O’REGAN J and SACHS J
precisely the kind of issue that is invariably left to be resolved by the democratically accountable
law-making bodies.
[91]
We conclude, therefore, that although nearly all open and democratic societies condemn
commercialised sex, they differ vastly in the way in which they regulate it. These are matters
appropriately left to deliberation by the democratically elected bodies of each country. Voices
such as those of the Gender Commission, SWEAT and the RHRU will help direct public and
parliamentary attention to the constitutional goal of the achievement of equality between men
and women.
[92]
Counsel for the state contended that what is before the Court is not the wisdom of the
policy of suppressing prostitution, but its constitutionality. He was not called upon to say that
the policy was the wisest nor that it was the only one. Parliament could choose between
prohibiting prostitution, regulating it or abstaining from addressing it at all. The Act opted for
prohibition and, while this might carry with it certain problems, it is a constitutionally
permissible legislative choice. We agree.
[93]
What emerges from the above analysis is that because of the commercial character of the
activity involved, the right to privacy of the prostitutes is attenuated. What is also clear is that
there is a strong public interest in the regulation of prostitution in a manner which will foster the
achievement of equality between men and women. Open and democratic societies generally
denounce prostitution. Some criminalise it, others make it difficult by criminalizing activities
associated with it, while others permit it with reluctance and subject it to fairly stringent
63
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