“BORN IN BROTHELS”

AN OVERVIEW ON LAWS GOVERNING PROSTITUTION IN INDIA

Author: Slesha Sukriti (9^TH Sem B.A.LL.B Hons)

 Seedling School Of Law And Governance, Jaipur National University

Main Headings:

• From time immemorial, prostitution has been practiced in our society and people have used brothels in every emotion known to mankind.
• A prostitute is a person, “who allows her body to be used for lewd purposes in return for payment”.
• The history of prostitution in India is a lofty one. Chanakya in his great book “Arthshastra” has categorically defined and codified the entire process/practice of prostitution to be followed in those times.
• Prostitution isn’t called the oldest profession in the world without reason.
• In the village of Uttar Pradesh, prostitution is the main source of income for centuries.
• Another place is the South-Indian state of Karnataka, where the tradition of “Devdasi” is practiced.
• If we see the medical drawbags of this occupation, the first trace of HIV/AIDS was found in the brothels of a small city of South India.
• There are a few steps we can take while legalizing Prostitution if we go by Chanakya’s view.

Introduction

From time immemorial, prostitution has been practiced in our society and people have used brothels in every emotion known to mankind. Whether in times of happiness to celebrating victories in war or to sulk their miseries in alcohol and prostitutes whenever men remained away from their family for long or are suffering from mental agony.

Every kind of person is found in brothels from the Lords to the slaves, from the soldiers to the peasants. Some lose their virginity in Brothels, some try to ease their agony in brothels. Those men who are too desperate can very well use the services of women in this industry, yes it’s a multi-billion dollars industry worldwide, Hurrah big bucks in it.

A prostitute is a person, “who allows her body to be used for lewd purposes in return for payment”. Prostitution is the sale of sexual services, such as oral sex or sexual intercourse, for money. Prostitution was a part of daily life in ancient Greece .In the more important cities, and particularly the many ports, it employed a significant proportion of the population and represented one of the top levels of economic activity. In the ancient city of Heliopolis in Syria, there was a law that stated that every maiden should prostitute herself to strangers at the temple of Astarte. In Armenia the noblest families dedicated their daughters to the service of the goddess Anaitis in her temple at Acilisena. If we talk about India, as being one of the oldest civilizations on this planet, you can find the traces of prostitution in every single part of it as we can see its reference in Kama sutra written by Vatsyayana sometime between the second and fourth centuries A.C.E.

History and Origin

The history of prostitution in India is a lofty one. Chanakya in his great book “Arthshastra” has categorically defined and codified the entire process/practice of prostitution to be followed in those times. During Durga Puja, 18 types of soil are used for bathing the deity in which one is taken from a prostitute’s door. Well, the gesture is nothing but a token of appreciation for their services. (After all they are the ones who consume the poison of the society..!!

Prostitution isn’t called the oldest profession in the world without reason. In the ancient times, courtesans occupied places of regal status in the kingdoms, something which seems to have trickled down to a horribly poor and extremely difficult-to-escape state of affairs in India today. Whether it’s because of tradition, or a society where that is the only means of income, whatever the reason may be, there are places in India where prostitution is a widely accepted and is being practiced since the time immemorial.

If we go by the rituals, young pre-pubertal girls were ‘married off’, ‘given away’ in matrimony to God or Local religious deity of the temple. The marriage usually occured before the girl reaches puberty, and required the girl to become a prostitute for upper-caste community members. Such girls were known as jogini. They were forbidden to enter into a real marriage. The system of devadasi started only after the fall of Buddhism and records about them start appearing around 1000 A.D. [Bharatiya Sanskruti Kosh, IV, 448]. It is viewed that the Devadasi`s were the Buddhist nuns who were degraded to the level of prostitutes after their temples were taken over by Brahmins during the times of their resurgence after the fall of Buddhism. According to the 1934 Devadasi Security Act, this practice is banned in India. Despite being outlawed, this was still in practice in the present era also due to which the ban was reinforced again in 1980s but the law is broken every day. Poverty and ‘Untouchablity’ contribute to the persistence of this terrible practice. Reference to dancing girls in temples is found in Kalidasa’s “Meghadhoot”. The popularity of devadasis seems to have reached its pinnacle around 10th and 11th century CE. The devdasi system was mostly prevalent in southern India and it reached its height during the Chola Empire.

In the village of Uttar Pradesh, prostitution is the main source of income for centuries. It is inhabited by people who were part of the Nat Caste. Prostitution, their main source of income, has been a tradition in this village of 5000 for 400 years. The children of this village live with their mothers and rarely know who their fathers are. The archaic tradition has not died out despite setting up of schools due to a culture of male lethargy.

Another place is the South-Indian state of Karnataka, where the tradition of “Devdasi” is practiced. The Devdasis pray to the Hindu Goddess Yellamma. The word, which means “god’s female servant”, is apt. Originally, devadasis were celibate dancing girls used in temple ceremonies and they entertained members of the ruling class. But sometime around the 6th Century, the practice of “dedicating” girls to Hindu gods became prevalent in a practice that developed into ritualized prostitution. Their virginity was auctioned off in the village and they spend the rest of their lives as prostitutes, making money for their families.

In the state of Gujrat, since ancient times, the womenfolk of this village have supported their families through prostitution, while the men actually find suitors for them. In other words, the men of the villages are pimps and this culture has been around for centuries, which is why it has been difficult to stop. Education drives and mass weddings have, predictably, had little effect.

The Bachara Tribe of Madhya Pradesh is another matriarchal community who descend from royal courtesans. Here, it is accepted to pimp out the eldest daughter in order to support the family. The fathers and brothers usually negotiate the ‘terms’. With so much social pressure in their small community, it is hard for girls to leave the practice without being ostracized.

The Present Situation In India

If we analyze the present situation, India ranks third in prostitution having the largest red-light district, Sonagachi. The next one is the red-light area of Mumbai, namely Kamathipura consisting of 275,389 prostitutes working in brothels and 5 star hotels also. The prostitutes constitute a large part of our population and such a large part of population exists in the society struggling with not only sexual exploitation but also other forms of exploitation like social, medical, religious exploitation and many more. Thanks to the latest judgment of Calcutta high court, in the year 2013, finally the prostitutes of Sonagachi got the right to celebrate Durga Puja and On Ashtami, the second day of the pujas, the Sonagachi residents offered ‘anjali’ to Durga, a privilege almost none of the sex workers received earlier.

In the state of Rajasthan, not only female prostitution, male prostitution is also increasing rapidly with acute exploitation of the poverty stricken sector of the population. On 8^th November 2014, Rajasthan Women’s Commission chief Laad Kumari Jain voiced concern over flourishing male prostitution at the tourist destination of Jaisalmer. Jain said that, along with three other members, she conducted visits at various places across the state to ascertain how the prostitution is increasing with the growth of tourism and industrial sector. “We found the situation very alarming. Besides traditional flesh trade, male prostitution is also increasing in Jaisalmer,” Jain said. There are almost 15,000 HIV positive people in the region comprising Jodhpur, Jaisalmer, Barmer, Jalore and Pali and prostitution was one of the reasons behind the increasing number of HIV patients.

If we talk about the traditional practices of prostitution in Rajasthan, the Nad tribe comprises of a large part of the population of Bharatpur District in Rajasthan. These tribal families are extensively indulged into their traditional business of prostitution where as per the latest report, everyday a business of rupees 100,000 is done by these families in this sex occupation. Traditionally the trading is done by fathers, brothers or any other male family member of the prostitutes. But as the population is huge, these 100,000 is bifurcated into thousands of prostitutes and the individual income is so less that they are compelled to continue with the same occupation leaving them with no choices.

Laws Governing Prostitution in India

If we see the medical drawbags of this occupation, the first trace of HIV/AIDS was found in the brothels of a small city of South India. Though in the present era, women know the benefits of using condoms and the brothels of Kolkata and Mumbai do not allow any service without the use of condoms, but in the small red-light districts, when a client appears to them without such protective contraceptives, they cannot refuse them with their desires.

Prostitution per se is not bad, majority of the women in this trade do not join out of choice but compulsion, anything which feeds the empty stomach, some are forced and high end ones are for the easy money attached with it.

The life of sex workers is not a bed of roses instead a bed of thorns but the larger question is Should Prostitution be legalized?

There are several laws for the regulation of prostitution in India, for example, Suppression of Immoral Traffic in Women and Girl Act -1956, Prevention of Immoral Traffic Act-1956, Immoral Traffic (Prevention) Act-1956. Among all of these, Section 3 and Section 5 of The Immoral Trafficking Prevention Act, 1956 (“ITPA”), are the main statutes dealing with sex work in India.

Section 3 describes the punishment for keeping a brothel or allowing premises to be used as a brothel.
(1) Any person who keeps or manages, or acts or assists in the keeping or management of, a brothel, shall be punishable on first conviction with rigorous imprisonment for a term of not less than one year and not more than three years and also with fine which may extend to two thousand rupees and in the event of a second or subsequent to conviction with rigorous imprisonment for a term of not less than two years and not more than five years and also with fine which may extend to two thousand rupees.

(2) A any person who, –

(a) Being the tenant, lessee, occupier or person in charge of any premises, uses, or knowingly allows any other person to use, such premises or any part thereof as a brothel, or

(b) Being the owner, lessor or landlord of any premises or the agent of such owner, lessor or landlord, lets the same or any part thereof with the knowledge that the same or any part thereof is intended to be used as a brothel, or is willfully a party to the use of such premises or any part thereof as a brothel, shall be punishable on first conviction with imprisonment for a term which may extend to two years and with fine which fine which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term which may extend to five years and also with fine.

(2-A) For the purposes of sub-section (2), it shall be presumed, until the contrary is proved, that any person referred to in clause (a) or clause (b) of that subsection, is knowingly allowing the premises or any part thereof to be used as a brothel or, as the case may be, has knowledge that the premises or any part thereof are being used as a brothel, if, –

(a) A report is published in a newspaper having circulation in the area in which such person resides to the effect that the premises or any part thereof have been found to be used for prostitution as a result of a search made under this Act; or

(b) A copy of the list of all things found during the search referred to in clause (a) is given to such person.

Section 5 explains about the effect of Procuring, inducing or taking person for the sake of prostitution.

(1) Any person who-

(a) Procures or attempts to procure a person whether with or without his/her consent, for the purpose of prostitution; or

(b) Induces a person to go from any place, with the intent that he/she may for the purpose of prostitution become the inmate of, or frequent, a brothel; or

(c) Takes or attempts to take a person or causes a person to be taken, from one place to another with a view to his/her carrying on, or being brought up to carry on prostitution; or

(d) Causes or induces a person to carry on prostitution; shall be punishable on conviction with rigorous imprisonment for a term of not less than three years and not more than seven years and also with fine which may extend to two thousand rupees, and if any offence under this sub-section is committed against the will of any person, the punishment of imprisonment for a term of seven years shall extend to imprisonment for a term of fourteen years:

Provided that if the person in respect of whom an offence committed under this sub-section, –
(i) Is a child, the punishment provided under this sub-section shall extend to rigorous imprisonment for a term of not less than seven years but may extend to life; and
(ii) Is a minor; the punishment provided under this sub-section shall extend to rigorous imprisonment for a term of not less than seven years and not more than fourteen years.

We can see that all these laws are just to punish the 3^rd party and not to the people who are actually indulged into encouraging, forcing or practicing it. And same does the other laws also which are related to the prostitution.

Meanwhile, many people suggest that prostitution should not be legalized as it hits directly hits the moral values and the rich culture of our country. But given the amount of lust Indian men are carrying which comes out in the form of flesh trade, human trafficking, rapes, and many other related crimes which shows transformation of men into misogynists, it is argued to be “a necessary evil”, given the condition of the society we live in. Though it is not such an act which could be fully supported and which will lead to commodification of women’s bodies and encourage organized crime to tighten its hold over the sector, but if we analyze the present Indian situation and the condition of society we live in, it may be considered as a “necessary evil”. It should be properly regulated and codified in law with proper organization to deal with it. We can borrow the law laid down by Chanakya.

There are a few steps we can take while legalizing Prostitution if we go by Chanakya’s view.

1. Establish a department in every district regulating prostitutes.
2. Provide infrastructures like a building which could be used as brothels having all necessary administered by government.
3. Other infrastructural facilities could be given to them by establishing schools for their children, hospitals and markets for them. (and a public park too if possible)
4. The facility of periodic medical examination with age verification and identity proff or other important documents like voter id etc could be given to them for identification.
5. Avail other medical facilities like condom dispensing machines and machines for the pills for terminating pregnancies.
6. Have the police personnel guard the brothels for unwarranted miscreants.
7. Government can also regulate their fees for every client, which the prostitutes can use for their personal use and lead a satisfactory life.
8. As it can be considered as business, government may take taxes from them but in a very nominal way in which a larger share could be used for the maintenance of such brothels.
9. All the private brothels could be banned making the government brother monopoly of the government without allowing any public private partnership.
10. Create an environment such as where only women who are willing to enter this trade works and no one is forced to work.

Conclusion

But this could be considered as the last option. In my view, legalizing prostitution will give the women an identity in the society and some governmental benefits is a myth. Some may visualize it as a ray of hope but according to me it is not a boon rather bane. If we commercialize prostitution, such an industry will flourish in a large pace and will lead to rising of demand and dropping of supply. Situation will be so that women will have no other option other than indulging into such occupation. This must not be confused with the issue of legitimising sex trade, creating a section of ‘sex workers’ as an employment avenue, so that women from poor and socially oppressed backgrounds, or even women with little option for alternative employment, fall prey to the pressures of the market economy to serve the interests of the profiteers running this trade. Moreover, still women from far off poverty stricken placed will be recruited into these acts. Legalizing prostitution will give a boost to prostitution instead of regulating it as providing such a service to the people will have an adverse effect on the society.

 

 

 

 

 

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Disclaimer:

This Article was prepared or accomplished by Slesha Sukriti in his personal capacity. The opinions expressed in this article are the author’s own and do not reflect the view of the LawOF.in

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