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23 December 2009

Blanket Proposition

The suggestion by two judges of the Supreme Court to Government of India to turn prostitution legal leaves one flummoxed
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Surajit Dasgupta
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As per the understanding of the US Department of State, "While the act of prostitution is not illegal (in India), most activities such as the selling, procuring, and exploiting of any person for commercial sex as well as profiting from the prostitution of another individual are illegal.” This is what its ‘2008 Human Rights Reports: India’ says. Howsoever curious that may sound, and although it’s the truth, the fact must be borne in mind before setting out to celebrate or pan the recent proposal by two Supreme Court judges to the Government of India to legalise prostitution.

Legalising prostitution is a blanket proposition. There is a part of the issue that is about harassment of victims of the trade by authorities because of an odd law (or lack of a proper law), which should be addressed. However, there is another part that deals with criminals. One is driven to his wit’s end to understand how any sane person on earth would want that to be legalised too.

If prostitution as a whole were to become legal, wouldn’t it logically follow that driving someone to prostitution would be legal too? After all, the perpetrator is ‘placing’ the subject in a legal profession, isn’t he? Wouldn’t child prostitution — of an estimated 3 million prostitutes in India, 1.2 million are children — then turn legal as well?

What must change in law are the following:
  • A defence lawyer, fighting for an accused in a rape case, should be debarred from questioning if the victim is a prostitute. Even if she is, sex with her without her consent is rape. Such a question is immaterial, motivated, obnoxious and distracting.
  • If a woman willingly wants to use her body as a commodity, the state has no locus standi in the case to protect her morality or prevent her immorality [here, the definition of "morality" is based on the law, Immoral Traffic (Prevention) Act, 1956]. Arresting her and trying her in court thus makes no sense at all. [Once in a while when one learns of police busting a sex racket in a residential area, it only elicits mixed reactions. Was the house, which was being used as a brothel, disrupting routine life of those living in the neighbourhood, who are not interested in the trade? If yes, it was surely a nuisance; the seizure was warranted. If no — that is, if only the sex providers and solicitors knew what actually was happening inside that house — police’s poking their nose in what was a consensual adults’ affair is a case of misplaced vigilance.]
  • In the light of the right interpretation of law, that soliciting and procuring sex commercially are both criminal activities in India, it becomes a clear case of violation when the preventive Act turns into an instrument to blackmail the sex worker. What is observed mostly is that the sex worker alone is penalised in both cash and kind. She — in some cases, he — has to humour the syndicate comprising the police, local henchmen, pimps, brothel-owners, other punters and a network of underworld functionaries, all of whom exercise an illegal, vice-like control over the ‘red light’ area. And then, there is the constant physical and mental torment and abuse that the sex worker has to brave. Rarely after a raid is the client apprehended, let alone tried and punished. In some countries where prostitution is legal, paying for sex is punishable too. Legalising the profession may at least free sex workers from harassment of the biased kind. Mercifully, anyway, as the US human rights report mentioned above puts it, “Unlike in previous years, Section 8 of the Immoral Trafficking (Prevention) Act, which criminalises the act of solicitation for prostitution, was infrequently used to arrest and punish women and girls who were victims of trafficking.”
  • If prostitution is legalised, the illegal flow of money between the sex workers and other operatives in red light areas will end. This could well prove good economics, provided the ‘unemployed’ touts can thereafter be stopped from venturing into other walks of public life to launch some hitherto unexploited means of extortion.
  • It will be possible for health agencies to identify and treat this potentially high-risk group for HIV/AIDS and other sexually transmitted diseases, without wrangling over the medical and humane act’s legitimacy.
As for the sociological aspect, as a corollary to the second point above, it must be impressed upon legislators and the people alike that the view that all prostitutes are oppressed and a result of exploitation by men is ultra-feminist, unrealistic, melodramatic and romantic. For one, matriarchal societies have no less numbers of prostitutes than the patriarchal ones; some comparative international and domestic studies would suggest the former have more!

Notably, the Sex Workers Alliance of Vancouver declares, “Some ‘recovery’ programmes and women's groups like to regard prostitutes as victims, despite the fact that many current and former prostitutes believe themselves to be nothing of the kind. This victim mentality is a convenient way of absolving oneself of blame for making ill-conceived or unwise choices. Typically applied to female rather than male prostitutes, it reinforces the archaic notion that women don't know what's good for them and are incapable not only of making their own decisions, but also of taking responsibility for those decisions.” This is an almost all-women group owning up!

That notwithstanding, during the hearing of a PIL filed by NGOs Bachpan Bachao Andolan and Childline complaining about large-scale child trafficking in the country, Justices Dalveer Bhandari and AK Patnaik of the Supreme Court told Solicitor-General Gopal Subramaniam, “When you say it is the world’s oldest profession and when you are not able to curb it by laws, why don’t you legalise it? You can then monitor the trade, rehabilitate and provide medical aid to those involved.”

In terms of status of a country in the international community, many countries that have experimented with the sex industry now realise the folly. A legalised sex industry has not decreased sexual violence against women in any country; rather, the act has turned the spot into an international sex tourism destination. “Over the past decade, the most popular proposed solutions to sex trafficking and ‘out of control’ prostitution is legalisation of prostitution. Prostitution has been legalised with the expectation that it would bring positive outcomes in Australia, the Netherlands, Germany, and recently, in New Zealand. Although legalisation has resulted in big legal profits for a few, the other benefits have not materialised. Organised crime groups continue to traffic women and children and run illegal prostitution operations along side the legal businesses. In Victoria, Australia, legalisation of brothels was supposed to eliminate street prostitution. It did not; in fact, there are many more women on the street than before legalisation. Last year, there were calls for legalising street prostitution in order to ‘control it’:” writes Donna M. Hughes, Professor & Carlson Endowed Chair in Women’s Studies, University of Rhode Island, in her exposition, ‘Prostitution: Causes and Solutions’.

Ergo, most of the negative aspects of prostitution are hardly affected by legalisation of the trade. What it does is makes sex workers legally accessible, which is a reason for which I would rather support legalisation. I am against the fashionable premise that legalisation is a virtual panacea to all ills: that it would reduce human trafficking, that it would clamp down on extortionists of all hues (pimps, brothel owners, underworld kingpins, etc), blah blah!

What I think the Indian Government will be right in doing is to add a clause of exception to the existing law that will make health care for sex workers hassle free. What I am not sure of is how much the government can dictate banks, insurance companies and other financial institutions to accept and process applications from sex workers and also necessarily grant them the loan sought. For, even if these institutions were not to consider prostitution criminal, would they be sure of the stability and steadiness of prostitutes' income, which would assure the institution of these customers not turning defaulters?

It will be au fait to remind the apex court and government that the Prevention of Corruption Act, 1988 has miserably failed to curb corruption. Its telling effects on the nation was amply illustrated by the very court in its judgment in the case KC Sareen vs CBI, Chandigarh [2001 (6) SCC 584]. Corruption has only multiplied in all spheres of life rather than witness a decline in the past 20 years for which the stringent law has been in place. Should the government therefore legalise graft and fix the amount of commission or bribe that each public servant be entitled to take?

Some alterations in law to curb the excesses in prostitution can be cogitated about. But the maxim ‘if you can’t handle it, legalise it’ is akin to asking the exorcist to embrace the ghost in hope it will no more haunt.

Credits: First photo: Kamathipura, Mumbai. Photographer: John Hurd. Photo licensed under Creative Commons
Second photo: The arrest of five girls from Uzbekistan and an alleged pimp Farida by the south district police, Delhi. Photo published in 'The Tribune', 1 August 2007; reproduction authorised except for commercial purposes

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Surajit Dasgupta treats no individual, organisation or institution as a holy cow.