Legislation

In 1950, the Government of India ratified the United Nations Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (pdf), which conflates prostitution and trafficking

Whereas prostitution and the accompanying evil of the traffic in persons for the purpose of prostitution are incompatible with the dignity and worth of the human person and endanger the welfare of the individual, the family and the community,…The Parties to the present Convention agree to punish any person who, to gratify the passions of another:

  • (1) Procures, entices or leads away, for purposes of prostitution, another person, even with the consent of that person;
  • (2) Exploits the prostitution of another person, even with the consent of that person.

In pursuance to the international convention, India enacted in 1956 the Suppression of Immoral Traffic in Women and Girls Act (SITA), which was later amended in 1986 to create the Immoral Traffic (Prevention) Act. Known commonly as ITPA (pdf), the act defines a trafficker as a person who

recruits, transports, transfers, harbours, or receives a person for the purpose of prostitution by means of,—

  • (a) threat or use of force or coercion, abduction, fraud, deception; or
  • (b) abuse of power or a position of vulnerability; or
  • (c) giving or receiving of payments or benefits to achieve the consent of such person having control over another person

Notably, lawmakers recognised the impracticality of banning prostitution without rehabilitating women in prostitution or addressing the root causes of poverty and gender inequality. As a result, ITPA sought to penalise activities incidental to prostitution but not prostitution itself, i.e., soliciting, practicing prostitution in public places or near police, living on the earnings of prostitution, owning a brothel, visiting a brothel, procuring or detaining for prostitution, and trafficking or attempted trafficking, especially of children. The punishment for trafficking varies from seven to fourteen years of imprisonment, or, in the case of child trafficking, from seven years to life.

In 2002, India ratified the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (pdf) to supplement the 2000 Convention against Transnational Organized Crime (Palermo Convention). In particular, the protocol defined the following:

  • (a) “Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. 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;
  • (b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used;
  • (c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered “trafficking in persons” even if this does not involve any of the means set forth in subparagraph (a) of this article;
  • (d) “Child” shall mean any person under eighteen years of age.

Despite these legal measures, AAWC recognizes that the current legal framework on prostitution and trafficking is in urgent need of reform. While beneficial stipulations of ITPA are routinely ignored or insufficiently implemented, certain aspects of the law are commonly abused by law enforcement officers for their own interest or economic gain. Criticisms can be found here and here of both the original 1956 legislation and a proposed 2006 amendment (pdf) that failed to pass after sex workers organised large-scale protests.