Will Prostitution Be Legalised in India?

Is India on the way to legalise prostitution?

A recent judgment of the Supreme Court of India has sparked off debates on this old issue where views are sharply divided.

The directions read out by the Apex Court Bench comprising Justice L Nageswara Rao, BR Gavai and AS Bopanna were in response to a panel for sex workers set up by the Court in 2011 to basically deal with the issues of: Prevention of Trafficking; rehabilitation of sex workers who wish to leave sex work; and conditions conducive for sex workers who wish to live in dignity in accordance with the provisions of Article 21 of the Constitution of India.

The panel had submitted a comprehensive report in response to which the Union Government informed the court in 2016 that it would come with legislation. The latest directions of the Supreme Court were issued because of the inordinate delay in providing that legislation, and will hold good till the legislation comes out.

Highlights of the latest SC order are:

Any sex worker who is victim of sexual assault should be provided will all facilities available to a survivor of sexual assault

A survey of all ITPA Protective Homes be conducted to ensure that cases of adult women, who are detained against their will can be reviewed and processed in a time-bound manner

Police should treat all sex workers with dignity, and should not abuse or subject them to violence or coerce them into any sexual activity

The Press Council of India should be urged to issue appropriate guidelines for the media not to reveal the identities of sex workers during arrests, raid and rescue operations

No child of sex worker should be separated from the mother merely on the ground that she is in the sex trade, tests can be conducted to find out if they were their own children or trafficked for sex trade

Many organisations in India have been demanding that India should legalise prostitution since it is called the oldest profession in the world. The staid argument, repeated in literature and films ad nauseam is that if sex workers were not there, crime in the county would go up multiple times, specially domestic violence.

The popular response to the recent film Gangubai Kathiyavadi gave rise to apprehensions that the government is on way to give recognition to sex trade as legal legal.

Dr.Kiran Aggarwal, a paediatrician and social activist who has worked with sex workers for several years said, "I am all for giving the sex workers human rights and protecting them from the police brutalities, but legalising them will have unexpected repercussions, and every politician would start running brothels."

She argued that it is well-known that in India most girls enter the profession as minors and under adverse circumstances. They cannot be classified as having given their consent as adults as defined by the Supreme Court.

However, the Covid pandemic changed the scenario completely and she knew of many girls who joined the profession willingly. She revealed that many young women "were used for surrogacy" and the late Sushma Swaraj during her tenure as foreign minister had brought about many changes in the Law, making the resultant illegal adoptions difficult.

As for removing children from the brothels, Dr.Kiran Aggarwal argued that she knew that the sex workers' children were forced to watch porn films when they were under the bed, while their mothers attended to the customers.

Shashank Shekhar, a Supreme Court advocate, activist and former member of the Delhi Commission for Protection of Child Rights, said he found nothing new in the latest SC judgement.

They have only strengthened certain rights of sex workers but this does not look like a step towards recognising prostitution in India. As for the order on not taking away the children from sex workers he said, "I don't find this makes much sense. Don't we send our children away for studies or jobs? The basic criteria should be the 'best interest of the child' as defined under the Juvenile Justice Act."

Questioning this logic of the Supreme Court, Amod Kanth, founder general secretary of Prayas JAC said India will see a new era with the Supreme Court recognising sex work as a 'profession'.

As for the children with whom Prayas Juvenile Aid Centre (JAC) has been working with for 34 years, he recalled his experience of raiding the red light area as DCP Crime when they had rescued 111 children (79 girls and 33 boys) of which 90 per cent were found kidnapped or trafficked who had no parents there. Kanth asserted that the SC's new order will impede even the basic procedure of investigation as laid down under Cr.PC; and under the Juvenile Justice (Care and Protection of Children) Act 2000/2015 to safeguard the children found in brothels.

Savitha, vice president of Society for Participatory Integrated Develooment (SPID), who has been working with sex workers in Delhi for over 34 years, and runs a day care-and-residential centre to support their children says that there is no indication in the SC order that commercial sexwork will be legalised in India. If it was so they would not have been strengthening the provisions of the Immoral Traffic (Prevention) Act. "The new order only stresses the already existing provisions that an 18-year-old adult can indulge in sexwork but cannot own a brothel. It tells the police to take action when complaints are lodged by sex workers. The judgement is being twisted to take on a meaning that it does not have," she said.

After working with the Devdasis community in Karnataka Savitha came to Delhi in 1989 and started working for the welfare of sex workers at GB Road in Delhi. "With my experience of 30 years I can tell you that no girl comes to this profession by choice. Hence all the talk of legalising it in India is not fair to women. You know once a girl leaves her home in this country, she is not welcome back much less if she has been taken to a 'kotha' (brothel). It is very difficult for her to start a new life even after she is rescued".

Cover Photograph: GB Road in Delhi - Danish Pandit