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Instead of arresting, treat sex workers as victims

Image Credit : About India

The Calcutta High Court in Manoj Shaw @ Manoj Kumar Shaw vs. The State of West Bengal (C. R. M. 5927 of 2019) has directed that exploited sex workers should not be treated as accused for offences under the Immoral Traffic (Prevention) Act, 1956. Sex workers should be treated as victims of crime and extended all remedial measures, the court said. Sex work is legal in India although soliciting, brothels and working as a pimp are against the law. India needs a more humane law on prostitution. No one takes up the world's oldest profession voluntarily.

What has the Calcutta High Court ruled?

In a significant order, the Calcutta High Court has directed that a sex worker exploited for commercial sex should not be charged as accused for offences under the Immoral Traffic (Prevention) Act, 1956 until and unless cogent materials come on record that she was also involved as a co-conspirator in the crime.
Further, the Court also directed that investigating officers who are involved in investigating offences under the Immoral Traffic (Prevention) Act, 1956 and/or other related offences under the Indian Penal Code (IPC) shall not arrest any sex worker in the course of the investigation. Instead, they should treat the sex workers as victims of crime and extend to them all remedial measures available under the law including witness protection programs, grant of interim compensation and/or other rehabilitative measures and protective custody.

The directions were passed by a two judge bench in an anticipatory bail plea by the owner of a ‘health spa’ wherein women including a minor were sexually exploited for prostitution. When the matter had come up initially before the Chief Judge, City Sessions Court, Calcutta, an adjournment was granted after the Public Prosecutor made a request to that effect on the ground of issuing notice under Section 41A of the Code of Criminal Procedure to the Petitioner.

The Court went on to note that the Investigating Officer in the instant case had sought it fit to arrest the vulnerable witnesses namely, the sex workers who were forced to carry on prostitution under the guise of a health spa. However, an unusually lenient approach was adopted towards the owner of the said health spa i.e. the petitioner.
That apart, one of the victims appeared to be a minor as evidenced by her date of birth. Forcing a minor to prostitution attracts graver penalty punishable above seven years under the Immoral Traffic (Prevention) Act, 1956 which completely rules out the possibility of invocation of Section 41A of the Code of Criminal Procedure, the Bench noted.

The Court went on to reprimand the Police officer, Public Prosecutor and the Sessions Court Judge for their indifferent and lacklustre manner in which the investigation and case were dealt with. “The instant case is one of the most glaring examples of misuse of police power in this regard. While the Investigating Officer sought it fit to arrest the vulnerable witnesses namely, the sex workers who were forced to carry on prostitution under the guise of health spa, he resorted to an unusually lenient approach towards the owner of the said health spa i.e. the petitioner herein who appears to be the kinpin of the organised crime racket and issued notice under section 41A Cr.P.C. against him.”

It reaffirmed that in offences involving exploitation of women under Immoral Traffic (Prevention) Act, 1956 the sex workers who are exploited by brothel owners and others are not accused persons but the victims of crime. It was, thus, a sad reflection on the quality of investigation conducted in the present case by a specialised agency namely, Anti-Human Trafficking Unit (AHTU). Its officers wholly ignored the wholesome object of the law and unlawfully proceeded to arrest of the victims of sexual exploitation.

“Having gone through the case diary in the instant case, we are aghast at the harassing nature of investigation conducted by the police officers”, the court said.

Why was this case not surprising?

Prostitution per se is legal in India but it is caught in a web of laws that makes sex workers vulnerable to police action in red-light districts, where they ply their trade on streets or in dingy brothels.

“Whenever there is a raid on a brothel, since voluntary sex work is not illegal and only running the brothel is unlawful, the sex workers should not be arrested or penalised or harassed or victimised,” a Supreme Court appointed panel, which was set up to recommend measures to ensure better work conditions for prostitutes and protect their rights, said in 2016.

The panel recommended deleting the offence of “soliciting” under section 8 of the Immoral Traffic Prevention Act (ITPA), 1956, saying the law is highly misused by enforcement agencies‘Soliciting’ or ‘seducing’ for the purpose of prostitution is punishable with six months in jail and a fine of Rs 500. Police are often accused of crossing the limit in their efforts to enforce anti-trafficking laws, clamping down on prostitutes and clients having a liaison conducted in private with consent between the two.

The majority of India’s estimated three million prostitutes are forced into the trade by crushing poverty. They are, to be put it crudely, soliciting and seducing because the state forgot to provide them either basic education or any other form of employment. The panel proposed an elaborate mechanism, including rehabilitation and providing alternative livelihood to prevent re-trafficking of former prostitutes.
Observing that police view sex workers “differently from others”, it says these women are lawfully entitled to equal protection. “When a sex worker makes a complaint of criminal/ sexual/ any other type of offence, police must take it seriously and act in accordance with law,” it recommended.

The panel suggested amendment to the law that says any person above 18 living on the earnings of prostitution faces imprisonment of up to 10 years. No action should be taken against a prostitute’s parent, partner or children living on her earnings, unless it is proved that they forced her into the trade, the panel wrote in its report.

To stop victimisation of trafficked women, the panel recommended sending sex workers caught plying their trade near a public place to a correctional home, instead of putting them in jail. The duration of the stay should be reduced from five years to one. Prostitution in a public place is illegal.
Many brothels have rebranded themselves as rejuvenation spas with special services and happy endings, but prostitutes have remained prostitutes. “Oh, you should see who all visit us on Sundays,” responded one spa owner of Bengaluru when asked if he’s not scared of police (though, legally, spas are legal but brothels are not.)

When do sex workers get legally harassed?

Sex work in India is often confused with trafficking for sexual exploitation.

The principal legislation dealing with trafficking is the Immoral Traffic Prevention Act, (ITPA) supported by Section 370–373 of the Indian Penal Code (IPC).However it is this very framework of ITPA and the IPC that criminalizes practices around sex work.

Sex workers are directly impacted by laws relating to soliciting and doing sex work in public places which are offences under the ITPA. Public places include educational institutions, places of religious worship, hostels, hospitals and any notified area. The term public place is read so broadly that inevitably, sex workers get arrested and detained in rehabilitation homes under these provisions. Sex workers can be evicted from such premises and the premises can be sealed.

The ITPA also provides a framework for police and Non -Governmental Organisations (NGOs) to conduct raid and rescue operations. Magistrates are authorised to close brothels and expel persons from premises where sex work is being carried out, including their residence. Police can remove any person found on the premises where sex work is carried out, irrespective of their age and consent.

Violence against sex workers in India is linked to the perception that they are criminals and not law-abiding citizens. This has led to systematic violation of human rights of sex workers, such as the right to life, dignity, equality, equal protection and due processes under the law. Several factors put sex workers at risk of violence. Stigma attached to sex work exposes them to violence in personal spaces from family members as well as from intimate partners. Violence is used as a mechanism of asserting sexual control; it is normalized as punishment for having sex with other men.
There is little appreciation amongst police of the context and factors affecting sex workers lives, hence they ignore complaints related to family and partner violence; instead offering advice to women about stopping sex work and settling domestic matters 'amicably'. The law enforcement system is regarded by sex workers as the most repressive state agency. Police abuse sex workers, illegally detain, sexually assault and torture them in custody.

Sex workers report being arrested under ‘public nuisance’ or ‘obscene conduct’ provisions of the IPC. They are produced in court and released on the payment of fines. Most sex workers choose not to contest their arrest under these provisions since they find it easier to pay fines and be released. People in positions of authority routinely demand sexual favours from sex workers for speedy redress of grievances or accessing entitlements. They regularly verbally abuse sex workers using specific sexual innuendo and language.
Perhaps the most widespread human rights abuse emerges from the so-called rescue and rehabilitation interventions.

These interventions involve brothel raids by special police officers and NGO workers, where women are "rescued" and placed in rehabilitation facilities. Police raids, frequent in red light areas and under the pretext of rescuing minors, do not distinguish between minors and consenting adults.

Narratives of raid and rescue operations indicate the highly abusive and violent nature of these operations. Arbitrary police action during raids, with scant respect to rights of sex workers and those residing in the buildings deemed to be brothels is common. Recent research by SANGRAM found that non-sex workers who happened to be visiting their relatives in the buildings that were raided were stripped and bundled into vans.

Besides using torture such as putting chilli powder in the genitals, the police routinely humiliate and frighten the women picked up through verbal abuse and threat of violence by brandishing batons. In one instance, in complete violation of the rights of detainees, police reportedly made women clean up the police station. They are also forced to “accept their guilt”, even if the cases are fake.

Women who are picked up are usually sent to the so-called ‘rehabilitation home’ ( Sudhar Griha ) described inhuman conditions, sub-standard food and an extreme state of confinement, prohibited from meeting their families, and not even being allowed to stand near the window and being beaten up for doing so.
Condoms found on the premises of brothels are being used as evidence against sex workers.

Where does the dilemma come from?

The first priority, of course, should be ending forced prostitution, especially of childrenThe lapsed Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 had special provisions for investigation of trafficking cases, definitions for aggravated forms of trafficking, a rehabilitation fund, protective homes, and designated special courts. This meant that a body of sensitized special police officers would rescue trafficked victims and organize their rescue and rehabilitation with their (the survivors’) consent in ways that does not happen under the present ITPA regime. This also meant that adult women voluntarily practising sex work could claim a safer work environment and avoid molestation from the police.
The lapse of the TOP Bill implies that we are left again with no legal alternative but the ITPA and IPC sections 370 (trafficking of persons) and 370 A (exploitation of a trafficked person) to continue rescue activities for those sex workers in India who are either minors or have been trafficked into the trade, and hence, the feasibility of repeal is losing ground.

Image Credit: Apne Aap Women Worldwide

Apne Aap Women Worldwide
, a grassroots movement to end sex trafficking, says brokers pay as little as 4,000 rupees to the families of village girls who are then raped by customers. Raids of brothels by NGOs and police to rescue victims often fail because families later return the children to the same brokers. In other cases girls and young women are tricked with promises of marriage. Apne Aap claims that over a third of all sex workers are under the age of 18.

The organisation opposes legalization of prostitution, arguing that more demand for sex would lead to more trafficking. Apne Aap’s campaign, bizarrely titled “Cool Men Don’t Buy Sex”, was intended to reduce demand. If that looks unlikely to have much success, the prospects of legalisation appear slender, too. No politician is ready to champion the idea. The conservative Bharatiya Janata Party (BJP) is unlikely to support it. Those selling sex will continue to live in the shadows.

Not everyone supports easing curbs on prostitution. It will only push up demand for sex workers and result in an increase in trafficking of women, said Supreme Court lawyer and social activist Ravi Kant of the NGO Shakti Vahini“Mafia and cartels will take over," he said. “There will be a huge demand for young girls and trafficking will increase." “When we talk about legalising prostitution in India, we talk about prostitution not as a criminal offense, but soliciting prostitution and prostitution in public as illegal. So, in effect, we are talking about giving legal status to brothel owners and pimps,” Ruchira Gupta, founder-president of Apne Aap Women Worldwide, says.

On the other hand, once prostitution becomes legal the harassment of sex workers by police would reduce tremendously; these prostitutes will exist in certain government defined areas and will have proper licenses to work. This would also bring the names of these workers in the government records and they will not be scared to approach hospitals and police officers. Proper health checks of the women would help reduced the transmission of Sexually Transmitted Diseases and the prostitutes will be able to strongly demand that their customers use contraceptives.

Sadly, in India, ITPA is the only legislation that deals with trafficking. It considers trafficking as prostitution. This is not in accordance with international policies and guidelines, including the Palermo Protocol of 2001, which India has signed. This is very unfortunate as Article 23 of the Indian Constitution prohibits ‘traffic in human beings and all similar forms of forced labour’.

Dr S Jana
Dr S Jana, principal of Sonagachi Research and Training Institute, Kolkata, feels that sex workers should be brought under the work schedule of the labour department. “This will benefit the women in this trade. Once the labour legislation is applicable and includes sex workers, it will ensure that the rights of these women are protected,” Jana explains. He is quick to point out that while trafficking should be made a criminal offence, prostitution in itself should be decriminalised.

“Women providing sex should be treated as workers. At present, these women can only go to the police or groups that are working in this field in case they want to file a complaint or take action in case they are being abused and forced into this trade. But if it is legalised, there will so many other agencies that they can go to for relief. It has been found that those who are in the unorganised sector are the ones who are most vulnerable to exploitation. Domestic workers and sex workers fall in this category are the ones who are taken advantage of. But if they come under an organised unit, their exploitation will stop,” Jana says.

Who do we forget in our intellectual discussions?

A typical brothel on GB Road, a sprawling red-light district in Delhi dating back to the Mughal era, contains multiple 4/6 feet cubicles with a bed each, covered by a dirty and bare mattress under which used condoms are stuffed. There are no windows. There’s a common room in which the sex workers, when they aren’t attending to a client, rest or play indoor games. Posters of Hindu gods and goddesses and framed verses from the Koran decorate the walls. Most women who live and work here are not sure what the law of the land is and what amending that law would mean to their doomed lives. The same is true for any other ‘red light area’ anywhere in India.

When Rashida Bibi was 16, she left her native Bangladesh and came to Kolkata, India, with the promise of a job as a nanny. It was a lie. In fact, she was a victim of sex trafficking. "After giving me shelter for a few days, the family told me that they couldn't keep me and that I had to start working as a prostitute," Bibi says. Tears well up in her eyes when she remembers that moment. Some 30 years later, Bibi is one of an estimated 11,000 sex workers in Sonagachi, a notorious red-light district in Kolkata.
“I always knew that this would be my life,” says Suchitra, sitting in her wardrobe-sized room and wearing a low-cut green top and jeans, her hair pulled back in a tight bun. “I can never forget what I’ve done but it is the only way for my family to earn a living.” She was sent to prostitution at the age of 14 by her mother, who was also a prostitute. Many of the girls who are raised as prostitutes are injected with the hormone oxytocin to make their breasts grow faster.

Then there is the permanent risk of contracting an STD. Female and transgender sex workers and men who have sex with men are considered high-risk groups in determining HIV/AIDS prevalence. “Globally, sex workers are 13 times more at risk of contracting HIV, when compared to the general population, because they are economically vulnerable, unable to negotiate consistent condom use, and experience violence, criminalisation and marginalisation,” said a 2018 study by UNAIDS.

Maharashtra, Karnataka, Tamil Nadu, Telangana and Andhra Pradesh have a high prevalence of HIV among sex workers. Maharashtra has 7% HIV prevalence rate, Karnataka has 6%, and Tamil Nadu has 1%. Around 31% sex workers living in these states remain financially insecure, making them vulnerable to disease. Half of Maharashtra’s sex workers depend only on sex work for survival, and do not have insurance. In Tamil Nadu, two-fifths and in Karnataka a fifth of sex workers face similar issues. This makes sex workers vulnerable to clients who insist on unprotected sex.

Don’t they want to do something ‘more dignified’? Who wouldn’t want to leave a small room with no window where random men walk in and out to do whatever they want? But the bigger question is, where do they go from there? “I am here of my own will. Even if I leave this place where will I go? The society will always label me as a prostitute. I am scared wherever I will be employed, the men will rape me. Even if I marry a prince tomorrow and wear expensive saris (dresses) and sit in a big car, people will still think I am a prostitute. I cannot change that. I wanted to become a nurse and take care of people. I have a secret lover and he used to be one of my regular customers. He is a taxi driver and we are planning to marry. I will make sure my daughter is never born into a brothel, is educated and lives her dream”, said a prostitute from Sonagachi who hasn’t given up on hope but also knows the reality.

How must India proceed on this issue?

Stop mixing sex work and trafficking in law and policy

  1. Ensure that anti-trafficking laws are not used to abuse the human rights of people in sex work.
  2. Trafficking of Adult Persons and Trafficking of Children should be dealt with under two separate laws to ensure that consenting adults are not infantilised and children are given justice.
  3. Strengthen efforts of community-based organisations and collectives of sex workers to fight trafficking in their communities.

Fully decriminalise sex work and related activities

  1. Repeal laws that prohibit consenting adults in sex work, such as laws against "immoral" earnings, "living off the earnings" of prostitution and brothel-keeping.
  2. Complementary legal measures must be taken to ensure safe working conditions for sex workers.
  3. Ensure that existing civil and administrative offences such as “loitering without purpose”, “public nuisance”, and “public morality” are not used to penalise sex workers and administrative laws such as “move on” powers are not used to harass sex workers.

Shut down compulsory detention or rehabilitation centres for people in sex work.

  1. Provide sex workers with evidence-based, voluntary, community empowerment services.
  2. Develop mechanisms to recognise and act against violence faced by sex workers, strengthen accountability of law enforcement
  3. Guard against arbitrary arrest and detention of sex workers, and investigate complaints of harassment, extortion and abuse by law enforcement personnel.
  4. Maintain confidentiality and respect privacy of sex workers approaching law enforcement agencies and judiciary for redress in cases of sexual assault, exploitation and violence.
  5. Sensitivity to issues faced by sex workers should be made a part of training for police personnel, public prosecutors and the judiciary in partnership with community organisations of sex workers.

Strengthen sex workers’ access to justice

  1. Strengthen National Human Rights Instruments (NHRI’s) and increase their accountability to respond to complaints or initiate suo moto action reports of violence and rights violations by state and non-state actors against sex workers.
  2. Ensure free legal aid services are available in rural areas for sex workers and offered by lawyers who have been trained in issues faced by sex workers.
  3. Prohibit mandatory HIV and STI testing of sex workers following arrest.
  4. Ensure implementation of the Supreme Court recommendations to issue identity documents and ration cards to sex workers at the national, state, district and subdistrict levels.

Ensure participation in policy making

  1. Ensure the empowerment, active participation and leadership of sex work networks, federations and collectives in designing policies and processes for accessing social entitlements.
  2. Ensure participation of sex work organisations in drafting/ amending relevant laws, policies and programs and in their implementation.

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