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SILENCE, SCREAMS AND SEX: LEGALITY OF PROSTITUTION IN INDIA

Arya Senapati

Abstract: Prostitution or sex work is considered to be one of the oldest professions in the world. Even if we look deep into Indian history, we would find prostitution existing since ancient times. The devadasi system that was prevalent in many states in ancient India was nothing but sex work under the garb of religious sacredness. Even in the Mughal empire, the harems of the kings sheltered sex workers along with their wives. Even in the 16 th and 17 th century when Indian was a Portuguese colony, women were brought as sex slaves and were made to carry on sex work in the Indian subcontinent. The military established brothels during the British rule which currently are the red light districts also fuelled sex work and prostitution in India. Even ancient Indian literature not extensively but including “Vaishali ki Nagarbadhu” by Acharya Chatursen, The Sanskrit story Mrichakatika and Kalidasa’s magnum opus “Meghadoot” mentioned characters involved in Sex trade who played important roles in the plots of the book and were respected in the society. Human Rights Watch Reports states that there are more than 20 million prostitutes in India. India is home to the biggest red light districts in the world- Kamathipura in Mumbai and Sonargachi in Kolkata but if we ask the question Is prostitution legal in India? We can’t give a clear answer to that owing to the ambiguous nature of the Indian law related to Prostitution. On one hand we have an ambiguous law and on the other we have a society that boycotts people who practice sex trade, hence making life for these innocent citizens, a pitiable predicament.

Keywords: Devadasi, Harems, Military Brothels, Indian Literature, Kamathipura, Sonargachi, Ambiguous, Boycott,

INTRODUCTION:

The spectacle that Indian laws on Sex work 1 provide is a blurry one that’s ambiguous to a large extent. By the virtue of law, prostitution by far is a legal practice but maintaining a brothel, pimping, soliciting customers are acts prohibited by law and hence deemed illegal. When legality presents a blur image on prostitution, the spectacle of morality bats a blind eye towards it.

If we take a look at the studies conducted by Ministry of Women and Child Development of the Indian Government, we can find that India is home to three million prostitutes 2 and 40% of them are children 3 and the numbers keep on increasing 4 as economic growth increases, showing a proportional relationship between sex trade and economic development 5 . If we are talking about

economy, we can’t ignore the statistics that say that prostitution is

a 180-billion-dollar business 6 .

To examine the legal situation of prostitution in India, we need to understand what leads to a person entering into the flesh trade. The primary cause is economic factors and poverty. In present times when the GDP of the country is increasing and on the other hand the price of Indian Rupee is falling in comparison to United

States Dollar, it shows that wealth is concentrated in the hands of

a few and poverty is on a rise. This forces many poor citizens to enter into sex work. Studies of sociology and psychology of prostitutes of London shows that many sex workers entered into

1

2

The words “Sex Work” and “Prostitution” are used interchangeably throughout the article

The words “Prostitutes” and “Sex Workers” are used interchangeably throughout the article

3 Ministry of Women and Child Development, Indian Country Report: To Prevent and Combat Trafficking and Commercial Sexual Exploitation of Children and Women, 4 (2008), available at http://www.unodc.org/pdf/india/publications/India%20Country%20Report.pdf. The statistics varies in reports of other organisations, example, Human Rights Watch states that there are 20 million prostitutes in India.

4 Upasana Bhat, Prostitution ‘Increases’ in India, BBC NEWS DELHI (July 3, 2006 11:57 GMT), http://news.bbc.co.uk/2/hi/south_asia/5140526.stm. Last visited on 05/11/2018, 09:51

5

6

Ruth Rosen, The Lost Sisterhood, Prostitution in America, 1900-1918 1 (1982).

http://www.havocscope.com/tag/prostitution/ last visited on 05/11/2018, 10:05

the business due to family factors (an unloved child is more likely to enter into prostitution) and marital factors (a divorced woman who doesn’t have family support is likely to enter into prostitution), Illegitimate motherhood and mental health issues are only considered as reasons for people to enter into prostitution.

After the causes, let’s understand the effect of prostitution, the effects can be divided into social, health and economic. The social impacts of prostitution might be personal or family

disorganisation. A married man having sex with a prostitute might face family disturbance, the tear of moral fabric might lead to mental health issues of the prostitute, they face social boycott and exclusion along with hate speech and hate crimes, they often lead

a promiscuous life hidden from the society. The health related

effects are: a man may get contaminated with Sexually Transmitted Diseases from a prostitute and a married man if gets contaminated may spread the disease to his wife and children. The mental health issues of psychic-impotency is also an effect of having regular sex with a prostitute or a male prostitute having regular sex with his

clients, a female prostitute might lose her capacity to give birth to a child due to uterine injuries caused by regular sexual intercourse. The economic effects include: bars and hotels where prostitutes carry on the business might treat them unfairly and they may be forced to work in unhygienic working conditions. Trafficking and forced prostitution are also economic effects of prostitution where

a pimp for economic intentions traffic young children and force them to have flesh trade 7 .

PROSTITUTION IN INDIAN PENAL CODE: PRE-INDEPENDENCE LAWS RELATED TO PROSTITUTION

The sections in relation to prostitution in Indian Penal Code were:

7 Vadackumchery, Criminology penology, M/s Kairali, Books International, Trivandram 124

(1983)

Section 366: Kidnapping or abducting a woman, and in order that she may be forced or reduced to illicit intercourse with any person, including a woman to go from any place in order that she may be reduced to illicit intercourse by criminal intimidation or by an abuse of authority or under any other compulsion inducing a girl who is under 18 years of ages, by any other means, go to from any place or to do any act, in order that she may be forced or reduced to illicit intercourse, kidnapping or abducting any person in order that she may be subjected to the unnatural list of any person, each of these was a grave offence punishable with imprisonment of either description for 10 years or fine or both.

Section 372: Selling, letting for hire or otherwise disposing of, or buying, hiring or other obtaining possession of any girl under 18 years of age for any unlawful or immoral purpose was made an offence.

These provisions of Indian Penal Code didn’t make prostitution directly illegal. For a woman who has cross the age of minority, prostitution is illegal if accompanied with kidnapping or abduction and for a female under the age of minority, prostitution is illegal.

If we look at the history of enactments, to counter prostitution, it goes back to Bombay Prevention of Prostitution Act that was passed in 1923. There were many other acts 8 that were passed to put a check on prostitution.

SUPPRESSION OF IMMORAL TRAFFICKING IN WOMEN AND GIRLS ACT,1956: POST INDEPENDENCE VIEW

After India attained independence, the government started considering prostitution as a social evil and started initiating campaigns 9 and conferences to put a check on it. These campaigns and conferences led to the creation of Advisory Committee on

8 U.P. Naik Girls Protection Act 1929, The Bombay Devadasi Protection Act 1934, Madras Devadasi (Prevention of Dedication) Act 1947 9 Association of Moral and Social Hygiene

Social and Moral Hygiene by the Central Social Welfare Board to further the process of taking steps to implement the convention signed at New York in 1950 on Suppression of Immoral trafficking in women and girls in India 10 . Which finally led to the parliament passing the Suppression of Immoral Trafficking Act in 1956 11 whose main provisions were:

-managing a brothel was declared illegal and rigorous imprisonment of one to three years along with a fine of 2000INR was considered to be the punishment 12 .

-a person above the age of 18 who lived on the earning of a prostitute or procures her for sex work was considered guilty for punishment in form of imprisonment or fine or both 13 .

-prohibition of practice of prostitution within a distance of 200yards of any public place 14

-prohibition on soliciting customers 15

-appointment of special police officers to deal with offences under this act 16

-prostitutes are provided a right under this act to seek shelter in any protective homes 17

-magistrates are given the authority to relocate any woman carrying on prostitution in any premise 18

10 Ministry of Women and Child Development, Government of India and UN Office on Drugs and Crime, India Country Report, 4, (2007), available at http://www.unodc.org/pdf/india/publications/India%20Country%20Report.pdf. Last visited on 06/11/2018 13:59 11 Law Commission of India’s Sixty-Fourth Report on the Suppression of Immoral Traffic in Women and Girls, 1856, 1975, available at http://lawcommissionofindia.nic.in/51-100/Report64.pdf. Last visited on 06/11/2018 14:09

12 Section 3, Suppression of Immoral Trafficking Act, 1956

13 Section 4 and 5, Suppression of Immoral Trafficking Act, 1956

14 Section 7, Suppression of Immoral Trafficking Act, 1956

15 Section 8, Suppression of Immoral Trafficking Act, 1956

16 Section 13, Suppression of Immoral Trafficking Act, 1956

17 Section 19, Suppression of Immoral Trafficking Act, 1956

18 Section 20, Suppression of Immoral Trafficking Act, 1956

Even though the act had a mild approach towards prostitution, it was wrongfully used by legal personnel to create problems for sex workers as they had a mind-set that prostitution is a social evil. This led to the act being amended in 1978 and it was further amended in 1986 due to International debates on the matter of commercial sex work, after this it came to be known as “Immoral Trafficking in Persons Prevention Act”. 19

COURT’S OPINION:

In State v. Gaya 20 , the Bombay High Court stated that SITA was passed to prevent trafficking in women and children in accordance to the signing of the International convention, it never intended to punish the once who were trafficked.

In Re Ratnamala and Another 21 , the Madras High Court opined that the act was to curb the commercial crimes involved in prostitution, it never intended to declare prostitution illegal per se. It also reviewed the definition of brothel under this act 22 , it stated that a single woman has all the right to carry on prostitution without the help of another prostitute or person being involved in the maintenance of the place where she carries on the business. In such a case, her residence will not be considered as a brothel.

In Gaurav Jain v. Union of India 23 , the obiter dicta stated that “women found in flesh trade, should be viewed more as victims of adverse socio-economic conditions rather than as offenders in our society”

In Jacob v. State of Kerala 24 , the court stated that prostitution per se is not a criminal activity but seducing or soliciting customers in public is illegal by virtue of law.

19 supra note 10

20 State of Maharashtra v. Gaya, AIR 1960 BOM 289

21 State of Tamil Nadu v. Ratnamala and Another, AIR 1962 MAD 31

22 Section 2(a), Suppression of Immoral Trafficking in Women and Children Act, 1956 23 Gaurav Jain v. Union of India AIR 1997 SC 3021

24 T. Jacob v. State of Kerala AIR 1971 KER 166

In Maharashtra v. Madhukar Narain Mardikar 25 , the court stated that right to privacy is one of the essentials of a human and hence Article 20 26 cannot be misused to enter into the houses of women.

USING LAW TO BREAK STIGMAS ATTACHED WITH PROSTITUTION:

Socially, prostitutes are considered to be women of infringed character, they are looked down upon and are subjected to harsh treatment and are ostracised significantly. They are not allowed to be a part of social gatherings and functions. Researchers studying law and sociology together believe that law can be used to change the social norms attached to sex work. This is the virtue of “Expressive Theory” 27 which states that law doesn’t limit itself to the function of sanction, it also has an expressive function 28 by virtue of which, a declared law holds the power to change social perspectives and mind set.

This implies that if prostitution is decriminalised entirely and not just vaguely, a woman can enjoy her right to profess any occupation, she can exercise her right to use her body in a way she wants, she can earn her livelihood freely without being looked down upon or without having to be a victim of social degradation.

In many cases, Police and other law enforcement agencies exploit women involved in sex work and treat them wrongfully but this will stop if the law declares prostitution legal and makes it a legal wrong for a policeman to exploit a prostitute.

There are incidents where schools refuse to admit young children who are rehabilitated after getting through sex work and even children of sex workers are not given admission in some schools, this will also stop as a result of the expressive function of law.

25 State of Maharastra v. Madhukar Narain Mardikar, AIR 1991 SC 207

26 Supra Note 18

27 Cass R. Sunstein, On the Expressive Function of Law, REV. 2021, 2022 (1996);

WITH NEW LAWS:

Now let’s understand what will be the impact of legalisation of prostitution of India and what all new laws should India implement in the field of sex work.

First of all, maintenance of a brothel should be legalised, reason being it doesn’t harm the society or an individual in any way, if maintenance of a brothel is legalised then the brothel owners may be compelled by new laws to provide a proper working condition to women and men involved in sex trade. They can be stopped from inflicting violence on the sex workers.

Secondly, legalisation might entail clients to compulsorily use condoms by virtue of new legislation hence putting a check on spread of sexually transmitted diseases and on the other hand preventing unwanted pregnancies. The clients perpetuating violence on the sex worker may also be punished by virtue of law. Clients who leave the sex workers unpaid may also be held accountable under new legislations.

Thirdly, Rape and Trafficking will decrease, studies show that countries with legal sex work have lower rate of rape and trafficking.

The World Charter for Prostitutes' Rights 29

It is a declaration of rights adopted in 1985 to protect the rights of prostitutes worldwide. The distinction between voluntary and forced prostitution was developed by the prostitutes' rights movement in response to feminists and others who saw all prostitution as abusive. The World Charter for Prostitutes' Rights calls for the decriminalisation of "all aspects of adult prostitution resulting from individual decisions. The World Charter also states that prostitutes should be guaranteed "all human rights and civil

BRIDGING

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liberties," including the freedom of speech, travel, immigration, work, marriage, and motherhood, and the right to unemployment, insurance, health insurance and housing. Even the right to deny services and be provided with proper working conditions is an extension of this Charter.

CONCLUSION

After having reviewed and analysed past and present laws as well as scenarios and mind-set concerning sex work, we can without a doubt say that the laws are ambiguous and even though prostitution per se is not a criminal offence according to the court’s interpretation of statutes, sex workers are not free to practice sex work freely and with all the essential conditions required for a proper culmination of any profession.

Due to this vague nature of laws, neither are they able to exercise their social/civil rights nor are they able to enjoy the rights every commercial contract provides.

Hence, a step to change the vague nature if the law is important and the law must be made certain and clear so as to prevent the adverse effect of it.

Keeping prostitution as a closeted profession not only manifests in harassment of sex workers but also extends to increasing risk of contracting AIDS. Sex education for sex workers and brothel owners is a must, along with special rehabilitation centre establishment for women who want to quit sex work is necessary, women police stations must be mandated with the task to handle any cases related to female prostitution. It is time that the legal intelligentsia starts taking this matter as an issue of grave concern and start forming necessary laws.

LEGAL RESEARCH WRITING RESEARCH ARTICLE Submitted by: Arya Senapati 1883160 B.A.LLB(Hons) Submitted to: Mrs. Shreya

LEGAL RESEARCH WRITING RESEARCH ARTICLE

Submitted by:

Arya Senapati

1883160

B.A.LLB(Hons)

Submitted to:

Mrs. Shreya Chatterjee Ms. Mitul Dutta Faculty, KiiT School Of Law