Rape is sexual assault, whether it is commercial or non-commercial. By equating prostitution with exploitation, the J.S. Verma committee recommendations recognize that any society which claims to defend principles of legal, political, economic, and social equality for women and girls must reject the idea that women and children, mostly girls, are commodities which can be bought, sold, and sexually exploited by men. To do otherwise is to allow that a separate class of female human beings, especially women and girls who are economically and castewise marginalized, is excluded from measures being set in place for women’s security, as well as from the universal protection of human dignity enshrined in the body of international human rights instruments developed during the past 60 years.
While the Criminal Law (Amendment) Ordinance, 2013 does not address all forms of male violence it does address the root cause of prostitution and trafficking in human beings: the greed of men who profit from preying upon marginalized girls and women. Section 370 marks traffickers and not the prostitute as illegal, by making those who recruit, transport, sell, harbour, transfer or receive human beings for the purpose of exploitation punishable by law. And by making the consent of victims to their own exploitation irrelevant, it recognizes the vulnerability of millions of poor and low-caste girls and women in India, whose survival strategies are written off as choices.
Sections 370 and 370A shift the blame from the victims to the perpetrators through a definition of trafficking based on the United Nations protocol, and holds a range of traffickers and employers accountable rather than the victims of human trafficking. By doing so, these sections have also corrected a historical wrong initiated by the British colonial authorities whose acts served as the model for our own anti-trafficking law, the Immoral Traffic (Prevention) Act. The British had made laws to make disease-free women sexually available for British soldiers and clerks by setting up licensed brothels through the Contagious Diseases Act. The act did not have a punishment for traffickers at all, it had very light punishments for clients and pimps, while it put prostitutes through the criminal justice system for soliciting in a public place.
Through these pathbreaking sections, India joins the ranks of some of the most progressive gender sensitive countries in the world, like Sweden and Norway, which have decriminalized prostituted women but left no room for any excuse by the trafficker or the end user. Laws in these countries recognize that it is the man who buys women (or men) for sexual purposes and should be criminalized, and that it is not reasonable to punish the woman who sells a sexual service. In the majority of cases at least, this person is a weaker partner who is exploited by those who want only to satisfy their sexual drives.
Pimps, traffickers, and clients knowingly exploit the vulnerability of the victims, a vulnerability caused by high rates of poverty, unemployment, discriminatory labour practices, gender inequalities, and male violence against women and children. Therefore, prostituted women and children are seen as victims of male violence who do not risk legal penalties. Rather, they have a right to help to escape prostitution.
The groundbreaking ordinance is a significant attempt by our country to create a contemporary, democratic society where women and girls can live lives free of male violence. It addresses both the urgency of the crisis in India, where 17 women are raped officially every day, and hopefully sets the stage for legislation that will establish zero tolerance for violence against women.