Why the so-called Immoral Traffic (prevention) Act of India should be repealed?

Pradip Baksi INTRODUCTION About 4000 Sex Workers and, their friends, children, parents, medical social workers, educators, doctors and customers from some 16 states of India, marched to the Parliament of India at New Delhi on 8 March 2006 and, submitted a memorandum of appeal addressed to the Office of the Prime Minister, to reject the so-called Immoral Traffic (Prevention) Amendment Bill that was then awaiting consideration by the Parliament. During the period of run up to this march to the Parliament of India, some discussion was going on in the concerned circles of our country about the Immoral Traffic (Prevention) Act of 1956 itself. A draft of the following text emerged as a part of that process of discussion. Eventually, the bill was allowed to lapse in February 2009. Since the basic Act of 1956 is still in force in India, its critique also retains its relevance. TEXT
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Our sex workers provide sexual services to their customers. That is why they should be recognized as service sector workers. They are publicly demanding workers rights from the government since the time of the All India Conference of Sex Workers held at Kolkata, during 14-16 November 1997. The principal legal obstacle on the path of their recognition as service sector workers by the government is the Immoral Traffic (Prevention) Act, 1956 of India. How and why? Let us begin answering these questions by taking a look at the very title of the Act itself. It is called the Immoral Traffic (Prevention) Act [I T (P) A]. Trafficking currently means buying and selling or, import and export of human beings. At

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issue here should be all kinds of trafficking or, buying and selling or, export and import of human beings. This Act, however, avowedly aspires to prevent only Immoral Trafficking. Does it not suggest by implication then, that some forms of human trafficking are moral? Indeed it does so, when it collapses the terms trafficking and sex work [in its jargon, prostitution], in all the sections of the Act. In all sectors of the labor markets some, but not all, human beings are trafficked; and, this is true of the sex sector too. We need comprehensive law[s] for combating all forms of trafficking of human beings in all sectors of the economy: such as, the family, agriculture, mining, cottage industry, small eateries, garages, transport, domestic services, the NGO sponsored rescue and rehabilitation industry, . At Kolkata and in some of the districts of West Bengal, the sex workers are putting up a fight against trafficking of human beings into the sex sector, through their own Self-Regulatory Boards. Trafficked workers in the sex sector of our country are a very small part of the total number of workers trafficked into and from our vast labor market. Hence, the conflation of sex workers and trafficked persons in the I T (P) A is untenable.
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Our I T (P) Act of 1956 was promulgated following the AngloAmerican legal-sexual culture-inspired U N Convention for the Prevention of Immoral Traffic, signed at New York on 9 May 1950. This act of 1956 defines any house, room, conveyance or place or, any portion of such spaces used for the purpose of sexual exploitation or abuse and, for the gain of another person as a brothel [see: I T (P) A, 2.(a)]. Under patriarchy, in all transactions, including sexual transactions, men gain at the expense of women. In all patriarchal homes a vast majority of women are routinely sexually abused by their trusted close relatives, husbands and/or family friends. This is true of India too. Hence, according to the

aforementioned definition 2.(a) of the I T (P) A, the whole of patriarchal India is just one big brothel. However, according to the implications of sub-section 6. (1) (b) of the same I T (P) A, it is only in these patriarchal homes that we conduct our legally approved, non-criminal, inter-spousal, marital sexual activities. Hence, 2. (a) and 6. (1) (b) of the I T (P) A are mutually inconsistent.
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The entirety of the I T (P) Act is guided by the spirit of its sub-section 6. (1) (b), which in its turn reflects some presecond-world-war Anglo-American belief, according to which all non-spousal, non-marital, interpersonal sexual activities are crime. This belief, turned into a legal dogma, criminalizes not only all forms of services provided in the sex sector of our economy, but also all non-commercial, interpersonal sexual activities outside marriage. This spirit of borrowed Anglo-American legal-sexual Puritanism is completely at odds with the realities of our sexual life, including those of our sex sector. In compliance with this spirit, section 3 of the I T (P) Act declares that all residences and work sites of our sex workers are sites of criminal activities. This helps our hooligans and gangsters in cahoots with our police to keep our sex workers under conditions of perpetual homelessness and corresponding insecurity. Further, according to section 4 of this Act the children and parents of the sex workers residing with them and eating food provided by them are also criminals, as they live on the earnings of sex workers. The I T (P) Act conflates all non-marital sexual activity with sex work and, further, all sex work with trafficking in human beings. This double conflation effectively criminalizes all non-marital sexual activity, including sex work on one hand and, turns a blind eye to the vast sea of human trafficking in the entire unwaged, contractual, low wage,

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unorganized, informal, organized and, formal sectors of our economy on the other.
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The now lapsed amendment to the I T (P) Act proposed to criminalize the customers of sex workers, perhaps to please some North European governments. When the customer is persecuted neither the demand for sexual services vanishes, nor does the security of the sex workers increase. The entire sex sector is, however, forced to go underground. This is not only very dangerous for the sex worker, who will be delivered on a platter to the wolves of the underworld, it will also have catastrophic consequences for the sexual health of our people. Our marketized sex sector and our domestic sexual life happen to be one continuous borderless territory. In this borderless sexual field there are some STD/HIV intervention programs operating only in some of the sex work sites. If forced to go underground, the sex workers and their customers will no longer visit our STD/HIV clinics. In our borderless social sexual field AIDS pandemic will spread like an unending wild fire. Our sex workers demand that sex work be put on the Occupation Schedule of the Ministry of Labor. STD/HIV can then be treated as occupational health hazards of the sex sector. If the government of the land means business, then the sex workers can be their best allies in the fight against AIDS. Being moral is about being good. The effect of the I T (P) Act upon our sex sector is simply evil. Hence, the so-called Immoral Traffic (prevention) Act, 1956 of our land is itself singularly immoral. It only helps to line the pockets of the highly immoral guardians of our law. They and their gangster cronies run their extortionist rackets according to their own sweet will.

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So why put up with this immoral I T (P) A? Let us scrap it. Let us tackle our related real issues instead. These are: sexual abuse of our girls and child brides in the vast majority of our homes, where the cycle of trafficking of human beings begins and ends; our stunted, truncated, topsy-turvy yet multi-faceted sexual culture; our terrifying sex ratio imbalances; our avoidance of sexuality related instruction and education; and, the reality of human trafficking in the vast ocean of our domestic and non-domestic domains of wageless slavery. The HIV/AIDS pandemic has given us a chance to publicly engage with the problems of our sexual lives. As a first step of that engagement, let us repeal the I T (P) Act, lock stock, and barrel.

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KOLKATA, 22 June 2012 <pradipbaksi@gmail.com> References The Immoral Traffic (Prevention) Act, 1956; available at: <http://www.ncpcr.gov.in/Acts/Immoral_Traffic_Prevention_Act_(ITPA)_1956.pdf>

A report on the now lapsed Immoral Amendment Bill, 2006; available at: <http://wcd.nic.in/ITPABill.htm>

Traffic

(Prevention)