www.whiteblacklegal.co.in ISSN: 2581-8503 VOLUME 1: ISSUE 9 ||January 2020 || Email: [email protected] Website: www.whiteblacklegal.co.in 1 www.whiteblacklegal.co.in ISSN: 2581-8503 DISCLAIMER No part of this publication may be reproduced or copied in any form by any means without prior written permission of Editor-in-chief of White Black Legal – The Law Journal. The Editorial Team of White Black Legal holds the copyright to all articles contributed to this publication. The views expressed in this publication are purely personal opinions of the authors and do not reflect the views of the Editorial Team of White Black Legal. Though all efforts are made to ensure the accuracy and correctness of the information published, White Black Legal shall not be responsible for any errors caused due to oversight or otherwise. 2 www.whiteblacklegal.co.in ISSN: 2581-8503 EDITORIAL TEAM EDITOR IN CHIEF Name - Mr. Varun Agrawal Consultant || SUMEG FINANCIAL SERVICES PVT.LTD. 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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 RAPE IN INDIA (By : Nishika Gupta and Aman Gupta) ABSTRACT Prostitution has been an age long profession practiced mostly by women in India. 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 rapes 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 child prostitution. 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 ---------------------------------------------------------------------------------------------------------------- 5 www.whiteblacklegal.co.in ISSN: 2581-8503 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 Devadasi: 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 devadasis 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 Andhra Pradesh, Karnataka, Tamil Nadu and some parts of Maharashtra. The abolishment of this system is as difficult as the elimination of child marriage or sati 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 Telangana 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.