A low key campaign for legalizing prostitution in the country is underway with the support of a large number of activists working on the issue and complicity of a larger number supporting the move with their silence. A few articles have appeared in the print media advocating the measure, and the Chairperson of the National Commission for Women Lalitha Kumaramangalam (an appointee of the Modi government) has reportedly written to the Supreme Court in its favour. A larger number of activists working for the rights of women appear to bless the move with their deafening silence. It is quite possible that they think the measure to be in the best interest of the women caged in brothels all over the country, but maintain silence apprehending an outcry against a loud campaign.
It is being touted that legalization of prostitution would save the women in the business from HIV and other sexually transmitted diseases, clutches of the pimps and the keepers of the brothels, financial exploitation and the violence they have to suffer in silence. The legalization, it is argued, would enable them to approach the police which they are presently unable to do due to the illegality of their activity. It is claimed that the legalization of prostitution would entitle the women in the business to many rights as workers, give them the right to choose or reject their customers and enhance their bargaining power. As a windfall, it would drastically reduce the incidence of rape and make the world safer and better for the rest of women.
The demand for the legalization of prostitution is based on the premise that the sexual need of men has primacy over the sexual need of women, and it is imperative to provide women not in need of the gratification of their sexual urge to men for the fulfillment of men. Men and women in this respect should not be treated as equal. The demand for legalization of prostitution is based on the untenable assumption that satisfying the lust of customers for money is work like sweeping, washing, typing nursing and teaching etc., and the women compelled to do it are (sex) workers like sweepers, typists, nurses and teachers.
Designating sex as work and the helpless women compelled to undertake it as a sex worker are misnomers. Work is the exchange of labour and skill for wages and is an exercise extrinsic to a human being and alienable from him/her. Sex, on the other hand, is a human instinct, intrinsic and inalienable from a person and can by no stretch of imagination be designated as work like sweeping, nursing and other work of the same category. The end of the two categories of activities itself shows the wide gulf between the two. The end of work is wages in return for the labour and skill of the worker, while the end of sex is the gratification of the instinctive need of the person/ persons and the happiness and exhilaration accompanying it.
The cause of the demand for the facility to buy sex is rooted in one fundamental difference between the nature of men and women. While men may derive pleasure from purchased sex from a strange woman, it is a degrading and humiliating experience for a woman to have sex for wages with strangers. Advocating the opening of shops for sale of sex is the worst kind of exploitation of the abject poverty and helplessness of women for the sole purpose of the gratification of the sexual urge of men.
During the colonial rule, the government adopted the policy of providing Indian women for the gratification of the sexual urge of the British soldiers under ‘The Cantonment Acts’. Women were trafficked even from Europe. The policy was claimed to have been adopted to stave off homosexuality among soldiers and offer them comfort. Subjugation of women by force was also done during the Second World War by the Imperial Army of Japan. Women were forced to sex slavery for the comfort of the Japanese soldiers, for which Japan is being condemned even today. Now, no government dares to undertake the responsibility of providing for the gratification of the sexual need of its soldiers living far from their home and spouses.
The legalization of prostitution is tantamount to enslaving women citizens for the satisfaction of sexual urge of men, and absolutely unacceptable. The society does not need any convincing regarding the degradation and inhumanity inherent in the sale of sex by women. Only those unfortunate women, whose abject poverty leaves them no other option, go to a brothel. This fact does not need any survey for corroboration. From 32% to 40% of our countrymen have income below the poverty line. Millions are semi starved. Men, women and children die for want of medical care which they cannot afford, but they prefer semi starvation, watching their kith and kin dying of diseases for want of treatment to opting for prostitution as a way out.
If having sex for wages had been considered ‘work’ like any other menial job, many women might have preferred it to the degrading chores like scavenging or bone breaking work like in mines or construction of buildings. Recently, a large number of women from affluent families, who do not sweep their own houses, joined the Bharat Swachchhata Abhiyan with brooms in their hands because the exercise did not involve degradation or abasement. Would a woman, who is not compelled by her circumstances, join a campaign to accord dignity of legitimate work to have `sex for wages’ by personal participation?
Since unlike sweeping, sex as work is degrading, humiliating and a torture without the dignity of labour, there would be no such participants. The freedom and right to make a choice is also invoked in favour of legalizing prostitution. The right to have sex for money or any other material gain already exists for women who are affluent enough to have a choice. An adult woman is free to offer sex for money in private premises. Two or more doing the same are considered to do it for commercial purposes and attract the penal provisions of The Immoral Traffic (Prevention) Act, 1956.
Choice implies a free choice. A choice under duress of any kind does not qualify as choice at all. Women who choose to go to a brothel do so under very compelling circumstances caused by abject poverty. They are too poor, needy and helpless to protest against any form of exploitation or an inhuman treatment. It would be adding insult to injury to suggest that these unfortunate women go to a brothel for fun, pleasure and having a good time. They do not make a choice. They go there because in the absence of an alternative employment for survival they have no other choice.
It is cruel to suggest that women who end up in a brothel make a free choice to live that life. Just as a woman raped at the point of a gun cannot be said to have made a choice between submitting to the assailant and death, women going to a brothel to escape a sub-human life cannot be said to have made a choice. There can be no choice between the Devil and the deep sea. The law in India is basically aimed against sexual exploitation of women for commercial purposes. The Act defines “prostitution” to means the sexual exploitation or abuse of persons for commercial purposes, and the expression `prostitute’ “shall be construed accordingly” (sec. 2f).
As a consequence, it criminalizes all activities or use of places for the purpose of prostitution. It criminalizes trafficking and activities like soliciting at public places .The Act aims at preventing people from making a profit by sexually exploiting women for commercial purpose and to prevent trafficking in women and children.
The underlying basis of advocating legalization of prostitution is the failure of the State to enforce its law and the consequent existence of prostitution and brothels at a large scale in which women continue to be exploited, abused and forced to live a life of misery. They claim that that once prostitution is legalized, the women would be entitled to pursue their profession openly, be free from the fear of the police, would be able to have better medical care, have better bargaining power and be entitled to rights as workers.
This rosy picture has been painted on the basis of the completely unrealistic assumption that following the legalization of prostitution its provisions would transform the character of the police and the others concerned and the law would be enforced without fear or favour; resultantly, all will be well, i.e., the rule of law elusive elsewhere, would prevail in dealing with this profession, all over the country. Even if the optimistic view is accepted for argument’s sake, the question remains whether the failure of the State to enforce a law, otherwise desirable, should be a ground for legalizing an illegal and inhuman act.
Should corruption be legalized because it is ubiquitous and rampant despite a plethora of laws and agencies to check it? Should dowry be made legal because the law has completely failed to curb it? Or should all laws which in themselves are necessary but are ineffective in curbing crimes be replaced by laws to legalise the crimes? Such a position would be a recipe for disaster. It is also untenable to accept that the State, which claims to have the power and determination to end terrorism, curb insurgency and completely control armed struggles spread in several parts of the country is incapable of preventing prostitution. It, undoubtedly, has the capability but not the intention to do it.
The advocacy of legalization of prostitution also smacks of the application of a double standard: one for the poorest and weakest among women who end up in brothels and another for the rest. On the one hand, there is a move to decriminalize and legalise a life of utmost degradation, humiliation and torture of the women in sex trade and on the other, there has been successful movements to win for women security and dignity for women working in other spheres. There are laws to ensure a healthy and safe environment for women at the place of their work. Any sign, gesture, word or act having sexual overtones is considered to outrage the modesty of a woman and makes the offenders liable for punishment.
All institutions – private or public – are bound by law to have a women’s cell to ensure that the law is enforced .Male employees having sexual relationship with their subordinates, even with their full consent, are liable to be punished for rape on the complaint of the woman concerned because the consent of a subordinate is rightly considered as consent under duress. But the case of women opting for prostitution under extreme compulsion is touted as genuine consent, and they are considered women of a class who have no feeling, emotion, dignity, or physical pain or trauma. They are not considered women but robots.
The most pertinent question is why should the State undertake the responsibility of providing for the gratification of the sexual need of men? Why should the State create an institution which is degrading and humiliating to women for the sake of only the pleasure of men? Why should the State create and take the responsibility of establishing an institution which poses a grave threat to the life of women involved and with other harmful ramifications? Surely, men visiting the brothels would not be required to carry a medical certificate declaring them free of ‘Sexually Transmitted Diseases’. Would the boys in their teens visiting a brothel be required to carry proof of their age? Or even children would be free to avail of the facility? Or should the State create an institution to wreck the institution of family by enacting a law which would tempt men to have sex legally outside the marriage?
Surely, the law legalizing prostitution would not require the customers to carry a certificate that they have no spouse. Sexual need of a person is a very personal issue, and it must be left to the men and women to solve it at their personal level. The State should not license Sex Shops like ration shops (under the Public Distribution System). The State has some obligations to its citizen, which it must meet. The foremost duty of a State, specially a welfare State, is first to utilize the resources of the country to guarantee a decent and dignified life free from abject poverty to citizens. Legalising prostitution is abdication of this responsibility.
Only a bankrupt State should not be pardoned for offering prostitution as a source of livelihood to its citizens. India, which is in the race for recognition as an economic world power, can provide a decent and dignified life to her people if its government cared for her people and chose to honour her obligations under various human rights laws. Advocacy for legalization of prostitution absolves the State of its duty to her citizens and its obligation under human rights treaties it has signed .It is also tantamount to telling the poor to fend for themselves even by taking to prostitution for survival. A woman in the trade is condemned to a life without her inherent dignity, which is her inalienable human right. She is forced to take to that life only as a consequence of denial of economic rights guaranteed under the International Covenant on Economic, Social and Cultural Rights. Its Article 11 (1) stipulates that “The State Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions”.
Prostitution also is an impediment to the enjoyment of a woman’s right to found a family and motherhood. If a child is born, the child is denied the care and attention required while young and the dignity of a person when he grows up. It is a profession which jeopardizes not only the life of the woman but also her child/ children. The gravity of this injustice is more galling because the children are in no way responsible for the circumstances of their birth.
The life of a woman in the profession would be continual violation of Article 5 of the Universal Declaration of Human Rights which stipulates that, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Asking for legalization of prostitution is asking for authorizing a life in which the women would be subjected daily to torture, and cruel, inhuman and degrading treatment. Advocating for legalization of prostitution is asking for perpetual violation of the human rights of the women forced into the profession and absolving the State of its failure to take care of its citizens.
*President, People’s Union for Civil Liberties (PUCL). The article was first published in PUCL Bulletin, April 2015