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Should India legalise prostitution?

Jan 11, 2010

The Supreme Court of India has advocated legalisation of prostitution. While some feel that decriminalising the practice will aid sex workers in better accessing welfare measures, others feel that the provision will only serve to provide more immunity to immoral traffickers, argues Kamayani Bali-Mahabal.

Mumbai: The Supreme Court (SC) of India recently suggested legalising prostitution as a solution to the reality that, despite a raft of law, there is a rapid proliferation of the sex trade. The apex court, presided by a two-judge bench, said no legislation anywhere in the world had successfully managed to stop the sex trade, and legalising it would allow authorities to "monitor the trade, rehabilitate and provide medical aid to those involved".

This suggestion, however, has received a mixed response from activists working with sex workers in India. While those like Dr S. Jana, the man behind the formation of 65,000-strong sex workers' forum, the Durbar Mahila Samanwaya Committee (DMSC) have welcomed it, others fear that such a move would only encourage traffickers and the prostitution mafia.

Jana, who is the principal of the Kolkata-based Sonagachi Research and Training Institute (SRTI), sees the Apex Court's comments as a positive development. According to him, no amount of punitive action has or can prevent prostitution. It has only led to violence and criminalisation of the trade. "Sex work should be treated as work and brought under the Work Schedule of the labour department. Sex workers from both the brothels and the streets should be recognised as workers and Immoral Traffic Prevention Act (IPTA) should not be applied to them. Legalising the trade will also help curb the spread of HIV," he reasons.

The Court was hearing a Public Interest Litigation (PIL) filed by the NGOs, Bachpan Bachao Andolan (Save Childhood Movement) and Childline, complaining about large-scale child trafficking in the country and seeking directives to contain it. Says R.S. Chaurasia, Chairperson, Bachpan Bachao Andolan, "We are against all forms of exploitation of men, women and children including commercial sexual exploitation, forced labour and all such slavery-like practices. We have filed this petition against trafficking within India as well as across international borders with the intention of developing better policies against all forms of trafficking."

Madhu Kishwar, Professor at the Centre for the Study of Developing Societies and Founder Editor of Manushi, is clearly against legalising prostitution. "We will only end up giving immunity to the pimps and brothels to buy or sell human beings. This will in turn increase trafficking of young women and children." She pointed out that it is also worth noting that the judges were not dealing with those women who take to this profession as a choice, but with children who are abducted, trapped, bought and sold by criminal mafias to be inducted into the flesh trade.

In India, the Immoral Traffic Prevention Act (ITPA) is the only piece of legislation dealing with the crime of trafficking but it only considers trafficking as prostitution and is not in accordance with International Policies and Guidelines, including the Palermo Protocol of 2001, which India has signed. This is an unsatisfactory state of affairs because Article 23 of the Indian Constitution prohibits "traffic in human beings and all similar forms of forced labour".

Prostitution is legal with some restrictions in Canada, almost all of Europe including England, France, Wales and Denmark, most of South America including most of Mexico (often in special zones), Brazil, Israel (Tel Aviv is known as the brothel capital of the world), Australia, and many other countries. It is either legal or tolerated in most of Asia. Even Iran has "temporary wives", which can be for only a few hours. In 2003, New Zealand passed one of the most comprehensive decriminalisation acts, which even made street hookers legal.

However, Kishwar argues that despite legalising sex work, the women involved are not free from dehumanising forms of sex slavery and prostitutes do not command social respect.

Therefore, copycat solutions will not work. While there is need to decriminalise this activity and free women in prostitution from the terror and extortionist grip of the police, to make it socially acceptable would mean turning a blind eye to the dehumanising circumstances under which the vast majority of children and women are trapped into the trade.

Pravin Patkar, the founder of Mumbai-based NGO, Prerana, which works for the rehabilitation of children of sex workers, tends to agree with Kishwar's views. He feels that decriminalisation of the profession will open the floodgates for human trafficking. "Despite having a well-formulated law against trafficking, we have been unable to check the menace. By what stretch of imagination can we believe that trafficking can be curbed when the trade itself is decriminalised?" he asks.

"Within the Indian context, sex work is 'dhanda', a business. It is an exchange of a sexual service for monetary benefit," explains Meena Seshu, a feminist activist and founder of SANGRAM, an organisation based in Sangli, Maharashtra, that has helped women in prostitution become AIDS educators among themselves and in the wider community.

Legalisation of this business will not help the women involved in this business. It would mean that the state would have more control over the mobility of the sex workers and also increase their vulnerability to mandatory testing of HIV and STD," she elaborates. Indian law and government policies have failed to protect sex workers, as ambiguity in the law has made sex workers vulnerable to abuse. According to Seshu, this abuse has been exacerbated in recent years because the increased visibility of sex workers due to public health interventions has proved dangerous.

Coupled with this is the attention this visibility is attracting from the moral brigade. According to Seshu, it has spearheaded the strategy of "raid, rescue and restore" (R3) missions. The R3 ideology stems from the idea that all prostitution is a form of sexual victimisation.

According to her, these programmes have not only proved to be indiscriminate, violent and incredibly destructive of invaded communities, they have also proven ineffectual in combating HIV/AIDS, child prostitution and sex trafficking.

"But has anyone asked what women in the trade feel?" asks Kamlabai, a sex worker with Veshya Anyay Mukti Parishad (VAMP - Prostitutes Against Injustice) for almost 12 years. The 50-year-old, who hails from Karnataka says, "On the one hand the police use force and violence against us. On the other, the society discriminates against us because of our profession. Will the violence and discrimination end once our profession is legalised? Suppose we get identity cards, and we have to migrate, what will be the process? Will I get rid of corrupt police officials, pimps then? I want to know what benefits me - de-criminalisation or legalisation?" But Kamlabai is clear about one thing. "If there is a law for us it has to be made with our participation," she says.

On trafficking she believes that women in prostitution cannot be put into a box. "The fact that a majority of adult women in sex work consent to it is disbelieved and ignored. The understanding that trafficking is synonymous to sex work or prostitution has also dodged the strategies by policy makers, who insist that all women in sex work are victims of trafficking. Not all the women in sex work are trafficked and not all trafficked women are in sex work," she argues.

Even women in prostitution, who are informed of their health rights, do not always have full agency in protecting themselves. Police, government officials and criminals will often force these women to have sex without condoms, threatening them with blackmail, extortion, arrest and/or violence. They are, therefore, at a higher risk of contracting diseases, with a lesser chance of accessing good health care.

Because society deems women in prostitution as morally corrupt, they are assumed to be guilty in any altercation, and thus "deserving" of any violence committed against them. This amounts to a gross denial of their human rights.

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