Immoral Traffic (Amendment) Bill

HIGHLIGHTS OF THE BILL
(Read this section in detail)

• The Immoral Traffic (Prevention) Amendment Bill, 2006 amends the Immoral Traffic (Prevention) Act, 1956 to combat trafficking and sexual exploitation for commercial purposes.

• The Bill deletes provisions that penalised prostitutes for soliciting clients. It penalises any person visiting a brothel for the purpose of sexual exploitation of trafficked victims.

• All offences listed in the Bill would be tried in camera, i.e., the public would be excluded from attending the trial.

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  This page is organised as follows: The highlights of the Bill and the key issues to be considered are listed briefly first; the details of each are presented thereafter. Click here to see the highlights in detail, and here to see the detailed analysis of key issues.

  
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  The term "trafficking in persons" has been defined with a provision for punishing any person who is guilty of the offence of trafficking in persons for the purpose of prostitution.

• The Bill constitutes authorities at the centre and state level to combat trafficking.

KEY ISSUES AND ANALYSIS
(Read this section in detail)

• While prostitution is not an offence, practicing it in a brothel or within 200 m of any public place is illegal. There seems to be a lack of clarity on whether prostitution ought to be a legitimate way of earning a living if entered into by choice.

• Penalising clients who visit prostitutes could drive this sector underground, preventing legal channels of support to victims of trafficking.

• This Bill punishes trafficking for the purpose of prostitution. Trafficking for other purposes (such as bonded labour and domestic work) are not covered by the Bill.

• The rank of special police officer, who would enforce the Act, is lowered from Inspector to Sub-Inspector. Such powers delegated to junior officers could lead to greater harassment.

• The Bill constitutes authorities at the centre and state level to combat trafficking. However, it does not elaborate on the role, function and composition of these authorities.

Context

The Immoral Traffic (Prevention) Act, 1956 [2] makes trafficking and sexual exploitation of persons for commercial purpose a punishable offence. The Act was passed in line with the International Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, signed by India on May 9, 1950. Although the Act was amended twice (1978 and 1986), it did not prove to be an effective deterrent to trafficking or sexual exploitation for commercial purposes. The Immoral Traffic (Prevention) Amendment Bill, 2006 aims to punish traffickers and provide for stringent punishment to offenders.

Key features

This Bill has five main features. First, it deletes the provisions related to prosecution of prostitutes soliciting for customers. Second, it provides for prosecution of clients. Third it defines the term "trafficking in persons" and provides for penalties. Fourth, it increases penalties for some offences. Fifth, it constitutes authorities at the central and state level to combat trafficking. The proposed amendments in the Bill are compared with the provisions of the Immoral Traffic (Prevention) Act, 1956 in Table 1.

PART B: KEY ISSUES AND ANALYSIS

Objective of the Bill: The Bill aims to combat trafficking in persons for sexual exploitation. It does not prohibit prostitution. It addresses the issue of trafficking through both supply side (by measures to punish traffickers) and demand side (penalties for clients) mechanisms. There are three issues that need to be considered. First, whether prostitution ought to be a legitimate way of earning a living if the person enters or stays in the profession out of choice. Second, whether the demand side mechanism of punishing clients would be the best way to tackle trafficking. Third, whether trafficking in persons for purposes other than sexual exploitation would be penalised. These issues are discussed below.

• Legality of Prostitution: The Bill defines "prostitution" as sexual exploitation or abuse of persons for commercial purposes and a "brothel" as any house or place which is used for purposes of sexual exploitation for the gain of another person or for the mutual gain of two or more prostitutes. Although the Bill does not penalise an individual if he is in prostitution for his own profit, it penalises prostitution if carried on in a brothel or from any public place within 200 metres of an educational institution, place of religious worship, hotel, hospital, nursing home or any public place notified by the Commissioner of Police or Magistrate. Such clauses, while technically not prohibiting prostitution, make it almost impossible for a person to operate as a prostitute. Thus, the Bill lacks clarity on whether prostitution ought to be a legitimate way of earning a living if the person enters or stays in the profession out of choice.

• Punishing Clients: The Bill seeks to penalise any person who visits a brothel for the purpose of sexual exploitation of a trafficked victim. The issues that arise out of such a provision are as follows. It would be difficult for a person visiting a brothel to distinguish between a trafficked person and a non-trafficked person. A person is penalised only if he sexually exploits a trafficked victim. If the victim is not trafficked, the client would not be penalised. Any person visiting or found in a brothel can be penalised if the purpose of the visit is sexual exploitation of a trafficked victim. However, as the term 'sexual exploitation' is not defined in the Bill, it could lead to harassment of every person who visits a brothel irrespective of the object of his visit. International experience suggests that the provision to penalise clients may not be an effective way to curb sexual exploitation. For example, Sweden views prostitution as an aspect of male violence against women and children and penalises the act of purchasing sexual services. [3] There is a view that this provision has moved the trade underground. [4]

• Trafficking Limited to Prostitution: India is a signatory to the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the UN Convention against Transnational Organized Crime. This Protocol defines 'trafficking in persons' as 'the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force'. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs." [5]

  While the UN Protocol covers trafficking for situations other than prostitution, the Bill only penalises the offence of trafficking if the victim is used for the purpose of prostitution. Trafficking in persons for other purposes such as domestic labour, bonded labour, begging, camel jockeying, and organ trade do not fall under the purview of the Bill. While there are a number of laws [6] that penalise certain offences such as slavery, unlawful compulsory labour, and begging, it does not cover every situation where trafficked victims can be exploited. There could be a case for a comprehensive law on trafficking in persons rather than one linked only to prostitution.