www.whiteblacklegal.co.in ISSN: 2581-8503

VOLUME 1: ISSUE 9 ||January 2020 ||

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WHITE BLACK LEGAL is an open access, peer-reviewed and refereed journal provide dedicated to express views on topical legal issues, thereby generating a cross current of ideas on emerging matters. This platform shall also ignite the initiative and desire of young law students to contribute in the field of law. The erudite response of legal luminaries shall be solicited to enable readers to explore challenges that lie before law makers, lawyers and the society at large, in the event of the ever changing social, economic and technological scenario.

With this thought, we hereby present to you

WHITE BLACK LEGAL: THE LAW JOURNAL

4 www.whiteblacklegal.co.in ISSN: 2581-8503

PAID IN

(By : Nishika Gupta and Aman Gupta)

ABSTRACT

Prostitution has been an age long profession practiced mostly by . In fact, the Rigveda talks about women who offered sex in return for payment. These were the sadbaranis. So is calling prostitution paid rape correct in India? ; After all the holy Rigveda mentions it and even treats some of the high-class prostitutes as celestial demigods. Empires fell and came up for the lust of physical pleasure but the women behind it were never heard. Every time she was treated as a commodity; traded and sold in the market of lewd and ruthless kings and men. Since time immemorial women were pushed to the brink of practicing prostitution for various reasons, be it an economic cause, prior or when own parents and relatives sell off their daughters for money. Now they are recognized as Sex-workers. It is conveyed that they are willfully doing this job. No one impugns upon the brutalities, psychological impact and the high health risk involved in this profession. So, is prostitution any less than a paid ‘rape’? Women working as sex workers have always been subjected to discrimination and have always been denied education, health-care services and legal justice. Prostitution is not only limited to itself but brings with it a vicious cycle of crime involving kerb crawling, pimping and . The taboo associated with these sex workers has never created for them an environment where they can step out of this and lead a normal life. The irony lies therein that people who enjoy their services are the first ones to criticize them. For them women is just another physical commodity of use! In this paper, I will discuss the challenges faced by the sex workers and how Indian laws work to protect their rights.

Keywords:

Prostitution, Profession, Rigveda, traded, psychological impact, discrimination, crime, legal justice

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I. INTRODUCTION

The impression when one says prostitution and rape is so different. Why? Is it so because our culture has taught us that there are some ‘dirty’ women, the so-called vesyas and prostitutes in our society who indulge in the business of sex voluntarily? And rape is a crime committed when a man forgets all human values and makes a woman vulnerable to his physical atrocities to fulfill his sexual desires? But are these two not the same? A woman’s character is questioned since traditional times whenever she has stepped out of her home. This merciless world has even never spared a woman who has been prey to the lustfulness of a vile man. So, how can a woman who has been made to step into the dark world of prostitution be spared? A Prostitute is not vulnerable at the hands of a single man but the whole world. Her concern as a daughter of being a burden to her poor family; her concern as a home-maker of a family whose sole earner is a carouser; her concern as a mother- how to feed her babies; her mental state which reminds her of all the incest; her ill-literacy which makes her think selling her body is the best way to earn money to fulfil her material desires; her forced submission to sell-off by her parents and relatives, pimping and child trafficking, and so on have made her helpless. Do these reasons make her less impuissant than a woman who is raped? The only difference between the two is that a woman who is raped is not paid and a prostitute is paid at the mercy of her customer. So let us call this abhorrent culture of prostitution a culture of ‘paid rape’.

II. RETROSPECTION

Prejudice has prevailed against women even while following customs and religions. Prostitution is ‘Ancient vice in Modern garb’. Since the time of Gods, the ancient civilizations, powerful kings and to date, women have been solicited. We can well imagine a picture of a divine man relaxing on a couch in his abode in heaven and enticing women called the ‘apsaras’, who are the divine prostitutes, feeding him with ambrosia. These gorgeous women were kept for the entertainment of the divinities. No one is unaware of the intoxicating beauty of the apsara Menaka,1 who was the cause of the downfall of the great sage Vishwamitra. A total of forty-two apsaras are named in the Mahabharata; Urvashi, Tilottama, Ghritachee and Rambha are few famous ones. The Ramayana mentions the ganikas and rupavijas (terms used for the prostitutes on the basis of their class) who accompanied the soldiers for their entertainment. The bronze statue of naked women excavated from the sites of Mohenjo Daro does not confirm

1Pallavi Thakur, Tradition of : The sacred prostitute!, SPEAKING TREE (Nov., 12, 2014, 10:30 AM), https://www.speakingtree.in/allslides/prostitution-in-ancient-india.

6 www.whiteblacklegal.co.in ISSN: 2581-8503 the culture of prostitution but definitely validates people’s acceptance of feminine beauty.2 We also have very clear impressions of kings enjoying the dance of mesmerizing dancers called the ‘nartakis’ who often served their physical beauty to the kings in return for fortune. The famous Arthashastra by Kautilya lays the code of conduct for the prostitutes and her customers as well. The Mughals patronized prostitution and ‘tawaifs’ and ‘mujra’ strengthen their roots from the Mughal Empire only.3

III. DEVADASI SYSTEM

Devadasi means God’s servant. During ancient times, girls before attaining puberty were married off to Gods mostly Krishna and were given to the temples to serve God. In South India, the are dedicated to Goddess Yellamma. In ancient times, the devadasis were given training in various arts like music and dance under very learned gurus and the sole purpose was to please God. But as time changed, this system became a mere trade between the feudal class and the priests. When the devadasis attained puberty, they were auctioned to the high-class community.4 The Devadasis were barred from marrying a mortal which devoid them the status of a wife, and they remained at the mercy of their owner. Devadasis were expected to have sexual partnerships with men who could support them and their families, camouflaged as a long term socially sanctioned partnership akin to marriage.5 The economically disadvantaged, scheduled caste and scheduled tribes who are always dominated by the zamindars and upper class fall prey to this system.

Although illegal, the Devadasi System is still prevalent in , , and some parts of . The abolishment of this system is as difficult as the elimination of child marriage or practice because of the staunch belief of people in the caste system and the involvement of the whole community. Currently, there are about 80,000 devadasis just in Andhra Pradesh and according to a commission led by Justice Raghunath Rao.6 The laws that protect the rights of these devadasis are:

1. Bombay Devadasi Protection Act, 1934.

2Advithi, Prostitution originated along with the origin of mankind!!! Here’s a brief history of sex trade in India, POSTCARD (Feb., 14, 2018, 02:25 AM), https://postcard.news/prostitution-originated-along- with-the-origin-of-mankind-heres-a-brief-hIstory-of-sex-trade-in-india/.

3 Id. 4 supra note 3. 5 JAYNA KOTHARI ET AL, ‘INTERSECTIONS OF CASTE AND GENDER: IMPLEMENTATION OF DEVADASI PROHIBITION LAWS’ 20 (CLPR, BANGALORE, 2019). 6 Krithiha Rajam, How Devadasis went from having high social status to being sex slaves and child prostitutes, YOURSTORY (Apr., 24, 2017, 4:06 PM), https://yourstory.com/2017/04/devadasis-india.

7 www.whiteblacklegal.co.in ISSN: 2581-8503 2. Madras Devadasi (Prevention of Dedication) Act, 1947. 3. Karnataka Devadasi (Prevention of Dedication) Act, 1982. 4. Andhra Pradesh (Prevention of Dedication) Act, 1988. 5. Maharashtra (Abolition of Dedication) Act, 2006.

Despite the presence of so many laws, there hardly can be seen any seriousness in the implementation of these laws. The Central Government in 2015 came forward and issued an advisory to all the state governments and union territories to identify the devadasi women and rehabilitate them with counselling, medical support, guidance, support and motivation. Various PILs have also been filed in the Supreme Court of India against the police authority over their lack of seriousness in tackling the situation. One such PIL is Vishal Jeet v/s Union of India7 case. The petitioner sought for directions for the implementation of the Devadasi Legislation.8

IV. CAUSES OF PROSTITUTION: AN INDIAN PERSPECTIVE

The Indian Culture weaves such a fabric to consider prostitution as a moral wrong. A lot of striking reasons appear when the issue is dealt seriously. Some of them are:

1. Economic cause- Poverty and economic distress have been the main reason why girls submit to this ‘profession’. Women and young girls find this job apt for them as they do not require any qualification or extra skill for becoming a sex-worker. The outcome is the never-ending cycle of prostitution as these women never come out of poverty and their children also get dragged into this racket. One more reason why children of prostitutes are preferred is their physical blend because their mothers also have foreign clients.9 2. Lack of Education- Women who enter into prostitution are mostly aged between 16-22. Being born into a poor family and above all being a girl does not give her an opportunity to study. Young women are forced into prostitution to bear the finances of the family. An uneducated women is hardly to understand that she even has a right and continues to surrender to all the savagery. Unknown to the repercussions, young girls fall prey to deadly diseases like HIV, cervical cancers or some kind of psychological disorders. ~ “A woman with an education may be able to spend more time sitting in a chair instead of lying on her back. A sound advantage, I should think.” ― Anne Bishop, Daughter of the Blood

7 1990 AIR 1412, 1990 SCR (2) 861. 8 supra note 4, at 33. 9 The link between prostitution and poverty, BORGEN MAGAZINE, (Aug., 04, 2015, 6:08 PM), https://www.borgenmagazine.com/prostitution-poverty/.

8 www.whiteblacklegal.co.in ISSN: 2581-8503 3. Prior incest and rape- Cases of incest are very common to hear and leaves a deep psychological impact on the minds of young children. Mostly this is the first incidence where children are exposed to sexual behavior. Reports suggest that 8% of girls from a red- light area in Maharashtra were forced into incestuous relationship and then sold off by their fathers.10 Incidents of rape keeps occurring with young girls and they are threatened to keep quiet. Sometimes the death of parents result in sexual exploitation of the young girls and are later sold off their relatives. 4. Acceptance of prostitution-The tinsel life of big cities lures young girls. They land in big cities with the hope of getting a good life but end up in brothels, as street prostitutes, bar dancers, escort girls, etc., in miserable conditions. Their parents are also least concerned because they cannot accept their daughters now or sometimes they do not have enough resources to find them. Thus, young girls accept prostitution.

V. CHALLENGES FACED: AN EXPOSURE

Life is always difficult for a sex-worker and the ambiguities of law make their life more miserable. Because when laws do not protect the rights of these sex-workers, the intense societal stigma associated with their work does not let them live the lives of a human. A prostitute is subjected to discrimination in all walks of life. Regardless of certain legislation there are direct and indirect ways through which an individual is exposed to such a stigma:

1. Education of children- The stigma associated with the prostitutes does not allow their children to get formal education in schools. These children are often bullied by their teachers and peers due to the kind of work their mothers do. High drop-out rates are seen among these children. There are instances where a sex-worker is helpless when a client touches or molests her daughter. So, she often marries off her daughter at an early age. Thus leaving the girl illiterate. Children from red-light areas are often found to use their sexuality due to the exposure of sex at a tender age.11 Children are then found to indulge in more of their mother’s job rather than studying. Drug abuse of children also becomes a big problem for these sex-workers. The red-light areas are such where drugs are easily available, so, most of the children are addicted to bidis, cigarettes and alcohol.

10 Sarika Misha, Child , INTERNATIONAL INITIATIVE TO END CHILD LABOR (June, 08, 2010), https://endchildlabor.net/prostitution/child-prostitution-in-india/. 11 Shagun Bhargava, A Hurdle in the Shadows: Providing Education to the Children of Sex Workers, THE BASTION, (May, 18, 2019), https://thebastion.co.in/politics-and/education/a-hurdle-in-the-shadows-providing- education-to-the-children-of-sex-workers/.

9 www.whiteblacklegal.co.in ISSN: 2581-8503 2. Violence- The work environment of the sex-workers are such that they are mostly helpless and at the mercy of their clients. According to a study, 76% sex-workers experienced violence by clients. Sexual coercion experiences of the Female Sex Workers included verbal threats (77%) and physical force (87%) by intimate partners and forced unwanted sexual acts (73%) by clients. While 39% of the women consumed alcohol before meeting a client, 26% reported that their drunkenness was a trigger for violence by clients.12 Unless a sex-worker is under a strong union, it so happens that these sex-workers are not paid properly. 3. Health Issues- The sex-workers work at the risk of their lives. Sexually Transmitted Diseases and HIV are the most common ones to affect their health. Dr. Kannai Banerjee from Medical College reports that the reproductive tract of sex-workers are a host of infections and 75% of them face one or the other kind of STD. White discharge, genital ulcers, Hepatitis B and HIV are the most common diseases.13 Due to lack of education, the sex-workers are often unaware of the protection methods that can be life-saving for them. Various NGOs and government campaigns have initiated spreading awareness and educating the sex-workers about sexual health and disease prevention methods. 4. Denial of Justice- The sex-workers regard the police as the most repressive agency. Police abuse sex-workers, illegally detain, sexually exploit and torture them in custody. Police are most likely to ignore the complaints of domestic violence reported by the sex-workers. Rape of the sex workers hardly has any social or legal recognition. People in high position often take sexual favours from these sex-workers, thus, worsening their situation. 5. Lack of documentation- The migratory nature and the social stigma related to the work of the sex-workers prevent them from having valid documents which could give them a better living. Parents do not want to give their name to their girl, landlords do not want to give them the rent receipts and many such incidences which leaves them identity less. Due to such condition, sex-workers cannot claim benefits of BPL cards or ration cards. Moreover, they become an unregistered citizen which make crime against them very easy and often remains untraceable.

VI. INDIAN LEGISLATIVE APPROACH

12 Subadra Panchanadeswaran, A Descriptive Profile of Abused Female Sex Workers in India, 28 J HEALTH POPUL NUTR 211, 211 (2010). 13 Geetanjali Gangoli, Unmet needs: Sex workers and health care, 7 IJME 92, 92 (1999).

10 www.whiteblacklegal.co.in ISSN: 2581-8503 The general conception that prostitution in India is illegal is a mere hoax. Not every activity related to sex is illegal. One of the jurisprudence behind not imposing a blanket ban on such activities is increasing figures of rape in the country. If prostitution is banned in totality it might catapult the figures to a greater extent. Therefore, to regulate such conduct there are certain legislation to mitigate the uncalled consequences of prostitution.

1. The Constitution of India, 1949 - Certain constitutional provisions are interpreted to uphold the principle of equality, morality and liberty to choose a profession and shall not be discriminated against their choice. Even the preamble to the Constitution upholds the dignity of an individual.14 i. Article 14: This article grants a person right to equality before law i.e. equal opportunities before law and no discrimination amongst such opportunities. ii. Article 15: This article prima facie prohibits discrimination on the grounds of sex, caste, race, religion or place of birth. Thus, it is a fundamental right of women to remain free from such discrimination and an obligation of the state to protect such a right of the women from getting infringed. iii. Article 21: This article protects a person’s right to life and personal liberty. iv. Article 32: Enforcement of fundamental right is in itself a fundamental right by virtue of this Article. A woman during the course of infringement of the above mentioned rights can file a PIL for the redressal of her grievances. v. Article 23(1): This article prohibits traffic in human beings and other forms of forced labour. Even sex workers are prevented from forced services or from coercion to perform such services. vi. PART IV (Directive Principles of State Policy): The state shall direct its policy towards securing that the citizens due to economic necessity are not forced to enter into avocations unsuited to their age. Further, the children shall develop in a healthy manner and dignity and their youth shall be protected from exploitation. The state shall look that young children are forced into child trafficking or end up as a sex-worker which would jeopardise their health.

2. The , 1860 - The Criminal Amendment Act of 2013 included provisions in this legislation to deal with the cases of against women after the landmark judgment of Mukesh & Anr. v. State for NCT of & Ors.15

14 Anushka Ambli, Legalization of Prostitution in India, 4 IJLDAI 59, 64 (2018). 15 CRIMINAL APPEAL NOS. 607-608 OF 2017.

11 www.whiteblacklegal.co.in ISSN: 2581-8503 i. Section 372 and Section 373: This provision declares the act of selling and buying minor for the purposes of prostitution as an offense punishable with fine and imprisonment up to ten years. ii. Section 354: This provision declares the act of using force against a women with an intention to outrage her modesty as an offense and punishable with an imprisonment for a term not less than one year. iii. Section 354 A, 354 B, 354 C, 354 D: These provisions has been added after the Nirbhaya Case16 where section 354 A declares an act of unwelcome sexual advances, demand for sexual favours etc. against the will of women as sexual harassment punishable with rigorous imprisonment up to three years. When sex workers are demanded favours against their will they can be safeguarded within these provisions. Section 354 B declares an act of using criminal force with an intention of disrobing her as an offence. Section 354 C and Section 354 D also declares ‘Voyeurism’ and ‘Stalking’ as offence with imprisonment not less than seven years and may extend till three years respectively. iv. Section 370 A: This provision declares trafficking for sexual exploitation as an offence punishable wit rigorous imprisonment not less than five years. v. Section 376: This provision declares sexual intercourse without a woman’s consent as an offence punishable with fine and imprisonment which may extend up to life. This provision is applicable to sex worker too as when a woman is exposed to sexual intercourse without her consent, she can get relief under this provision. 3. Immoral Traffic (Prevention) Act, 1956 - This legislation regulates the act of prostitution and in pursuance of the International Convention signed at New York in 1950 for the prevention of Immoral Traffic in India.17 The Act prohibits the establishment of a brothel or using a premise as a brothel18 and prostitution within 200 metres of the vicinity of any public place such as places of religious worship, educational institutions, hospital etc.19 punishable under it. The legislation does not declare the act of prostitution as illegal but consists of provision which discourage such immoral practice. Section 4 of the provision discourages the practice of another person living on the earning of prostitution and declares it as an offence. The Act aims at

16 Id. 17 The Immoral Traffic (Prevention) Act, 1956, No. 104, Acts of Parliament, 1956 (India). 18 Id., at Section 7. 19 supra note 17, at Section 3.

12 www.whiteblacklegal.co.in ISSN: 2581-8503 abolishing commercialized trafficking of women.20 Any person inducing a woman for the sake of prostitution shall be punishable by the virtue of this Act. The Act provides with a special officer who shall deal with such offences by virtue of section 13.

Though prostitution is legalized till certain extent but the law as on paper has given rights for the protection of women sex workers in the country. But its implementation at the ground level still remains a question!

VII. CONCLUSION

The concept of paid rape is not restricted to India but extend beyond its boundaries. It depends upon the culture and vision of each country how they observe prostitution, whether as a profession, regardless of it being moral or immoral, or as a blot on the society. Prostitution as a profession in India has not been looked as something one can opt for. It is due to the inevitable circumstances woman are forced into such profession but considerable number of them is there by choice. Therefore, to conclude whether ‘prostitution’ can be substituted as ‘paid rape’ depends upon the implementation of the laws effectively because if a single woman is forced into prostitution and enters the avocation to improvise on the needs of her life although with her will then it will be a legal and moral defeat of the woman concerned, the authorities established to safeguard her interest and finally the nation in rem.

20 Ratnamala and Another v. Respondent AIR 1962 Madras 31.

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