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Why the So-called Immoral Traffic (Prevention) Act of India Should Be Repealed

Why the So-called Immoral Traffic (Prevention) Act of India Should Be Repealed

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Published by aals
Sex Work and Law Reform in India.
Sex Work and Law Reform in India.

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Categories:Types, Research, Law
Published by: aals on Jun 22, 2012
Copyright:Attribution Non-commercial

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02/01/2013

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Why the so-called Immoral Traffic (prevention) Act of Indiashould be repealed?
Pradip Baksi
INTRODUCTIONAbout 4000 Sex Workers and, their friends, children, parents,medical social workers, educators, doctors and customers fromsome 16 states of India, marched to the Parliament of India atNew Delhi on 8 March 2006 and, submitted a memorandum of appeal addressed to the Office of the Prime Minister, to reject theso-called Immoral Traffic (Prevention) Amendment Bill that wasthen awaiting consideration by the Parliament. During the periodof run up to this march to the Parliament of India, somediscussion was going on in the concerned circles of our countryabout the Immoral Traffic (Prevention) Act of 1956 itself. A draftof the following text emerged as a part of that process of discussion. Eventually, the bill was allowed to lapse in February2009. Since the basic Act of 1956 is still in force in India, itscritique also retains its relevance. TEXT
1.
Our sex workers provide sexual services to their customers. That is why they should be recognized as service sectorworkers. They are publicly demanding workers’ rights fromthe government since the time of the All India Conference of Sex Workers held at Kolkata, during 14-16 November 1997.
2.
 The principal legal obstacle on the path of their recognitionas service sector workers by the government is the Immoral Traffic (Prevention) Act, 1956 of India. How and why?
3.
Let us begin answering these questions by taking a look atthe very title of the Act itself. It is called the ‘Immoral Traffic(Prevention) Act’ [I T (P) A]. Trafficking currently meansbuying and selling or, import and export of human beings. At
 
issue here should be all kinds of trafficking or, buying andselling or, export and import of human beings. This Act,however, avowedly aspires to prevent only ‘Immoral Trafficking’. Does it not suggest by implication then, thatsome forms of human trafficking are moral? Indeed it doesso, when it collapses the terms ‘trafficking’ and ‘sex work’[in its jargon, ‘prostitution’], in all the sections of the Act. Inall sectors of the labor markets some, but not all, humanbeings 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, theNGO sponsored ‘rescue and rehabilitation’ industry, …. AtKolkata and in some of the districts of West Bengal, the sexworkers are putting up a fight against trafficking of humanbeings into the sex sector, through their own Self-RegulatoryBoards. Trafficked workers in the sex sector of our countryare a very small part of the total number of workerstrafficked into and from our vast labor market. Hence, theconflation of sex workers and trafficked persons in the I T (P)A is untenable.
4.
Our I T (P) Act of 1956 was promulgated following the Anglo-American legal-sexual culture-inspired U N Convention forthe Prevention of Immoral Traffic, signed at New York on 9May 1950. This act of 1956 defines any house, room,conveyance or place or, any portion of such spaces used forthe purpose of sexual exploitation or abuse and, for the gainof another person as a brothel [see: I T (P) A, 2.(a)]. Underpatriarchy, in all transactions, including sexual transactions,men gain at the expense of women. In all patriarchal homesa vast majority of women are routinely sexually abused bytheir 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, accordingto the implications of sub-section 6. (1) (b) of the same I T(P) A, it is only in these patriarchal homes that we conductour legally approved, non-criminal, inter-spousal, maritalsexual activities. Hence, 2. (a) and 6. (1) (b) of the I T (P) Aare mutually inconsistent.
5.
 The entirety of the I T (P) Act is guided by the spirit of itssub-section 6. (1) (b), which in its turn reflects some pre-second-world-war Anglo-American belief, according to whichall non-spousal, non-marital, interpersonal sexual activitiesare crime. This belief, turned into a legal dogma, criminalizesnot only all forms of services provided in the sex sector of our economy, but also all non-commercial, interpersonalsexual activities outside marriage. This spirit of borrowedAnglo-American legal-sexual Puritanism is completely atodds with the realities of our sexual life, including those of our sex sector.
6.
In compliance with this spirit, section 3 of the I T (P) Actdeclares that all residences and work sites of our sexworkers are sites of criminal activities. This helps ourhooligans and gangsters in cahoots with our police to keepour sex workers under conditions of perpetual homelessnessand corresponding insecurity. Further, according to section 4of this Act the children and parents of the sex workersresiding with them and eating food provided by them arealso criminals, as they live on the earnings of sex workers.
7.
 The I T (P) Act conflates all non-marital sexual activity withsex work and, further, all sex work with trafficking inhuman beings. This double conflation effectively criminalizesall non-marital sexual activity, including sex work on onehand and, turns a blind eye to the vast sea of humantrafficking in the entire unwaged, contractual, low wage,

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