The Times of India, on 14th December 09, carried a piece titled ‘Legalise Prostitution? Then Why Not Graft?’ by Dhananjay Mahapatra based on a recent observation by two Supreme Court Judges asking the Government if the worlds oldest profession could not be controlled, then why not legalise it.

The author seemingly annoyed with the court’s suggestion draws an analogy between prostitution and corruption based on the common ground that neither problems seem capable of solution. The author suggests that legalising the sex trade would be akin to letting those guilty of corruption go scot-free.

The piece can be found here.

Here is what I would have written:

Supreme Court: Why not Legalise Prostitution?

Yes! Yes! A thousand times yes! This is exactly the kind of thinking we need!

As it stands today, the Immoral Trafficking (Prevention) Act, has not been able to achieve what is was originally enacted to do – to check the illegal trafficking of persons for sexual exploitation. Instead what it has managed to do is make the unsafe environment, that commercial sex workers work in, more dangerous, it has allowed pimps and brothel keepers perpetrate acts of violence without fear of them approaching the police, it has allowed the police to repeatedly pick up sex workers and keep them in lock up, rape and violence is often reported. It has also made it difficult for sex workers to insist on the use of condoms.

Recently, a proposed amendment tried to bring in a new approach; one which proposed to penalize the customer. This has been tried in Sweden and unfortunately has not yielded successful results. Reports from Sweden show that the proposal has pushed sex work underground, made women feel more unsafe and there have been increased reports of violence.

It seems therefore, that there is clear evidence of what doesn’t work. A system which allows authorities to effectively check the trafficking of women and at the same time allows the improvement of the condition of women already working as sex workers, seems to be the need of the hour. Members of Parliament during the legislative debates in 1956 had observed that penalising the sale and purchase of sex would not eliminate prostitution. (Source: the Lawyers’ Collective)

Why then are we trying the same approach in different ways? The hon’ble judges’ propensity to try something new, more importantly with the recognition that the current law is not working, is vital and must be recognized and hopefully mirrored by the administration.

Activist groups have campaigned for either legalization or a decriminalization of the sex work industry. The approaches have their own pros and cons. What either of these approaches may allow however, is an increased regulation and scrutiny of red light areas and sex work in general. This could allow increased monitoring of and a reduction of violence on the women, presence of trafficked and minor girls in the brothels and would allow an all round improvement in the working conditions of the women. There is of course a worry that over-regulation would push the industry back underground thereby undoing any advantages of legalization or decriminalization.

New law and policy is needed and though comments from judges from the highest court of the land are an excellent starting point, there must be a consultative process, one which seeks to involve the views of commercial sex workers.