Prostitution: A Case For Legalisation or Decriminalisation?

Posted on January 28, 2010 in Society

Megha Bhasin:

According to an official estimate there are around 2.8 million prostitutes operating in 400 ‘red-light areas’ in India. More than 35% of these women have entered the trade before they reached 18 years of age. The biggest organized sex trade is in the big metros of Mumbai and Kolkata.

The Immoral Traffic in Women and Children (Prevention) Act, 1986 once called the Suppression of Immoral Traffic Act, is the main statute dealing with sexual activities in India. Last amended in 1986, when it got its current name, the Act as it stands does not criminalize prostitution or penalize sex workers. It mostly punishes soliciting, living off the earnings of prostitution, and procuring even where sex work is not coerced, seducing, detaining, brothel keeping, abetment to brothel keeping, renting premises for the purposes of prostitution, living off the earnings of a prostitute, and conducting activity in the vicinity of public places remained. Clients transgress the law only if the sex worker is under the age of 16 or if the sex act takes place within 183m of a public place or a ‘notified area’ declared to be prostitution-free by the Government.

There has been a roaring debate over ‘legalization’ of prostitution in the media, by NGOs, women’s groups and even within the Government. But what does legalization mean and what will be its legal and social repercussions? Does it offer a possibility for a change in the system?

For starters, the statute (ITPA, 1986) does not explicitly criminalize prostitution per se. India has declared ‘red light areas’ but there is no other record of prostitutes or prostitution. Legalization would mean identifying all those who were prostitutes and giving them some kind of a license recognizing their existence. This will give them access to many rights and also allow them to seek redressal for violation of these rights. They will be in a better position to demand healthcare, periodic check-ups, education for their children. The latest official estimates of HIV indicate that about 2·5 million (2 million-3·1 million) people in India were living with HIV in 2006, with a national adult HIV prevalence of 0·36%. The corresponding figure for groups perceived to be at high risk of contracting the infection is higher. National figures for number of injecting drug users or sex workers are not available but among injecting drug users, HIV prevalence is estimated to be close to 9% and for female sex workers, it is around 5%. The public-health rationale for targeting sex workers is bolstered by clinical and behavioral data from sex-work sites across India. Sex workers were the first to adopt safer sexual practices despite barriers such as frequent police raids and dislocation. Therefore, the need to continue HIV interventions that provide services while promoting rights of sex workers. Further, it provides a safety net for the prostitutes as the police harassment would be less likely and they would be less vulnerable to the State machinery.

Those against legalization argue that legalizing would entail all acts related to prostitution like pimping, brothel keeping even trafficking get a garb of legality. This would give legitimacy to sexual exploitation of women and criminal acts within the profession and perpetuate the oppressive institution of prostitution. It would also give undue power and control to the State.

Decriminalization is different from legalization. Prostitution as a profession and prostitutes are usually criminalized by existing law and law enforcement machinery instead of the pimp, the procurer or even the trafficker. There is, therefore, a strong case for decriminalizing the profession. Decriminalization will also enable the prostitutes to claim their rights. However, violence and exploitative practices in the profession need to be criminalized. Existing laws need to be made more sensitive to women and should empower them and enable them to exercise their rights.

The writer is a correspondent of Youth Ki Awaaz