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Rescued but not released: the ‘protective custody’ of sex workers in India

Protective homes for women in India are carceral institutions that confine women rescued from the sex trade. Tied to a moralistic agenda of reform, protective homes restrict women’s freedom in multiple ways.

Candle-lit vigil in Kolkata on International Sex Workers Rights Day. Reporter#7585286/Demotix. All Rights Reserved.

The protective home in Mumbai is housed in a walled compound with a heavily guarded iron gate. A second set of gates leads to the building. Inside, the women’s living quarters are beyond a third set of locked metal grill doors. The women usually stand behind these doors, asking staff or visitors like myself, police personnel or NGO representatives when they would be released. Legal aid is rarely provided to answer their queries. Their release by the carceral apparatus of a state that takes them into custody to ‘protect’ them from the sex trade remains mired in the unremitting uncertainty of processual delays marking law in practice.

In India, the relevant federal statute equates prostitution with commercial sexual exploitation. Women rescued from the sex trade, ostensibly as victims, are then placed in institutions from which they are forbidden to leave until released by a court. The Immoral Traffic (Prevention) Act (ITPA) of 1956 prescribes state protective custody for them until the suitability of their families or guardians to “take charge of them” is verified. This provision applies even to adult women above eighteen. It is not their consent, but a magistrate’s evaluation of their guardians’ “suitability” and their own “age, character and antecedents” that determines their placement in protective custody. Legal activists have long questioned the constitutionality of this provision vis-a-vis the fundamental rights to life and liberty guaranteed by the Indian constitution.

Rescued women are confined to the protective home during a court-ordered verification process, which can take up to three weeks. In Mumbai, women usually remain there beyond this period, either because some courts delay sending the necessary release orders, or because the required police escort is not available to “repatriate” them to their families after the release orders have been issued. For Bangladeshi women, there are much longer delays in their paperwork being processed from across the border. After verification, courts can either order their release to a suitable guardian’s custody, or commit them to be detained in the protective home for one to three years for “care and protection”. To appeal against detention orders, women must approach an appellate court, for which they seldom have the resources.

The increasing numbers of women being sent to the Mumbai protective home in the past decade are partly due to donor agencies in the global north channeling concerns about sex trafficking in the global south. They do this primarily by funding local anti-trafficking NGOs to work with the police and conduct rescue operations. Following raids on brothels and other establishments alleged to be hotbeds of the sex trade in metropolitan cities, protective homes are seen by the Indian state, NGOs, and global campaigns against sex trafficking as sites of refuge. As researchers Anne Gallagher and Elaine Pearson have pointed out, state protective custody or what they term shelter detention to protect victims remains an unquestioned and uninvestigated step following anti-trafficking rescues in many parts of the world.

Cleansing the city of ‘immorality’

Protective custody does not serve only an anti-trafficking mandate in India. The spirit and implementation of the ITPA are concerned not only with the exploitative possibilities of prostitution but also its perceived ‘immorality’. It reflects intersecting socio-legal anxieties around women in the sex trade and society at large both being in need of protection from each other. Local contexts shape the specificities of how such anxieties are manifested. Alongside anti-trafficking rescues, Mumbai has seen accelerated efforts by the local police in recent years to cleanse the city of ‘immoral’ activities in pubs, bars, hotels and so on. Many women are rescued from such establishments under the presumption that they are sexually exploited. Real estate developers are also believed to be instrumental in having brothels cleared as part of land grab efforts. involving police raids and rescues of large groups of women. Thus, while all of these are deemed rescue operations, their motivations can be more complex and less benign.

Some of the women brought to the Mumbai protective home gave accounts of being trafficked. Others explained their entry in the sex trade in terms of complex combinations of choice and compulsion. These two groups included women from Mumbai, from other parts of Maharashtra state (of which Mumbai is the capital), from other Indian states, and from neighbouring Bangladesh. A third set of mostly local women from Mumbai, who worked in beer bars, massage parlours and beauty salons, maintained that they had never engaged in prostitution at all, while the police insisted that they were being sexually exploited at these sites. The ‘truth’ about who was or wasn’t trafficked, and indeed, who was or was not selling sex, often remained uncertain, given the frequent absence of clear evidence to prove both the transaction of sexual commerce and the matter of whether it entailed trafficking. The women, their families, the police, and NGOs provided varied versions of what precisely had transpired. Regardless, it was assumed in all of these cases that sexual exploitation had occurred and that all of these women required protective custody.

Protective homes are carceral spaces managed by the state welfare bureaucracy (the paternalistically named “Women and Child” Department). They are experienced by those institutionalised there as punitive. While intended for women’s protection, they curtail women’s access to spaces and people outside their gates. Women could phone or meet with their families once in two weeks at the protective home in Mumbai, but the staff was tasked with verifying that the callers or visitors were ‘genuine’ relatives and not pimps, madams, boyfriends, or traffickers. These latter categories were assumed to be threats to the women’s safety or bad influences on them. Women often described this policing as worse than prison, where they would have fewer restrictions on meeting kin, and could at least hope for bail.

Protective custody also halts women’s capacity to earn money, the irony being that economic rehabilitation is considered central to the purpose of the law prescribing it. In practice, rehabilitation entails a moralistic pedagogy of gendered self-improvement, presented as achievable through livelihood training programmes. NGOs and staff explained that the purpose of the protective home was not to treat the women as criminals, but to counsel them that “easy money” was detrimental to their health, honour, and children. At the Mumbai home, NGOs provided tailoring, nursing, and beautician training, as well as classes in paper bag-making, spice-making, henna application and other low-paying options presented as “decent” work. With the exception of a paper bead-making programme, there was no possibility of earning while training or guarantee of a job after release.

This reform/rehabilitation agenda does not align with the socio-economic realities of women’s lives. Many women told me that they could ill-afford to devote time to learning new skills—their priority was to earn. While some were willing to attend these classes, most were not convinced that they would lead them to earn a sustainable income. Some retorted that they entered the sex trade to feed their families, and asked where the government and NGOs were when they really needed help. Others wanted to explore more lucrative or secure opportunities, like a government job, which neither the state nor NGOs could arrange for them.

The rehabilitation agenda entails a control of rescued women’s time that intensifies their experience of spatial confinement. What the law prescribing protective custody and those implementing it consider a productive use of time is also time taken away from earning a living. Women’s reluctance to participate in rehabilitation programmes partly stems from their concern that they would lead to a longer stay at the protective home. The carceral manifestation of protective custody and the inordinate delays hindering their release thus make rehabilitation unattractive even to those who wish to leave the sex trade. Ironically, because they were usually from Bangladesh or from parts of India far from Mumbai, women who said they had been trafficked ended up staying at the protective home longer than those who said they were not. They could not understand why they were being “punished” more. Some had been there for three months, some for six, and others (from Bangladesh) for more than a year. While women’s time in protective custody is minutely controlled, the processual time delaying their release is not.

In October 2012, before I started volunteering there, twenty-three women scaled the compound wall of the Mumbai protective home and escaped. They later stated in an interview with a local journalist that verbal abuse and sexual exploitation were taking place at the institution. Without the testimony of the escaped women the allegations could not be proved, but they led to a comprehensive review of the institution by the Bombay High Court. The high court ordered the government to remedy the quotidian injustices of protective custody, including: sub-par living conditions in an overcrowded space, lack of legal representation, inadequate rehabilitation provisions, and poor co-ordination between authorities leading to long delays in release. Such incidents of escape—this was neither the first, nor the last—highlight, albeit fleetingly, how women’s freedom becomes a casualty of the entwined projects of protectionism and reform that rescues initiate.

About the author

Vibhuti Ramachandran received her PhD in sociocultural Anthropology from New York University in September 2017. She researches gender and law in India, particularly prostitution and sex trafficking in discursive regimes and institutional practices.

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