(An edited version of this article first appeared in DNA Mumbai as 'Why the NCW's Proposal to Leglize Prostitution in India is Flawed' on 22nd November 2014)
NCW Chairperson Lalita Kumarmangalam’s proposal to legalize prostitution and the comments thereon have a thing in common, inaccurate understanding of the problem and its solution. Her medicine is deadlier than the disease especially when the civilised world is fighting human trafficking and sexual exploitation. Naïve supporters of the policy appear to be misled by the magical term ‘legal’ (like ‘development). Tomorrow they may also support legalization of rape believing that now onwards rapes will be legal and therefore proper.
A person above the age of 18 years, selling his/her bodily sex against money or kind to another major person of opposite sex (the uncertainty on IPC Section-377 is temporarily over with the Supreme court upholding it.) in his /her private premises (a privately owned premise is not necessarily private), 200 meters away from a place of religious worship, a hospital, an educational institution or any place notified by the government (Sec-7) is not a crime under any Indian laws including The Indian Penal Code-1860 or The Immoral Traffic Prevention Act- 1956. The Indian law bans the acts of trafficking, procuring, detaining, pimping, lending a premise for carrying on prostitution of for running a brothel. Soliciting in public places for prostitution is punishable (Sec-8) but a woman arrested under Sec-7 or Sec-8 is not to be punished but to be given a chance of rehabilitation at the state’s cost (Sec-10). In short, the Indian law aims to punish the exploiters like madams, pimps, traffickers, customers, and other partners aiding the exploitative sex trade but not the prostitute woman.
By legalizing the trade would the state decriminalize the offences of trafficking, procuring & detaining girls and young women, brothel keeping or pimping? If the offence of soliciting in public is scrapped from the lawbook then there will be pimps and madams approaching young boys and girls right outside the gates of schools and colleges luring them with money, expensive electronic gadgets, foreign tours to join the sex trade. Parents and teachers will helplessly witness it as they will be arrested for not allowing the pimp to carry out their legal business. Should this legal position be rejected?
If the government wishes to serve the victims of prostitution what stops it from doing what the small civil society organizations have done best? Aren’t these women the citizens of this country? Haven’t the High courts and the Supreme Court from time to time upheld the prostituted women’s constitutional legal and human rights? Why does the NCW think that to assist a rape victim first rape must be licensed?
The origins of the women’s emancipation movement is aptly attributed to the struggle of Josephine Butler against the draconian British law ‘Dangerous Diseases Act 1865’ which was the main expression of legalization. It caused public outcry in Britain and its colonies between 1865 and 1885 when it was finally repealed as it was seen as anti women instrument leading to excessive power abuse by the health officials and police. An indispensable component of legalization is compulsory periodic medical testing (CPMT) justified to curb the sexually transmitted infections. Clinically speaking an actually infectious person may turn out to be negative in the test if his infection is fresh. This is because of the window period. So a person holding certificate of negativity may be actually spreading the infection. The CPMT creates a false sense of security in the client who throws caution to the wind and indulges in unsafe sex. STIs/HIV infections actually increase under legalization.
Under legalization would the state issue licenses to the children (currently > 40% of the victims), the HIV positive victims (> 50% of the victims), the illegal migrants and trafficked aliens mostly the Bangladeshis? If not, where will they all go if not underground? If the government wants to rehabilitate them then who has stopped the government from doing that right away? Everyone in the country except the daroga (the police) knows where to find these women. In countries that have legalized the sex trade two layers of prostitution have emerged a very thin slice of registered legal activities and a huge chunk of illegal activities where women become more vulnerable and suffer extreme exploitation as they are forced to go underground.
Men’s confidence in assaulting any woman goes up when they experience that buying the sexuality of some women is legally supported and risk free. All they need to do is to create vulnerabilities and keep the money ready. If in spite of the law millions are getting trafficked and over 40 millions are currently living the life of sex slaves why would the crime go down with liberalisation of the law. It is like saying no one will fail if the exams are scrapped.
As legalization will mean keeping many registers, filing returns, paying taxes and greasing 10 more palms the sex traders have rejected legalization. Only the pharmaceuticals and the govt. health babus still demand legalization even after knowing its futility.
Dr. Pravin Patkar
Co-Founder Director - Prerana
Adjunct Professor - Amrita Vishwa Vidyapeetham