Why ‘public soliciting of sex’ should be legalised

Dear readers…this is something I’d written for an assignment in the ‘Mentioning Unmentionables’ module, when I was studying Liberal Arts at Symbiosis, in 2007. Thought I’d share it with you.

Prostitution as defined by Section 2(f) of The Immoral Traffic Prevention Act (ITPA), 1956 means the ‘sexual exploitation or abuse of persons for commercial purposes or for consideration in money or in any other kind, and the expression “prostitute” shall be construed accordingly’.

Prostitution is probably one of the oldest professions in the world. An exact date is impossible to pin-point, but some of the earliest references to prostitution in India dates as far back as the 5th century, when young pre-pubertal girls were ‘married off’ or ‘dedicated’ or ‘given away’ to a God or a local deity of a temple. They were called ‘Devdasis’ or ‘Joginis’. These women would invariably become prey to prostitution, for upper-caste community members, who in the public eye served as a medium between the common man and God.

In modern times in an era of technology, with supposedly stringent laws and even moral policing by certain right wing factions ideally prostitution should be low in number. Contrary to the same, the number is alarmingly high. In 2007 the Ministry of Women and Child Development estimated the number of Commercial Sex Workers to be around 2.8 million.

The ITPA does have several laws, sections and sub-sections which explore in great detail, the issues related to prostitution and define punishment and fine for offences relating to prostitution, operating brothels, owning a place where prostitution is exercised, trafficking of persons by coercion, fraud, threat, etc. and many more. Also according to Section 7(b) of the IPTA, prostitution cannot be carried on anywhere within 200 metres of a public place and it fits in the definition of ‘prostitution’ as given in Section 2(f). Interpreted, the other way it means that if a man/woman wishes to engage in any explicit/implicit sexual act with another man/woman for a material/monetary gain off his/her own free will, he/she can do so provided the premises on which such act is being carried out is 200 metres or more from a public place.

So, in theory the law does not ban selling sex. It simply prohibits public soliciting of sex, through an organized/unorganized channel. Given this seemingly contrary to popular belief situation, the question that arises is why does prostitution raise its ugly head in our quasi-egalitarian society? The answer is not as simple as the question. It involves a variety of facets ranging from poverty, corruption and negligence to greed, fraud and even victimization.

According to a statistic released by the Ministry for Women and Child Development, nearly 35% of sex workers enter the profession before 18 years of age. The ITPA defines that any person below the age of 18 years is considered a child. It even has much more stringent punishments and heavier fines for child prostitution.

Given the entire aforementioned discussion one comes to think, what could be a possible solution out of the entire racket of prostitution. There are 2 possible solutions to this human trafficking and exploitation racket. One is that the law comes down heavy on offenders and cracks down every single prostitution racket. This we know from experience is a really far-fetched concept. Had abolishment of prostitution been so easy with law enforcement, the number of active prostitutes would not have been 2.8 million and counting. The other is to legalize ‘public soliciting of sex’ and not prostitution. As pointed out earlier there is a world of a difference between the two concepts.

I’ll just throw some light on the positive aspects of legalizing public soliciting of sex.

  • Legalization of public soliciting of sex and the sex industry will stop sex trafficking.
  • Legalization of public soliciting of sex will control the sex industry.
  • Legalization of public soliciting of sex will decrease clandestine, hidden, illegal and street prostitution.
  • Legalization of public soliciting of sex will protect the women in public soliciting of sex, as they will have rights.
  • Women in systems of public soliciting of sex want the sex industry legalized, as they are the one who suffers the most, as they don’t have any rights.
  • Legalization of prostitution will promote women’s health as they can have easy access to medical facilities, which they don’t have when it is illegal.
  • Recognizing public soliciting of sex as an economic activity, thus enabling women in India to obtain working permits as “commercial sex workers”.
  • Legalization of public soliciting of sex will also enable it to be termed as a service offered since women will be given permits. The Government can therefore impose a service tax just like the way they do on telecom, broadband, television, real estate or any other professional services offered.

There will not doubt be right wing political pressure on doing whatever it takes to discourage legalization of public soliciting of sex. What the society on a larger plateau needs to realize is that, legalizing public soliciting of sex is not an attack on our cultural roots; nor is it an acknowledgement or encouragement to prostitution. It is plainly protecting the rights of those 2.8 million and growing individuals who are trapped, in the murky quicksand of the prostitution racket.

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3 thoughts on “Why ‘public soliciting of sex’ should be legalised

  1. Problem i feel bigger than Prostitution is Prostitution against will…Which in any case should be taken good care of, by the law…
    The other concern is that, in the figures u mentioned above, a huge percentage of these are ladies from Bangladesh bought and brought illegally to India without passport…
    The agents or “Bhad***”as they call them consume a lion share in the earning of the prostitutes which shud be regularized too….
    As u rightly said, the issue of Legalization is not so straight forward, it implies that it wud take time which is difficult to predict now… The problems faced by these ladies remain unresolved till then… SO i feel it is NGOs with Govt bodies too which should pay more attention to the social issues, security of these ladies and most importantly checkups for HIV and Hbs Ag antibodies routinely… As this is not just their problem… But shatters life of so many innocents in the country…who are neither directly or indirectly involved either as a service provider nor as a customer…
    Also alternative occupations/opportunities need to be offered to them, not because the occupation is considered taboo in the society, but just like any sports person may be , prostitutes have a very limited career / money making span… and future in and after 40s may be lies in dark…
    Just want to share a possibility before closing my thoughts here, that down the years legalization MAY turn more and more females to take this profession, as an easy way to earn money and less efforts to try some other alternatives…Which may have different consequences on social, economic ans health front….
    Appreciate your efforts to study and address the issue in such a statistical yet practical way…

    Dr. Shardul Sahane

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  2. For morally grey areas like prostitution, drug trafficking etc. that are actually quite widespread, there are some factors you need to consider about legalizing them:

    + It will greatly reduce the involvement of organized crime who make a lot of funds through facilitating illegal activities
    + Gets the government revenue instead of being a net drain through the money spent on enforcement (however spotty)
    + Reduces corruption at a local level in countries like India, money paid to local cops to ‘look the other way’ might as well go towards state coffers & contribute to making the industry safe for workers & users

    – Lends legitimacy to an enterprise that is unwelcome in society
    – May open the door for further ‘rights movement’ etc. in liberal societies, where they actually seek to be allowed to advertise services etc. … this is unlikely in India in short/medium term
    – More publicity is generated, esp. when legalizing a previously illegal business

    I’d certainly prefer that anything where the workers & users are only knowing causing harm to themselves, should be legalized so long as other industries are allowed suitable protections (for e.g. consider the ramifications of say health insurance premiums if the companies can’t discriminate based on risky activities)

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