Immediately after becoming a republic one of the first things India did was to put its signatures on the International Convention for The Suppression of Immoral Traffic in Persons and Exploitation of Prostitution. Enactment of Immoral Traffic (Prevention) Act, 1956, followed ratification of the convention. After more than half-a-century of enforcement of the penal law, the Supreme Court virtually damned the effectiveness of the legislation. The suggestion to legalize prostitution from the apex court appeared rather out of place. For the Bench as quoted
“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 legalize it? You can then monitor the trade, rehabilitate and provide medical aid to those involved,” Justices Dalveer Bhandari and AK Patnaik told Solicitor-General Gopal Subramaniam.
The court said legalizing sex trade would be a better option to avoid trafficking of women and pointed out that nowhere in the world was prostitution curbed by punitive measures.
Subramaniam said he would look into the suggestion.
“They (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. In some cases, they (the trade) is carried out in a sophisticated manner. So, why don’t you legalize it?” the judges asked.
The court was hearing a PIL filed by NGOs Bachpan Bachao Andolan and Childline complaining about large-scale child trafficking in the country and seeking directives to contain it.
The apex court also wondered why 37% of the country’s population continues to reel under below poverty line at a time when then there is much talk of growing GDP rate in the country.
The bench said child trafficking and sex trade were flourishing because of poverty which needs to be tackled.
“We are taking about growing GDP. I do not know what is the development we are all talking about when the number of BPL families is at 37% which has increased from 30%.
“Growth of GDP does not mean some four or five families have developed. If this is the state of development, we can’t help it,” the bench said while posting the matter for further hearing.
The contention of the petitioner is that a number of minor children, particularly girls and those of tender age are being pushed into sex trade.
Childline counsel Nandita Rao alleged several minor girls are being sexually exploited by circus owners and there has to be adequate legal framework to prevent such exploitation.
Responding to her suggestion, the Solicitor General told the bench that government was contemplating a legislation to declare circus as a “hazardous industry” to prevent abuse of child labourers.
The question was followed by suo motu enumeration of benefits of legalizing prostitution. It went like this “You can rehabilitate and provide medical aid to those involved.”
No doubt the plight of prostitution is pitiable. But here are some damning statistics.
- There are about 3 million prostitutes in India of which 40% are children so the child prostitute population is close to 1.2 million.
- At least 100 million people are involved in human trafficking in India and 90% of human trafficking is intra country
Now will it be prudent both harbor thoughts of legalizing 1.2 million child prostitutes, who have been deprived of their basic fundamental right-that of childhood-even if one discounts their right to education, life and their entitlement to love and affection?
In the case of Olga Tellis vs. Bombay Municipal Corporation
The Supreme Court had said “Under the constitution, no person can claim the right to livelihood by the pursuit of an opprobrious occupation or a nefarious trade or business like gambling or living on the gains of prostitution”
Like in the case of prostitution, the law-Prevention Of Corruption Act,1988-has miserably failed to curb corruption which has merrily spread to almost all spheres of life in the case of
KC Sareen vs. CBI, Chandigarh
“Corruption has not shown any decline trend, despite the 20-year-old stringent law should the governments legalize corruption and fix the amount payable to each employee.”
Effects of Legalization of Prostitution
If legalization hasn’t solved these long term problems how would legalizing then solve these problems? If anti corruption act could not prevent corruption and immoral trafficking act could not prevent illegal human trafficking how could we solve such a kind of age old problem by merely legalizing it. Legalizing prostitution would mean giving legitimacy to a profession of flesh trading which hampers life and liberty of women granted to each human being. It deprives women of her rights. It encircles a woman into the vicious circle of debt and poverty. Legalizing it would mean giving it a legal legitimacy and involving many other women into this profession who otherwise due to cultural non-acceptance would not have been a part of it. It would offer free tickets to girls to enter into this profession and subsequent acceptance would aggravate serious problems like
· Cervical cancer
· Traumatic brain injury
· Psychological disorders
In a country like India where most of the people indulge themselves in unprotected sex with prostitutes it is very difficult to eradicate the problem of aids. Historically, the AIDS epidemic in India was first identified amongst sex workers and their clients, before other sections of society became affected. The sex workers are themselves taking steps to combat with aids in some brothels in India for example Sonagachi a brothel in Kolkata; where the sex workers are insisting their clients for use of condoms in order to avoid aids. But in all the other brothels in India social workers and NGO`S are trying to acquaint the sex workers about the ill effects of AIDS and are insisting them for using condoms. Legalizing sex would help the government in keeping a track record of the number of sex workers but then the government will keep on adding numbers on its record.
Budhadev Karmakar Case
STATE OF WEST BENGAL & ORS. — APPELLANTS
THE COMMITTEE FOR PROTECTION OF DEMOCRATIC — RESPONDENTS RIGHTS, WEST BENGAL & ORS.
Sex workers are also human beings and no one has a right to assault or murder them. A person becomes a prostitute not because she enjoys it but because of poverty. Society must have sympathy towards the sex workers and must not look down upon them. They are also entitled to a life of dignity in view of Article 21 of the Constitution,” Justices Markandey Katju and Gyansudha Misra said.
The bench referred to Fyodor Dostoevsky’s Crime and Punishment, too, where one of the characters, Sonya Marmeladov, sells her body for the sake of her impoverished family. “Reference may also be made to Amrapali, who was a contemporary of Lord Buddha,” the bench added.
The court said it was “abject poverty” that forced a woman into prostitution. “If such a woman is granted opportunity to avail (herself of) some technical or vocational training, she would be able to earn her livelihood by such vocational training and skill instead of by selling her body,” the bench said.
“We strongly feel that the central and state governments through social welfare boards should prepare schemes for rehabilitation all over the country for physically and sexually abused women commonly known as prostitutes…” the court said.
The schemes, the judges added, should mention in detail who would give the technical/vocational training and in what way can the women be rehabilitated.
For instance, if the training was for a craft like sewing garments, then arrangements should be made for providing a market for such garments, the judges said. Otherwise, they will remain unsold, which would defeat the very purpose of the scheme.
“Society must have sympathy towards sex workers and must not look down upon them. They are also entitled to a life of dignity in view of Article 21 of the Constitution,” the bench observed
Karmakar had murdered Chayay Rani Pal on September 17, 1999. He kicked her, then caught her by the hair and smashed her head against the floor and the wall several times. Four persons had witnessed the assault.
Bleeding from her ear, nose and mouth, the victim was taken to a hospital where she was declared “dead on arrival”. The post-mortem report showed as many as 11 injuries.
The court said the injuries showed the brutality of the crime. “The appellant-accused has committed murder in a brutal manner of a helpless woman and deserves no sympathy from this court,” the bench said.
“This is a case of brutal murder of a sex worker. Sex workers are also human beings and no one has the right to assault or murder them. A person becomes a prostitute not because she enjoys it, but because of poverty,” the bench stated, dismissing the appeal.
It also directed the Centre and the state governments to file compliance reports indicating the steps taken by them in matters relating to the rehabilitation of prostitutes.
Nobody chooses to be born poor, nobody chooses to be born a girl and nobody chooses to be born low-caste. Even among the valuable human beings born into such unfairness, no one wishes for an occupation that depends on multiple body invasions a day, the constant threat of violence, a shortened life expectancy, and use as an object rather than an equal human being. Prostitution for most women is about the absence of choice.
On the other hand, men who create the industry of prostitution choose to pay for sex. Not all men go to prostitutes — probably only a minority are so addicted to the drug of dominance that they buy and sell females as objects — but they are numerous enough in their pathology to create a worldwide network of brothels and trafficking, with the wealthier areas and countries usually supplying the customers, while the poorer areas and countries supply women and children as merchandise. Many men consciously choose to visit a brothel, and not a few of them beat, wound and even kill prostituted women or children.
Violence experienced every day by prostituted women is mostly unreported and undocumented. In fact, male customers, pimps and traffickers consider it inherent and normal to the sex “trade”, thus many prostituted women believe this too. A random Google search on the murder of prostituted women in India reveals there were at least five reported and documented murder cases annually in different brothel districts across the country for the last ten years, and those are rare only in that they were reported.
The government should on the other hand open shelter homes for kids belonging to these areas and provide them education. It should try and spread awareness of protected sex in these areas. Taking a step towards eradication would resolve this problem. Showing these women a ray of hope and giving them a chance to relive a life of dignity would create a culturally sustainable society. These women can be helped by providing them some vocational training, girls of tender age can be sent to schools and women can be employed in small scale working units or trained for self employment and brought back to mainstream life. A number of NGO’S are running in the entire country these organizations can be oriented and deputed to look after shelter homes and rehabilitation of these women and girls.
Grounds For Not Legalizing
- Legalization/decriminalization of prostitution is a gift to pimps, traffickers and the sex industry.
- Legalization/decriminalization of prostitution and the sex industry promotes sex trafficking.
- Legalization/decriminalization of prostitution does not control the sex industry. It expands it.
- Legalization/decriminalization of prostitution increases clandestine, hidden, illegal and street prostitution.
- Legalization of prostitution and decriminalization of the sex industry increases child prostitution.
- Legalization/decriminalization of prostitution does not protect the women in prostitution.
- Legalization/decriminalization of prostitution increases the demand for prostitution. It boosts the motivation of men to buy women for sex in a much wider and more permissible range of socially acceptable settings.
- Legalization/decriminalization of prostitution does not promote women’s health.
- Legalization/decriminalization of prostitution does not enhance women’s choice.
- Women in systems of prostitution do not want the sex industry legalized or decriminalized.
Thus I conclude that to curb prostitution there should be major rehabilitation projects to absolve women and minor girls who have little sense of judgment, from this trade so as to reduce their inordinate misery.
 1985 SCC (3) 545
 2001 (6) SCC 584
[The Article is written by Richa Shrivastava, student of Amity Law School, Lucknow.]
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