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PREPARING FOR CIVIL DISOBEDIENCE: INDIAN SEX
WORKERS AND THE LAW
Prabha Kotiswaran*
Abstract: This
article deals with the reform of prostitution laws in India. It
begins with an outline of the current legislative framework
available in this regard and then critically evaluates the various
alternatives to the framework that have been proposed through the
1990s by the Indian government, universities and research
institutions, the Indian women’s movement and sex-worker
organizations. After undertaking an historical examination of
prostitution laws in India from colonial times up to the present,
the author recommends the decriminalization of prostitution with a
strong emphasis on the protection of the civil rights of prostitute
women as a matter of policy. More importantly, the author challenges
the underlying assumptions of much Indian feminist theory and
practice on the issue, critiques the politics of representation in
the law reform process and seeks to highlight the agency of Indian
prostitute women in the debate on prostitution laws.
Preparing for Civil Disobedience: An
Introduction
Scarlot, a prostitute woman1
solicits a New York audience as part of her art performance:
[*PG162] I would like to engage you in a little civil
disobedience.
You all know that it is
against the law, it is a crime to solicit for the act of
prostitution.
I don’t know if you know
this but a few years ago they made law that it is illegal to agree
to engage in prostitution.
First of all are there
any cops in the audience?
You have to tell me,
otherwise it is entrapment.
I am going to offer you
my sexual services, you just say yes.
$200 for intercourse, of
course with a condom.
Now who agrees to engage
in prostitution with me?
Great.
Thank you so much for
engaging in this act of civil disobedience.2
If legal theory can ever engage in civil disobedience as
perilously close to arrest and imprisonment as does Scarlot, then
this article begins the search for such theory. In the process, the
goal of this article is to make an effective contribution to the
current national debate on prostitution in India today, while
reflecting on some of the implications that this debate has for
feminist legal theory in an Indian setting.
In attempting to arrive at a proposal for law reform, I undertake
a brief historical study of the laws relating to prostitution in
ancient and colonial India. I point to the ambivalent nature of laws
relating to, and of societal attitudes toward, prostitution and
prostitute women prior to colonial rule, and the use of law by the
colonial state initially to regulate, and later to criminalize
Indian prostitute women, thereby disenfranchizing them. Complicit in
the decline in prostitute women’s social status was a nationalist
ideology that considered prostitute women to be a slur on its
conception of Indian womanhood. I thus attempt to unravel how the
prostitute woman’s body became, in [*PG163]colonial
times, a battle ground on which the interests of Indian
nationalists, the Indian orthodoxy and the British rulers played
out, competing at times and colluding at other times, and how the
law encrypted these contestations. More importantly, one could
unearth numerous instances of the agency of Indian prostitute women
and their understanding of, and resistance to, pre-colonial and
colonial laws. This process of retrieving, however partially, the
voices of these prostitute women, of the subalterns, assists in
countering the prevalent stereotypical images of Third World women
(and Third World prostitute women in particular), as being mere
victims of patriarchal oppression and no more than sex slaves.
The National Commission for Women (NCW) and the Indian feminist
movement, with few exceptions, have consistently created and
reinforced the idea of Indian prostitute women as mere sex slaves
who are invariably trafficked into prostitution and who, as victims,
do not have the ability to speak for themselves or their
communities. At the legislative level, this translates into the
desire for stringent criminal laws that penalize all players except
for prostitute women, despite the record of the state and the police
in enforcing existing laws that similarly suffer from a lack of
conceptual clarity. Proponents of this proposal use the rhetoric of
human rights discourse to advance it, in opposition to
decriminalization. In reality, this position only sustains the
divide between prostitute women who are forced into prostitution and
those who enter it voluntarily, because it suggests that those who
are forced into it ought to have rights, while the latter do not
deserve to be protected from institutionalized discrimination.
Moreover, reliance on an imaginary divide between the West and Asia
to explain why “Western” women can cope with legalization, whereas
Asian women need to be rescued and rehabilitated, is contrary to the
aspirations of many Indian prostitute women themselves, who demand
the decriminalization of prostitution.
Disturbing as it may seem, the policy debate surrounding
prostitution in India today has striking parallels to debates on the
issue in colonial times. By denying the agency of prostitute women,
the feminist movement and the NCW are reiterating the moralistic
views of patriarchal nationalist leaders from colonial times. Thus,
I find problematic the politics of representation of the Indian
feminist movement in this area of law reform. In keeping with the
hope of much feminist theory—-to be related to the day-to-day
struggles of the women’s movement—-my article argues that any
sincere attempt at ameliorating the conditions of prostitute women
and avoiding state control of their bodies in the name of the
Acquired Immune [*PG164]Deficiency
Syndrome (AIDS) epidemic is possible only if the post-colonial state
and the women’s movement alike involve prostitute women in the
policy making process, decriminalize prostitution and enact laws
that prohibit any form of discrimination against prostitute women on
account of their sex work. This would entail repealing any special
legislation that makes criminal offenses of prostitution,
trafficking and related activities, and instead, prosecuting such
activities under general criminal laws that apply to all persons,
irrespective of whether or not they are involved in the sex trade.
In addition, such a generally applicable law would contain
anti-discrimination provisions so that sex workers could not be
deprived of their personal liberty or be subject to restrictions in
the conduct of their lives solely on account of their status as sex
workers. It would further contain provisions that protect sex
workers against sexual abuse, require the creation of a welfare fund
supported and administered by the government and prostitute women
alike, and enable sex workers to form and register collectives under
the law and to use it to increase their bargaining power in
realizing these rights. Finally, it would contain guidelines to
which both enforcement officials and the judiciary would be subject
in their interpretations and enforcement of the law, in order to
preserve the spirit of the law.
Part I of this article outlines the present legislative framework
relating to prostitution in India, the pattern of its enforcement so
far, the rise of prostitution in the 1990s as a matter worthy of
public debate in light of the AIDS epidemic, and the Indian women’s
movement’s engagement with prostitution and prostitute women. This
article then elaborates on law reform initiatives that have been
undertaken in the past decade at the insistence of the Indian state,
while chronicling the positions of the various players in the
debate, namely, the federal government, the governmental body which
acts as a watchdog for women’s rights (i.e., the NCW), feminist
non-governmental organizations, Human Immunodeficiency Virus (HIV)
prevention groups and prostitute women’s organizations. Part II of
this article offers a brief, and by no means exhaustive, description
of prostitution in ancient India. Part III focuses on the impact of
British rule on prostitution in India commencing with state
sponsored prostitution and continuing to the state regulation of
prostitution through the use of contagious diseases laws. Part IV
deals with the feminist abolitionist intervention during this period
of colonial rule, especially in the realm of law reform. Part V
discusses the role of the nationalist movement in attempting to
counter the moralistic superiority of the British rulers by
improving the status of Indian women, and the re[*PG165]sulting
marginalization and stigmatization of Indian prostitute women who
came to be construed as mere victims of sexual slavery. Part VI
raises certain methodological issues that feminist researchers who
seek a more nuanced and complex understanding of prostitution are
likely to encounter in their research. Part VII concludes this
article with an exploration of the underlying assumptions of much
Indian feminist theory and practice in relation to prostitution, the
politics of representation in the law reform process, and the need
to pry open essentialist thought processes in feminism as they
relate to Third World women (assuming such a category exists) and
engage more fully with the emerging prostitute rights movement in
India.
In articulating my arguments in this article, I draw from recent
writings of North American feminist jurisprudence3
that are immediately relevant to this article. Among the themes that
I emphasize is the need to base feminist inquiry in the concrete
experiences of women,4
especially in the context of the critique of Enlightenment beliefs.
Clare Dalton elaborates:
[T]he idea that a “self”
can be singular or coherent; the idea that knowledge can be
objective (or the real-world-out-there corresponds with the
world-as-viewed-by-the-subject); the idea that certain minimal
universal human needs or rights can be identified that are in no way
contingent on the historical particulars of any given society, but
for that very reason can be used to justify particular social and
political structures.5
Dalton suggests that feminist theory, in addition to
conceptualizing gender, should be cognizant of factors such as race,
class, sexual orientation, religion, ethnicity, employment status,
and physical and mental health. Several feminists, like Martha Minow,
Kimberle Cren[*PG166]shaw and Angela
Harris, who critique the tendency toward gender essentialism in many
feminist legal writings echo Dalton’s nonessentialist view.6
In the Indian context, caste and a colonial history would be among
the additions to this laundry list.
In attempting such contextual and post-essentialist research, I
have also been influenced by the writings of Indian historians who,
as part of the subaltern studies movement in Indian historiography,
have demonstrated how attention to the stories of ordinary men and
women is useful in making sense of the nationalist movements in many
colonized countries. For example, stories of resistance by women
against the grain of both colonial and nationalist discourse could
rid Indian and Western feminists alike of the patronizing attitude
that they tend to adopt toward Third World women as victims and
victims alone. Since subaltern studies scholars tend to adopt a
critical posture toward British administrative and legal documents,
their methodology is full of possibilities that will enrich our
understandings of the exigencies of colonial rule under which the
Indian court system, the legal profession and the laws themselves
were institutionalized.7
I. Sad Laws, Bad Laws, They Make Me Mad Laws
. . .
All They Do . . . Is Add Laws8
A. Present Constitutional and
Legislative Framework Affecting Prostitution
An outline of the relevant constitutional and legislative
frameworks is necessary in order to appreciate the debate on
prostitution laws in India today. Apart from the equality provisions
of the Indian [*PG167]Constitution,9
Article 23 prohibits traffic in human beings and all forms of forced
labor. In addition, Article 39 provides that the state should direct
its policy toward securing, among other things, a right to adequate
means of livelihood for men and women equally and equal pay for
equal work for both men and women, so that citizens are not forced
by economic necessity to enter vocations unsuited to their age or
strength.10
Further, Article 42 requires that the state make provisions for
securing just and humane working conditions as well as provide for
maternity benefits.11
The legislative framework consists mainly of The Immoral Traffic
in Persons Prevention Act, 1986 (ITPA)12
as well as an entire range of laws that, in reality, tend to be
utilized more often in tackling prostitution than the ITPA itself.
These laws include the Indian Penal Code, 186013
(which has provisions against trafficking and slavery of women and
children) and the state-level police, railways, beggary, health and
public order statutes. Apart from these laws, state governments are
permitted to frame rules under the ITPA, as regards the licensing
and running of protective homes.
The underlying philosophy of the ITPA is a carry over from that
of The Suppression of Immoral Traffic in Women and Girls Act, 195614
(SITA), which was originally passed as a result of the United
[*PG168]Nations International Convention
for the Suppression of Traffic in Persons and of the Exploitation of
Women, New York, 1950, to which India is a signatory. The
fundamental approach of the SITA was that it tolerated prostitution,
thus acknowledging that prostitution was a necessary social evil.15
The Act was amended twice. It was first amended in 1978, and then
amended and renamed as the ITPA in 1986.
As amended, the ITPA merely extends the SITA’s application to
both women and men and increases the punishment for certain
offenses. During the amendment process, there was no rethinking or
reformulation of the SITA’s underlying policy. Hence, in legal
terms, the act of sexual intercourse per se is not illegal. Instead,
every other act required to carry out prostitution is a crime under
the ITPA. The aim of the legislation, as made abundantly clear from
the Preamble to the 1956 version of the Act, is “to inhibit or
abolish commercialised vice namely, the traffic in women and girls
for the purpose of prostitution as an organised means of living.”16
In other words, a woman can carry out prostitution on her own within
her own premises without it being considered a criminal act.
However, the Act punishes anyone maintaining a brothel (section 3)
or living off the earnings of a prostitute (section 4) or procuring
or detaining a woman for the sake of prostitution (sections 5 and
6).17
Moreover, section 15 allows the police to conduct raids on brothels
without a warrant based on the mere belief that an offense under the
ITPA is being committed on the premises.18
The Act also punishes any person who solicits or seduces for the
purpose of prostitution (section 8) or who carries on prostitution
in the vicinity of public places (section 7).19
As such, under section 20 of the ITPA, which is vaguely worded, a
Magistrate can order the removal of a prostitute from any place
within his jurisdiction, if he deems it necessary to the general
interest of the public.20
In addition, the Act provides for the establishment of corrective
institutions in which female offenders are detained and reformed and
envisages the appointment of Special Police Officers to enforce
these provisions. Interestingly, there is no punishment whatsoever
for the client.21
[*PG169] The history of the
enforcement of prostitution laws in India is not very different from
that of countries the world over. At the outset, the SITA embodied a
mix of the policies of suppression of promiscuous sexual activity on
one hand and the toleration of prostitution on the other.22
In effect, the Act tended to disadvantage street prostitutes more
than it did prostitutes who work off the street. In addition,
prominent sociologist Jean D’Cunha’s study of prostitution during
the years 1980 to 1987 in the city of Mumbai, previously known as
Bombay, found that under the SITA, as well as the relevant police
statutes, the number of prostitute women arrested was
disproportionately greater than the number of pimps, procurers and
brothel-keepers arrested under the same laws.23
Furthermore, the penalties imposed on prostitutes were far greater
than the penalties imposed on the brothel-keepers or pimps. Thus, it
is clear that the Act is enforced discriminatorily against
prostitute women.
This disproportionate enforcement of the ITPA against prostitute
women can be attributed to various causes. First, there is a strong
nexus between politicians, police and the brothel-keepers that
prevents the law from being enforced stringently against
brothel-keepers. Corruption in the police rank and file is common.
Also, there is a tendency for Indian politicians to view red-light
areas as potential vote-banks, and they regularly require the
services of prostitutes during their political conventions.24
A second, recurrent problem with the enforcement of the ITPA that
was discovered during field-work25
and that D’Cunha’s study confirms is the difficulty of gathering
sufficient proof to sustain convictions against offenders.26
[*PG170] Furthermore, a third problem
with the enforcement of the ITPA is that the rehabilitation homes
set up under the Act are, on the whole, a failure. The homes are
ill-equipped to deal with the number of women who are convicted
under the ITPA.27
Moreover, women in the homes live in sub-human conditions with
severe restrictions on their freedom. For example, they cannot wear
certain kinds of clothes and are prohibited from wearing any form of
make-up or jewelry. In addition, the women are not allowed to talk
to each other.28
Furthermore, in order to rid them of their supposed immorality,
women are taught devotional songs and are offered vocational
training. However, the training is largely inadequate; it fails to
equip them with any marketable skills for when they leave the homes.
The failure of this training and the absence of any follow-up
services, when combined with the ostracism these women face, even
from their families, makes it a small wonder that these women leave
the government homes only to return to prostitution.
Women also commonly encounter physical and sexual abuse in the
homes. On our visit to a reception home, our group of law students
learned that the previous warden stole from the food and supplies
allocated to the women at the home. When the women began starving,
they had to request police intervention and confront the
[*PG171]warden. At times, officials in
charge of these homes coerce the women into prostituting themselves
in return for favors or for money.29
Thus, the broad consensus that those working in this area of law
have reached, including the government, is that the ITPA, in its
present form, simply is not effective.30
Although prostitution was the subject of many sociological works
after the initial enactment of the SITA, it never emerged as a
social issue attracting national debate. As such, the tolerationist
approach of this prostitution law remained problematically
unchanged. This is starkly represented by the government of India’s
ban, on February 17, 1966, of a play about the prostitute women of
Kamathipura, the red-light district of Mumbai, entitled “A Touch of
Brightness.”31
The government banned the play on the basis that “it is set in one
of the most infamous localities of Bombay city” and deals with
“matters which are highly undesirable to show on the stage.”32
The play originally was selected to be presented at the Commonwealth
Arts Festival; however, on September 10, 1965, passports of the
members of the troupe performing in the play were impounded without
reason by governmental orders. The script writer inferred from
newspaper articles that protested the inclusion of the play in the
festival that the government did not want international audiences to
associate the social problems por[*PG172]trayed
in the play with India, because such associations would denigrate
national prestige by allowing Londoners to “know the heartening fact
of the existence of brothels in [India].”33
The script writer articulated the hypocrisy of the Indian state
beautifully:
For a long time I was
bewildered by what I took to be an odd discrepancy—that of the
censors who banned the play, the prudes who denounced it, and the
chauvinists who dubbed it as damaging to the “image” of my country,
none of them denies the existence of the conditions depicted and yet
all were resolutely against permitting a production of the play. I
had thought that these attitudes stemmed from bureaucratic
insensibility, from a peculiarly obtuse morality . . . but I realize
now that that the antagonism arose not from any misjudgment of the
play but from a very human fear of the truth. That is why I find it
possible to apologize and feel genuinely sorry that I cannot rework
reality to suit the required standard of complacency. I feel even
more sorry that complacency cannot rework reality.34
B. The Indian Women’s Movement’s Engagement with
Prostitution
Despite the government’s actions regarding prostitution, the
issue not only failed to emerge as a social issue inspiring national
debate, but also the Indian women’s movement failed to include it
among the principal legal struggles, including domestic violence,
dowry deaths and sati (widow self-immolation), among others,
in which it was extensively engaged. Although, the movement
campaigned for increased penalties under the existing tolerationist
laws in the 1980s, it never undertook a fundamental examination of
the tolerationist approach itself. In fact, the movement has only
recently begun to examine and debate the issue of prostitution,
despite the fact that there has been extensive law reform in the
limited areas of domestic violence, sati and dowry deaths.
Some introspection on this front led to the following conclusion in
1992:
Prostitution is an area
largely ignored by the women’s movement and the NGO
[Non-Governmental Organization] sector alike. The movement has not
studied and discussed [*PG173]the issue
as it has development or employment. The NGO sector, for its part,
has generally not considered commercial sex workers whether urban or
rural, as a constituency deserving its attention. The few instances
of NGO interventions among sex workers have tended to be moralistic
in approach. . . . On the whole, the attitudes of both the women’s
movement and the NGO sector, which in other contexts would be
considered to represent the progressive element in society, tend to
reflect the negative perceptions of prostitution common to the
general public.35
In this regard, I disagree with a more recent observation made by
Janaki Nair and Mary E. John in their book on the sexual economies
of modern India. Nair and John observe:
Narratives of the
historical “independence” of courtesans or devadasis
notwithstanding, contemporary feminist politics alone has enabled
the sex-worker to claim political rights and security at work. And
once more, it is feminist scholars and activists who caution against
too easy an identification of sex work as wage labour, given the
difficulties of separating “sex” from the bodies and personalities
of women.36
This statement implies that it is the Indian feminist movement
that has all along been the progressive spokesperson for the rights
of Indian sex workers. As numerous examples in this article
indicate, the Indian feminist movement belatedly—only since the late
1980s—ex[*PG174]amined and debated the
issue. Moreover, no feminist NGO has sought to mobilize prostitute
women and work with them on issues of law reform. Any mobilization
that NGOs have been responsible for has tended to be tied solely to
HIV prevention efforts initiated in the early 1990s, not to the
prostitution issue itself. In addition, the diversity among Indian
feminists, and consequently, the different approaches they adopt,
creates problems for advancing a single agenda. Hence, it is
inaccurate to suggest that the feminist movement is the torchbearer
of prostitute women’s rights.
C. HIV and the Rethinking of Policy on Prostitution
Prostitution emerged on the scene of public debate only after the
detection of the first Indian case of HIV infection in sex workers
from Chennai, earlier known as Madras, in 1986. The AIDS epidemic,
and consequently, the supposed vectors of the disease, i.e.,
prostitute women, suddenly captured the imagination of the press,
researchers and NGOs. One does not have to scratch too deeply
beneath the surface to realize that the AIDS epidemic is the main,
and probably the sole reason, for this renewed interest in
prostitution.
For the first few years after reports of HIV in the Indian
population poured in, the Government of India took an extremist
approach on both legislative and policy fronts. In so doing, it
nearly passed the loathsome AIDS Prevention Bill in 1989, which was
patently unconstitutional and had the potential for discriminating
against large sectors of society.37
In essence, the AIDS Prevention Bill provided health authorities
with invasive policing powers in the form of forcible testing and
isolation of members of so-called “high-risk groups,” which would
have included prostitute women. In addition, the Bill required that
registered medical practitioners report to the government the
identity of any person whom they knew to be HIV-positive, provided
for coercive tracing and placed the responsibility for blood safety
on citizens rather than on hospitals and other medical institutions.38
It was only after a sustained campaign against this potentially
discriminatory law that the government withdrew it from Parliament.
[*PG175] In 1997, the National AIDS
Control Organisation (NACO) drafted a National AIDS Policy that
reflected a more progressive response by the government to the AIDS
epidemic.39
The proposed policy is clear that with respect to HIV testing, no
individual should be forced to undergo mandatory HIV testing, no
mandatory HIV testing should be imposed as a precondition for
employment or for providing health care facilities during
employment, and adequate voluntary testing facilities with pre-test
and post-test counseling should be made available throughout the
country in a phased manner.40
Moreover, the policy recommends that the results of any such testing
be kept strictly confidential and be released only to the person
tested and, with his consent, to members of his family.41
Even disclosure of a person’s HIV status to his spouse should depend
entirely on the person’s willingness to share the information.
In proposing this policy, the NACO characterizes the issue as
more than a simple public health measure affecting only a segment of
the population; rather, the organization notes that the government
of India should look at HIV/AIDS prevention and control programs as
a socio-economic issue affecting all sections of the population
irrespective of their regional, economic or social status.42
However, although generally progressive, the NACO’s stance places
prostitute women in a precarious position in the national debate on
AIDS policy. In its description of the progression of the HIV
epidemic in India, the NACO observes that in the early 1990s, the
second phase of the HIV epidemic in India was characterized by the
spread of the epidemic to the general population, specifically women
who were infected by their spouses, who had contracted the infection
from commercial sex workers or other high risk groups.
Interestingly, this observation runs counter to the fact that
transmission from women to men is less efficient than vice versa.43
Yet, given the perspective of the state, being responsible for
transmitting HIV to the general population, and especially to
innocent housewives, places prostitute women in a precarious
position with regard to any proposed AIDS policies or laws. However,
to date, there is no specific legislation on AIDS that addresses,
let [*PG176]alone aims at the prevention
of discrimination against HIV-positive individuals. Hence, it is
critical to remain attentive with respect to any future legislation
that may develop in this area because of its potential for harm to
the rights of prostitute women.
It is probably too early to assess the impact of the AIDS
epidemic on prostitute women, whether empowering or otherwise. It
certainly appears however, that the funding made available for HIV
prevention efforts has spawned several new NGOs that are trying to
reach sex workers even in remote parts of the country in an attempt
to educate them about AIDS. These NGOs have had the positive effect
of building a body of knowledge on the nature and existence of
prostitution throughout India, including in rural and remote parts
of the country, in place of the sporadic studies that academic
institutions or interested sociologists have undertaken and that
focus only on prostitution in the brothels of major cities. Also, in
some instances, HIV prevention programs have been able to move
beyond their initial goal to truly empower prostitute women, despite
the fact that HIV prevention efforts tend to have narrow agendas
which do not facilitate dialogue with sex workers to address their
most pressing needs.44
In turn, such efforts have reported high success rates.45
For instance, a government initiative run by the All-India Institute
of Hygiene and Public Health that commenced in 1992 in the red-light
area of Sonagachi, Kolkata, with a sex worker population of 5,000,
focusing primarily on HIV/AIDS awareness and prevention among sex
workers, increased condom usage and contained the spread of HIV
infection among prostitute women.46
The initiative employs a peer educator system of sex workers that
promotes the use of condoms in the community. Soon after this
prevention program started, a health clinic was set up
[*PG177]to meet the various medical
needs of sex workers. Later, peer educators started literacy
classes.47
In addition, prostitute women set up a Women’s Collaborative
Committee which organized and registered a financial cooperative to
lend money to prostitute women at a reasonable rate.48
Sex workers in the area have also protested police harassment,
forced the police to take action against abusive clients and have,
on occasion, prevented the trafficking of young girls into
prostitution.49
Before the advent of the AIDS epidemic, the only state presence
in Sonagachi was likely that of a reportedly corrupt police force.
However, the government’s HIV prevention initiative has led to a
dialogue between the state and sex workers that has allowed sex
workers to articulate their real needs, thereby making possible the
government’s support of sex workers in meeting these needs and
serving as a model for red-light areas in other cities. Nonetheless,
the fact that this heightened interest by the government and NGOs in
sex workers’ problems has been spurred only by the HIV epidemic is
not lost on the prostitute women themselves. A sex workers’
organization, funded specifically by sex workers, commented upon the
presence of NGOs in their midst:
Nowadays, in response to
the AIDS disease, lots and lots of organizations are jumping into
the prohibited gully and will not leave without “serving us.” How
they take swipes at each other-unless you saw it with your own eyes,
you would not believe it. One says, “I will serve you more,” while
another says, “no, I will.” We all got very scared. What is it this
time? How people change!50
In conclusion, the emergence of a debate on prostitution in light
of the AIDS epidemic is both fortunate and unsettling. On the one
hand, this debate presents feminists and prostitute women alike with
an opportunity to influence the legislative approach toward
prostitution.51
At the same time, given the government’s attempt to pass the
[*PG178]highly flawed and
unconstitutional AIDS Prevention Bill in 1989, future legislative
attempts hold the continued possibility of violating the rights of
prostitute women in the name of public health.
D. The Emergence of Prostitute Women’s Groups
It is unclear how many prostitute women’s organizations exist in
India. Time and again, newspapers report on the mobilization of
prostitute women in larger cities such as Kolkata, Mumbai and New
Delhi. The more vocal of these organizations appears to be the
Bharatiya Patita Udhar Sabha, founded in Delhi in 1984 by a social
worker named Khairati Lal Bhola.52
The main functionaries of the organization appear to be female
brothel-keepers, many of whom contested the parliamentary elections
representing the Congress (I), the then ruling party at the federal
level in India.53
A second prostitute organization is the Pune Devadasi Sanghatana
founded in Pune, Maharashtra in 1981 by brothel-keepers and pimps.54
This organization is distinct from the Mumbai-based Asahaya Nari
Tiruskrit Sangh,55
one of whose founding members is Dr. Gilada, a venereal diseases
expert at the International Health Organisation.56
The Asahaya Nari Tiruskrit Sangh is a prostitute women’s
organization that was formed in the red-light area of Mumbai by 300
brothel-keepers and is headed by an influential “madam” of the area.57
[*PG179]The standard agenda of these
groups seems to be (i) to curb police harassment of prostitutes;
(ii) to legalize, license and levy taxes on prostitutes so as to
monitor their health and to prevent the spread of HIV/AIDS; (iii) to
abolish both forced and child prostitution; (iv) to provide child
care facilities and boarding schools for the children of
prostitutes; (v) to make available bank loans for older prostitutes
in order to set up small businesses; and (vi) to form co-operative
credit societies to protect prostitute women from money-lenders who
charge exorbitant interest rates on loans.58
Jean D’Cunha, a prominent scholar opposed to the complete
legalization or decriminalization of prostitution, and thus, the
agendas of these groups, further dismisses the efforts and demands
of these groups by casting a legitimate doubt on their membership, a
membership that consists predominantly of brothel-keepers and pimps.59
D’Cunha also notes that these organizations are well-connected with
political parties that seek to appease the large prostitute
population which they view as a potential vote bank.60
As such, she correctly observes that these same organizations do not
address issues that actually better the living conditions of
prostitute women, such as the number of working hours, the number of
clients per day, the minimum renumeration they should receive for
their work or a code of rights and responsibilities for brothel
owners and pimps.61
However, even recognizing that these groups may not represent the
actual interests of prostitute women, the reality is that, as
between the Indian women’s movement and the prostitute women’s
groups, it is the latter that are actively engaged in achieving
their ends through the law. In some instances, the litigation
pursued by these prostitute women’s groups has in fact proved more
beneficial to ordinary prostitute women in their day-to-day lives
than the numerous conferences that the Indian women’s movement
sponsors that simply attempt to articulate the Asian prostitute
woman’s voice in her absence.62
As an [*PG180]illustration, on the basis
of a petition that the Bharatiya Patita Udhar Sabha filed, the
Supreme Court of India held that it would no longer be possible for
school authorities to insist on the disclosure of the father’s name
when it comes to the admission of the child of a prostitute.63
Also, in Gaurav Jain v. Union of India,64
the Sabha argued for the provision of separate schools with
vocational training and boarding facilities for the children of
prostitute women.65
The Supreme Court of India ultimately rejected this contention but
not without observing that children of prostitute women should be
kept away from the harmful surroundings of the brothel and should,
therefore, be lodged in separate reformatory homes while their
mothers live in government homes.66
In addition, the Bharatiya Patita Udhar Sabha recently threatened to
go to court unless the Indian Census Commission reversed its
decision to include prostitute women in the same category as
beggars, vagabonds and street children instead of the general list
of productive members of society.67
It is important to note, however, that not all of the suits that
the Sabha filed may prove beneficial for prostitute women. Indeed, a
more recent petition filed in August 199368
was ill-informed, imprecise and shabbily drafted. It prayed that the
Supreme Court issue directions to the central and state governments
to carry out blood tests on every Indian citizen and foreign citizen
residents in India for the purpose of detecting the HIV virus. In
addition, it requested that the government isolate HIV-positive
persons, arrange for their treatment and ensure their livelihood.
One can glean from an annexure to the petition that the methods that
the Sabha thinks useful in arresting the spread of AIDS include
testing all call-girls every week, testing prostitute women,
transvestites, homosexuals and slum-dwellers all over India every
month, testing all blood donors every three months and
[*PG181]testing the general public every
six months. Thus, one can only imagine how much harm such an
organization that claims to speak for prostitute women can do.
There is, however, also the category of prostitute women’s groups
that were formed by prostitute women themselves. These groups
include the Kolkata-based Mahila Sangha, Nari Kalyan Samiti and
Abahelita Mahila Samiti. Their initial purpose tends to be to rally
around a specific issue, such as demanding reservations in education
and employment for their children or fighting harassment from local
criminals.69
In many instances, they have remained organized beyond their initial
purpose, and it is due to their continued presence that NGOs and
government initiatives for HIV prevention are as successful as they
are.70
For example, a women’s group known as Mahila Samanyaya Committee,
has organized all-India sex worker’s conferences since April, 1996.
Twelve-hundred sex workers attended the conference, held in Kolkata,
in 1996. In March, 1998, prostitute women from all over India and
representatives from the network of Asian-Pacific sex workers
attended this conference in Kolkata and called for the repeal of the
ITPA and the legalization of prostitution.71
In March, 2001, the same conference was attended by approximately
30,000 sex workers who proposed to set up a network to prevent the
trafficking of vulnerable women from India and other Asian
countries, such as Nepal, Bangladesh, Cambodia, Thailand and
Vietnam.72
Sex workers at the conference also demanded the legalization of
prostitution.73
However, it is not the case that all of this self-organization on
the part of sex workers is a recent phenomenon. If reports of
initiatives by sex workers in Kolkata are anything to go by, the
agency of prostitute women manifested itself at individual and
collective levels in post-independent India even before the feminist
critiques of prostitution [*PG182]laws.
For instance, Carolyn Sleightholme and Indrani Sinha describe a
community organization set up in 1972 consisting of both sex workers
and former sex workers in a red-light area in Kolkata. The
organization’s major achievements included mobilizing against and
eliminating the influence of a local Congress party leader who
repeatedly abused and terrorized sex workers.74
Some of the leaders of this organization then went on to form the
Abahelita Mahila Samiti (AMS) in 1992, which has campaigned for the
reservation of seats for children of sex workers in schools and in
employment.75
Sinha and Sleightholme also enumerate many more instances of
organizing and self-help that sex workers engaged in through the
mid-1980s. In connection with these organizing and self-help
efforts, Sleightholme and Sinha observe:
Clearly linked with this
[reservation] demand is the need for legalization. Reservations
would have to be preceded by legal changes that would decriminalize
sex-work totally and have a system of registration. What is striking
about this issue is the way that it has sprung up from local
residents, and has become a framework within which sex-workers are
articulating their demands and raising their voices against their
status and the discrimination faced by them and their children.76
Thus, it is clear that many of the objectives of these sex worker
organizations overlap with those articulated by organizations in
red-light areas that are led by brothel-keepers and pimps.
E. Recent Proposals for Prostitution Law Reform
The participants in the debate on prostitution currently include
feminist groups, prostitute women’s associations, the Indian
government, the NCW and its counterparts in certain states, research
institutions, universities and NGOs involved in HIV prevention work.
However, these participants have very different visions of what the
law governing prostitution should be. The proceedings of the
Conference on Women and the Law held in January 1994 illustrates
well their competing goals in this regard.
[*PG183] In 1992, the Department of
Women and Child Welfare commissioned The National Law School of
India University, Bangalore (NLS) to draft legislative proposals on
the subject of prostitution.77
NLS drafted the proposals in conjunction with task forces set up at
other academic institutions in Kolkata, Mumbai, Bangalore, Lucknow
and Chennai. Before submitting the proposals to the government, NLS
sponsored a consultative meeting in January 1994 to discuss them.
This became the Conference on Women and the Law.
Assisting this effort in Bangalore, but arriving at a different
conclusion and therefore a different legislative proposal, was a
group of law students and one faculty member from NLS.78
Independent of the institutional effort, another group of law
students at the same law school decided to work on issues
surrounding prostitution as a form of labor for a competition of
South Asian law schools; the competition required the competitors to
draft law reform proposals over an eighteen month period on the
broad theme of labor, workers and the right to work.79
Thus, at one point in time, within NLS, there were three distinct
initiatives addressing the issue of prostitution. However, only the
institutional proposals were discussed at the Conference on Women
and the Law.80
At the conference, Jean D’Cunha, a lecturer in Sociology at the
St. Xavier’s College in Mumbai, and Donna Fernandes of Vimochana, a
feminist NGO in Bangalore that works primarily in the area of do[*PG184]mestic
violence, represented one feminist81
position.82
At the Conference, D’Cunha reiterated her opposition to the complete
decriminalization of prostitution, instead calling for the
decriminalization of the prostitute’s actions only. As such, D’Cunha
proposed punishing the customer and stringently enforcing the
existing criminal law on trafficking. The group of law students
participating in the law reform competition articulated another
feminist position that supported decriminalization and legalization.
Conversely, Donna Fernandes, who has attended several feminist
meetings held in South-East Asia on sexual slavery, consistently
maintained that the prostitution of women amounts to sexual slavery.
In addition, the South India AIDS Action Program (SIAAP),
Chennai, and the IHO, Mumbai, headed by venereal diseases specialist
Dr. Gilada, represented the HIV prevention NGOs. These groups, such
as the SIAAP, tend to target prostitute women, as well as other
“high risk-groups” like truck-drivers, drug-users and other
supposedly promiscuous individuals, for their HIV prevention
programs, a process that is, in and of itself, objectionable.83
Once in these communities, these groups focus exclusively on HIV
prevention, rather than strategically using HIV as a health issue
with which to mobilize prostitute women in an attempt to address
their more immediate concerns.84
Of course, this is not to belittle the need for HIV prevention all
over India.85
The point is simply that sincere HIV prevention pro[*PG185]grams
would be undertaken in all sectors of society, and would not be used
to discriminate against an already stigmatized population under the
illusion that HIV can actually be prevented from spreading when the
sectors targeted for prevention efforts do not encompass the
universe of populations actually affected by HIV. This is especially
poignant considering that there is little reliable information that
prostitute women with HIV are primary vectors of the infection or
that they form such a significant percentage of the total number of
HIV-positive Indians as to warrant discriminatory intervention.86
In addition, as indicated earlier, HIV prevention efforts tend to be
more successful when they address issues of empowerment of
prostitute women.87
Most importantly, while various groups and viewpoints were
represented at the conference, no prostitute women’s groups were
even [*PG186]invited. While notable,
this is not surprising given their invisibility in discourses,
academic or popular, feminist or otherwise, in both North America
and in Asia.
The legislative proposals presented at the January 1994
consultation overlapped to some extent, but varied in terms of their
underlying philosophy, their method and their ultimate goal. The
proposals comprise the following:
1. The Prevention of Immoral Traffic and the Rehabilitation of
Prostituted Persons Bill, 1993
The main aims of this proposal were:
(i) To prohibit immoral
trafficking in women and children;
(ii) To prohibit the
sexual exploitation and abuse of women and children through a
compensatory scheme in which they can seek legal recourse against
brothel-keepers, pimps and customers alike and can demand special
damages for injury from sexual abuse, the transmission of diseases
knowingly and the refusal to practice safe sex; and
(iii) To mitigate the
suffering of the victims of prostitution through community-based
rehabilitation, vocational training and health schemes, including
the mandatory testing of prostitute women for HIV.88
Thus, the Bill aims to prevent women from being forced into
prostitution while seeking to reduce the exploitation that occurs in
the prostitution world. At the same time, the Bill provides
rehabilitation for those who wish to stop working as prostitutes. In
addition, it envisages special investigative and dispute resolution
machinery to enforce its provisions. It also creates a welfare fund
to collect fines and grants from the government and other bodies,
with the aim of financing rehabilitation, HIV prevention programs
and the educational and medical expenses of children of prostitute
women.
The approach of the Bill is decidedly a confused one, seeking to
incorporate both decriminalization and mere toleration. However, the
Bill has little hope of achieving either end completely. As regards
decriminalization, the Bill removes penalties on solicitation or the
maintenance of a brothel. However, at the same time, it actually
creates new penalties for trafficking and forced prostitution
instead of [*PG187]relying on the
general penal laws, such as the Indian Penal Code, 1860, to tackle
force, fraud and negligence against women. By creating new offenses,
the Bill nullifies any sincere commitment to decriminalization.
Meanwhile, as regards the Bill’s tolerationist perspective, it again
takes a failed route, that of rehabilitation. Moreover, it opts for
continued state regulation of women’s bodies, creating
constitutionality concerns.
In sum, the Bill is quite unsatisfactory to all parties. To the
abolitionists, the Bill does not go far enough in prohibiting
prostitution. To those who seek decriminalization, it does not
decriminalize all aspects of the activity. Finally, to those who
seek legalization, the Bill makes no mention of how other aspects of
prostitution will be regulated. Thus, the proposed Bill has little
chance of being accepted by all of these groups. Prostitute women
themselves perceive the Bill’s requirement of compulsory HIV testing
as a violation of their rights.
2. Amending the ITPA to Achieve Partial Decriminalization
Another of the conference’s proposals, the first and most common
feminist proposal, roughly termed as that of “partial
decriminalization,” was articulated by Jean D’Cunha. D’Cunha’s
approach follows from her opposition to what appears to be the
liberal feminist argument of equality of violence.89
In addition, she is opposed to the position that claims that “the
right to prostitution is a fundamental human right and prostitution
must be a legitimate, valid, acceptable form of labour. This is an
expression of a woman’s human right.”90
She argues that “this free-forced dichotomy is largely a western
construction which seeks to normalise prostitution in society really
ignoring the reality of our halves of the globe where large masses
of women [*PG188]are lugged into the
poverty-trafficking nexus because of ignorance and poverty.”91
She also advocates Kathleen Barry’s view, namely that it is a
mistake to differentiate between trafficking and the actual activity
of prostitution, only decriminalizing the latter.92
According to D’Cunha, the flaw in collapsing the distinction between
the individual in prostitution and the institution of prostitution
in this way is that it negates any effort to comprehend the systemic
nature of sexual exploitation. Her legislative proposal is to amend
the ITPA so as to alleviate the oppression of prostitute women. She
suggests the decriminalization of all activities that prostitute
women perform so that they are no longer subject to police
regulation and harassment.93
Concomitantly, she suggests that laws against brothel-keepers,
pimps, traffickers, landlords of premises used to conduct
prostitution and clients be made more stringent. However, I would
argue that this approach of criminalizing everyone but the
prostitute woman works against her interests.
In addition, D’Cunha makes suggestions as to the administration
of rehabilitation homes, calling for penalizing enforcement
officials such as the police and judges who are corrupt and who
demand sexual favors from prostitutes.94
Finally, she recommends the formation of citizen’s committees in
order to oversee the enforcement of the legislation. Feminist
activists like Donna Fernandes support D’Cunha’s opposition to
complete decriminalization. Fernandes argues against the
legalization of prostitution on the grounds that it would legitimize
man’s utter contempt for women and normalize the severest form of
gender discrimination and human rights violations in
[*PG189]the form of economic
discrimination.95
Legalizing prostitution would, according to her, be akin to
legalizing child labor.96
This critique of legalization is firmly rooted in an imagined divide
between the conditions of women in the West and in Asia.97
This basis for Fernades’ critique tends to originate in reports by
human rights organizations on trafficking across international
borders, especially between Asian countries, and is, to say the
least, an oft-repeated yet misleading perspective.98
3. Prohibition of Immoral Traffic and Empowerment of Sexual
Workers Bill, 1993
At the conference, this proposal embodied an alternate feminist
position to D’Cunha’s, but it is one that is not very well developed
in the Indian context. It reconceptualizes prostitution as a
legitimate means of work and conceives of legal intervention in the
nature of labor laws. The broad features of the Bill included:
(i) The right to safe
conditions of work enforceable against the brothel-keeper and the
customer;
(ii) The right to refuse
to engage in sexual activity on grounds of safety, health or
hygiene;
(iii) The right to
medical assistance, the right to refuse sexual activity during
pregnancy and the right to get reim[*PG190]bursed
for reasonable medical expenses incurred during delivery and three
months thereafter; and
(iv) The right to claim
damages for injury caused by the violation of the prostitute woman’s
rights under the Act, enforceable against the brothel-keeper and the
customer.
The Bill envisages an enforcement machinery along the lines of
the Consumer Redressal Forum under the Consumer Protection Act,
1986.99
Moreover, it provides for a welfare fund for the rehabilitation of
prostitute women who want to leave prostitution, as well as for the
education of their children. Finally, the Bill prohibits the
trafficking of women and children.
4. Sex Worker (Legalization for Empowerment) Bill, 1993
A third feminist proposal at the conference aimed for the
legalization of prostitution.100
The Sex Worker (Legalization for Empowerment) Bill, 1993 proposes
the complete repeal of the ITPA. In its place, it proposes a
legislative framework whereby the acts of procuring, trafficking,
child prostitution, abduction and forced prostitution would be
prosecuted and penalized under the Indian Penal Code, 1860.101
However, the Bill does not adopt the common scheme of
state-regulated, legalized prostitution, since this scheme does not
have the welfare of prostituted women as its guiding principle.
The Bill is divisible into three parts. At the outset, the Bill
declares sexual services to be lawful and states that it shall not,
ipso facto, be interpreted to defeat the provisions of any
other law. For instance, an agreement to offer sexual services would
not violate section 23 of the Indian Contract Act, 1872, which
renders agreements against public policy void. This provision is
meant to ensure that the enforcement machinery of the state, such as
the police and the judiciary, interpret and implement the law in a
manner that will not defeat the spirit of the law. The Bill further
states that sex work is a legitimate exercise of
[*PG191]the right to work, and that the
right to work must therefore include the right to solicit. The Bill
protects this right by limiting the restrictions that can be placed
on a sex worker’s right to restrictions of a general nature that do
not target sex workers exclusively.
The second part of the Bill provides for a series of
non-discrimination measures.102
For example, anyone who prevents a prostitute woman from exercising
her right to health in any manner would be guilty of criminal
intimidation under section 503 of the Indian Penal Code, 1860.
Similarly, a prostitute woman could not be deprived of her personal
liberty—no quarantine by virtue of being a sex worker; no forcible
medical check-ups or forcible removal to a hospital for treatment;
no denial of access to a hospital or differential treatment therein
solely on account of being engaged in sex work—nor be denied the
right to retain custody of her child merely because she is a
prostitute.
The Bill’s third section contains detailed provisions prohibiting
the sexual abuse of prostitute women and providing for criminal
sanctions as well as civil liability for violating these provisions.103
Also, it [*PG192]mandates the fixation
and payment of minimum renumeration for sexual services rendered by
prostitute women.104
It also envisages the creation of a welfare fund that the
government, private individuals, private institutions, and
prostitute women are responsible for jointly financing, as well as
requiring that a portion of any compensation awarded or fines levied
under the Bill be paid to the Fund. The state commission for women,
in association with the representatives of the various prostitute
women’s collectives provided for under the Bill would manage this
welfare fund. The fund is intended to cover medical expenses and
pensions in cases of death, old age or ill-health, including
contraction of HIV.
The Bill additionally suggests guidelines for the formation of
collectives of prostitutes. Hence, collectives are not mandatory
under the legislative framework, but the option is available to a
community of sex workers interested in organizing one. The Bill
suggests that these collectives determine amongst themselves their
conditions of work, such as the maximum number of customers with
which each woman will engage, or the minimum renumeration that a
prostitute woman should receive. The Bill also allows for
collectives to have funds of their own to which the women contribute
earnings. These funds could be used to set up a nursery for their
children, to purchase prophylactics, to educate their children or
for any other purpose that they find beneficial. Finally, the Bill
enumerates guidelines for the judiciary and the executive in their
efforts to interpret and enforce the law.105
The Indian government did not immediately respond to any of the
three proposals. However, in 1996, the NCW began to take an interest
in the issue. It commissioned studies in states like Andhra Pradesh
and Karnataka that NGOs or the counterparts of the NCW at
[*PG193]the state level conducted.106
Also, in May 1996, the National Human Rights Commission held a
meeting to discuss ways to put an end to child prostitution,
including the stringent enforcement of prostitution laws, the
punishment of traffickers and brothel-keepers, and the creation of a
central body that would coordinate the work of the several agencies
involved in achieving this goal.107
In April 1997, the NCW called on the member nations of The South
Asian Association for Regional Cooperation (SAARC or “the
Association”)108
to enact special legislation that would tackle the increased
trafficking in prostitute women and children across the countries’
borders.109
In 1998, the Department of Women and Child Development, under the
auspices of the Union Ministry of Human Resource Development,
prepared the first draft of such a regional convention on the
trafficking of women and children across the borders of SAARC member
nations, with input from the NCW. The convention envisaged
“[m]ultilateral mechanisms like creating joint vigilance bureaus
along the borders, constant monitoring and better enforcement of
laws, appointing special trafficking officers and more enforcement
and custodial officers and orienting and sensitizing them to the
problem, allowing the highest investigating agencies of the country
like the Central Bureau of Investigation to handle interstate,
intra-regional and international trafficking.”110
In addition to this increase in attention to the issues of
prostitution, in 1997, the NCW and the Joint Women’s Programme, an
NGO working in the area of women’s rights, organized in New Delhi a
consultative workshop with many of the participants from the January
1994 conference.111
The report from the workshop presented, for the first time in the
1990s, the approach of a governmental organization
[*PG194]on the issue of prostitution.112
The objective of the workshop was to view prostitution from a human
rights perspective. The editor of the workshop’s report observed
that since Indian women and children are forced into prostitution
via coercion, poverty and abuse, they must not bear the sole blame
for the evils of prostitution. Society, societal attitudes, pimps,
clients and traffickers are causes as well. Moreover, the police and
politicians who reinforce prostitution are equally to blame.113
Hence, the report proposed that “[o]ur action, therefore, needs to
be not only in the realm of rescue and rehabilitative services, but
also in preventive measures. It needs to consider prostitution as a
violation of human rights, a hindrance to women’s freedom, equality
and struggle against exploitation and oppression.”114
As regards the law reform, the workshop did not address NLS’
proposals in detail. However, D’Cunha and Ratna Kapur made
presentations of recommended legislative frameworks involving
partial decriminalization and complete decriminalization,
respectively. The workshop resolved that ‘“[w]e are against the
legalisation of prostitution in the Indian context, where women and
children are forced into the profession due to poverty and other
causes and thereafter remain in the clutches of pimps for the rest
of their life.”’115
To implement this resolution, the workshop concluded that the ITPA
should not be repealed, but that Jean D’Cunha’s recommended
amendments to the ITPA should be made. In particular, these
recommended amendments include changes to sections 7(1)116
and 8(b)117
of the ITPA, prohibiting prostitution in public places, and section
20(1) of the ITPA, presently conferring on the magistrate the
discretionary powers to ask a sex worker to vacate her premises if a
complaint arises against her.118
The workshop also recommended the increased punishment of clients,
the compulsory registration of marriages, the provision of le[*PG195]gal
education to all women and the police on the relevant laws, the
supervision of juvenile homes by advisory committees consisting of
NGOs, stringent action against foreign tourists who are pedophiles
and child molesters, and an amendment to the Juvenile Justice Act
prohibiting police harassment of children of prostitute women.119
In addition to these amendments, the workshop further resolved
that no law should be used to conduct forcible HIV/AIDS tests, that
the orientation of rehabilitation programs must change from one of
correction and reform to one that treats prostitute women and
children as victims and survivors of exploitation, that prostitute
women should receive ration and voter identification cards, and that
children of prostitutes in educational institutions should not be
discriminated against. Finally, the workshop concluded with the
organization of a National Networking Committee with the Joint
Women’s Programme as the convenor, and with the recommendation that
a central statutory body be created to monitor the enforcement of
prostitution laws and rehabilitation programs, to take preventive
action and to establish a data bank with names and details of
traffickers and pimps.
Thus, in Part I, I have introduced the present constitutional and
legislative framework in India relating to prostitution, the
relationship between the Indian women’s movement and prostitution,
the emergence of prostitute women’s groups and the relationship
between the AIDS epidemic and the government’s interest in
regulating prostitution. I have also described the various
initiatives for law reform that were deliberated upon throughout the
1990s, which I discuss in greater detail in Part VII. I have also
reported on the constituencies that have an interest in and are
involved in (except, ironically, for the prostitute women’s groups
that have been excluded from official proceedings), the reform
process and their respective positions in relation to governmental
policy on prostitution. I have made brief mention of the repeated
demands for the legalization of prostitution made by prostitute
women’s groups in the past five years.120
II. The Vedic Ganika: Sex Slave, Sex Worker
and Sex Healer All at Once
A brief description of prostitution in ancient India is necessary
to place the above debate in perspective, and add a much needed his[*PG196]tory
of the present day debate on prostitution in India.121
My aim in this section is to demonstrate that the status of the
Indian prostitute woman was not always one of victim and victim
alone, and that, at the very least, her status in ancient India was
riddled with ambivalence. I will demonstrate this by drawing
attention to the various forms of prostitution that existed and the
several means of regulation of prostitution that were available to
the state at different points in time. To track the status of Indian
prostitute women during colonial times, one has to retrieve their
narratives from those of the colonizers and nationalists.122
In view of the above, there is an urgent need to uncover, document
and rescue from patriarchal and colonial discourses, the successes
and struggles of prostitute women in India over the ages, as
contained in tales and epics. To quote Honor Ford-Smith:
The tales are one of the
places where the most subversive elements of our history can be
safely lodged, for over the years the tale-tellers convert fact into
images which are funny, vulgar, amazing or magically real. These
tales encode what is overtly threatening to the powerful into covert
images of resistance so that they can live on in times when overt
struggles are impossible or build courage in moments when it is. To
create such tales is a collective process accomplished within a
community bound by a particular historical purpose. . . . They
suggest an altering or re-defining of the parameters of political
process and action. They bring to the [*PG197]surface
factors which would otherwise disappear or at least go very far
underground.123
This contextualization thus expands the bounds of our imagination
in responding to the hurdles of policy making on prostitution.
It appears that Vedic literature and Vedic hymns do not provide
enough information to arrive at a conclusion about the existence of
prostitution in India.124
As for the Brahminical period, epics such as the Ramayana and
the Mahabharatha contain numerous references to prostitutes
who appear to have been an integral part of Indian society.125
During this period, prostitution seems to have existed alongside
practices such as concubinage, maintenance of harems by royalty and
female slavery. Prostitutes accompanied hunting expeditions of Kings
and armies to war. They could and did form guilds, hold meetings and
demand greater civic and domestic rights. However, with the advent
of the Smritis,126
considered one of the sources of Hindu law, prostitution came to be
categorized along with what was considered the most heinous of
sexual offenses in those times, namely, bestiality.127
In turn, prostitution was heavily regulated by the state; it was
legalized and the Smritis contained several rules as to how
prostitution was to be conducted.
[*PG198] In ancient India, prostitute
women were categorized clearly into three types: the Kumbhadasi,
the Rupajiva, and the Ganika.128
The Kumbhadasi and the Rupajiva carried on
prostitution in a clandestine fashion; the Ganika did so
openly.
The Kumbhadasi was the lowest class of prostitute women.
She was usually a servant or a house-maid and rendered sexual
services to the owner of the household. Rupajivas were next
in the hierarchy and were of many types. Some held important maid
positions in households, while others were bored wives who sought
sexual satisfaction either with or without their husbands’
knowledge. Still others were professional dancers, while others came
from lower classes and carried on prostitution while their husbands
acted as pimps and benefited from their wives’ work.
The category of Ganikas consisted of women who properly
took to prostitution as an occupation, and the laws of the state
regulated their activities. They were usually required to be
well-versed in the sixty-four arts described by Vatsyanana before
they could be called a Ganika. Sinha and Basu describe a
Ganika thus:
A ganika by virtue
of her intellectual attainments, singularly good qualifications and
fine beauty receives a seat of honour in the assemblage of men. She
is held in esteem by the king and highly eulogised by the
appreciative people. Her company and favours are always sought for,
[sic] she becomes the cynosure of all eyes.129
Thus, Ganikas constituted a highly accomplished and
talented group of women who earned themselves respect in society and
who [*PG199]were probably the only women
to have access to education.130
In addition, of the three types of prostitute women then, Ganikas
were the only ones who were allowed to formally learn to sing and
dance. Also, Ganikas were considered a source of good luck.
Hence, Ganikas used to bless the sacred thread that is tied
around a bride’s neck during the wedding ceremony. This was
considered an auspicious gesture since a prostitute never married or
became attached to any one man and hence, was thought to be someone
who could never become a widow.
A Ganika was treated like a government servant.131
According to Kautilya’s Arthashastra, a Ganika
received a fixed government salary of 1000 panas per year.132
As a result, the amounts that she received from her customers were
turned over to the King’s treasury. In the Maurya period, Ganikas
worked under the supervision of a state minister for prostitutes (Ganikadhyaksh)
who fixed their fees, resolved their disputes and decided matters of
succession relating to their property. Ganikas were also
taxed on their incomes, similar to musicians, dancers and other
court performers.
In addition to the regulations on income, the state controlled
and regulated a Ganika’s very freedom. In theory, a Ganika
could be redeemed; however, the price for doing so was prohibitive.
As a result, her freedom and that of her children realistically
could not be bought. Moreover, if her daughter had the
qualifications of a Ganika, she could be made a Ganika
as well. However, Ganikas did have the freedom to organize
into associations that could voice prostitute women’s concerns and
draw the attention of the state to their complaints. They made
financial contributions to these associations that were used to
assist prostitute women who were in dire need of money or were sick.
In addition, Ganikas regularly contributed to the building of
community facilities such as temples, tanks, wells, bridges and to
the planting of road-side trees.133
In case of illness or old age, the state also took care of a
Ganika’s needs. For example, royal households could employ a
retiring prostitute as a mid-wife, nurse, cook or maid. When a
prostitute died, her property usually went to her daughters or
sisters and, in their absence, to the king’s treasury.134
[*PG200] In addition to these rules
that governed the women, clients faced certain restrictions as well.
For example, when a man had sex wit
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