Tamil Nadu, India. Feng Zhong/Flickr. (cc by-nc-nd)

In the wake of repeated shelter scandals, some anti-traffickers have taken the bold step of acknowledging the harms inherent to India’s current anti-trafficking law, the Immoral Trafficking (Prevention) Act, 1986 (ITPA). Those who seek to redress the abuses inherent in this system should be applauded; however, some points need clarifying before designing a more humane response to the problems of sex trafficking in India. Ultimately, the ITPA needs to be repealed and India’s new Trafficking of Persons Bill, 2018 (ToP Bill) should be sent to select committee and redrafted.

When framing the problem of sex trafficking in India, anti-traffickers often claim that the majority of those who sell sex in India are forced or begin when they are underage. The best available research, however, provides a different picture. A survey of over 6500 female sex workers in South India aged 15 and above found that the mean age of entrance into sex work was 21.7 years. The most comprehensive data set included 3000 sex workers from across the nation. Of these, 81.59% entered sex work when they were 19 years old or above and 14.53% between 15-18 years. The Pan India Survey found that across all modes and sites of sex work in India, 79.4% of women entered the trade voluntarily, while 7.1% were forced, 2.8% were sold, and 9.2% were cheated.

Here it is useful to pause for a note about definitions. The term ‘forced’ should only be used in reference to work rendered through physical force, threats, beatings, blackmail, cheating and similarly direct forms of compulsion. The term ‘forced’ should not be applied to situations in which people enter a mode of work out of financial need. If financial urgency were defined as ‘force’, then the vast majority of the world’s workers would have to be defined as ‘forced labourers’. Very few individuals are either entirely free to make unfettered decisions about their means of earning money or are entirely freed from the need to do so. This is important. An overly broad definition of ‘force’ or ‘coercion’ leaves us unable to distinguish between people trafficked against their will, people who hate their work but do it out of necessity, and people who actually enjoy their work but are not independently wealthy enough to avoid the financial compulsion to work. There is a line here that must be maintained for all workers, including those who sell sex. The term ‘forced’ does not include the pressure of economic need. A worker who would prefer a different kind of work or who would rather not work at all is not the same as a worker who is forced to work.

Under India’s present anti-trafficking system, almost eight out of 10 times a woman was rescued against her will in the name of saving her from sex trafficking.

With that clarified, the vast majority of women who sell sex in India are not forced to do so. Numerous studies, including Sahni and Shankar (2013), Kotiswaran (2012), Shah (2014), Ramberg (2014), Walters (2016), and Pai, Murthy, Seshu & Shukla (2018), confirm this framing and this finding. The reality of the largely voluntary nature of sex work in India is not acknowledged in the ITPA. The ITPA makes no distinction between women who sell sex by choice and those who do so by force. It treats both groups as legitimate targets for raid and rescue.

Many of those who were initially forced into sex work eventually transition and begin to work voluntarily; how a woman first entered sex work tells us nothing about her present circumstances. And even women who are forced to work may nevertheless prefer not to be rescued if that rescue is also forced. To lock up someone who has been trafficked is to traffic her again. One women who had been forcibly rescued told me, “They [the anti-traffickers] are treating us exactly how the traffickers treat us.” Pai, Murthy, Seshu & Shukla (2018) methodically tracked down 230 of the 244 total people who had been rescued under the ITPA across four locations between 2005 and 2017. A massive 79% of them “stated that at the time of the raid they were voluntarily in sex work and wanted not to be ‘rescued’”.

Pause a moment to consider this shocking finding. This means that under India’s present anti-trafficking system, almost eight out of 10 times a woman was rescued against her will in the name of saving her from sex trafficking. Only two out of 10 times was that rescue welcome. That is an appallingly high rate of failure and a staggering amount of unnecessary harm. It is clear that, as it is being presently implemented, the ITPA causes much more damage than it fixes. Tens of thousands of families and individuals have been injured by this piece of legislation in the decades that it has been enforced across the nation.

The immense damage of forced rescue

Adult women should not be institutionalised against their will. They should have a choice in the kinds of support services they receive after rescue. Forced institutionalisation leaves inmates angry and rebellious, regardless of whether they wish to remain in sex work or not. Staff who deal with these angry inmates may resort to physical, emotional and psychological abuse in order to subdue them.

Vibhuti Ramachandran and I have written previously in openDemocracy about the harrowing experience of incarceration in India’s anti-trafficking shelters. Some key points from this earlier article include:

• Some shelters do not provide the inmates adequate nutrition, sanitation, or even anti-retroviral and diabetic medications. Shelter staff treat them as dangerous and belligerent adversaries or as shamefully immoral (Das 2016; Krishnan 2014; Times of India 2013).

• Inmates cannot support, care for, or readily communicate with their family members. Protective custody also severely limits women’s capacity to earn (Ramachandran 2015). The rehabilitation programmes offered with the help of NGOs miscalculate the socio-economic realities of women’s lives (Walters 2016). Many rescued women in Mumbai said they could not afford to learn new skills; their priority was rather to earn (Ramachandran 2015).

• Rescued women experience inordinate bureaucratic delays to their release and are offered scant legal counsel to hasten the process. As their stay in shelter homes lengthens from the prescribed four weeks into several months, many inmates fall into depression; some of them attempt to escape, to riot, or even to end their lives by suicide (Walters 2016).

Clearly not all rescues are forced. Ramachandran (2017) found that in New Delhi some anti-traffickers do attempt to differentiate between adult women who wish to leave brothels and those who do not. It is, however, very difficult to make this crucial distinction during the rush of a rescue operation. The ITPA does not even require this effort. The damage created by this omission is immense. A study by the National Human Rights Commission has detailed violent, insensitive, and inappropriate police behaviour during raids, and critiqued the focus on removing women from brothels while their earnings, possessions, and even their children are left behind (Sen and Nair 2004 (Vol. II): 403-404).

Whether the ITPA or the new Trafficking in Persons Bill, women remain under lock and key

Given the state of the present shelter system in India, anti-traffickers’ support for the Trafficking of Persons Bill, 2018 (ToP Bill) is surprising. Some have claimed that the ToP Bill recognises women’s autonomy and point to Section 17(4) as proof. This section, they suggest, will allow those picked up under forcible rescue to reject rehabilitation. But a close look at the wording of Section 17(4), reveals that its language appears far less friendly to those rescued than its supporters suggest. It reads:

(4) Where the Magistrate is satisfied, after making an inquiry as to the age of the victim and it is found that the victim is not a child, the Magistrate may, make an order that the victim be placed, for such reasonable period, in a Rehabilitation Home:

Provided that, if the victim or any person rescued is not a child and he voluntarily makes an application supported by an affidavit for his release and if the Magistrate is of the opinion that such application has not been made voluntarily, the Magistrate may reject such application after recording his reasons in writing.

Under the current ITPA it is functionally impossible for a person inside a protection home to approach an appellate court for release without the full cooperation of the NGO. The wording of the ToP Bill creates a small, theoretical opening for that to now happen. Yet in the scenario under the new bill, why would it be any more feasible for a shelter inmate to apply for release to the magistrate without the full cooperation of the NGO, especially since it would require an official affidavit? Shelter inmates could not produce such a document from inside a shelter without the support of the NGO itself. And how supportive is an NGO likely to be of inmates seeking release if the organisation’s budget is linked either directly or indirectly to the number of inmates kept inside its protection home (as is the case for the majority of anti-trafficking NGOs)? Immediately losing inmates would equate to losing funding, and most NGOs are not likely to hasten that outcome. Would the courts take up the onus of educating inmates about the required affidavits? Would the courts help them to draft these documents if the NGO does not? The ToP Bill is silent on this important issue.

Ignore for a minute that this is the same anti-trafficking system that has been famously abusive to date. Let us suppose for the sake of argument that the NGO or the court would facilitate an inmate’s application for release under the ToP Bill. Even granting this point and assuming that an application could be made, note that the emphasis of Section 17(4) in the ToP Bill is not actually the creation of a well-defined mechanism for releasing those who have been incorrectly rescued. It does not underscore the autonomy of those rescued. Rather, its emphasis is on questioning the voluntary nature of a release application and on rejecting it. Nowhere does it state under what circumstances an application for release should be granted. Nowhere does it state that an application might even be granted. Given the present abuses of the anti-trafficking system, it is unwise to believe that this single, negatively worded section will overhaul an entire system of forced institutionalisation, especially given that the language of the rest of the ToP Bill indicates otherwise.

While the law must serve the minority of people do not work voluntarily, their needs should never be used as an excuse to cause severe harms to the majority in the trade.

Detained for a “short term”, but for how long?

Perhaps the most important omission here is that Sec 17(4) does not state how quickly a magistrate must consider and respond to an application of release. The ToP Bill restricts the period of shelter stay to a “short term”. But what constitutes a short term? Under the present ITPA, rescued victims should be produced in court within 28 days. According to evidence from shelters in Hyderabad, Mumbai, and New Delhi this process takes a minimum of two to three months in the best of cases, despite the legal mandate of 28 days. If the same problem persists under the new ToP Bill (and why should it be different?), then a “short term” stay in a shelter will likely also take a magistrate a minimum of two to three months to process.

Imagine that you were a voluntary sex worker living at home with your family. That family is dependent on your daily earnings, as is the case for the majority of women who sell sex in India. Imagine that you were suddenly taken in a forced rescue operation by police and locked in a shelter. Imagine that, despite wishing to be released, you suddenly faced two to three months of a “short term” stay in a shelter without means to earn money, pay your bills, or feed or care for your family. What would happen if you had small children at home? Or an ageing parent who depended on you?

Imagine not only the harm that being locked up would do to your financial situation, but also to your reputation. How could you explain your two to three month absence to your family? What if they had not been aware of how you earned your living previously? What damage would it do to your most important relationships to be forcibly locked in an anti-trafficking shelter and outed as a sex worker? Even if it were for only 28 days, that itself would be a very long time to lose one’s freedom. How could society not expect you not to become angry? To rebel, to attempt escape or suicide, or to riot in response? This is what routinely happens under the ITPA at present. It would not change under the new ToP Bill, as forced rescue and detention would persist. Why champion such an inhumane proposal?

Beyond forced rescue

Some anti-traffickers’ solution for this intractable problem is that shelters should be open rather than closed. But presuming that the majority of the women arriving at the institution were forcibly rescued, how many of them could realistically be expected to stay when given the choice? Very few. Why fund a system of forced rescue that treats those targeted to degradation, intimidation, the loss of property and even violence (Sen and Nair 2004 (Vol. II): 403-404) only to see those same people then turn and walk away from the shelters where they are delivered?

Why not abandon forced rescue altogether as some anti-trafficking NGOs in Delhi have done? Why justify the immense harms sustained by almost 80% of those forcibly rescued by pointing to the less than 20% of those who welcome it? Two wrongs cannot make a right. Why not instead develop a more accurate and efficient means of identifying those who want help exiting commercial sex? The ITPA makes no such provisions, and it should be repealed. The ToP Bill also relies on forced rescue and detention. It does not envision a system of open shelters. Its language presumes a system of closed shelters and court mandated release, and this system has already shown to be highly abusive. This is a primary reason that the ToP Bill should not be passed in its present form.

Instead of institutionalisation, a model of community-based rehabilitation would overhaul of the present abusive system. A path toward open shelters and community-based rehabilitation must be pursued at all costs. The law must service the dire needs of the minority of people in the sex trade who do not work voluntarily. At the same time, their needs should never be used as an excuse to cause severe harms to the majority in the trade who do not wish to be rescued or institutionalised.

Prabha Kotiswaran, an expert on Indian anti-trafficking law at King’s College London, has laid out many of severe drawbacks of the ToP Bill, 2018 in an extensive review. Some of the objections she and other scholars have laid out in addition to those above include:

• Under the ToP, it is not the purported victim but rather an anti-trafficking police officer or unit that will decide whether rescue is necessary. Forced rescue is always unethical. It should never be legal.

• The bill specifies that the inter-state repatriation of victims be completed within three months and inter-country repatriation within six months (Sec 26 (4)). This would be shorter than at present, and a welcome change. However, the present bill includes no timelines for the release of local inmates, who are the majority and do not require repatriation. The culture of bureaucratic delays would thus not be corrected and would likely continue the present system of rescued people languishing in shelters for months even if they are technically eligible for release.

• The bill would expand the present system of forced rescue and incarceration from just women and girls who sell sex to other groups like bonded labourers and people in begging. The numbers of people picked up in forced rescues and then institutionalised would thus be set to rise exponentially.

• The bill spells out a system of punishment in which those accused must prove themselves innocent rather than vice versa and punishments are not commensurate with the severity of crimes (for example, inducing victims to beg receives more jail time than trafficking them for sex).

Unfortunately, these are only a few of the extensive problems with the new ToP Bill. It is a poorly written piece of legislation containing a tangle of unresolved knots. At present, it would balloon an already highly abusive shelter system while addressing only a few of the system’s existing problems. The ToP Bill should be referred to select committee and redrafted.

More than the ToP, the inhumane consequences of the ITPA must acknowledged and this legislation must be repealed. Instead, the progressive Bonded Labour and Juvenile Justice acts should be more fully enforced and methodically expanded to create a comprehensive solution to human trafficking in India that expands labour and migration rights while enforcing employer and supply-chain accountability. Such an approach would situate solutions within community-based services and thereby prioritise the autonomy of survivors of trafficking themselves.