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I had a strange dream the other day I dreamed that I was a writer now you may ask why is
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this strange after all I'm a writer in real life well the reason it was strange is that
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in my dream writing was a banned activity it was looked down upon by society everyone
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considered writing shameful in fact it was basically banned by the government to practice
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writing I had to slink off every day to a place called a Rothell there I would wait
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in my room or hang around in the balcony looking intellectual until a client turned up it could
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be a newspaper editor looking for a column or a features editor asking me to write a
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limerick even an avid blog reader furtively looking around here and there before paying
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me to write a blog post or two I would write what they wanted me to and they would pay
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me or my agent sometimes my agent would pass on only a small part of the money to me but
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I couldn't protest or strike off on my own writing was illegal remember and therefore
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the organized underworld ran writing and with the conimans of the police who they paid regular
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hafta to I'd be finished if I went off on my own so in this dream one day a cop came
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into my room he was there because he needed something from me but despite that he looked
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at me with distaste as if I was the lowest form of life he said to me write a limerick
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for me right away and I won't pay you because I am a policeman and I have power over you
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and you are low life scum I was very upset by this I couldn't help myself and I burst
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out with a question that had haunted me for a long time I asked what am I doing that is
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so wrong why are you treating me with such contempt he sneered and replied you are selling
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your services for money you are selling the labor of your mind for money that is immoral
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shame on you welcome to the seen and the unseen our weekly podcast on economics politics and
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behavioral science please welcome your host Amit Varma welcome to the seen and the unseen
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my topic for today is prostitution specifically the criminalization of prostitution prostitution
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is generally looked down upon in society which I find illogical what a prostitute does is
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no different from what a writer or a banker or a cricketer or a construction worker does
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we all sell the products of our mind or body for money whatever you may feel about a specific
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profession you should not deny us the freedom to pursue it we have that right and yet society
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looks down upon it and the law bans it I have been writing for years that victimless crime
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should not be banned and we recently carried a series on this on prageti the online magazine
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that I edit at thinkpragati.com we had pieces arguing that alcohol betting drugs and prostitution
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should all be legal the piece making the argument for legalizing prostitution was co-written
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by me and Manasa Venkatraman a young lawyer who works at the Takshashila Institution in
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Bangalore if you go to thinkpragati.com and click on the opinion section you will find
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our piece with the title legalized prostitution to stop trafficking in it we argued that banning
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prostitution is wrong for two reasons one it is morally wrong because it deprives a
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woman of choice two it is pragmatically wrong because banning any victimless crime draws
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the underworld in and that never ends well anyway to discuss all that and more my co-writer
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of that piece Manasa is my guest today welcome to the show Manasa thank you Manasa one of
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your pet bugbears about prostitution is the way the Indian law defines it can you tell
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me a little bit more about that yes so prostitution according to the Oxford English Dictionary
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is just the commercial activity of sex so it is the taking of money in return for a
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sexual service however under Indian law prostitution is defined with sort of trafficking undertones
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so the law says that prostitution is the sexual exploitation or abuse of persons for commercial
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purposes this clearly shows that there is no objectivity even in the definition of prostitution
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it conflates human trafficking with sex work with commercial sex work and this confusion
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translates through the entire law what that does is tries to protect sex workers but it
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fails miserably because it treats them as doing something wrong inherently whereas prostitution
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is just simply the exchange of money for sex yeah in fact it actually assumes an absence
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of consent and therefore the question of consent doesn't therefore enter the discourse around
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it because the law assumes that it's simply absent absolutely and we see the importance
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of consent when dealing with prostitution as a legal subject because if you look at
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Amsterdam the whole law around prostitution is founded on the pillar of consent and that
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is what makes sex workers and sex work such a safe profession over there yeah in effect
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I remember on a TV show many years ago I think we the people are one of those talking about
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legalizing prostitution and Kiran Bedi was on the show and she was insisting that there
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was no consent involved in prostitution that no one could possibly choose to be a prostitute
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and it so happened that there were actually ladies in the audience who were in that profession
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and they insisted that no they got into it consensually which was a point that Bedi just
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refused to accept a lot of dissonance and this is something you know when I write about
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economics and I write about you know things like sweatshops people often assume that no
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one can willingly work in those so therefore they are akin to slavery but what they often
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don't realize is that people who are not as privileged as us often face a set of really
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bad choices and they make the best choice available to them so some a lot of people
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go into prostitution because out of all the options open to them it's actually the best
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option and that means that the moment then you make prostitution a criminal activity
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you are telling them to choose an option that they consider worse your closing off what
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they consider to be the best option which brings me to the whole moral dimension of
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banning prostitution that it's wrong to ban prostitution because you are depriving you
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are depriving the woman of consent by banning it absolutely and for the state to assume
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morality on a profession that is as legitimate as anything else as honest as anything else
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is just morally wrong it is not prostitution that is per se wrong over here it is the state
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looking at it with complete lack of objectivity absolutely I mean the depriving the women
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of choice which can't possibly be a good thing I want to take a sidestep here and discuss
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something that we hadn't discussed in article which is to sort of try and understand why
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both social views and the laws are like this and one of the things I blogged about many
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years ago was our Indian law on adultery which is section 497 of the Indian penal code and
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I'll just read out a bit of it to you and tell me how you react.
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Section 497 says whoever has sexual intercourse with a person who is and whom he knows or
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has reason to believe to be the wife of another man without the consent or carnivance of that
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man such sexual intercourse not amounting to the offence of rape is guilty of the offence
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of adultery and it goes on but I was particularly shocked by that because according to this
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law the consent that mattered was not that of the woman committing adultery but of the
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man she was married to therefore implying that women are to be looked at as a property
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of men and there are various laws in the Indian penal code which of course originated in Victoria
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and Times which are exactly of this kind.
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Absolutely and the adultery section in the IPC is one of the shining examples of what
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the British left us with.
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Like you're saying under section 497 of the IPC it is the husband who has the right to
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go to court but not the wife.
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In fact the wife isn't even wrong.
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The wife doesn't even have a say suddenly.
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And a few years ago when I blogged about it, it turned out that some states were actually
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planning to expand the scope of the law and 30 odd state governments were asked for a
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response by the center to the Malimath committee recommendations that even adulterous wives
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if they were committing adultery of their own free will be penalized because they had
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gone against the presumed wishes of their owners so to say.
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So this is many years ago.
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I think this Malimath committee was like 10-15 years ago so this is something I had written
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10 years ago which I just came across.
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This brings me to the interesting point that if women are at one level considered to be
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property according to Victorian laws and according to these sort of laws and that would explain
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why women who are promiscuous so to say are considered to be doing something morally wrong
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per se which a promiscuous man that the same assumption wouldn't be made about him.
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And which also comes to the sort of paradox of how while when people talk about prostitution
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they assume that there is no consent involved when women are victims but equally the word
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prostitute or slut is a cuss word by itself.
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You know to call someone a prostitute is to abuse that person which is also like where
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the term prostitute and so on comes from which is kind of bizarre because the law assumes
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that there is no content but then the attitude of society towards these people seems to assume
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that even if there was consent it would still be a crime.
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So last year a draft bill was proposed in parliament which sought to ban trafficking
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and which also discussed prostitution but Amit like you're saying that the current
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law that we have about sex workers is a remnant of a colonial era but shockingly this bill
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that was introduced last year is equally badly drafted and equally lacks objectivity.
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Because again it conflates prostitution with trafficking and it assumes this sort of sorry
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tone when it talks about sex workers throughout its language.
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And what does the bill propose to do precisely?
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Oh it proposes to rescue prostitutes from their brothels and admit them to these homes.
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It sets up commissions to inquire into these practices so on and so forth.
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But what stood out for me is that the same tone that was adopted a hundred years ago
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when one spoke about sex workers is still adopted last year.
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So clearly there is a cultural stagnation that has happened when we speak about this.
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Yeah absolutely and to go back to the argument we made in the piece that we wrote I mean
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our first argument which we just discussed was a moral dimension of banning prostitution
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that you're assuming there is no consent and you're depriving the woman of choice.
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But the second one was a practical one which is what happens when you actually ban prostitution
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and here we see something come in that the regulatory economist Bruce Yandel described
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as Baptist and bootleggers and the example he takes is of another victimless crime drinking
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So the example he takes is of prohibition where he says that typically prohibition is
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something that is recommended for moral reasons by Baptists and the people who benefit therefore
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are bootleggers because you know you ban any victimless crime the activity is just going
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to go underground and it's going to continue and that makes Baptists and bootleggers sort
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of allies in a sense whether they're overtly actual allies like in some places you actually
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find bootleggers funding campaigns by Baptists which is of course I mean the politicians
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who are taking all of these moral stands but inevitably what happens when you ban a victimless
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crime whether it's prostitution or alcohol or betting which is often conflated with match
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fixing the same way prostitution is with trafficking.
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When you ban a victimless crime the whole thing just goes underground the underworld
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takes over and the chances of a lot of trafficking taking place and the consent of the women
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actually not coming into play are far far higher.
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Absolutely and what happens when you know prostitution is made illegal is that if the
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woman is then coerced into having sex with someone she cannot go to the police and tell
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the police that she was physically abused because what she was doing is illegal in the
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She'll be the first person to be put in jail.
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Exactly and often you'll find that there is this understanding between the police and
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whatever the local mafia is and therefore the prostitutes themselves are actually helpless
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because the police are hand in glove with the people who run them.
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That's a deplorable situation.
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So tell me something prostitution was legalized a while back in Bangladesh have things improved
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Sadly not that's what they found they legalized prostitution a few years ago in Bangladesh
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but the status of the sex workers is still the same they still live in dingy small rooms
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they still have to go through physical abuse their children are still made to see things
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that no child should and this is where it comes through that while the law is it is
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necessary to change the law it is not enough.
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This is where cultural change becomes important.
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On the one hand you have Amsterdam and on the other you have Bangladesh in both countries
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prostitution is legal but in one country the sex workers are far safer than in the other.
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So in other words what you're saying is that the law has to go hand in hand with society
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social attitudes remain extremely regressive the law alone changing merely is not going
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to solve the problem overnight.
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So supposing we do talk about changing the law in India because it will still help in
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a lot of respects how likely is that to happen and what's the kind of process that is required
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to change a law like that can a government do it by itself does it have to go to parliament
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for it do you need a broader sort of consensus is there one central level law which can be
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changed or do all the different states have their own laws how does it work?
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Well there does need to be fresh legislation so a new act has to come into being that says
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that prostitution is legal it is no longer illegal but before we get to that point I
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do want to talk about two things that have already happened.
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One is the famous Verma committee that was constituted after the Nirbhaya rape incident.
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So the Verma committee was tasked with changing criminal law as it is in India right now and
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one of the things that they recommended was that prostitution be legalized voluntary sex
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work they said that this does not equal exploitation and it must not be confused to mean trafficking.
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The second thing that I want to point out is that the courts have the duty to interpret
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the law and the Gujarat High Court has actually done a fantastic job of setting a better tone
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for how sex workers are perceived.
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In one judgment earlier this year they said that a transaction between a sex worker and
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her customer is purely a commercial transaction and there is no morality attached to it as
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such and it has to be seen as a business transaction and this is exactly the kind of tone that
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we want in our laws as well.
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So while we have a long way to go it's heartening to see our courts and scholars actually being
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And do you think these two recent like in the case of Gujarat the judgment and in the
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case of the Justice Verma committee their observations that they are also a reflection
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of our society is beginning to view prostitution differently or are we still stuck in that
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backward regressive mode where you know slut is a bad word.
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But that's an interesting question I actually my feet are in both lands so to say while
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you have these high courts and you have these committees that have forward thinking views
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there is a large section of society which also is convinced that prostitution is wrong.
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I'd say at the most optimistic we are 50-50 it is neither this way nor that.
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So you think 50-50 is optimistic on that note Manasa thanks so much for coming on the show.
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That's it for this episode thank you for listening to the scene in the unseen to browse our back
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episodes head over to sceneunseen.in.
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You can follow me on twitter at Amit Verma that's A-M-I-T-V-A-R-M-A.
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You can also check out my blog India Uncut at IndiaUncut.com.
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If you like this episode and would like an encapsulated version of our arguments head
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over to the online magazine Pragati at thinkpragati.com and search for a piece co-written by Manasa
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and me called legalized prostitution to fight trafficking.
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If you enjoyed listening to the scene in the unseen check out this exciting new podcast
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from Indus box media called keeping it queer.
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Keeping it queer is hosted by my friend Navin Narona and he profiles LGBT people from all
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across the country and some of the stories are really poignant.
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You can download it on any podcasting network.
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Good evening ladies and gentlemen this is your captain speaking.
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Sorry to say but there's been a slight delay due to the apocalypse having suddenly begun.
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As you can see there's death, destruction and chaos taking place all around us.
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But don't you worry food and drinks will be served shortly and I would recommend checking
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out IVM Podcasts to get some of your favorite Indian podcasts.
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We'll keep you going till this whole thing blows over.
