An official estimate states there are around 2.8 million prostitutes operating in 400 ‘red-light’ areas in India. More than 35 per cent of these women enter the trade before they reach 18 years. The biggest organised trade is in the metros of Mumbai and Kolkata. The Immoral Traffic in Women and Children (Prevention) Act, 1986, (IPTA) is the main statute dealing with sexual activities in India.

Last amended in 1986, the IPTA (as it stands) does not directly penalise sex workers. It punishes soliciting, living off earnings of prostitution, and procuring, detaining of women and minors, brothel keeping, abetment to brothel keeping, renting premises for the purposes of prostitution, 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 years or if the act takes place within 183 metres of a public place or a ‘notified area’ declared to be prostitution-free by the government. In 2009, the Supreme Court came to a conclusion that the country was better off to legalise prostitution. Despite fierce criticism by abolitionists, people proposed that decriminalisation of prostitution might be a better fit for the India’s case of sex industry. Advocates for both decriminalisation and legalisation of prostitution are basing their arguments on the examples of other developed countries especially New Zealand, which is frequently used as an example of a country that has ‘successfully’ decriminalised. Though legalisation and decriminalisation are used interchangeably, they do not mean the same. To legalise something is to authorise it. When prostitution is legalised in a country, sex workers are recognised as professionals. Therefore, they have to register or get licenced as professionals, which allows a heavy intervention of government authorities over the industry. In Germany and Australia where prostitution is legalised, sex workers are required to submit fingerprints, photographs and personal information to the police station. To decriminalise, on the other hand, is to eliminate criminal penalties for or remove legal restrictions against. Advocates for decriminalisation of prostitution argue that the system allows the prostitutes to exercise their choice with voluntary consent to the customers. Advocates for decriminalisation of prostitution apply the same criteria to private consenting adult sex, to the principle of regulating sex industry. Therefore, they argue that prostitution should not be prohibited if it was performed in a privacy of one’s home or hotel and if the money is freely exchanged with consent. Advocates also argue that decriminalisation will encourage sex workers to seek help from police since prostitution will no longer be illegal. They also assert that decriminalisation will reduce crimes against women and men who are involved in the trade. DW talks to Indrani Sinha of Sanlaap (an anti-trafficking and anti-decriminalisation NGO) and Dr S. Jana of Durbar Mahila Samanwaya Committee (prodecriminalisation) for a closer look.

INDRANI SINHA// The debate of decriminalisation in India has a history. Sanlaap’s fight has been against trafficking of minors, a common occurrence in this trade. When we began looking at the matter closely, Sanlaap was with organisations demanding decriminalisation of prostitution. At that point of time it seemed like a logical, legitimate way out of the conundrum. However, as we gathered more data, we realised that decriminalisation could possibly not be an answer. The demand of decriminalisation is that there would be no police raid, that women involved in the sex industry could not be arrested. However, one needs to remember a woman’s role in this industry. She is both the victim and the perpetrator—this business runs keeping women at the forefront. The women are often brothel managers and traffickers, because they win people’s trust because they are naturally trusted. If we say that a woman in prostitution cannot be arrested (in case the industry is decriminalised) then the business will be carried out by putting women as puppet heads while strings will be pulled by men, remaining invisible but wielding all the power, control and money. Participants (pimps, women in prostitution) have been asking for deriminalisation because it will allow some of them to hang on to the power that they have over the real victims—the trafficked minors. If a state keeps its brothels intact, then authorities are also authorising the demand for sex. When we say this, we are not commenting on sexual preferences or people’s sexual appetites—what is important to us, as an organisation and as part of the civil society, is to point out that there is no exchange of money between consenting adults to establish relationships—whether sexual or emotional. Sex work is not real work—it is essentially an exploitative relationship where one party is never free. As a society we are yet to move to a world where we consider everyone as equal. Unless we create such a radical society, talking of prostitutes as sex ‘workers’ will be futile. Because mainstream society will never accept women in prostitution as free individuals, entitled to rights. To pretend that we will be able to alleviate them by giving “rights” is just putting more power into the hands that determine their fates (pimps, brothel owners and middlemen who may also be women). We believe that brothels should be closed. If there are brothels then there would be people “running them”. If these people exist, then so does trafficking. There are few women in prostitution—a majority of women in prostitution are underage girls (minors) in clandestine prostitution. The government is accountable for the safety of all these women and minors. The proponents assume that once decriminalised, prostitutes will be willing to come forward to the police station for help in case of violence or abuse. However, the New Zealand case blatantly disproves their assumption. Further, in case of India, many prostitutes are illiterate and come from the low castes. Whether or not prostitution becomes decriminalised, their understanding of their legal rights as well as their view of themselves will not be affected by it. Their illiteracy already prevents them from understanding their constitutional rights, and their self-image is deeply controlled by the attitude of our culture towards people in the low castes, classes and in profession to which they belong. If decriminalisation affects prostitution, it will only add certain (more complicated) problems that New Zealand is experiencing because of decriminalisation.

DR S. JANA// Sex work is criminalised in our country through an existing Act called IPTA—though the Act does not directly criminalise sex work, activities pertaining to it, which includes soliciting, living on the earnings of a sex worker or renting out premises for sex work, can be construed as criminal acts (only a sex worker running her business on her own property is seen as running a legal operation). Women, men or transgenders who come to cities in search of (unskilled) work cannot afford to buy property. A lot of these migrant workers— whether they enter a profession willingly or not—live with landlords who do not give rent receipts that signify them as a legitimate boarders; making the stay unofficial. The situation becomes problematic because women, men or transgenders who are in this profession are left at the mercy of landlords. The second problem arises from the second clause, which makes it illegal for adults to live off the money received from prostitution. This clause affects the children when they turn 18 and are held responsible for living off their parents’ ‘illegal occupation’. Most of them cannot pursue higher education or seek medical help due to this clause. A lot of sex workers not only support their children, they are often responsible for the well-being of their families (parents, inlaws or spouses), who are held as ‘criminals’ in the eyes of the law. Soliciting is also a criminal offence. Interestingly, the act does not define the clauses under which an act can be defined as soliciting. The interpretation is left to the discretion of police, who end up exploiting and dehumanising sex workers even more. Historically red-light areas are established on the city fringes. As cities grow, red-light areas came closer to the residential, ‘decent’ areas. As need for real estate also grows, developers and real estate agents become other agents who harass sex workers. Often tenants are evicted from places they have called home for years. No one acknowledges sex workers as citizens. That they are a part of the 92 per cent of the unorganised labour forces in this country. That their problems are also those affecting the daily-wage labourers and domestic helps. They are equally, if not more, vulnerable because of the work that they do. The law that has been put in place to make their lives simpler, often victimises them further. That is why as an organisation we have advocated for the decriminalisation of sex work. What authorities need to decide is whether they aim to help a sex worker lead an independent life (and assist them to get out of his or her situation) or penalise him / her further. To equate sex work with criminal act is taking things too far. I am aware that a lot of people believe that decriminalisation leads to greater trafficking of minors. I disagree. I believe that making the ‘trade’ more systemic is going to have the opposite effect. If you go through evidences, trafficking happens in all unorganised sectors (agriculture and domestic help sectors). One never sees people getting trafficked to be made into IT workers. It is only the unskilled labourers who are forcibly migrated—because there is little system in the sectors. If a trade is regulated, for employers it is never lucrative nor profitable to recruit underage people. If you make it transparent then the possibility of recruting minors will automatically come down. If there is a brothel and people know where it is exists, then it would be easier for authorities to regulate trafficking of minors, carry out AIDS prevention programmes or regulate the health of sex workers. Sex workers by virtue of their low socio-economic and caste backgrounds, and because of the general prestige of women in this country; are incapable of exerting their agencies. Unless they are put in a place where they can collectivise, seek empowerment and exert their collective bargaining power, their lives will never improve and nor will their children escape their parents’ fate.