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“The only thing necessary for these diseases to the triumph is for good people and governments to do nothing.”


  


 

PREPARING FOR CIVIL DISOBEDIENCE: INDIAN SEX WORKERS AND THE LAW

Prabha Kotiswaran*

http://infoeagle.bc.edu/

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