perception persists. And this is only the beginning of the problem.
“The mandate of the law is to treat sex workers as victims,” says Tripti Tandon, Deputy Director of Lawyers Collective. She explains how sex work in India is neither legal nor illegal, falling under a sort of ‘grey zone’: “There’s no rationality, no logic, both in terms of police action as well as in the law, as to how you make that distinction – between who needs help, and who needs strict action.”
While the ITPA justly prohibits “procuring, inducing, or detaining persons for prostitution”, other sections that attempt to stymie trafficking end up harming sex workers.
Take for example, Section 3 of the act that criminalises brothel-keeping, depriving sex workers a familiar and safe place to earn their livelihood. This section also means landlords often refuse to give sex workers accommodation, for fear of being arrested. Further still, it ignores how brothels have been spaces for autonomous organising.
Says Amit Kumar, Programme Coordinator of the All India Network of Sex Workers (AINSW), “Whenever sex workers are with a group, they feel safer.”
He also points out how criminalising brothels harms the chances of the state’s own HIV/AIDS prevention efforts. “If advocacy happens in a brothel setting, or under the observation of NGOs and CBOs, then a female sex worker will know what safe-sex practices are, what STIs are, and when to get check ups.”
Sex workers’ groups across the country have opposed this section, as well as Section 4 (which prohibits persons from living on the earnings of sex work) as it harms sex workers’ ability to provide for their families.
Says Gayen, “We are mothers, and it is because of our money that our children can study and eat, and stand on their own two feet. But the government calls our children criminals, isn’t this wrong?”
Kumar adds to this saying, “In this way, Section 4 of the ITPA snatches away a child’s right to education as well!”
To improve the law, sex workers groups from Delhi, Mumbai and Orissa had even challenged the ITPA in the Kolkata High Court, and approached the Ministry of Women and Child Development.
But the threats and problems still remain. For one thing, getting legal aid is still an issue. Gayen says, “The police nowadays register our complaints, because sex workers’ organisations have become stronger.” But she says the complaints are often filed under sections that deal with ‘less serious’ offences.
In areas where sex workers’ organisations are missing, the threats to a female sex worker’s safety increase. Often, she may agree to one client, and go in to find five or ten men.
Tandon recalls a case in Gujrat where a sex worker found herself in this situation. “When her fellow sex workers approached the police to say she had gone missing, these women were detained, and told ‘Oh, you must have sent her, you are the pimps!’ That sex worker lost her life. She was found dead a few days ago.”
Then there are instances of those voluntarily doing sex work, taken away against their will to government-run shelters for women, or even arrested. Tandon speaks about a group of sex workers from G. B. Road who were rounded up and sent to a Nari Niketan a few years ago.
“The women were miserable!” She says. “Some of them even threatened to commit suicide if we didn’t move the court to get them released immediately! They said, ‘The first thing is your freedom. Everything else comes later’.”
The AINSW supports anyone wanting to leave sex work, but raises many pertinent questions about current rehabilitation work. Kumar asks, “If you give someone a sewing machine, teach them to sew, then what? Where is the market? Will people get their clothes stitched by a sex worker? What advocacy have you done with society?”
Additionally, the ‘rescue-and-rehabilitate’ position assumes absolutely no agency on the part of sex workers, whereas many like Gayen are fighting to retain their profession: “We say we should get the same rights as all workers.”
Not acknowledging the community’s agency has created another fallout. When Minister of Women and Child Development Maneka Gandhi unveiled the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill in May last year, it presented a unique opportunity to address police violence, significant sexual health risks, sexual assault, financial insecurity and other issues sex workers face.
But the bill, Gayen says, has failed to involve the sex worker community in formulating the policy.
Kumar weighs in on this as well: “The ministry invited suggestions on its website. Can all sex workers or sex workers’ organisations access the internet? If not, then why was this process kept?”
The resulting bill – which does not even define “trafficking” – has been opposed by individuals and groups like the AINSW. Kumar ends by pointing out how excluding sex workers from the draft process itself was regrettable. In fact, he says, the Supreme Court itself considers sex workers’ self-regulatory boards to be the most equipped to address trafficking.
“In Kolkata, a self-regulatory board has rescued around 11,000 girls, and sent them home or to a women’s cell. Involve the community. Without them, you cannot stop trafficking.“