Does Legalization Of Prostitution Increase Human Trafficking And Make Children More Vulnerable?

Trafficking is prohibited by the Constitution of India under Article 23 enshrined therein. Prior to the filing of the writ petition titled Bachpan Bachao Andolan vs. Union of India^[iv] by the NGO Bachpan Bachao Andolan, there was no definition of trafficking in India. After the judgment in that case, the Hon'ble Supreme Court of India defined trafficking as per the optional protocol to UNCTOC. The impact of this judgment is that India has ratified the "Protocol to Prevent, Suppress and Punish Trafficking in Person', especially women and children on 5^th May, 2011 and also laid down the fresh guidelines for combating human trafficking in India.

Prostitution and trafficking are severe social problems in India. The Hon'ble Supreme Court of India has also recognized prostitution in society, which has not been an unknown phenomenon to us. The victims of the trap comprise the poor, illiterate, and ignorant sections of the society and are the target group in the flesh trade; rich communities exploit them and harvest at their misery and ignominy in an organized gangsterism, in particular, with nexus of the government officials. It is of grave social concern, increasingly realised by enlightened public spirited sections of the society to prevent gender exploitation of girl children.[v] The Hon'ble Gujarat High Court in another case refused to recognize prostitution as a legitimate means of livelihood as it would be an open invitation to trafficking in women which is shunned internationally and in all the civilized nations of the world. "Trafficking in women and girls is one of the most corrosive forms of violation of human rights. It results in gradual total destruction of a woman's personal identity, and her right to live as a free human being in a civilized society. The victim is subjected to violence, total humiliation and violation of personal integrity and also refused to recognize the right to prostitution as a fundamental right of women or girls".[vi]

In the year 2003, Janice G. Raymond in her article namely "Ten Reasons for Not Legalizing Prostitution and a Legal Response to the Demand for Prostitution"[vii] highlighted the reason as to why, the prostitution should not be legalized. Some of these reasons are reproduced herein below:

1. Legalization/decriminalization of prostitution is a gift to pimps, traffickers and the sex industry:
   Some people believe that, in calling for legalization or decriminalization of prostitution, they dignify and professionalize the women in prostitution. But dignifying prostitution as work doesn't dignify the women, it simply dignifies the sex industry. People often don't realize that decriminalization means decriminalization of the whole sex industry, not just the women in it. And they haven't thought through the consequences of legalizing pimps as legitimate sex entrepreneurs or third party businessmen, or the fact that men who buy women for sexual activity are now accepted as legitimate consumers of sex.
2. Legalization/decriminalization of prostitution and the sex industry promotes sex trafficking: As there would be no method to ensure that immigrant sex-workers from other countries would voluntarily consent to being a part of the sex industry, there seems to be no definite means to identify coercion or forced sex work.
3. Legalization/decriminalization of prostitution does not control the sex industry, but rather expands it:
   Legalization of prostitution in the State of Victoria, Australia, resulted in massive expansion of the sex industry. Along with legalization of prostitution, other forms of sexual exploitation, such as table top dancing, bondage and discipline centres, peep shows, phone sex, and pornography, have all developed in much more profitable ways than before legalization. Prostitution has become an integral part of the tourism and casino boom in Victoria with government-sponsored casinos authorizing the redeeming of casino chips at local brothels.
4. Legalization of prostitution and decriminalization of the sex industry increases child prostitution: As research shows that after sex work was legalized in Netherlands and Victoria, and Australia, the child prostitution has grown exorbitantly and has led to various forms of commercial sexual exploitation of children.
5. Legalization/decriminalization of prostitution increases the demand for prostitution.
   It encourages men to buy women for sex in a wider and more permissible range of socially acceptable settings. With the advent of legalization in countries that have decriminalized the sex industry, many men who previously would not have risked buying women for sex, now see prostitution as acceptable. When legal barriers disappear, so too do the social and ethical barriers to treating women as sexual merchandise. Legalization of prostitution sends the message to new generations of men and boys that women are sexual commodities and that prostitution is harmless fun.
6. Women in systems of prostitution do not want the sex industry legalized or decriminalized: In a 5-country (five country) study on sex trafficking, most of the trafficked and prostituted women who were interviewed in the Philippines, Venezuela and the United States, strongly stated their opinion that prostitution should not be legalized and considered legitimate work, warning that legalization would create more risks and harm for women from already violent customer and pimps (Raymond et al, 2002).

There was another study which was published in the year 2012 at World Development, "Does Legalized Prostitution Increase Human Trafficking?"[viii] In this study the author investigated the effect of legalized prostitution on human trafficking inflows into high-income countries and analysed cross-sectional data of 116 (one hundred and sixteen) countries to determine the effect of legalized prostitution on human trafficking inflows and this study found that countries with legalized prostitution are associated with the human trafficking inflow than countries where prostitution is prohibited.

On the above mentioned argument, it can be said that legalization of prostitution will increase the cases of human trafficking and make the children more vulnerable. Despite of legalization of prostitution, the state government should ensure the basic human rights of the sex workers and also implement the directive issued by the Hon'ble Supreme Court of India and the Hon'ble High Courts of the different states in India such as in the matter of Vishal Jeet Vs. Union of India[ix], the Hon'ble Supreme Court of India had directed to formulate a advisory committee for all States Governments and Union Government to combat trafficking. The Advisory Committee was to make suggestions for the measures to be taken in eradicating child prostitution, and the social welfare programmes to be implemented for the care, protection, treatment, development and rehabilitation of trafficked victims of commercial sexual exploitation. In another matter, the Hon'ble Supreme Court of India ordered the Union Government to form a committee to frame the National Plan of Action and to conduct an in-depth study into these problems and evolve suitable schemes for rehabilitation of trafficked women and children[x]. Further, in the matter of Geeta Kancha Tamang vs. State of Mahrashtra Criminal Appeal No. 858 of 2009, the Hon'ble Court had observed that "Sealing of brothels will ensure in curbing organised crime"[xi]. Furthermore, in the matter of Budhadev Karmaskar vs. State of West Bengal[xii], the Hon'ble Supreme Court of India had appointed a panel to monitor and suggest rehabilitation scheme for trafficked sex workers and trafficked victims.

Whether one accepts it or not, we are living in a society with the menace of unabated child prostitution and trafficking. The dignity of human life is being perished each passing day and the solutions, being many to combat and contain it, if not to eradicate it completely, are just not found to have been so implemented satisfactorily by the governments, all across. Long way to go, to achieve the personal freedom of our children!

The author, Shashi, is a child rights activist and a practising advocate at Delhi. Views expressed are personal.