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The Times of India
December 19, 2005
SHE IS NO OUTLAW
by Rakesh Shukla
MPs may be caught taking bribes on camera, NGOs caught fudging
accounts and judges nabbed taking favours -- yet parliamentarians,
social workers and the robed fraternity take the high moral ground
when it comes to prostitution.
They arrogate to themselves the right to pontificate on what is in
the best interests of these "fallen" women.
Apart from expressing concern and anguish over the "plight" of these
women, they share a reluctance to actually listen to sex workers
themselves on steps that could be taken to improve the situation.
Even in a society full of marginalised communities, women in
prostitution are at the bottom of the social ladder.
Stigmatised as immoral, sinful whores who lure decent men away from
wives and families, they come much lower than that epitome of
exploitation, 'the worker'.
In fact, attempts to acquire the higher status of 'worker' are
reflected in the use of the term 'sex worker', instead of prostitute.
In the working of the law, sex workers are treated as non-persons
with no right to life, liberty, shelter, dignity or self-respect.
Last year, bulldozers demolished hutments of sex workers on Baina
beach in Goa following directions of the high court. These huts were
homes of women who had lived there for 40 years.
They possess ration cards, voter identity cards, electricity bills,
tax receipts and are bona fide residents of Baina. Many of their
children born in Baina are vote-casting adults.
Such stigmatisation manifests itself in numerous other ways. The law
with regard to assault, rape and kidnapping is uniformly applicable
regardless of the identity of the victim.
In reality, sex workers seem fair game to beat and rape as no
consequences follow for the perpetrator. Last year, a prostitute from
G B Road was kidnapped by a policeman, taken across the border and
severely raped, beaten and brutalised.
However, despite the matter surfacing in the media, no action was
taken against the culprit. Kokila, a hijra sex worker was raped,
beaten and brutalised by goondas in Bangalore.
The police instead of lodging an FIR chained her naked in the
lock-up, tortured, humiliated and sexually abused her.
The criminal justice delivery system turns dysfunctional when it
comes to crimes against sex workers. The law pertaining to
prostitution enacted in 1956 was called SITA or the Suppression of
Immoral Traffic Act; the name was changed to Immoral Traffic
(Prevention) Act or ITPA in 1986.
The legislation is faithful to the conception of sex work being
synonymous with trafficking, and predictably proceeds to stigmatise
it.
Trafficking would be generally understood to mean transporting a
person by the use of threats, force, coercion, abduction, fraud or
deception. ITPA deals with acts like keeping a brothel, soliciting in
a public place and living off the earnings of prostitution.
It does not even have a definition of trafficking, leave aside
provisions to check it. Yet, so deep is the association of
prostitution with trafficking, that the law with regard to
prostitution is called Prevention of "Immoral Traffic".
Prosecutions under this legislation have been primarily of women for
soliciting, and not of pimps or traffickers. The removal of the
section which made soliciting an offence in the proposed amendments
is a welcome step.
However, ITPA has paradoxical offences like detaining a person "with
or without his consent" in premises where prostitution is carried on,
or taking a person, "with or without his consent" for the purpose of
prostitution. The provisions dealing with raid and rescue make no
distinction between adults and minors.
Ordinarily, consent or lack of consent of an adult is the crucial
factor in offences like abduction or illegal confinement which
determines whether an act is to be dubbed criminal.
The methodology of "raid and rescue" appears to have neither worked
nor been effective, besides being violative from a rights perspective.
The girls/women "rescued" feel they have been "arrested" and kept in
confinement. These are issues requiring urgent attention of the
lawmakers, but have been left untouched in the Immoral Trafficking
(Prevention) Amendment Bill, 2005.
The Bill proposes to introduce a provision making clients punishable.
This has been done without consulting sex workers on the impact of
punishing clients on the profession.
In fact, the National Network of Sex Workers has sent a letter of
protest to the department of women and child development describing
the provision as a direct attack on their livelihood.
The move could drive the profession underground, reducing chances of
clients being caught by the police.
This will result in more unsafe sex and unhealthy conditions,
hindering work on HIV/AIDS prevention. The provision will provide a
handle to the police to extort money from clients.
The move to punish clients amounts to outlawing sex work. It
disregards the ongoing debate on efforts to decriminalise and
self-regulate prostitution.
Perhaps, more discussion is needed with active participation of sex
workers on the separation of consensual sex work from the abominable
practice of human trafficking.
The writer is a Supreme Court advocate.
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