INTERNATIONAL ASPECTS OF THE COMMERCIAL SEX INDUSTRY IN INDIA *Note: Crosscheck whatever is in Yellow Trafficking of women and children

as well as their sexual exploitation are issues of major concern not just in India but internationally too. There is a whole industry that revolves around the lives of Commercial Sex Workers (hereinafter referred to as CSWs). Indian laws in this regard lean on and take the support of several internationally accepted norms and standards that are in the form of treaties, conventions, declarations and the like, in order to protect the victims of this harsh industry and sometimes even prohibit the existence of the industry altogether. Indias multifaceted approach to curbing prostitution reflects a range of domestic and international obligations not only towards society at large but also towards the individuals intertwined with the industry. Although these obligations occasionally clash as when laws stretch beyond their mandated scope or do not manage to extend far enough the ultimate result is a fairly comprehensive legislative response to prostitution and its associated social evils. As an International initiative, India has signed and ratified several relevant International Conventions and Declarations in this regard and has even incorporated and implemented a majority of the provisions encompassed in the same in its domestic laws. However, there is still a wide gap between its implementation and effective implementation. Before going into the depths of this gap, one needs to understand what the abovementioned documents are and their respective content. Thereafter one may proceed to the fallacies in the Indian Law with regard to the topic at hand. As of today, India is a signatory to the following Conventions (Please note, however, that I have taken into consideration only those Conventions relevant to the subject of CSWs):

The United Nations (UN) Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, 1949 (hereinafter referred to as the Trafficking Convention) The Trafficking Convention is the result of a campaign started in 1888 by Josephine Butler to close down all brothels and stop trafficking in women and girls. The Convention states in its preamble that 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. Basically, this Convention brings about a broad recognition of the issue of prostitution as a major human rights concern, internationally. It also strongly represents in being in favour of protecting women exploited by prostitution. Further, Article 1 of the Convention states that parties to the convention must criminalize anyone who brings another person into prostitution or exploits the prostitution of another person, even if this is done with that persons consent, and Article 16 states that all parties must agree to take or to encourage measures for the prevention of prostitution, as well as for the rehabilitation and social adjustment of victims of prostitution In reference to Article 1, the anti-CSW message of the Trafficking Convention is clear. By rejecting the possibility of non-coercive consent, it rejects the ability of women to willingly sell sexual services, hire pimps, or enter brothels. So, while the Convention outlaws trafficking, it also strongly condemns all forms of prostitution as a violation of individual dignity and welfare, whether that prostitution is voluntary or not, thereby creating a contradiction and a human rights problem because it recognizes the lawful ability of CSWs to carry on their trade but at the same time, it deprives them the right of having their consent recognized as legitimate and valid or even choosing their conditions of work. Furthermore, in relation to Article 16, the Convention fails even to protect real victims because it contains the

erroneous assumption that the state parties will allocate sufficient funds for rehabilitation, and that employers will provide suitable employment for reformed women. In India, funds and employment have not materialized and thus most of the women the law is intended to protect are unable to leave the Commercial Sex Industry (hereinafter referred to as CSI). The Trafficking Convention calls for the deregulation of the CSI and for the prosecution of everyone, except sellers and buyers, working in the said industry in the hope to remove the power the laws had given to the police and brothel owners to exploit and abuse women who, fearing arrest, were forced to submit to the abuse. Consequently, the Convention does not distinguish between CSWs and commercialized rape victims. But it does not actually state that all women in the CSI are victims and so, by its definitional silence, it permits individual CSWs to work on their own without the fear of arrest (except for in the case of solicitation or loitering). However, if the law in implemented properly, one can come to realize that the convention does not permit women to work in brothers or solicit on the street. They are left to find clients by some other means not involving solicitation in any form (including on the streets, in clubs, or in advertisements), which is so as to speak, difficult. This is exactly the result intended by the drafters who saw the Trafficking Convention as the penultimate step toward eliminating sex work altogether. The underlying premise of the Trafficking Convention is that if the operation of the CSI is criminalized, the industry will collapse. The Trafficking Convention has proven to be an ineffective international agreement. Barely seventy-two states had ratified, acceded or otherwise accepted the Convention as of October 14, 1997. The enforcement of domestic laws in these states is inconsistent and, in some places, nonexistent. As a result, there is a pressing need for a better, more effective and conclusive convention especially keeping in mind the explosive growth of the CSI.

The

UN

Convention

on

the

Elimination

of

All

Forms

of

Discrimination Against Women, 1979 (hereinafter referred to as CEDAW) Article 6 calls on states parties to "suppress all forms of traffic in women and exploitation of prostitution of women." The language focuses on criminals who force women and girls into the industry and connects trafficking to the CSI, without mentioning other reasons for which women and girls are trafficked or without distinguishing between commercialized rape victims and CSWs. The Committee which oversees the implementation of the CEDAW has elucidated on the language and has recognised that "poverty and unemployment . . . force many women, including young girls into prostitution" and that "prostitutes are especially vulnerable to violence because their status, which may be unlawful, tends to marginalize them" and consequently calls for "equal protection of laws." This pinpoints the role of economic factors and also acknowledges that victimization can arise as a result of the negative and marginalizing effect of laws that force women to work illegally. By implication, if repressive laws are changed and women can work legally, then women will be less vulnerable to violence and abuse. Women in the CSI need legal protection and not rescue. However, it is unclear if it could require states to take measures to protect the rights of CSWs to work (i.e., to decriminalize or otherwise change laws to avoid victimizing workers) or it could simply mean better enforcement of existing laws against pimps, brothel owners, traffickers, and others who use force or non-economic coercion. Despite its shortcomings, the CEDAW is in a far better position than the Trafficking Convention to address the current human rights abuses of CSWs. The Committee established is required to monitor state compliance with its provisions, and the required signatories are to submit a country report every four years outlining the measures adopted to eliminate discrimination against women within their borders.

The UN Convention on Rights of Child (CRC) NO MATERIAL WAS PROVIDED FOR THIS In 1989, the UN CRC was established to protect the human dignity and status of children, emphasizing the fundamental rights and best interests of children under Article 3. Article 34 Sexual exploitation

The State shall protect children from sexual exploitation and abuse, including prostitution and involvement in pornography. Article 35 Sale, trafficking and abduction

It is the State's obligation to make every effort to prevent the sale, trafficking, and abduction of children. Article 36 Other forms of exploitation

The child has the right to protection from all forms of exploitation prejudicial to any aspects of the child's welfare not covered in articles 32, 33, 34 and 35. Article 39 Rehabilitative care

The State has an obligation to ensure that child victims of armed conflicts, torture, maltreatment, or exploitation receive appropriate treatment for their recovery and social reintegration. This Convention was not aimed directly at children involved in prostitution but, rather, was an attempt to protect them from sexual abuse through inducement, coercion and exploitation. The CRC also established a committee to monitor state compliance with its provisions and required signatories to submit a country report every five years outlining the measures adopted to protect childrens rights within their borders. This Convention is complemented by the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography. Article 1 of the Optional

Protocol calls on all parties to prohibit child prostitution, defining the term as the use of a child in sexual activities for remuneration or any other consideration. States are required to penalize, under criminal law, the offering, obtaining, or providing of a child for child prostitution. Thus, this Protocol explicitly outlaws any form of child prostitution while again targeting, rather than the child, the people perpetrating the prostitution. The Child Rights Committee also monitors state compliance with the Optional Protocol, requiring signatories to include information regarding their implementation of the Optional Protocol with their Convention country reports.

The International Convention on Economic, Social and Political Rights (ICESCR) NO MATERIAL WAS PROVIDED FOR THIS. Article 10 FAMILY, PROTECTION AND CARE, EXPLOITATION The States Parties to the present Covenant recognize that: 1. The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent of the intending spouses. 2. Special protection should be accorded to mothers during a reasonable period before and after childbirth. During such period working mothers should be accorded paid leave or leave with adequate social security benefits. 3. Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions. Children and young persons should be protected from economic and social exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also

set age limits below which the paid employment of child labour should be prohibited and punishable by law. [Focusing on womens rights, in 1995 the Fourth World Conference on Women resulted in the Beijing Declaration and Platform for Action. Paragraph 113(b) of this document highlighted the fact that forced prostitution is a form of violence against women, omitting the reference to voluntary prostitution that had characterized the 1949 Convention. The Declaration outlined its strategic objective of eliminating trafficking in women and assisting victims of violence arising from prostitution and trafficking. Signatories were called upon to support UN efforts to prevent and eradicate child prostitution, and to enact and enforce legislation to protect girls from all forms of violence, including child prostitution. The Declaration recognized the element of choice involved in adult prostitution, focusing its attention on forced prostitution and child prostitution. The goal was to protect women from violence and to eradicate child prostitution. Prostitution as a whole was not the object. In 1999, the international community returned to the issue of childrens rights in the International Labour Organizations Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour. Articles 1 and 3(b) called on state parties to take measures to eliminate the worst forms of child labour, including the use, procurement, and offering of children for prostitution. In essence, child prostitution, whether voluntary or not, was established as a fundamental violation of international law. The Convention does not target the child, but the individual who used, procured, or offered the child. Finally, the international community put forward two additional documents to combat trafficking and forced prostitution in 2000. The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the UN Convention Against Transnational Organized Crime, included the exploitation of the prostitution of others in its definition of trafficking in persons, and article 5 called upon state

parties to criminalize such trafficking. In this way, trafficking in human beings, which is integrally linked to the exploitation of the prostitution of others, was forcefully condemned in international law.] FIND OUT STATUS OF INDIAN RATIFICATION

The Commission on Human Rights and the Commission on the Status of Women The 1983 report on trafficking and exploitation of prostitution to the Economic and Social Council adopts the radical feminist position that all sex work is a form of slavery and that sex work is never "freely" chosen because coercion is always present. The report has been influential but does not represent the only operative view within the U.N. system. The Working Group on Contemporary Forms of Slavery under the Sub-Commission on Prevention of Discrimination and Protection of Minorities, which is under the Commission on Human Rights, has responsibility for investigating the slavery-like conditions of women in the CSI. The Working Groups mandate is to seek a mechanism for better enforcement of the Trafficking Convention and the Slavery Convention; it does not, however, have a mandate to develop a new human rights perspective on trafficking and the CSI. According to the Working Group, "sexual exploitation [including in the CSI] thrives in situations of extreme poverty, underdevelopment, and discrimination." It correctly addresses the structural factors pushing women into the CSI but whether or not it also accepts CSWs as workers or considers all women in the CSI to be similarly-situated victims is unclear. Nonetheless, the Working

Group plays a positive and important role in enforcing human rights concerns of women in the CSI. That apart, the Commission on the Status of Women, in consultation with womens groups from all over the world, drafted the Declaration on the Elimination of Violence Against Women, which was adopted by the General Assembly in 1993. The Declaration implicitly recognizes that not all women in the CSI are victims. Article 2(b) lists "trafficking in women and forced prostitution" as two of many types of violence against women covered by the Declaration. The Declaration, thereby, appears to reject the 1983 reports essentialist conclusions because it leaves room for women who are not trafficked or forced to have agency and the right to work in the CSI. This is implied by its language that women who are not forced into the CSI are not necessarily victims of violence needing protection. Further, the Commission on Human Rights appointed Radhika Coomaraswamy as a Special Rapporteur to investigate and report on the causes and consequences of violence against women. In 1994, she issued her first report, in which she addressed the situation of victims of violence. Even though she does not distinguish between CSWs and commercialized rape victims, she does recognize that all women in the CSI are rendered vulnerable to abuse by laws prohibiting or regulating sex work. She takes no position on decriminalization of sex work, but notes that "most societies and cultures do not accept this position." Nonetheless, by recognizing the role of prohibition and regulation in contributing to violence in the CSI, she implicitly supports either total

decriminalization of the CSI or, at minimum, repeal of laws penalizing CSWs, including solicitation and loitering laws.

CONCLUSION Today, international conventions avoid condemning all forms of adult prostitution in order to focus attention instead on criminalizing the exploitation of women through trafficking and forced prostitution. All forms of child prostitution, however, continue to be condemned. States are urged to punish those who exploit women and children, and to treat prostitutes as victims of crime. These are the obligations to which India has committed itself and they are reflected in Indian law.