India court raises question of legalising prostitution

[Avnish Jolly]

India court raises question of legalising prostitution
BBC, Thursday, 10 December 2009
http://news.bbc.co.uk/2/hi/south_asia/8405154.stm

There are more than two million sex workers in India

India's Supreme Court has asked the government to consider whether it might legalise prostitution if it is unable to curb it effectively.

The court said legalising prostitution would help in the monitoring of the trade and rehabilitating sex workers.

Although illegal, prostitution is a thriving business in cities and towns across India.

It is estimated that there are more than two million female sex workers in the country.

The court's remarks came while dealing with a public interest litigation filed by an NGO about child trafficking.

The court said child trafficking and prostitution were flourishing because of poverty.

"When you say it is the world's oldest profession and you are not able to curb it by laws, why don't you legalise it?" Judges Dalveer Bhandari and AK Patnaik asked a government solicitor.

"You can then monitor the trade, rehabilitate and provide medical aid to those involved."

The solicitor said that he would look into the court's suggestions.

"The [sex workers] have been operating in one way or the other and nowhere in the world have they been able to curb it by legislation," the judges said.

"In some cases, [the trade] is carried out in a sophisticated manner. So, why don't you legalise it?"

A government-commissioned study says that the number of sex workers has risen from two million in 1997 to three million in 2003-04.

Many prostitutes are said to be underage, entering the sex trade as young as 12.

Andhra Pradesh and West Bengal states together account for 26% of the total number of prostitutes in the country.

[surjeet kumar himachali]

being in a legal profession for more than twenty years,I feel that it needs lot of consultation before implementation such kind of law. Its very easy to pass the law but its regularization needs lots of efforts and vision. My Senior was in the committee of Pepsu States before the Independence and they recommended it .
With the change of time when HIV AIDS is threat to the mankind we must think fresh and do the needful.During my little experience in the field of law in High Court that working women are exploited in their Offices and Job places therefor we must implement intervention for the protection of women rights at their work place
Thanks Dr Jolly for initiating this issue,which may help the people at large.
Thanks again and regards.

[Avnish Jolly]

Is country ready for legalised sex trade?
Karanjeet Kaur/ Sujit Nath
New Delhi/Kolkata, December 13, 2009
http://indiatoday.intoday.in/site/Story/74799/India/Is+country+read...

The prostitute in Indian cinema and ancient literature is glamoursied, even glorified. But the reality couldn't be more different.

A recent comment by the Supreme Court, however, may mark the beginning of a change.

A bench comprising Justice Dalveer Bhandari and Justice A. K. Patnaik on Wednesday suggested to the government to legalise sex trade.

During the hearing of a public interest litigation filed by NGO Bachpan Bachao Andolan, seeking to check largescale child trafficking, the court told solicitor- general Gopal Subramaniam: " When you say it is the world's oldest profession and when you are not able to curb it by laws, why don't you legalise it? You can then monitor the trade, rehabilitate and provide medical aid to those involved in it." The suggestion has reignited the debate over legalising the world's oldest profession in India, with both the supporters and the opponents forwarding strong arguments.

Legalising or even decriminalising sex trade could potentially open up the proverbial Pandora's box.

Even if the stigma associated with prostitution were to be kept out of consideration, experts say the move could potentially lead to rampant, uninhibited trafficking, especially of minors.

On the other hand, there are others who argue that decriminalisation of the trade is important for according legal status to prostitutes, who are not protected by labour laws and are constantly harassed by corrupt policemen.

The move could also give a fillip to the fight against HIV/ AIDS by ensuring that sex workers have greater access to medical and preventive facilities.

Prostitution is not illegal in India. It is only commercialised vice that is criminal, according to Immoral Traffic ( Suppression) Act, 1956, also known as SITA. This means while a woman can use her body in private for a commercial purpose - male sex workers are not recognised by the law - but she can be punished for soliciting business or seducing clients in public.

Organised prostitution - running brothels, pimping and prostitution rings - is illegal. The clients can be punished for sexual activity at or close to a public place.

The law was later amended and re- designated as Immoral Traffic ( Prevention Act) 1986, but its substance remained unchanged.

The Act, though, is rarely used by the police to charge sex workers; instead, they are usually prosecuted under the Indian Penal Code for charges such as ' public indecency'. Experts who work with sex workers are virulently divided on the issue of decriminalisation.

Praveen Patkar, the founder of Prerana, a Mumbai- based NGO that works towards the rehabilitation and education of sex workers' children, said legalising or even decriminalising the trade will open the floodgates and trafficking of women and children will acquire a legal edge.

" Despite having a well- formulated law against trafficking, we have been unable to check the menace. By what stretch of imagination can we believe that trafficking can be curbed when the trade itself is decriminalised?" he said.

There is a need, though, to delink sex work from trafficking.

Jamia Milia Islamia professor Shohini Ghosh, who made the 2002 film Tales of the Night Fairies on the sex workers of Sonagachi in Kolkata, said if the trade is decriminalised, it'll be organised like any other profession and the rights of sex workers will be easier to protect. " At present, a sex worker can't report any crime against her for fear of retribution," she said.

Bharati Dey, the programme director of Durbar Mahila Samanwnay Samity, an NGO working for the welfare of sex workers in West Bengal, welcomed the Supreme Court's suggestion.

" This will help sex workers find access to a good livelihood," said Dey, who's now in the Capital for a conference by the National Network of Sex Workers, who are debating, among other things, the demand to decriminalise the trade.

She said the step would help children of sex workers who find it difficult to get admission in schools.

There is, of course, the issue of health. Anjali Gopalan, the founder and executive director of Naz Foundation Trust, said decriminalisation will help sex workers to be more assertive about condom use.

Pointing to the Sonagachi project, run largely by the sex workers themselves, Gopalan said it has helped keep HIV infection rate at 5 per cent, the lowest in India.

Patkar, though, said decriminalisation will just lead to a false sense of security. " Customers usually throw caution to the winds. Compulsory testing also depends on budgets. Also, it is not possible to check the customers, who eventually spread the infection," he said.

Arvind Narrain, founder of the Bangalore- based Alternative Law Forum, said the court's comment is not the same thing as a move towards decriminalisation.

" Sure, it will help bring down cases of police harassment. But a judgment, if ever there is to be one, is really far away," he says.

Nevertheless, hope floats. As Sonam, a sex worker from Agra in a Sonagachi brothel, said: " Our pleas usually get suppressed in these dingy lanes. I wish we weren't treated like criminals." If the country's highest court were to take action on its suggestion, the muffled prayers of lakhs of women such as Sonam may finally get heard.

[Avnish Jolly]

ENABLING THE LADIES OF THE NIGHT
| Wednesday , December 30 , 2009 |
http://www.telegraphindia.com/1091230/jsp/opinion/story_11923256.jsp

The Supreme Court suggested recently that prostitution should be legalised. But decriminalising the profession may be a better idea, says Shuma Raha

It has been around for ages — looked upon with aversion or tolerance, condemned as a terrible vice, or shrugged off as a “necessary evil”. The modern world, and that includes India, has also struggled to determine its response to prostitution — should we regulate it, should we try and stamp it out, or should we, in fact, allow it to thrive unfettered? Earlier this month the Supreme Court gave a fresh impetus to that debate when it said that since prostitution was continuing unchecked, the government might as well go ahead and legalise the profession.

Justices Dalvir Bhandari and A.K. Patnaik said, “They (prostitutes) have been operating in one way or the other and nowhere in the world have they been able to curb it by legislation…So why don’t you legalise it?”

However, the government is unlikely to act on the Supreme Court’s suggestion in a hurry. That’s because legalisation of prostitution is a hugely contentious issue. If there are prostitutes and other stakeholders pressing for legalisation, many others vehemently oppose the move, arguing that it would end up facilitating and legitimising the whole exploitative apparatus surrounding prostitution — the brothel owners, the pimps, the traffickers who supply under-age girls, and so on.

The problem is that prostitutes in India inhabit an uneasy, twilight space that’s neither perfectly legal nor fully illegal. According to the Immoral Traffic Prevention Act, 1956, prostituted sex per se is not illegal. But soliciting is, as is “trafficking and sexual exploitation of persons for commercial purposes” — a loose, ill-defined and ambiguous term that is open to interpretation.

A move to amend the law and make soliciting a non-criminal offence was initiated in 2006. But even the Immoral Traffic Prevention Amendment Bill — which has, incidentally, lapsed since then — carried the caveat that prostitution would not be penalised provided it was not carried out in a brothel, or from any public place within 200 metres of an educational institution, place of religious worship, hotel, nursing home, etc. In other words, even the proposed legislation saw to it that the space within which prostitutes could operate “legally” was severely circumscribed.

“The Bill wasn’t clear on whether the government wanted to legalise or decriminalise the profession,” says Kaushiki Sanyal, senior analyst, PRS Legislative Research, a Delhi-based body that provides research support on legislative and policy issues.

Needless to say, because of their uncertain legal status and because the difference between soliciting and not soliciting is so open to interpretation, prostitutes often face extortion and harassment from the police and are at the mercy of pimps and brothel owners.

So will legalisation be the answer to their problems? Will giving prostitution the same legal status as that of other kind of work help the women in the profession? The pro-legalisation lobby certainly seems to think so. “With legalisation, they will get licences and will be free to practise their trade without fear or persecution,” says Khairati Lal Bhola, president, Bharatiya Patita Uddhar Sabha, a Delhi-based NGO that works for the welfare of women in red light areas.

However, others feel that legalisation will actually be counter-productive when it comes to rooting out the criminal exploitation in the sex industry. “The legalisation of prostitution is the legalisation of sexual exploitation,” says Ruchira Gupta of Apne Aap, an NGO that works in the field of trafficking. “If you legalise the profession, you normalise the demand for minor girls. Because this is a demand-driven industry and most customers want young girls,” she adds.

Another compelling argument against legalisation is that it will increase state intervention in the lives of these women. “The awarding of licences will lead to a kind of a licence raj. It will lead to zoning, that is, allowing the woman to practise only in her designated, licensed zone. That level of control does not benefit the woman,” says Meena Seshu of Sangram, an NGO in Sangli, Maharashtra, that works towards the welfare of prostitutes.

Even the state-sponsored mandatory health check ups that are cited as an advantage of legalisation could have exploitative underpinnings, points out Indrani Sinha of Sanlaap, a Calcutta-based NGO that is active in the field of empowering trafficked and prostituted women. “Their object could be to make the women safe for their clients, rather than to keep them healthy for their own sakes,” she says. “Every effort will be made to see that they don’t get AIDS. Nobody will be bothered to see if they have hepatitis, or if they are suffering from mental and physical trauma.”

T he fact is that in places where prostitution has been legalised — in the Netherlands, the state of Victoria, Australia, or the state of Nevada in the US — the results have not been all that encouraging. Indeed, all these places have witnessed a rise in trafficking, child prostitution and an overall expansion of the sex industry. For instance, there has been a 25 per cent increase in the number of brothels in Amsterdam since legalisation took place, reveals Gupta.

Since legalisation has so many potential pitfalls, decriminalising the profession is often said to be a better option. “By decriminalisation, I mean that the woman is free to carry out her trade in a non-criminal space without fear of persecution by the state,” says Seshu. Adds Nitya Ramakrishnan, a Delhi-based lawyer, “The woman herself should be decriminalised. But, certainly, traffickers or anyone who forces a woman into prostitution should not be exempted from the purview of criminal law.”

One way forward on the road to decriminalisation would be to follow Sweden’s example. In 1999 Sweden brought in a law that decriminalised the activity of prostitutes but penalised the buyers of prostituted sex. In fact, the aborted Immoral Traffic Prevention Amendment Bill, 2006, did make a half-hearted attempt to adopt the Swedish model since it criminalised the customers.

But part of the reason the Bill sputtered and died was that there are many critics of the Swedish model as well. They point out that penalising the punters, that is, the demand side of the profession, drives the whole trade underground, making it more unsafe for the woman. For example, as Seshu explains, if the customer is liable to be arrested when he visits a brothel, he might call her out to some other place where he and his friends may rape her.

Ultimately, the whole issue of legalisation, or even decriminalisation, turns on whether or not we accept that a woman may be practising her trade out of choice. She may or may not have entered the profession voluntarily, but if she is now earning a living from it and has achieved a degree of agency in it, should society not ensure that she has a safe and non-criminal environment to operate in?

It remains to be seen if the government will take a legislative step in this regard. But whether it roots for legalisation or decriminalisation, it needs to make sure that recognising a woman’s legal right to practise prostitution does not translate into limiting the choices of livelihood available to her. In places where prostitution is legal in Germany, for instance, some women were denied unemployment benefits because they had not tried prostitution.

That’s the kind of nightmare scenario that even the staunchest votary of legalisation will not wish for.