Legalizing prostitution: A million-dollar question
Freddy Dias
The question – should India legalize prostitution? has been dogging the minds of our policy makers for a long time now, even though the Supreme Court of India, sometime back, suggested legalizing prostitution as a solution to the reality that, despite a raft of law, there is a rapid proliferation of the sex trade in the country. The Apex Court pointed out that no legislation anywhere in the World had successfully managed to stop the sex trade, and legalizing it would allow authorities to monitor the activity, rehabilitate and provide medical help to those involved. This suggestion, however, received a mixed response from social activists, including NGOs working with sex workers, across the country – with some welcoming it, while others expressing their fear that such a move would only encourage human traffickers and prostitution mafia.
Those advocating legalization of the flesh trade, see the Apex Court’s comments as a positive development as, according to them, no amount of punitive action has or can prevent the sex trade. Any action has only led to violence and criminalization of the trade, besides causing violation of human rights of those involved. Prostitution should be treated as work and brought under the Work Schedule of the Labour department. Persons involved in prostitution from both brothels and the street should be recognized as workers and the Immoral Traffic Prevention Act (IPTA) should not be applied against them. Legalizing the flesh trade will also curb the spread of HIV, they reason.
Others who are against legalization of prostitution are of the opinion that such a move would only end up giving immunity to pimps and brothel-keepers to buy and sell human beings. This will in turn increase trafficking of young women and children who are abducted, trapped, bought and sold by criminal mafias to be inducted into the flesh trade. Despite having a well formulated law against trafficking, authorities have failed to check the menace. Legalizing the flesh trade will open the floodgates for human trafficking, they argue.
Even in countries, particularly in the West, where prostitution is legal, the women involved are not free from dehumanizing forms of sex slavery and prostitutes do not command social respect. 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 itself amounts to gross denial of their human rights.
Therefore, such a solution will not work. While there is need to decriminalize 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 dehumanizing circumstances under which the vast majority of children and women are trapped into the trade.
Within the Indian context, prostitution is ‘dhandaa’, a business. It is an exchange of a sexual service for monetary benefit. Legalization of this business will not help the women involved in the activity. 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, resulting in abuse of their
human rights. This abuse has been exacerbated in recent years because the increased visibility of sex workers due to public health interventions has proved dangerous.
Even women in prostitution, who are informed of their health rights, do not always have full agency in protecting themselves. Police, government officials, politicians 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 opportunity of accessing good health care.
Coupled with this is the attention this visibility is attracting from the moral brigade, which has spearheaded the strategy of ‘rescue and rehabilitation’ missions. The strategy stems from the idea that all prostitution is a form of sexual victimization. These programmes have not only proved to be indiscriminate, violent and incredibly destructive of invaded communities, they have also proved ineffectual in combating HIV/AIDS, child prostitution and sex trafficking.
In fact, even the rescue and rehabilitation of sex workers strategy is being doggedly pursued by the government, assuming various guises from relocation and resettlement to incarceration, marrying off or provision of skills training in knitting, tailoring, embroidery or beautician’s courses. Social activists argue that rehabilitation efforts in the country have failed for many reasons, primarily because the concept of rehabilitation itself is defective. They expressed reservations with the word ‘’rehabilitation’ and the way it is applied while removing women from prostitution.
Existing policies are built around the implicit moralistic presumption that prostitution is immoral and a sex worker is a fallen woman who needs to be reformed and rehabilitated as she is a threat to the moral health of the community. Repatriation and reformation is the only form of justice available to the women who may have been either forcibly trafficked or voluntarily consented to migrate for reasons of poverty or better opportunities to survive. One of the difficulties is that nowhere in the concept of rehabilitation is there any discussion of choices – sex workers must be involved in any policies meant for their welfare and rehabilitation.
Opponents of rescue and rehabilitation point out that current practices in India violate numerous provisions of International Law. For instance, the forced eviction of sex workers from their place of residence and work violates the right to freedom of movement and of residence protected under Article 13 of the Universal Declaration of Human Rights, and the right to housing protected under Article II of the International Covenant on Economic, Social and Cultural Rights.
Moreover, Article II of the Convention on the Elimination of All Forms of Discrimination against Women additionally protects ‘the right to free choice of the profession and employment as well as the right to protection of health and safety in working conditions”. The primary need is, therefore, to extend basic human rights that are specific to the reality of women in prostitution.
