DMSC on ITPA Amendment Bill

Ignoring protests by sex workers and HIV/AIDS service organizations, the Union Cabinet cleared the Immoral Traffic (Prevention) Amendment Bill, 2005 late last year. The bill is slated to be introduced in Parliament in the upcoming budget session. The amendments were moved by the Department of Women and Child Development (DWCD), Ministry of Human Resource Development, a second time round, after receiving comments from a Group of Ministers (GOM) comprising Tourism, Law and Home Affairs, that had been set up in July 2005 at the instance of the Cabinet to review the earlier bill.

The most contentious provisions are the proposed sections 5A, 5B and 5C that pertain to trafficking. Not only does the bill fail to segregate trafficking from sex work, it further conflates the two; the new definitions of prostitution and trafficking leave scope for reading all sex work within the meaning of trafficking thereby criminalizing sex work per se. In addition, under the new Section 5C, clients visiting or found in a brothel will face imprisonment and/or fine. The existing ITPA does not proscribe prostitution, but merely restricts its practice by penalizing acts incidental to sex work such as brothel keeping, pimping and soliciting. Penalisation of clients marks a major shift in the prostitution policy underlying the ITPA, which predominantly targets 'third parties' profiting from prostitution and not sex workers or clients themselves. A detailed legal critique of the bill will be posted soon.

Penalisation of clients will be deleterious to health and safety interventions including existing government and donor programmes to promote condoms for preventing HIV/AIDS. Clients wanting to avoid arrests will be driven into remote, hidden settings where sex workers will find it difficult to negotiate protection. This is evident from the Swedish experience, where criminalization of clients of prostitutes has reportedly led to a rise in incidents of violence and STD infection among sex workers. [To put in simple words if number of clients dwindles, sex workers’ livelihood will be threatened. Desperations may then compel many of the sex workers to engage in unprotected sex and the community will be more vulnerable to the risks of HIV and other STIs. Does the Government want us to face the situation? Do the policy makers wish to endanger the whole society through this Bill?]

Already, attempts by outreach workers to contact clients to popularize safer sexual practices are constrained by their invisibility. The new provision will obstruct AIDS education and prevention in sex work even further. [For the last few years there has been repeated reinforcement on ‘Enabling Environment’ and ‘Community Mobilization’ to ensure quality targeted intervention program then what sense will it make if the Government attempts to pass the Bill that essentially targets the sex workers and benefits the oppressive forces? ‘Sonagachi Project’ has proved that protecting the human rights of the sex workers is the best way of motivating the community to fight against HIV/AIDS and ensuring the rights only one can promote safer sexual practices].

Though the Amendments are being touted as "pro sex workers"; in reality, they expose them to greater harassment and intrusion by the Police. Last year in December, the National Network of Sex workers and the Lawyers Collective HIV/AIDS Unit had strongly objected to the non-transparent process and absence of consultation with stakeholders for ITPA amendments [If trafficking is the prime concern to our policy makers than we take this opportunity to let them know that based on our experience we strongly believe that Immoral Trafficking (Prevention) Act (ITPA), as enforced by police, is insufficient to combat this trafficking with any great success. Therefore, we felt the need to constitute Self-Regulatory Boards (SRBs) in the sex work sites.

DMSC reasoned that these SRBs would serve as a double check to prevent entry of minor girls and unwilling adult women into sex trade, control the exploitative practices in the trade, regulate the rules and practices of the trade and institute social welfare measures for sexworkers and their children. DMSC also reasoned that illegal movement of people across international borders maybe prevented (to some extent) by enforcement agencies and border police, but intra-country movement cannot be prevented in this fashion. Moreover, there was no existing effective mechanism to combat trafficking in destination (or sex work) sites and only a committed group of sex workers could prevent entry of trafficked underage girls or unwilling women into sex trade. The proposed Bill in no way is going to help the policy makers to bring about measurable changes in their efforts to prevent trafficking]

The Cabinet has approved the amendments notwithstanding fervent protests by sex workers, whose livelihood is at stake under the new law. Emergent concerns of public health and HIV/AIDS, which have otherwise been identified as national priorities by the Government of India, too have been overlooked, as is evident from the non-involvement of NACO and the Ministry of Health & Family Welfare in the amendment process

We urge all agencies concerned with HIV/AIDS and human rights of sex workers to write to the Prime Minister, demanding that:
The ITPA Amendment Bill 2005 is withdrawn and not introduced in Parliament in its present form.

In case the bill is introduced in Parliament, it is straightaway referred to a Standing Committee that invites comments and inputs from different stakeholders including sex workers, risk reduction interventionists, public health and human rights organizations.

Any attempt to amend sex work laws is informed by human rights and public health realities; the process of reform itself should be open and consultative [otherwise it will be going to HIT us ALL].