On December 9, 2009 a Supreme Court Bench comprising Justices Dalveer Bhandari and AK Patnaik while hearing a PIL filed by an NGO, Bachpan Bachao Andolan, complaining about large-scale child trafficking in the country and seeking directives to contain it, asked the Solicitor-General of India, "When you say it (prostitution) is the world's oldest profession and you are not able to curb it by law(s), why don't you legalize it? You can then monitor the trade, rehabilitate and provide medical aid to those involved." The Court further opined that legalizing sex trade would be a better option to avoid trafficking of women and pointed out that nowhere in the world was prostitution curbed by punitive measures.
Though the above comments by the Apex Court Judge(s) on face apparent seem quite obnoxious besides unprecedented, perhaps they might have been made in the context of virtual failure of the prevalent law(s) supposed to tame the menace of trafficking and prostitution. But in another sense, such a commenting also signifies that if you have not been able to control an (illegal) activity, legalise it and then you will be able to at least monitor it. The learned judges presumably meant that in its illegal avatar, prostitution has been abusing women in horrible ways. Whatever may be reasons behind such quipping by the Court, at least such a chiding to the Government indeed calls for thorough introspection over this hitherto neglected vexed issue.
The primary law dealing with the status of sex workers, viz. The Immoral Traffic (Prevention) Act, 1956 (ITPA), though technically, does not explicitly prohibit prostitutes to practice their trade privately but of course, they cannot legally solicit customers in public. Organized prostitution (brothels, prostitution rings, pimping etc.) is illegal. As long as it is done individually and voluntarily, a woman can use her body's attributes in exchange for material benefit. In particular, the law forbids a sex worker to carry on her profession within 200 yards of a public place. In 2007, statistics by Union Ministry of Woman and Child Development revealed that India is home to nearly three million sex workers, with over one-third of them entering the trade before the age of 18.
In its over five decade history, the ITPA has only been amended twice viz. in 1978 and 1986 to make good some inadequacies and to widen the scope of the Act, but even then the legislation failed to achieve its desired purpose. There has been wide ranging demands and voices from numerous feminist and voluntary organizations, both of national and international fora, complaining that certain provisions of the Act are instead directed towards prosecution of trafficked persons and result in further victimizing the victim.
The incumbent UPA dispensation in its previous tenure though took a bold initiative to amend the ITPA in May 2006 wherein it was proposed to redefine the meaning of "child", enhancing punishment for a person who manages or keeps management of a brothel, defining "trafficking in persons", omission of section 8 relating to seducing and soliciting, enhancing of the term to be spent in corrective institution by female offenders , omission of provision relating to removal of prostitute from any place and constitution of appropriate authorities by Central/State Government for effectively preventing and combating the offence of trafficking in persons. As per practice, the Bill was immediately referred to a Parliamentary Standing Committee on HRD for detailed examination and report.
Although the Committee recommended that the 2006 Amendment Bill be passed after incorporating the amendments /additions suggested by it, the UPA regime was not able to get the legislation passed in the House for the reasons best known to it. It is highly hoped that in the current Lok Sabha, the requisite Bill is re-introduced and passed incorporating the recommendations of the abovesaid Committee.
It may be recalled that as the Division Bench of Delhi High Court in Naaz Foundation v. Govt. of NCT of Delhi (July 2009) ruled that decriminalizing consensual homosexuality in private can be permitted (although SC is seized of an appeal against it), then one may argue that prostitution also deserves same footing since it is as much "a consensual act between two adults (though heterosexual) in a private place". Undoubtedly, neither is an offence in itself. In both cases, an offence is committed only when certain conditions are violated. And the conditions are common: that the sex should be consensual, between adults and it should in private.
Thanks to the aforesaid verdict, gigolos catering to gay clients can come out in the open and access medical care to prevent or treat HIV/AIDS, which was the main reason cited by Naaz Foundation for asking the High Court to "read down" section 377 IPC provision against the wide-ranging offences described as "carnal intercourse against the order of nature". The same logic of providing proper healthcare and medical aid in addition to encouraging employment of necessary safeguards to prevent spread of sexually transmitted diseases do hold good in respect of prostitutes too. Under apprehension and fear of police and enforcement authorities, those in the trade are compelled to live a life of harassment, exploitation, humiliation, cruel and degrading treatment under cover of secrecy as under present law they can be booked as criminal offenders.
The time has also come for the powers-that-be to ask themselves a question: Why does India continue criminalising a profession which has been legalised in scores of nations? More dirt piles up by sweeping issues under the carpet.Closeting the oldest profession known to mankind as a morality issue not only amounts to ignoring the exploitation of the commercial sex-worker by parasites, who feed on the income she generates, but the larger issue of AIDS - a scourge which is on the verge of wreaking a global apocalypse.
What is required is a practical rather than a puritan approach. By according legitimacy to the sex-worker, millions of women who ply this trade to feed their families will be freed from the clutches of pimps, brothel-owners and cops on the take. Additionally, in traditional red-light areas, the workable practice of targeted intervention will gain effectiveness.
The critics of legalization, on the other hand, would raise their own arguments which would include terming the same step as a gift to pimps, traffickers and the sex industry. Fears of promotion of sex trafficking including child prostitution, lack of protection to women in prostitution, increase in the demand for prostitution, boosting the motivation of men to buy women for sex in a much wider and more permissible range etc. Though all these apprehensions can not be dismissed at the threshold and more importantly in a country like ours where a large chunk of society is still deeply embedded in its rich cultural, moral and social values, these apprehensions need to be thoroughly addressed before granting legal cover to prostitution.
Ironically, the Supreme Court in Gaurav Jain v. Union of India (July, 1997) had explicitly described prostitution as "a crime against humanity, violation of human rights and obnoxious to the Constitution and Human Rights Act". It directed the Government to take all steps to prohibit prostitution asserting that eradication of prostitution in any form is integral to social weal and glory of womanhood. But even after more than a decade of such ruling, the successive governments have adopted a lackadaisical approach over the hypersensitive issue for reasons best known to them.
A public debate needs to be initiated by the ruling elite by involving all stakeholders as well as intellectual circles within civil society for considering decriminalizing the socially-degraded practice of prostitution by recognizing that the prostitute is not an offender but a victim. After all, a large chunk of prostitutes (though not all) are forcibly thrown or are compelled to get into the profession owing to various socio-economic reasons like poverty or economic distress, ill-treatment by parents/husband, bad company, prior incest and rape, early marriage and desertion, entrapment by trafficking rackets acting through pimps etc.
Technically speaking, when prostitution per se (not co-relating with trafficking in any way) is merely regarded as immoral/unethical but not illegal/unlawful even under ITPA, what is the harm in segregating it from criminal offence of "trafficking"? A different legislation needs to be enacted to deal with cases of prostitution on lines of Juvenile Justice Act. On the other hand,Criminal Trafficking ought to be sternly dealt with iron hand with no laxity or sympathy to offenders as it is flourishing worldwide as sexual tourism industry having trans-national/global ramifications. A Bench of SC which is currently seized of the issue relating to "Child Trafficking" co-relating with "Sex Tourism", recently directed that those found involved in pushing young children into flesh trade should be rather booked for offence of rape.
At the outset, we may conclude that the present law which criminalizes prostitution has failed miserably in taming it. But the SC's latest missive to consider legalizing prostitution is also surely not the answer to change the present state of affairs although by attempting so, instances of exploitation and harassment of prostitutes may be curbed to a significant extent as well as these sex workers can be integrated within purview of national health programmes. Regarding the Apex Court 's idea of the Government monitoring the trade, even the question doesn't arise as when our moralistic society strictly denounces it, how can the State assume the role of a regulator of sex industry. There is a need to change the societal perception about prostitution, but that, too, is not an overnight play.
We contacted, Jaspal Singh, Deputy Commissioner of Police, Central District, Delhi in whose jursidiction the infamous redlight area, GB Road, falls shares his experience of Germany where sex workers pay a specified amount of advance tax daily which is collected and submitted by brothel owners. These workers are issued permit / I cards to operate and they also have to undergo periodical medical examination for AIDS protection. Similar the situation in Sweden, Canada, belgium, etc., though in Netherlands, legalisation of prostitution nurtured criminal gangs which excalated violence, trafficked underage girls and child prostitution. "We have to view and assess the situation in Indian contect considering socio-econimic, moral and religious values of our society as well as its poverty level where legalizing prostitution may lead to flourishing practice of trafficking minors. Further we are short of sufficient infrastructure ot monitor and regulate prostitution." feels Singh. He stress the urgent need to create awareness about biological consequences through sex education from school level itself. "Girls needs to be made prudent enough so that then can willingly opt for the profession without any force and exploitation," opines Singh.
According to the Director of Swanchetan Socient for Mental Health, Rajat Mita, "The time is not imperative for legalizing prostitution in the country. As a psychologist and Director of an organisation working with prostitution and human trafficking such a move would be deeply counter productive. Our organisation has done a study with180 survivors from 12 states and the study shows that prostitution leads to a deep trauma in women and that prostitution cannot be equated with any work that lends dignity. If there is a virtual fialure of the law enforcement it is time that we rectify the mistakes and the corruption in the system rather than legalizing it."
with inputs from Hasan Khurshid