SUBMISSIONS TO THE PARLIAMENTARY STANDING COMMITTEE ON HUMAN RESOURCE DEVELOPMENT ON THE PROPOSED AMENDMENTS TO THE IMMORAL TRAFFIC (PREVENTION) ACT OF 1956
9 October 2006
Dear Chairperson and Members of the Committee,
The All India Democratic Women’s Association (AIDWA) is a women’s organization with a membership of over 9 million women across the country. Its main membership is from the poorer sections of women from rural India and urban slums. It deals with all issues concerning women as women, citizens, and workers. Some of the main issues that AIDWA deals with concern the most marginalized and poorest sections of society. AIDWA runs around 125 centers to help women in situations of violence, and provides legal as well as social assistance. AIDWA has successfully intervened in various policy matters and has worked for reform in various laws concerning women like Rape, Dowry, Sati, Domestic Violence, Sexual Assault, and the Rural Employment Guarantee Act, etc. Our members in West Bengal have been actively working with Prostitution and HIV/AIDS prevention programs.
We have closely looked at the proposed amendments in the ITPA bill 2006 and feel that the suggested amendments are not comprehensive enough. The Bill does not deal with the rehabilitation of victims of trafficking nor does it provide sufficient protection for them. Furthermore, it does not in any way address the serious health issues including HIV/AIDS as well as other Sexually Transmitted Diseases which routinely affect the victims and pose a threat to society as a whole.
In this behalf, we welcome the setting up of a Central Authority and State Authority for the purpose of ‘preventing and combating’ trafficking in persons. However, the composition and powers of these authorities should be clearly spelt out. Furthermore, it should be mandatory on the Central and State Governments to set up these authorities as at present Section 13A and 13B leave it to the discretion of the respective governments to set them up or not.
- Accordingly we recommend the word ‘may’ should be replaced by the word ‘shall’ in the first lines of Section 13A and 13B.
Apart from these authorities at the Central and State level, we feel that regulatory boards should be set up in areas in which prostitution is practiced. These boards should comprise of social workers including members of women’s organizations, medical workers, and members from the community, including prostitutes themselves. The boards should discuss all problems and issues relating to prostitution and ways of curbing new entrants. These boards should also promote awareness of the various government and other schemes dealing with welfare, health and education for the prostitutes and their children etc.
We welcome the change in definition of child as being a person up to 18 years of age thus the doing away of the distinction between a child and a minor. This will provide equal protection to all children regardless of their age.
The proposed definition of trafficking in Section 5A restricts the definition of trafficking to mean trafficking for the purposes of prostitution only. The language of the Section is from the UN Protocol to prevent, suppress, and punish trafficking in persons, especially women and children. However, while the UN Protocol covers trafficking for purposes other than prostitution, the present Act does not address the other kinds of trafficking such as “other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.”
- We recommend that trafficking in persons for other purposes should also be addressed by a suitable legislation.
The punishment in Section 5B for trafficking in persons for the purposes of prostitution is rigorous imprisonment for not less than 7 years for a first offence. We feel that this should be enhanced to no less than 10 years for a child. Section 5 (B) (1) should accordingly be amended to read as under:
- Any person who commits trafficking shall be punishable on first conviction with rigorous imprisonment for a term which shall not be less than 7 years for trafficking in adults and not less than 10 years for trafficking in children, and in the event of a second or a subsequent conviction with imprisonment for life.
- Similarly in Section 5C we feel that, in the case of a child victim of trafficking the punishment and fine should be more and a punishment up to 6 months imprisonment and fine up to 50,000 rupees may be prescribed.
We welcome the doing away with Section 8 of the present Act. The avowed purpose of ITPA is not to punish the prostitute but the traffickers etc. i.e. the procurers, pimps, and brothel owners. While discussing the scheme of the Act, a High Court judgment has held that “prostitution itself is not a criminal offence, what is punishable under the Act is sexual exploitation or abuse of persons for commercial purposes…” This is because the roots of prostitution lie in the exploitation and the traffickers who through various means induce and coerce girls and women into prostitution. The prostitutes are as much victims of a system as are domestic slaves or bonded laborers. In fact, what needs to be addressed is the abysmal conditions under which they live and the abuse that they suffer. The presence of Section 8 in the Act punishing solicitation in a public place has been routinely misused by the police and the maximum numbers of arrests under the Act have been made under this section. This has resulted in harassment and punishment of the prostitutes and not those who exploited them for commercial purposes.
In this connection we would also like to mention that Section 7 of the present Act also punishes prostitution in or in the vicinity of public places. Sub-section (1) (b) punishes prostitution in any premises within 200 meters of public places. This section is also prone to be misused to harass the victim and should be seriously scrutinized. Apart from this, Section 7 also deviates from the main purpose of the Act to punish the traffickers and not the victims of trafficking.
We would further like to mention Section 10A of the Act which deals with detention of a female offender under Section 7 or 8 in a corrective institution as an alternative to punishment. The present bill seeks to enhance the period of detention in a corrective home from 5 to 7 years. Under this section detention in a corrective institution is for a minimum of 2 years. We feel that the approach of Section 10A is totally wrong as it sees trafficked women as offenders/ accused persons in need of correction in a detention center. The last 50 years of implementation of the Act shows that the concept of a corrective institution does not serve the purpose of rehabilitation. It is just a place of detention from which release may be obtained on condition of ‘good behavior.’ Such detention in no way solves the problems of trafficked women and no institutionalization should be carried out without the consent of the victim and without providing her counseling and legal aid. It has been suggested that instead of corrective institutions we should only think of protective homes where opportunity of seeking an alternative livelihood may be provided to prostitutes and where they may be restored to a state of physical and mental well-being.
- We therefore recommend deletion of the present Section 10A. We also recommend deletion of sub-section (3) (ii) of Section 19, as this clause allows a magistrate to send a prostitute to a corrective institution instead of a protective home.
Section 19 allows a person carrying on prostitution to make an application to the magistrate for being kept in a protective home. It is pertinent to mention that Section 19(2) allows a magistrate to keep a person carrying on prostitution etc. to be placed in such custody as he sees fit while an inquiry is going on to see whether the person should be kept in the protective home. We suggest that, even pending the inquiry, the woman/child should be allowed to stay in the protective home as interim measure. We therefore recommend that Section 19 (2) be amended to read as under:
- 19(2) The magistrate shall, pending inquiry under sub-section (3), direct that the person be kept in a protective home.
We welcome the deletion of Section 20 of the present Act. This was another section which was used by the police and others to harass prostitutes and prohibit them from residing in or visiting any area. The section essentially penalizes prostitutes for being prostitutes and sees them as ‘bad’ persons not deserving basic human rights.
The amendment Bill lowers the rank of police officers authorized to conduct anti-trafficking operations from inspectors to sub-inspectors in Section 13 sub-section (2) of the Act. As is well known the trafficker has always worked in collusion with police, pimps, businessmen etc. The police have also routinely abused their powers to extract profits and favours from prostitutes and others. Lowering the rank from inspector to sub-inspector is likely to result in even more police excesses than in the present situation.
- We therefore recommend that the amendment suggested in the Bill to substitute the words ‘an inspector’ to ‘a sub-inspector’ be omitted.
The Bill seeks to introduce in camera proceedings for all trials in Section 22 of the Act. While we agree that the identity of the prostitute should not be disclosed in order to protect her, we feel that in camera proceedings can result in the prostitutes, particularly trafficked children, not being able to depose freely and openly. We have faced similar problems in rape trials in which the victims feel threatened and insecure in the presence of the accused and the police etc. We therefore feel that someone whom they feel secure with and have trust in should always be allowed to be present with them during these proceedings. Accordingly we recommend that in Section 22 after sub-section (2) the following proviso shall be added:
- Provided that the trafficked person or a person who carries on prostitution, shall be allowed to have with her a relative or friend or any other person whom she has trust in, with her during the in camera proceedings.
In conclusion, we again reiterate that in order to prevent prostitution we need to adopt a multi-sectoral approach and the government needs to provide alternative, dignified, employment opportunities to prostitutes including training for alternative jobs. Apart from this their health needs need to be looked after through proper, regular medical examinations. Both prostitutes and their children need to be provided education through adult literacy programs and primary schooling. Further a welfare fund should be instituted for their rehabilitation. Prostitutes should also be protected from violence and harassment by clients, etc. For instance, the sale of liquor in red light areas should be prohibited. There should also be provisions for maintaining hygienic living conditions, for prevention of overcrowding, for use of condoms and for other preventive measures to stop spread of HIV/ AIDS and other Sexually Transmitted Diseases. .
We thank you for giving us the opportunity to express our point of view.
Subhashini Ali Sudha Sundararaman Asha Lata Kirti Singh
(President) (General Secretary) (Secretariat Member) (Legal Convener)
PROTOCOL TO PREVENT, SUPPRESS AND PUNISH TRAFFICKING IN PERSONS, ESPECIALLY WOMEN AND CHILDREN, SUPPLEMENTING THE UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME, UNITED NATIONS 2000