Pallavi Daryani and Rohini Kasat comments upon the the problems faced by prostitutes in today’s scenario because of the social pressure they go through.
INTRODUCTION
According to the Webster’s Dictionary[1] prostitution is defined as “the practice of engaging in relatively indiscriminate sexual activity, in general with individuals other than a spouse or friend, in exchange for immediate payment in money or OTHER valuables.”
But this fact is to be given notice in today’s scenario that Street prostitution differs sharply from indoor prostitution. Many of the problems associated with “prostitution” are actually concentrated in street prostitution and much less evident in the indoor sector.[2]
In India, prostitutes are seen as a disguise to society and they are not given any privilege in society. And even in judiciary even though laws are made for them but they are not been properly implemented, the judiciary highly lacks in the delegation of authority as prostitutes are most exploited by policeman only nowadays. Indian constitution puts a view in front that it is the duty of Government of India to protect its citizens irrespective of their caste, colour, creed, religion and work. Then why are prostitutes being treated differently without even looking at the perspective that they might be even forced to do that and not even keeping a broader perspective that it is just their work.
This paper puts in front the problems which are being faced by the women working as prostitutes in social scenario and how our laws are ineffective in helping them and what can be the legal benefit to a country if they give importance to prostitution as a profession; these aspects are also compared to other countries like China, Thailand etc. further this paper suggests ways in what way the laws can be changed to empower this section of society.
HISTORICAL BACKGROUND OF IMMORAL TRAFFICKING AND PROSTITUTION IN INDIA
In every facet of Indian history prevalence of trafficking in human beings, eminently in women and girls, and the practice of prostitution can be traced. The women in flesh trade were known by different names in different phases such as ganika, twaif, vaishya, etc. Nowadays, they are addressed as commercial sex workers. With the change in their style of working and providing services at their customers’ places, they are also known as call girls and escorts.
In the literature of ancient and medieval India, there are references of selling and buying of women as slaves and giving them as gifts to men as a mark of respect or in return for favours. The Mahabharata tells us that the Pandava army was followed by a host of prostitutes who went in the rear of the army on baggage carts.[3] At Yudhishtra’s horse-sacrifice women were sent by other kings as a donation to make a necessary part of the entertainment.[4] Yudhishtra himself gives away pretty maids to guest kings. In Brahma Purana, we have the description of Ekamratirtha, where lived many prostitutes presumably to cater to the pilgrims and the visitors. In some Puranas, we read of the anangavarata, a right which signified temple prostitution.[5]
By the later vedic age, that is around the eighth or seventh century B.C., we have reference to a more regularised form of prostitution recognised as a social institution. Kautilya says that prostitutes were recruited from four sources: either they were born as prostitutes’ daughters, or they were purchased or captured in war, or they were women who had been punished for adultery.[6]
There was another practice of procuring women and giving them to the temples for temple prostitution. It was believed that donors would grow rich in this life and live in heaven for a long time. The girls and women so donated to the temples later came to be known as Devadasis. The overt duty of the Devadasis was to dance at the time of the evening worship in the temple, but they were also treated as concubines by the temple priests. On the prevalence of Devadasis, Mahatma Gandhi once said “whether they are known as Devadasis or by any other name, the problem is the same. It is a matter of bitter shame and sorrow, of deep humiliation, that a number of women have to sell their chastity for man’s lust.”[7]
During the debates in the constituent assembly for framing the constitution of India, the issue of Devadasis was also briefly discussed. One of the members of the assembly spoke thus[8] “Sir, if any province has suffered from this bad practice of dedication of Devadasis in the name of religion, it is a province of Madras. The worst form of this custom existed in Madras for a long time.” This system of Devadasis was banned by a legislation in 1947 and now wherever it persists it is in a covert manner much against the established law. Further, while adopting Article 17 of draft Constitution (Article 23 of Constitution of India), one member said[9] “I would like to say that prostitution is not in accord with the Indian civilization. It was imported from the west and with the departure of western rulers it must come to an end.” Looking at this comment we can say that most of the people didn’t agree that prostitution originated in India.
SOCIAL PERSPECTIVE
Social perspective about prostitution is different in different countries in India if a girl is a prostitute in India then it is seen that her purity in lost and she is regarded as impure and that is the reason she is degraded from society. While in other countries this is not the scenario in Thailand people are so broad-minded that they don’t mind men going to prostitutes and there they also don’t see girls in this profession as degraded.
In THAILAND the “Entertainment Places Act of 1966” is one of the modern laws regulating massage parlors, go-go bars, karaoke bars, bathhouses and similar establishments. Under this law, such establishments are required to be licensed. The law does not express permit prostitution but allows for “service providers” and “bath service providers,” differentiated from regular, non-sexual service staff. For example, there are massage parlors where men come and look at women, who are sitting separated by a glass wall (known as a “fishbowl”) and may choose whom they want. The women go to a room where they bathe and massage the customers, but in reality, may do much more than that.[10]
At very moment there are 40 million prostitutes working which is even more than the population of Australia and Canada[11]. It is completely legal and regulated in 22 countries including Austria, Germany, and Greece etc. Studies reveal 1 in 10 men in the world have purchased prostitute, the rate in china is 4 in 10 men and in Korea 5 in 10 men. Korean men pay for sex more than 4 times a month. The sex industry in Thailand raises up to 35 Billion dollars and in Japan up to 27 Billion Dollars every year.[12]
Less research has been conducted on indoor prostitution, but available studies indicate that, compared to streetwalkers, indoor workers have lower rates of childhood abuse, enter prostitution at an older age, and have more education. They are less drug-dependent and more likely to use softer drugs (marijuana instead of crack or heroin). Sexually transmitted diseases are fairly rare among call girls, escorts, and women who work in brothels where condom use is mandatory. Indoor workers tend to earn more money, are at lower risk of arrest, and are safer at work. They are in a better position to screen out dangerous customers, and they have a higher proportion of low-risk, regular clients.[13]
Some prostitutes feel validated and empowered by their work. Escorts interviewed by sociologist Tanice Foltz took pride in their work and viewed themselves as morally superior to others: “They consider women who are not ‘in the life’ to be throwing away woman’s major source of power and control, while they as prostitutes are using it to their own advantage as well as for the benefit of society.” A study by the Australian government reported that half of the 82 call girls and 101 brothel workers interviewed felt their work was a “major source of satisfaction” in their lives; two-thirds of the brothel workers and seven out of ten call girls said they would “definitely choose this work” if they had it to do over again; and 86 percent in the brothels and 79 percent of call girls said that “my daily work is always varied and interesting.”Ann Lucas’s interviews with escorts and call girls revealed that these women had the “financial, social, and emotional wherewithal to structure their work largely in ways that suited them and provided. the ability to maintain healthy self-images.” Other studies indicate that such control over working conditions greatly enhances overall job satisfaction among these workers.[14]
Although many Americans consider prostitution immoral or distasteful, a large minority disagrees. In the 1996 General Social Survey[15], 47 percent (52 percent of men, 43 percent of women) agreed that “There is nothing inherently wrong with prostitution, so long as the health risks can be minimized. If consenting adults agree to exchange money for sex, that is their business.” Moreover, a sizeable number favor alternatives to criminalization. A 1991 Gallup poll found that 40 percent of the public thought that prostitution should be “legal and regulated by the government.”
Police officers in the Indian city of Delhi estimate that there are up to 2,000 prostitutes from foreign countries. Many of the women are from Commonwealth of Independent States countries. [16] Due to the demand for foreign prostitutes in the city, women from former Soviet Republic countries working as prostitutes are sold for three to four times higher than Indian prostitutes, according to media reports.[17]
LEGAL PERSPECTIVE
As per the laws of England, prostitution is not treated as a crime per se. Prostitution is however, criminal when conducted so as to cause a public annoyance or where persons endeavour to debauch or corrupt chaste women or girls.[18]
In the case of Gaurav Jain v. Union of India[19], it was stated that the word ‘prostitution’ means an act of promiscuous sexual intercourse for hire or offer of agreement to perform an act of sexual intercourse or any unlawful sexual act for hire.
The preamble, an integral part of the Constitution of India, pledges to secure to its citizens socio-economic and political justice, equality and liberty. It aims at assuring fraternity and dignity of the individual. Article 23 of the constitution provides the people with the fundamental right against exploitation. The expression ‘traffic in human beings’ as per Article 23 is evidently a very wide expression including the prohibition of traffic in women for immoral or other purposes.[20] Article 35 of the constitution provides that Parliament shall, as soon as may be after the commencement of the constitution, make laws for prescribing punishment for the acts declared as offences by the constitution. On 9th May, 1950 representatives of various countries met in Ney York and signed the International Convention for the Suppression of Immoral Traffic in Persons and Exploitation of the Prostitution of others. India ratified this International Convention and became bound to take steps for implementing its provisions. On 5th January, 2002 the member states of South Asian Association for Regional Cooperation (SAARC) agreed to sign the SAARC convention on Preventing and Combating Trafficking in Women and Children for Prostitution in Kathmandu.[21] The purpose of this convention was to eradicate trafficking in women and children and to prevent the use of women and children in international prostitution network.
The Immoral Traffic (Prevention) Act, 1956 aims at suppressing the evils of prostitution in women and girls and achieving a public purpose viz. to rescue the fallen women and girls and to stamp out the evils of prostitution and also to provide an opportunity to these fallen victims so that they could become decent members of the society. The question to ask here is what about those women who choose this profession voluntarily?
In India the law does not treat prostitution per service as illegal; it can be carried on with certain restrictions[22] i.e. keeping a brothel or allowing premises to be used as a brothel, living on the earnings of prostitution, inducing or taking person for the sake of prostitution, detaining a person in premises where prostitution is carried on, procuring, inducing or taking person for the sake of prostitution, prostitution in or in the vicinity of the public place, seducing or soliciting for purpose of prostitution and seducing a person in custody.[23] Section 19 and 21 of the Act deals with the matter of protective home and care and protection by the court. Section 19 says that “The Magistrate may pending inquiry under sub-section (3) direct that the person may be kept in such custody as he may consider proper, having regard to the circumstances of the case.”
Supreme Court in the case of Chitan J. Vaswani v. State of West Bengal said “no nation, with all its boasts and all its hopes, can ever morally be clean till all its women are really free- free to live without the sale of their young flesh to lascivious wealth or commercializing their luscious figures.
Prostitution in Thailand has been illegal for over thirty years, but the existing laws are poorly enforced. The Anti-Prostitution Law of 1960 made procurers and prostitutes subject to a fine or jail sentence, but did not impose a penalty on customers. The 1996 Prostitution Prevention and Suppression Act re-oriented Thai law from emphasizing punishment of prostitutes towards punishing pimps, procurers, brothel owners, and certain customers. The Thai law imposed harsher penalties in clients found violating girls under 18 (and increases more substantially for girls under age 15) and also introduced penalties for parents who sold their children into the sex trade. However, this law is poorly enforced. The Thai police and public officials are often involved with mafia who run drug and sex trafficking operations. Establishment owners pay regular protection fees to the police. The combination of the widespread corruption among public officials and the lax enforcement of laws pertaining to the sex industry mean that sex workers are often doubly exploited by their employers and by the police.
An estimated 400,000 prostitutes work in Germany, and 1.2 million customers are said to use their services daily. Revenues are estimated at 6 billion euros every year – equivalent to those of companies like Porsche and Adidas.[24] It’s been estimated that more than 1 million men pay for sex in Germany every day. Prostitution is totally legal in Germany as well as third-party involvement is also allowed.
In Greece, it is the law that prostitutes must be at least 21 years of age, register, and have health checks every 2 weeks. Prostitution is not in itself a punishable act there. The laws applying to prostitution do not have a prohibitive character, but, rather, regulate the conditions for practising it.
The penal law on the elimination of the exploitation of women stipulates prison sentences and fines in the cases of pimping (Article 349), exploitation of prostitutes (Article 350), and body trafficking (Article 351). Trafficking of female minors carries a sentence of 1-5 years.
The Greek government recently unveiled a plan to make prostitutes retire at 55 with the state providing social and medical benefits.”Greece, whose ancient civilization introduced the world to high-class prostitutes in the sixth century BC, has at last decided to salute their contribution to society.
ECONOMIC PERSPECTIVE
Prostitution Revenue Worldwide is $186.00 Billion. Havoc scope calculates the world’s prostitution revenue by adding up the estimated market values from countries where the prostitution revenue is available. Prostitution Revenue in China is $73 Billion, Spain $26.5 Billion, Japan $24 Billion, Germany $18 Billion where prostitution is a Legal Industry, United States $14.6 Billion, South Korea $12 Billion and even in India it is $8.4 Billion.
The sex industry is lucrative and it has expanded rapidly in Thailand within the past few decades. For the men and women working in the sex trade, prostitution provides a way for people of low education to earn a high salary. For the country as a whole, tourism is the major earner of foreign exchange and is vital to Thailand’s economy. In December of 2003, the sex trade was reported to be a $4.3 billion per- year industry!2 Approximately 60% of the country’s National Income comes from tourism, and sex tourism encompasses a large part of Thailand’s tourism industry.
Each year, around 10 million tourists arrive in Thailand. It is estimated that approximately 60% of the tourists who visit Thailand are males, and of those, 70% come specifically for sex. That means that in the past few years, approximately 4,200,000 men came to Thailand for the sex industry.[25]
Athens has announced that its economy is 25% bigger than thought thanks, in part, to the round-the-clock duties of the country’s prostitutes, who were known as hetairai in ancient times. The Greek authorities are revising the country’s gross domestic product (GDP) after deciding that the black market should be included in the figures.”
HOW TO BRING THE CHANGE?
Prostitution in India is defined as an institution of extreme male domination over women, some writers say that violence and exploitation are inherent and Omnipresent- transcending historical time period. As Sheila Jeffreys writes, “prostitution constitutes sexual violence against women in and of itself”; and according to Melissa Farley, prostitution is a “vicious institution” that is “intrinsically traumatising to the person being prostituted”. But we believe in a different model, if we regularise the prostitution business in a proper way along with proper laws, this business can help a country in generating huge profits and empowering the women who willingly want to do this work.
By considering the laws of various other countries a few changes that can be brought into Indian system are mentioned henceforth.
- Strict laws for trafficking– Even though there are many laws preventing trafficking in India like Section 370 and 370A of Indian Penal Code deals with trafficking of person for exploitation, that is if a person (a) requites, (b) transports, (c) harbours, (d) transfers or (e) receives, a person or persons, by using threats, or force, or coercion, or abduction, or fraud, or deception, or by abuse of power, or inducement for exploitation including prostitution will be punished with imprisonment of at least 7 years and Immoral Traffic(Prevention) Act of 1956 provides to give the legal protection to women and children but the facts show a different picture and make it clear that these laws are not properly executed as the responsibility is not been delegated properly to authorities which can help in prevention of trafficking from initial stage.
- Fixing of age limit– At present the average age of women entering into this profession is 13 to 16 years, but need of change is really required the age limit for women to enter this profession should be fixed to 18 years and not only that but the age limit of men who can use these services should also be fixed to 21 so that no exploitation should occur of any child.
- Assurance of Safety- It is very important in India to regularise the safety measure being provided to prostitutes. Even though Section 19, 20 and 21 of Immoral Traffic(Prevention) Act provides for rescuing the prostitute who was forced to enter this profession and to provide them with protective home, care and protection of the court. But so far as now only 2499 cases have been reported in India under Immoral Traffic (Prevention) Act. By this, we can conclude how fast is the country moving with regards to protection of women trapped in this profession.
Along with this, it is also important to provide protection to those who voluntarily enter into this profession. In a sample survey conducted by Prostitution research and education centre, San Francisco out of 100 men 90 percent men said that they have paid for sex once in their lifetime.[26] So for those who are in this profession and want to continue with it, even though a marginalised group has to be provided protection from HIV, assault, torture etc. For that, it is very important that government should not ignore that section of society and make laws for them also. And they should be made aware about the health hazards and regular checkups should be taken care of and proper restriction on choice of customers can make these women also safe in society.
- Registration and counselling– To regulate the sex trade it will be an essential step if registration of prostitutes will take place. As there should be name and address of each and every prostitute working and this way the safety to these women can be assured in a better way. And before registration, there should be a counselling session of each and every prostitute to make sure that woman has not entered this field by any force and wants to be a part of this profession by her own will.
- Eradication of middleman- middleman in this profession work as pimps or there are organisations which do the work to bring clients to these women and share their earnings which is in reality prohibited in India under section 4 of Immoral Trafficking (Prevention) Act 1956. So to secure these women from getting their money exploited it is needed that measures should be taken to eradicate brothels and pimps.
- Labor laws: it is need of time now that prostitution should be recognised as any other work and it should be brought under labor laws so that their protection can be ensured and society can recognise them in a better way. As per Indian Constitution under Article 14 there is no discrimination being done against any person, so why still people discriminate on the basis of work that prostitutes do, they do it to earn livelihood so what’s wrong in doing that. There are 40 Million prostitutes working all over the world at present; and if we will try to stop prostitution than it is very prominent that more rapes will increase.
- Insurance and pension schemes: in Canada medical insurance is given to prostitutes that protect them from any kind of medical hazard and along with that when they retire they are also given pensions. The main logic of giving pensions is to stop the forming of new brothels as most of the brothels are being formed by retired women only.
By: Pallavi Daryani and Rohini Kasat
[1] http://www.merriam-webster.com/
[2] ronald weitzer, prostitution:facts and fictions
[3] Roy, Kumkum, Women in Early Indian Societies, p. 206
[4] ibid
[5] Mahabharatha, pg. 215
[6] Ibid, pg. 199
[7] http://www.scribd.com/doc/135300734/Women-in-India-A-Social-and-Cultural-History
[8] Constituent Assembly Debates, Vol. 7, p. 808, speech by Smt. G. Durgabai
[9] Ibid., p. 807, speech by Hon’ble member Giani Gurmukh Singh Musafir
[10] http://www.thailand-to-do.com/the-vietnam-war-what-effects-did-it-have-on-thailand/
[11] http://projectsocialart.com/blog/2011/11/12/prostitution-the-%E2%80%98world%E2%80%99s oldest%E2%80%99-and-most-dangerous-profession/
[12] http://findingjustice.org/prostitution-statistics/
[13] Id, note 2
[14] ibid
[15] http://www.thearda.com/Archive/Files/Descriptions/GSS1996.asp
[16] http://www.havocscope.com/tag/prostitution/
[17] ibid
[18] Encyclopedia of the Laws of England
[19] AIR 1997 SC 302
[20] Vishal Jeet v. UOI, AIR 1990 SC 1412
[21] www.fwld.org.np/csaarc.html.
[22] Aggarwal, Nomita, Women and Law in India, pp.203-04
[23] Immoral Traffic, Prevention Act, 1956
[24] Isabelle de Pommereau, “Rethinking a Legal Sex Trade,” Christian Science Monitor, May 11, 2005
[25] http://www.thearda.com/Archive/Files/Descriptions/GSS1996.asp
[26] http://d37yfl6hsftvjh.cloudfront.net/eaves/2012/04/MenWhoBuySex-89396b.pdf
