Why it’s time to repeal and replace the Immoral Traffic Prevention Act with new law

The Immoral Traffic Prevention Act is the sole legislation to address trafficking crimes and to contain prostitution.
Why it’s time to repeal and replace the Immoral Traffic Prevention Act with new law
Why it’s time to repeal and replace the Immoral Traffic Prevention Act with new law

Sex trafficking interventions often involve direct rescue targeted at the sex worker irrespective of whether she is a trafficking victim, her age, or her wish to continue work in the commercial sex trade. As her consent, opinions and choices are disregarded in the process of rescue, she may encounter disrespect, indifference and violence at different points on the rescue and rehabilitation pathway from unsensitized police personnel, shelter home staff, or even members of the civil society.

In India there are over 3 million sex workers, according to a 2007 Ministry of Women and Child Development report. The majority is adult sex workers voluntarily plying the trade. When a raid and rescue is conducted, many such women who have made a consensual business agreement with a client are also detained or sent to shelter homes, without being asked if she wishes to leave the trade.

In India, the main tool to perform these raid and rescue operations is the Immoral Traffic (Prevention) Act, or the ITPA, which in practice is more of an apparatus to curb any visible prostitution and incarcerate the offending woman at protective homes, restricting her freedom, denying her agency, and imposing a one-size-fits-all rehabilitation plan on her. The law, last amended in 1986 and never reviewed since, criminalizes organized prostitution but does not address the status of a sex worker who operates alone. Such a sex worker might, in fact, be more exposed to the risk of violence at the hands of a client; working in premises close to other sex work practitioners may be safer for them. ITPA has no provisions for rehabilitating the sex workers it “rescues” without their consent, no guidelines for investigation of trafficking crimes, any victim compensation provisions, or facilities to connect the rescued sex worker with health services. The ITPA also ignores the reality of bonded labour victims who are trafficked every day across the country to work under exploitative conditions, or young persons trafficked for organ removal, girls for domestic servitude or forced marriage. Unsurprisingly, the law has been described as draconian by sex workers’ rights activists and some anti-trafficking campaigners alike, with each party calling for its repeal at different times in the last twenty years, albeit for different reasons. If sex workers’ groups such as Sangram and AINSW are concerned about the harassment and unsafe work conditions that adult women in sex work have to go through under ITPA, anti-trafficking survivor leaders come with stories of appalling shelter home environments –scarcity of food and toiletries, physical abuse. There is also endless judicial red tape that prevents hundreds of trafficked girls from going home quickly.

The recently 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. It is important for researchers, policy makers, social workers, activists and survivors to come together to share their perspectives on how a seamless rescue and rehabilitation route can be outlined within the limitations of existing legislation, which has regularly flouted the human rights and dignity of those it has claimed to rescue.

At a recent Delhi conference organized by Kimberly Walters of the University of Chicago, Meera Raghavendra who runs WINS and has been a longtime proponent of sex workers’ rights, and Rachana Mudraboyina, a Hyderabad-based transgender activist, concerns surrounding major ITPA stumbling blocks were discussed alongside possible remedies. ITPA repeal was favoured by one segment of sex workers’ rights activists, who are calling for a new anti-trafficking law; other groups are sceptical about a new law in the dread that this too could become a punitive measure. The participants brainstormed ideas to bridge gaps in stakeholder participation in the rescue and rehabilitate process – particularly at shelter homes, where the management is often victim to resource crunches and their compulsion to be loyal to bureaucratic and judicial systems rather than to their own sense of social justice or egalitarianism.

The exchanges at the conference, beginning with a session of available research on rescue and rehabilitation, brought to light a clear divide in thinking between the sex workers collectives who participated and the survivors of trafficking who have personally experienced the rescue and rehabilitation drill under ITPA regulations. The former group’s primary priority is to single out women who are voluntary practitioners of sex work, have the government recognize that their profession is legitimate, and secure safe working conditions for them. In the context of raid and rescue conversations, this also means that adult women voluntarily in sex work may not be randomly picked up by police on any ITPA charge. As things stand in India, raid operations are summarily conducted and, as said before, distinctions are not made between rescued women on the basis of age or antecedent.

Trafficked survivors take a different view. The survivors I spoke to at a learning sharing session following the conference tended to believe that sex workers deserve respect and the right to safely practice their trade, but harboured suspicions that a madam or erstwhile sex worker casually representing themselves as a bona fide sex worker is dubious, and not in the best interests of the young sex worker whose labour she profits through. Trafficking survivors also suggested that trafficked girls’ rescues might be hampered if police raids were done away with altogether. The trafficked girl’s priority is to be rescued, and in the current climate they have no possibility of being rescued except under an ITPA directive. In a sense, until a new anti-trafficking law is brought into place – a law with comprehensive identification and rescue measures - they are helplessly dependent on ITPA to break out of brothels and into shelter homes, making one step back toward the families they are separated from. Incidentally, these same survivors were receptive to the idea of contacting a neutral civil society member to facilitate a rescue but showed mistrust toward directly approaching the police. This is easily explained, given the well-known police atrocities girls and women in Indian red light districts have to live with.  

Survivors also spoke about conditions in shelter homes, where most haven’t known compassion or empathy. Allocated resources of basic necessities, including toiletries and even food were pitifully low. Asma, of survivors’ leaders collective Utthan, from West Bengal, said, “We did not even have enough food to go around all the time. I remember one day they sent some rice wrapped in paper for some girls to share. I kept thinking through my two and a half months there that I will go home soon. That kept me going.”

The girls were also united in their feeling of enthusiasm and elation at being at the conference to be able to add their voices to the debate, to be able to speak alongside advocates, researchers, lawyers and activists known across the nation. Rahima and Dipa, both survivor leaders from Bandhanmukti collective in West Bengal, said, “It felt good to be there, everybody listened to us attentively. At the end of it we feel more motivated to carry on with our work.”

Whether or not the ITPA will be repealed (there have been multiple calls for its repeal on the grounds of its questionable constitutionality) in the near future remains to be seen, but activists who are committed to work with independent sex workers and trafficked women are left with no weapon but this piece of legislation. Survivor leaders in greater numbers than before are collectivizing to battle trafficking as an organized crime, bringing in diversity of perspective and knowledge, as well as steely determination to secure thorough legislation in their favour. This will help meet prevention and rehabilitation goals as their participation in anti-trafficking efforts amplifies forces operant against the trafficking menace.  

Malini Bhattacharya is an independent writer and human trafficking rapporteur based in Kolkata. Views are author’s own.

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