Tag Archives: human trafficking

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.

Mumbai Dance Bar Ban: Differing Perspectives

30 Jul

In 2005, the Government of Maharashtra banned dance performances in eating houses, permit rooms and beer bars through an amendment in the Bombay Police Act, 1951. The ban was recently struck down both by the High Court of Bombay and the Supreme Court of India as unconstitutional.

The High Court and the Supreme Court held the ban to be violative of Article 14 (right to equality) and Article 19(1)(g) (right to practice any profession or occupation). The courts observed that the amendment unreasonably prohibited dance performances in some establishments while permitting them in other establishments like hotels starred three and above. This classification seems to be based on elitist presumptions about the morality of people with lesser incomes and was held to be violating the right to equality. The courts also noted that the prohibition on dancing forced many establishments to shut down and rendered many women workers unemployed. Contrary to its purpose, the law forced many dancers to take up prostitution to earn their living. Thus, the law infringed upon the guarantee under Article 19(1)(g). Now, the state of Maharashtra is likely to revert to the licensing system for regulation of dance bars.

Below, I try to put the debate around prohibiting/regulating dance bars within the framework of various broader perspectives, not necessarily drawn from the judgments, which might help in a better analysis of this debate. My purpose is not to give a definite answer on this issue, but to separate and present the differing strands that get implicated here. Here are the different arguments:

Morality: Dances in beer bars and similar places are obscene and vulgar. They not only degrade women, but also lead to an increase in other immoral activities like prostitution and alcoholism. It can be said this argument belongs to the ‘Conservatives’, though I am wary of using this classification as our prejudices against being a ‘conservative’ may prevent us from fairly appreciating the merits of the argument.

Equality: Performances in dance bars are derogatory to women because they commodity and objectify women. They also often involve minor girls who are trafficked, exploited and forced into dancing in bars. This view is likely to be advocated most strongly by radical feminists who find the root of sex inequality in sexual exploitation of women and argue also against prostitution and pornography on these grounds. They deny that women choose these occupations with their ‘free consent’. This argument opposes bar dancing as being degrading to women not for reasons of protection of public morality, but due to concern for equality of women.

Practical offshoots: Allowing dance bars to flourish may enhance the occurrence of other undesirable activities or hinder implementation of other laws. For example, dance bars are seen as hubs of prostitution and human trafficking. They increase the vulnerability of minor girls and women to sexual exploitation. They may also lead to increased alcohol addiction and related crimes. These practical concerns call for regulation or banning of dance bars.

Right to work and livelihood: All persons have the right to work which includes women’s right to dance in bars. Banning bar dancing not only took away a form of employment, but also forced many bar dancers to take up prostitution to sustain themselves and their families. The ban also forced many establishments to shut down altogether, affecting the livelihood of other workers employed there.

Autonomy: Autonomy feminists seek respect for the agency or choice of women in entering professions such as bar dance, sex work or pornography. They reject the view that women do not take up these activities with their free consent. It is paternalistic to label what is the free choice of a woman as force or exploitation.

Free expression: Dance is a form of expression and prohibition on dance performances in certain establishments is an excessive restriction on the freedom of speech and expression of bar dancers.

Elitism: Selective ban on dances of certain types or in establishments most frequented by people belonging to certain classes or having lesser incomes is based on elitist assumptions about their morality. It is assumed that similar dance performances in establishments like five star hotels do not lead to illegal or immoral activities. It may also imply greater respect for the autonomy of women dancers of a particular class while viewing other women dancers as victims of exploitation. Such bans may stem from beliefs regarding the need to regulate the conduct of certain classes of people. Based on the position on the wider debate on bar dance, this argument may advocate either across-the-board increase or across-the-board decrease in the regulation of dance bars.

This is not an exhaustive set of views on the issue of bar dancing, but I have tried to cover a wide ground. I hope this puts the debate in a wider perspective and helps us avoid conflating the different arguments when responding to the debate.

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