This is the last piece in a four-part series on Victimless Crimes. The first three: 1, 2, 3.

It would be amazing if prostitution was legal in India. Over here, we use the law as an enforcer of morality, and prostitution is considered deeply immoral. The word itself is a pejorative. ‘Whore’ and ‘randi’ are used as terms of abuse, and the choice cuss word for our age is ‘presstitute’, implying that the press is prostituting itself, as if we are not all prostitutes.

All of us trade on our skills or assets to make a living. Writers sell their writing skills. Lawyers get paid for legal expertise and experience. You could be a construction worker or a fashion model or a software engineer or a banker, and you’d be doing the same thing that a prostitute does: trading on a part of yourself to the mutual benefit of both parties involved. Why, then, is prostitution effectively banned in India? (Strictly speaking, it is soliciting in public which is banned, which in practical terms renders prostitution itself effectively illegal.)

Also, what is the impact of this on our society?

The Moral Dimension of Banning Prostitution

A few years ago in a talk show, Kiran Bedi insisted that all prostitution involved coercion. No woman would want to be a prostitute of her own volition, she argued. On the show with her were actual members of the flesh trade, who laughingly told her she was wrong, and that they had joined the profession of their own free will. Bedi refused to engage with them, and just blocked them out. The dissonance was too much.

There are other jobs as well that one would hate to do. (Working crazy hours in a sweatshop or toiling in a farm as a labourer under the hot sun or spending one’s best years underground in a toxic mine.) Why do people willingly do them, then? It is because, of the options open to them, they feel that this is the best. If they had a better option, they’d go for it. They don’t. It’s sad, but it is what it is.

To deny them of their No. 1 choice, therefore, is to condemn them to alternatives they consider worse. This is repugnant and immoral. If there are women who would willingly become prostitutes, then to ban prostitution is to rob them of choice. It is an attack on their personal autonomy. It strips them of dignity, far more so than any customer could by having consensual sex with them.

‘Consensual’, of course, is the key word there, and the nub of the confusion. What implications does criminalising prostitution have for consent?

The Practical Impact of Banning Prostitution

Prostitution, per se, is a victimless crime. What happens when you criminalise it is identical to what happens when any other victimless crime is banned. (Such as drinking alcohol, gambling or inhaling cannabis.) The underworld gets involved, and that’s when the shady business starts.

In the context of gambling, you will note that matchfixing happens wherever gambling is illegal. Spurious liquor thrives when bootleggers are the sole source of alcohol. An unholy nexus springs up between the underworld and local politicians (The Bootlegger and the Baptist, basically), and everyone else suffers.

In the context of prostitution, this means that the business is all underground, and therefore not regulated. No safeguards can be instituted by either industry organisations or the government. Most importantly, the rights of the women working in the business cannot be protected. They can be coerced into the business, and exploited while in it.

Everything that is appalling and unwholesome about prostitution is actually true of trafficking. There is a difference between prostitution and trafficking, and criminalising the former enables and abets the latter. But Indian law seems not to understand that difference.

Prostitution vs Trafficking

The Oxford Dictionary defines prostitution thus: “The practice or occupation of engaging in sexual activity with someone for payment.”

India’s Immoral Traffic (Prevention) Act defines prostitution as “the sexual exploitation or abuse of persons for commercial purposes.” The italics are ours.

In other words, Indian law, like Kiran Bedi, assumes that coercion is a given. According to the law, prostitution and trafficking are the same thing. If we accept this definition, it would seem natural that prostitution should be banned. But the definition is wrong!

Why is our law like this? Is this some kind of patriarchal virtue-signalling? Is this Victorian morality at play, part of a weird colonial hangover? These questions are moot. Whatever the reasons are, for both our law and our social attitudes towards prostitution, we must move forward. And there is hope.

The famous Justice Verma Committee report categorically stated that voluntary sex work does not equal exploitation, contrary to our penal code. And the Gujarat High Court gave a great judgement recently when it ruled that a transaction between a sex worker and her customer is purely commercial, and when both parties have consented to it, the law has no business interfering.

What does legal prostitution look like?

What would happen if prostitution was legal? Take a look at Amsterdam, famous for its red light areas, and where the law’s approach to it is based on the simple yet sophisticated model of consent. Under Dutch criminal law, there are specific protections covering coercion and violence against prostitutes, and the whole business is above-ground and relatively respectable. Social attitudes towards prostitutes are similarly enlightened. (The causation probably goes both ways.) We do not think that ‘presstitute’ would be a pejorative term over there.

India will not turn into Holland overnight if prostitution is legalised. But there is both a strong moral and practical reason for decriminalising it. The moral reason is that the law would then cease to prevent women from making decisions about their own bodies. The practical reason is that it will get the underworld out of the business, and make trafficking less likely. It is a no-brainer. It is about time.