(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
