Tag Archives: Criminal Laws

Sex Work and the Law: A Case for Nuanced Debate

23 Dec

The debate over legalization vs decriminalization of prostitution is in the public domain with reports that the National Commission for Women has recommended legalization to the Supreme Court appointed panel for rehabilitation of sex workers. The panel, formed in 2011 when the Supreme Court suo motu converted a criminal appeal relating to a murder of a sex worker into a PIL, is in the process of consulting various stakeholders.

The mandate of this panel was to recommend measures for the rehabilitation of sex workers who wished to leave sex work, and conducive conditions for sex workers who wish to continue working in the profession.

Magnitude of the issue

Estimates of the number of women engaged in prostitution have increased over the years. In 1997, a report of the National Commission of Women put it at 2 million, in 2004, a study sponsored by the Ministry of Women and Child Development estimated it to be 3 million of which 36% were children and a 2013 report on sex trafficking by Dasra, a philanthropic foundation estimated that about 20 million women were engaged in the profession. The 2013 report showed that 80% of these women are victims of sex trafficking. Most disturbingly, out of the estimated 16 million women who are trafficked, 6 million are children under 18 years of age. There is however no official estimates available since 2004 of the prevalence of prostitution.

According to the 2013 report, the prevalence of prostitution is highest in states such as Arunachal Pradesh, Andhra Pradesh, Gujarat, Karnataka, Goa, Madhya Pradesh, Maharashtra, Nagaland, Rajasthan, Tamil Nadu and West Bengal as well Union Territories like Chandigarh and Daman and Diu.

Multiple factors lead to women becoming prostitutes, the most common of which are illiteracy, lack of vocational skills, economic distress, migration, desertion by spouse, ill-treatment by parents and family tradition. Most work in miserable conditions leading to different types of diseases, depression and hopelessness. They are also faced with daily violence, constant police harassment and societal ostracisation. Given the informal economy in which they work, they also find it difficult to open bank accounts, get insurance or identification cards.

The threat of HIV/AIDS also looms large –  reports say prevalence of HIV/AIDS among this category ranged between 2% and 38% in India (globally it is about 12%). However, due to their ambiguous legal status, they are unable to get access to basic services including healthcare, education and bank accounts.

Not prohibited, but is it permitted?

According to the Immoral Trafficking Prevention Act, 1956 (ITP Act), “prostitution” is defined as the sexual exploitation of persons for commercial purposes. While it does not prohibit sex work per se, it imposes penalty for keeping a brothel, soliciting, pimping and plying the trade near a public place such as places of worship, schools and hospitals.

In 2006, India moved towards decriminalization of prostitution when it attempted to amend the ITP Act by deleting the provision that penalized soliciting and adding a provision that penalized clients of sex workers who were trafficked victims. However the Bill lapsed with the dissolution of the 14th Lok Sabha. These provisions were not well thought through given that it did not clarify the confusion about the profession’s basic legal status since provisions such as penalizing clients, prostitution in brothels and public places made it difficult for prostitutes to practice their trade legitimately.

What works?

In most of Asia, Africa and parts of the US, prostitution is illegal. Some states in Australia and New Zealand have decriminalized prostitution (no penalty for prostitutes) while Sweden, Norway, Iceland and Nepal penalize the client on the ground that prostitution is an aspect of male violence towards women. Prostitution is legal in most countries in Latin America and Europe and in some parts of the US.

The evidence however is not clear either ways. Some studies do show a correlation between legitimizing sex work and a drop in violence targeting sex workers while others show that it has resulted in increase in human trafficking.

Decriminalising – the way forward

As we re-open the debate about prostitution, Legalization in India may not improve matters given India’s lax law enforcement mechanism as well as cultural milieu. The safest option at this point may be decriminalizing the trade so that sex work per se is not legalised but sex workers are not harassed and exploited by the police, brothel owners and pimps (middlemen).   It would also reduce barriers to essential health services, education, bank accounts, insurance, voter identity cards. The government needs to play a crucial role by providing credible rehabilitation options if any of them want to opt out.

The recently enacted Criminal Laws (Amendment) Act, 2013 includes provision to penalize trafficking for any purpose. However, the government needs to strengthen its efforts to combat trafficking by dedicating resources, strengthening capacity of existing institutions and encouraging other stakeholders to leverage their own resources and expertise to address this serious problem. Considering the cross-regional and interdisciplinary nature of trafficking, there is a need to build and provide sustainable support to networks that bring together various stakeholders linking source and destination areas, frame common objectives and ensure accountability and effective delivery on the ground. 

The piece was first published on the Bharti Institute of Public Policy, ISB’s blog.

Advertisements

This shortcut weakens democracy

25 Jul

By Harsimran Kalra and Kaushiki Sanyal

This article was first published in the Hindustan Times on July 23, 2013 (see here)

The promulgation of the National Food Security Ordinance on July 5, shortly before the Parliament session, has raised many eyebrows. Political pundits are speculating that it is a last ditch attempt by the UPA to garner votes before the 2014 general elections. The UPA 2, on its part, has blamed the repeated disruptions in Parliament for this executive intervention.

Leaving political motives aside, the circumstances in which this ordinance was promulgated also raise the issue of propriety. An ordinance can be promulgated by the president only when Parliament is not in session and ‘immediate action’ is required. Therefore, it is in the nature of an emergency power, rather than a means to bypass the legislature. Given that Parliament is going to reconvene in a few weeks and there is already a similar Bill pending in Parliament, has the government acted within the lakshman rekha crafted by the Constitution over the executive’s law making capacity?

The power of ordinance was devised to overcome extraordinary circumstances, however, this power has not been used sparingly. Over 600 ordinances have been promulgated in India. Except, 1963, not a single year has gone by without the government resorting to the ordinance-making power. In fact, in 1994, 34 ordinances were promulgated, the highest in a year till date. Also, in this year itself, the government has promulgated four more ordinances, including the Criminal Laws (Amendment) Ordinance, which amended India’s rape laws.

Successive governments have given short shrift to the ’emergency’ test. Right from the inception of the Constitution, reliance was often placed on ordinance powers to deal, not with emergencies, but failures in negotiating the legislative process. Within the first 20 years after the Constitution was adopted, over 30 ordinances were promulgated a few days before Parliament began or after it ended. The two recent ordinances – Criminal Law (Amendment) Ordinance and the Food Security Ordinance – also hardly meet the emergency criteria. Both these ordinances seek to address deep-rooted problems of the country, which have been raised by many experts and activists over the years. The government has not shown any urgency in taking action over the years so it is not clear what recent emergency triggered their promulgation. Moreover, both these ordinances replaced related Bills that were already at an advanced stage in the legislative process. The Criminal Laws (Amendment) Bill was pending with the standing committee while the discussion on the food security Bill had already been initiated in the Budget session of Parliament.

Parliamentary process and democratic checks are circumvented when an ordinance is issued while a related Bill is pending in Parliament. Instances of this disregard for the spirit of the Constitution are many, right from 1954 when the Press (Objectionable Matters) Amendment Ordinance was promulgated. Other instances include the Essential Commodities (Special Provision) Ordinance, 1997 and the Indian Telegraph (Amendment) Ordinance, 2003.

In light of the public debate that raged around both the recent ordinances, due opportunity ought to have been secured to discuss the issues in Parliament. Although the ordinance has to stand the test of Parliament and be passed within six weeks of the session, this is more in the nature of a check in the political plan of the government. Passage of the ordinance on the floor of the House within the stipulated time becomes a face saving exercise instead of a deliberative, consensus building effort. What does the repeated use of ordinance-making power mean for a democratic nation with a robust parliamentary system? Are there structural weaknesses that need to be addressed so that governments are not allowed to rely excessively on ordinances? The time is ripe to devise measures that would deepen our democratic credentials such as allowing for wider public consultations; encouraging governments to engage with the Opposition to break the legislative log-jam and a stricter test of ’emergency’ for issuing an ordinance that would be open to assessment by the legislature.

Bar and Bench

Observations on legal and political developments in India

Firstpost

Observations on legal and political developments in India

Mainstream Weekly

Observations on legal and political developments in India

Scholars without Borders

Observations on legal and political developments in India

Legal Blog

Observations on legal and political developments in India

LAW RESOURCE INDIA

LEGAL RESOURCE CENTRE / COURT JUDGMENTS / LEGAL ARCHIVES

India Together

Observations on legal and political developments in India

Concurring Opinions

Observations on legal and political developments in India

Bar & Bench

Observations on legal and political developments in India

Law and Other Things

Observations on legal and political developments in India

sans serif

the news. the views. the juice.

%d bloggers like this: