It has been around for ages — looked upon with aversion or tolerance, condemned as a terrible vice, or shrugged off as a “necessary evil”. The modern world, and that includes India, has also struggled to determine its response to prostitution — should we regulate it, should we try and stamp it out, or should we, in fact, allow it to thrive unfettered? Earlier this month the Supreme Court gave a fresh impetus to that debate when it said that since prostitution was continuing unchecked, the government might as well go ahead and legalise the profession.
Justices Dalvir Bhandari and A.K. Patnaik said, “They (prostitutes) have been operating in one way or the other and nowhere in the world have they been able to curb it by legislation…So why don’t you legalise it?”
However, the government is unlikely to act on the Supreme Court’s suggestion in a hurry. That’s because legalisation of prostitution is a hugely contentious issue. If there are prostitutes and other stakeholders pressing for legalisation, many others vehemently oppose the move, arguing that it would end up facilitating and legitimising the whole exploitative apparatus surrounding prostitution — the brothel owners, the pimps, the traffickers who supply under-age girls, and so on.
The problem is that prostitutes in India inhabit an uneasy, twilight space that’s neither perfectly legal nor fully illegal. According to the Immoral Traffic Prevention Act, 1956, prostituted sex per se is not illegal. But soliciting is, as is “trafficking and sexual exploitation of persons for commercial purposes” — a loose, ill-defined and ambiguous term that is open to interpretation.
A move to amend the law and make soliciting a non-criminal offence was initiated in 2006. But even the Immoral Traffic Prevention Amendment Bill — which has, incidentally, lapsed since then — carried the caveat that prostitution would not be penalised provided it was not carried out in a brothel, or from any public place within 200 metres of an educational institution, place of religious worship, hotel, nursing home, etc. In other words, even the proposed legislation saw to it that the space within which prostitutes could operate “legally” was severely circumscribed.
“The Bill wasn’t clear on whether the government wanted to legalise or decriminalise the profession,” says Kaushiki Sanyal, senior analyst, PRS Legislative Research, a Delhi-based body that provides research support on legislative and policy issues.
Needless to say, because of their uncertain legal status and because the difference between soliciting and not soliciting is so open to interpretation, prostitutes often face extortion and harassment from the police and are at the mercy of pimps and brothel owners.
So will legalisation be the answer to their problems? Will giving prostitution the same legal status as that of other kind of work help the women in the profession? The pro-legalisation lobby certainly seems to think so. “With legalisation, they will get licences and will be free to practise their trade without fear or persecution,” says Khairati Lal Bhola, president, Bharatiya Patita Uddhar Sabha, a Delhi-based NGO that works for the welfare of women in red light areas.
However, others feel that legalisation will actually be counter-productive when it comes to rooting out the criminal exploitation in the sex industry. “The legalisation of prostitution is the legalisation of sexual exploitation,” says Ruchira Gupta of Apne Aap, an NGO that works in the field of trafficking. “If you legalise the profession, you normalise the demand for minor girls. Because this is a demand-driven industry and most customers want young girls,” she adds.
Another compelling argument against legalisation is that it will increase state intervention in the lives of these women. “The awarding of licences will lead to a kind of a licence raj. It will lead to zoning, that is, allowing the woman to practise only in her designated, licensed zone. That level of control does not benefit the woman,” says Meena Seshu of Sangram, an NGO in Sangli, Maharashtra, that works towards the welfare of prostitutes.
Even the state-sponsored mandatory health check ups that are cited as an advantage of legalisation could have exploitative underpinnings, points out Indrani Sinha of Sanlaap, a Calcutta-based NGO that is active in the field of empowering trafficked and prostituted women. “Their object could be to make the women safe for their clients, rather than to keep them healthy for their own sakes,” she says. “Every effort will be made to see that they don’t get AIDS. Nobody will be bothered to see if they have hepatitis, or if they are suffering from mental and physical trauma.”
T he fact is that in places where prostitution has been legalised — in the Netherlands, the state of Victoria, Australia, or the state of Nevada in the US — the results have not been all that encouraging. Indeed, all these places have witnessed a rise in trafficking, child prostitution and an overall expansion of the sex industry. For instance, there has been a 25 per cent increase in the number of brothels in Amsterdam since legalisation took place, reveals Gupta.
Since legalisation has so many potential pitfalls, decriminalising the profession is often said to be a better option. “By decriminalisation, I mean that the woman is free to carry out her trade in a non-criminal space without fear of persecution by the state,” says Seshu. Adds Nitya Ramakrishnan, a Delhi-based lawyer, “The woman herself should be decriminalised. But, certainly, traffickers or anyone who forces a woman into prostitution should not be exempted from the purview of criminal law.”
One way forward on the road to decriminalisation would be to follow Sweden’s example. In 1999 Sweden brought in a law that decriminalised the activity of prostitutes but penalised the buyers of prostituted sex. In fact, the aborted Immoral Traffic Prevention Amendment Bill, 2006, did make a half-hearted attempt to adopt the Swedish model since it criminalised the customers.
But part of the reason the Bill sputtered and died was that there are many critics of the Swedish model as well. They point out that penalising the punters, that is, the demand side of the profession, drives the whole trade underground, making it more unsafe for the woman. For example, as Seshu explains, if the customer is liable to be arrested when he visits a brothel, he might call her out to some other place where he and his friends may rape her.
Ultimately, the whole issue of legalisation, or even decriminalisation, turns on whether or not we accept that a woman may be practising her trade out of choice. She may or may not have entered the profession voluntarily, but if she is now earning a living from it and has achieved a degree of agency in it, should society not ensure that she has a safe and non-criminal environment to operate in?
It remains to be seen if the government will take a legislative step in this regard. But whether it roots for legalisation or decriminalisation, it needs to make sure that recognising a woman’s legal right to practise prostitution does not translate into limiting the choices of livelihood available to her. In places where prostitution is legal in Germany, for instance, some women were denied unemployment benefits because they had not tried prostitution.
That’s the kind of nightmare scenario that even the staunchest votary of legalisation will not wish for.