Why the NCW's proposal to legalise prostitution in India is flawed

National Commission for Women (NCW) Chairperson Lalita Kumarmangalam’s proposal to legalise 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 legalisation of rape believing that now onwards rapes will be legal and therefore proper.

A person above the age of 18 years, selling his/her body for sex against money or kind to another person of the 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 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 legalising the trade, would the state decriminalise the offences of trafficking, procuring and 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 or foreign tours to join the sex trade. Parents and teachers will helplessly witness this 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 organisations 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? Does the NCW think that to assist a rape victim, the rape must first 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 legalisation. It caused public outcry in Britain and its colonies between 1865 and 1885 when it was finally repealed as it was seen as an anti-women instrument leading to excessive power abuse by the health officials and police. An indispensable component of legalisation is compulsory periodic medical testing (CPMT) justified to curb sexually transmitted infections. Clinically speaking, initial tests for a person with such an infection may turn out to be negative, if his infection is fresh. This is because of the window period. So a person holding a certificate of negativity could still spread 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 legalisation.

Police raid at a brothel in Mumbai. Photo credit: Salman Ansari, DNA 

Under legalisation, 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 so right away? Everyone in the country except the daroga (the police) knows where to find these women. In countries that have legalised 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 create vulnerabilities and keep the money ready. If in spite of the law, millions are getting trafficked and over 40 million 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 legalisation will mean keeping many registers, filing returns, paying taxes and greasing 10 more palms, the sex traders have rejected legalisation. Only the pharmaceuticals and government health babus still demand legalisation, even after knowing its futility.

Dr. Pravin Patkar is co-founder director at Prerana and adjunct professor at Amrita Vishwa Vidyapeetham.