* S.J.D. Candidate, Harvard Law School. This article originates from an LL.M. paper written in 1996 under the supervision of Professor Martha Minow at Harvard Law School. The ground work for it commenced in 1993, when I was involved in a study undertaken by the National Law School of India University and commissioned by the Department of Women and Child Welfare, Government of India, to propose legislative reform in the area of prostitution and trafficking. Also, between 1991 and 1993, I was part of a group of law students that worked on prostitution as a form of labor for the purposes of the Second All-India Community-Based Law Reform Competition for law schools and submitted its report in 1993.
1 I acknowledge at the very beginning the incessant dilemmas that one faces in describing the women who engage in prostitution. In a way, deciding what term to use is a microcosm of all the confusions that surround the policy debate on prostitution. The woman we know as the prostitute has many names in English: prostitute, prostituted woman, whore, sex worker, commercial sex worker, sex trade worker. In the several languages of India, one finds different names depending on the time period and the region in which they worked. Sanskrit literature describes them as veshya (prostitute), sadharani (public woman), rupajiva (one who earns a living by using her charms), ganika (enjoyed by one person or many persons living in a group), rupadasi (enslaved by her physical beauty) and so on. In colonial times, in Bengal for example, they were called baijee (dancer), nautch girl (dancer), raanr (widow or prostitute), randi (prostitute), baishya (prostitute—the Bengali version of a veshya) and so on. Until recently, women’s groups in India shunned words like commercial sex worker or sex trade worker because these words imply the commercialization of sex. Most women’s groups, however, insisted that in their conversations with prostitute women, the latter do not view themselves as sex workers. In acknowledgement of the fact that most Indian prostitutes are forced into prostitution, the term least objectionable is thought to be prostituted woman. For reasons evident in this article, I find this implication objectionable. Hence, I use the terms sex worker or prostitute woman.
2 Shannon Bell, Reading, Writing and Rewriting the Prostitute Body 176 (1994) (quoting from the performance of prostitute performer Carol Leigh, who is known by the work name, Scarlot).
3 I do not make a distinction between feminist legal theory and feminist jurisprudence for the purposes of this article. This is despite the fact that they seem to be distinct (but not necessarily exclusive) categories for many feminist legal scholars. For example, Kelley Weisberg observes that feminist legal theory has two parts. Kelley Weisberg, Introduction to Feminist Legal Theory: Foundations xv, xviii (Kelley Weisberg ed., 1993). The first is an “exploration and critique of theoretical issues about the interaction between law and gender,” and the second is the “application of a feminist analysis and perspective to concrete areas of law.” Id.
4 See Heather Ruth Wishik, To Question Everything: The Inquiries of Feminist Jurisprudence, in Feminist Legal Theory: Foundations, supra note 3, at 22, 25.
5 Clare Dalton, Where We Stand: Observations on the Situation of Feminist Legal Thought, in Feminist Legal Theory: Foundations, supra note 3, at 32, 34.
6 See Kimberle Crenshaw, Demarginalising the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, in Feminist Legal Theory: Foundations, supra note 3, at 383, 395; Angela Harris, Race and Essentialism In Feminist Legal Theory, in Feminist Legal Theory: Readings in Law and Gender 235 (Katherine T. Bartlett & Rosanne Keneddy eds., 1991); Martha Minow, Feminist Reason: Getting It and Losing It, in Feminist Legal Theory: Foundations, supra note 3, at 339, 347.
7 By this, I do not mean that Indian law academics are insensitive to the colonial origins of present Indian law. Indeed, there have been some attempts, though sporadic and dispersed, to expose the colonial bases of several laws. For instance, in the area of constitutional law theory, it has been argued that the Indian Constitution envisages a presidential form of government rather than the Westminster parliamentary form of government that India has. There is, however, no body of legal research that critically examines the colonial legal system.
8 Bell, supra note 2, at 179 (quoting a prostitute performance by Scarlot).
9 The equality provisions are Articles 14, 15 and 16. India Const. pt. III, arts. 14–16. Article 14 provides for equality before the law and equal protection of the laws; Article 15 prohibits the state from discriminating on the grounds of religion, race, caste, sex or place of birth, though it can make special provisions for women, children, “socially and educationally backward” classes, scheduled castes and scheduled tribes; Article 16 provides for equality in matters of public employment with a few exceptions, including reservations for backward classes of citizens. Id.
10 Id. at pt. IV, art. 39.
11 Id. at art. 42. Articles 39 and 42 form a key part of Part IV of the Indian Constitution and are not justiciable in a court of law; they are however, meant to be fundamental in the governance of the country. Id. at arts. 39, 42.
12 27 India A.I.R. Manual 496.
13 Id. at 1. Laws against trafficking include section 365: kidnapping or abducting with the intent to secretly or wrongfully confine person; section 366A: procuration of minor girl; section 366B: importation of girl from foreign country; section 367: kidnapping or abducting in order to subject person to grievous hurt, slavery, etc.; section 370: buying or disposing of any person as a slave; section 371: habitual dealing in slaves; section 372: selling a minor for the purposes of prostitution; section 373: buying a minor for purposes of prostitution; section 374: unlawful compulsory labour. 28 India A.I.R. Manual 561–85. Except for an offense committed under section 374, all the offenses carry a punishment of seven to ten years of imprisonment and fines. Id.
14 The Suppression of Immoral Traffic in Women and Girls Act, 1956, reprinted in B.R. Beotra, The Suppression of Immoral Traffic in Women and Girls Act, 1956 (with State Rules) 1 (Devinder Singh ed., 1981).
15 This is referred to in this article as the “tolerationist” approach toward prostitution.
16 Beotra, supra note 14, at 10.
17 See id. at 30–61.
18 See id. at 101–10.
19 See id. at 62–72.
20 See id. at 129–38.
21 See Beotra, supra note 14, at 90–91.
22 Jean D’Cunha, The Legalization of Prostitution: A Sociological Inquiry into the Laws Relating to Prostitution in India and the West 43 (1991).
23 Id. at 55.
24 Cf. Too Much Heat, Not Enough Light—Our Experiences with Sex Workers in Karnataka, Memorandum from the National Law School of India University, to the Second All-lndia Community-Based Law Reform Competition 87 (1993) [hereinafter Too Much Heat, Not Enough Light] (on file with author).
25See id. at 86–88.
26 See D’Cunha, supra note 22, at 62–65. D’Cunha observes that enforcement officials prefer to use local legislation such as the Bombay Police Act, 1951 (particularly section 110 B which penalizes indecent behavior in public) under which the rate of conviction is much higher as compared to that of the SITA. Id. at 48–49. This may be due to the fact that offenses under local laws are meant to be disposed of in a manner less stringent than they would be under the ITPA, which requires that the regular trial procedure be followed. Our interviews with lawyers in Bangalore reinforced this finding. Bangalore police tend to use the Railways Act or the Police Act rather than the ITPA. Too Much Heat, Not Enough Light, supra note 24, at 35. Also, it appears that the police find it more expedient to arrest street walkers rather than to raid brothels and arrest brothel keepers, pimps and traffickers. Hence, the number of street-walking prostitute women prosecuted is disproportionately higher than the other parties involved in prostitution. See id. at 123. However, when enforcement officials do use the ITPA, there are certain loop-holes specific to it that make it difficult to gather the proof necessary to sustain a conviction. D’Cunha notes that often times, the owner of the brothel does not live on the premises. Instead, one of the prostitute women is in charge. D’Cunha, supra note 22, at 60. When there is a raid, this woman claims that all of the women present are operating independently. Since the Act penalizes only sex for profit, neither the woman in charge nor the owner can be arrested. Also, in situations in which the brothel-keeper sends a prostitute woman with the client to a hotel, which are routine, it is nearly impossible for the prosecution to prove that the hotel was being used for commercial prostitution. D’Cunha also observes that the lack of reliable witnesses who will corroborate the police version of events, the impersonation by pimps as parents of the girls to whom they are handed over after release on bail, and the use of false age certificates contribute to the low conviction rate under the Act. Id. at 62, 64.
The enforcement of the Act is also affected by factors attendant to the enforcement of criminal laws all over India. For example, the prosecution department tends to be separate from the investigation wing of the police. As a result, this mismatch, combined with poor monetary incentives, excessive workload, corruption and low morale, leads to large-scale corruption and low rates of conviction.
27 D’Cunha, supra note 22, at 65–67. D’Cunha notes that officials at these homes are over-worked and under-paid and that state funding for these institutions is meager. Id. at 66–67.
28 Too Much Heat, Not Enough Light, supra note 24, at 28.
29 These conditions at an Agra home instigated two public interest petitions in the Supreme Court of India namely, Upendra Baxi (I) v. Uttar Pradesh and Upendra Baxi (II) v. Uttar Pradesh. See (1986) 4 S.C.C. 106; (1983) 2 S.C.C. 308. The petitioners contended that while section 21 of the 1956 Act requires that these protective homes be run effectively, the Agra home could not be run so at the expense of the human rights of its inmates. Many of the female inmates suffered from mental retardation and serious contagious diseases, but did not receive appropriate medical care. In response, the Supreme Court ordered proper medical care for the prostitute women who were in need of medical attention. It also ordered those in charge of the homes to discharge their statutory duties satisfactorily while respecting the dignity and human rights of the women in the home. In addition, the Court ordered the creation of a Board of Visitors and laid down broad guidelines for their administration of the homes established under the Act.
30 Women and Children in Prostitution: Human Rights Perspectives (Report of the National Workshop) 7 (Madhu D. Joshi ed., 1997) [hereinafter Women and Children in Prostitution] (quoting Krishna Sahi, Honorable Minister of State for Food and Civil Supplies).
31 Playbill, Partap Sharma’s A Touch of Brightness, directed by Geeta Citygirl Chopra, presented by The City College of New York Theater Program, 1999, at 4 (quoting the author’s note from the Grove Press Edition of the play) [hereinafter A Touch of Brightness] (on file with author).
32 Id. The play was recently performed at the Aaron Davis Hall in New York as part of The City College of New York Theater Program. It is a fictional account of the lives of prostitute women in a brothel in Kamathipura. However, it is not exactly clear why the content of the play may have been viewed as objectionable even in the 1960s.
33 Id.
34 Id.
35 Ctr. for Women and Dev. Studies (New Delhi) & Humanistic Inst. for Co-operation with Developing Countries (Bangalore), Women in India: Reflecting on Our History Shaping Our Future, 22–23 (Jamuna Ramakrishna ed., June 24–26, 1993) (proceedings of a Consultation on Gender and Development jointly organized by the Center for Women and Development Studies, New Delhi and the Humanistic Institute for Co-operation with Developing Countries, Bangalore) [hereinafter Women in India]. The neglect of the women’s movement of issues of sexuality in general is probably reflective of “the conspiracy of silence regarding sexuality in India, whether within political and social movements or in scholarship, [which] blinds us to the multiple sites where ‘sexuality’ has long been embedded.” Janaki Nair & Mary E. John, Introduction: A Question of Silence? The Sexual Economies of Modern India, in A Question of Silence? The Sexual Economies of Modern India 1 (Janaki Nair & Mary E. John eds., 1998) [hereinafter A Question of Silence?]. They note, however, that “in the spheres of law, demography or medicine, for instance, sexuality enjoys a massive and indisputable presence that is far from prohibited.” Id. The conspiracy of silence surrounding sexuality is only heightened in the context of the debate on prostitution since law has an overwhelming presence on a day-to-day basis in the lives of prostitute women in India today.
36 Nair & John, supra note 35, at 15.
37 See Siddhartha Gautam, The AIDS Prevention Bill, 1989: Protection or Prosecution?, The Lawyers, Oct. 1989, at 7 (providing details of the Bill). See generally Bachi Karkaria, Sex Workers of the World, Unionise, Times of India (Mumbai), Aug. 21, 1994.
38 See Abha Bhaiya & Ratna Kapur, Report of the National Workshop on Women STDs, HIV and AIDS, Rishikesh 32–33 (1994).
39 See Draft National AIDS Control Policy, at http://www.naco.nic.in/vsnaco/nacp/ ctrlpol.htm (last visited Mar. 12, 2001).
40 Id.
41 Id.
42 Id.
43 Priscilla Alexander, Feminism, Sex Workers, and Human Rights, in Whores and Other Feminists 83, 89 (Jill Nagle ed., 1997).
44 See, e.g., Carolyn Sleightholme & Indrani Sinha, Guilty Without Trial: Women in the Sex Trade in Calcutta 136 (1996). For instance, Sleightholme and Sinha point out that health programs in Kolkata must broaden their goals to include the empowerment (financial, social and health-wise) of prostitute women to ensure the long term success of their programs. Id.; see also Too Much Heat, Not Enough Light, supra note 24, at 111.
45 Celia W. Dugger, Calcutta’s Prostitutes Lead the Fight on AIDS, N.Y. Times, Jan. 4, 1999, at A1.
46 Id.; see also Sleightholme & Sinha, supra note 44, at 131 (containing more information about the project). The condom usage rate is reported to have gone up from three percent in 1992, when a prevention project in Sonagachi began, to ninety percent in 1998. Dugger, supra note 45, at A1. Also, HIV infection rates among prostitute women in Sonagachi have been contained at five percent; conversely, the Kamathipura red-light district of Mumbai, an area with less effective prevention efforts, has reported a fifty percent HIV infection rate among prostitute women. Id.
47 Dugger, supra note 45, at A1.
48 Id.
49 Id.
50 Sleightholme & Sinha, supra note 44, at 141–42.
51 It may also enable feminists to view prostitute women in a new light. For instance, even a few years ago, NGOs working with sex workers were more reluctant to use the term “sex worker” for prostitute women than they are now. This newfound willingness could be attributed to the almost clinical use by AIDS experts of the term “CSW” or “commercial sex worker.”
52 D’Cunha, supra note 22, at 110.
53 See Too Much Heat, Not Enough Light, supra note 24, at Annexure 14. Congress (I) is a break-away faction of the Indian National Congress led by the late Indian Prime Minister, Mrs. Indira Gandhi. At the time of its break-away in 1969, it was called Congress-R (for Requisition). In 1980, it was renamed Congress (I).
54 D’Chuna, supra note 22, at 112.
55 When literally translated, it means the Helpless, Ridiculed Women’s Organization.
56 Dr. Gilada has advocated the need for sexual liberation in a sexually repressed society like India, the need to use condoms and the need for regulation of prostitutes to curb the spread of HIV/AIDS. It is rumored that his organization suffers from a lack of credibility among the prostitute women in Kamathipura. It is also rumored that the peer program Saheli (Hindi for friend) that he started in Kamathipura with some prostitute women working as peer educators has been a complete failure and that the women’s NGO in Kamathipura would not miss an opportunity to drive him out of their area if he appeared there. This may be due to the fear that prostitute women have of voicing their complaints against the leader of the organization, Rukminibai Bansode, who is politically well-connected. Also, social workers in Mumbai are known to view Dr. Gilada as being well connected politically and using the issue of licensing and welfare of prostitutes for long term political gains. See D’Cunha, supra note 22, at 112. Prostitute women are also cynical about the organization. Id.
57 D’Chuna, supra note 22, at 111.
58 Id. at 110–16.
59 Id. at 113–14.
60 Id. at 114; cf. Women and Children in Prostitution, supra note 30, at 104–05 (explaining that some participants at the workshop indicated that because voter identity cards are not issued to prostitute women in their regions, prostitute women are not able to vote in elections).
61 D’Cunha, supra note 22, at 115.
62 See Too Much Heat, Not Enough Light, supra note 24, at Annexure 13. This is also reflected in the demands of prostitute women’s groups that, if realized, would be of practical use. For example, the Sabha demands that the government help prostitute women to obtain ration cards (for use in government fair-priced shops to buy basic grains, sugar and fuel), provide a monthly pension of Rs. 1500 (about thirty-five U.S. Dollars) and ensure their proper representation in Parliament. Id.
63 Pradyat Lal, Red-light Kids Are Nobody’s Children, Amrita Bazar Patrika (Kolkata), Jan. 20, 1994 (on file with author). It is an unreported case; thus, further details are not available.
64 A.I.R. 1990 S.C. 292.
65 See id. at 293.
66 Id.
67 Gita Pandey, Indian Prostitutes Reject ‘Beggar’ Status, BBC News Online, at http:// news.bbc.co.uk/low/english/world/asia-pacific/newsid_1135000/1135628.stm (Jan. 25, 2001).
68 Bharatiya Patita Udhar Sabha v. Union of India, reprinted in Too Much Heat, Not Enough Light, supra note 24, at Annexure 13. (writ petition filed before the Supreme Court of India under Article 32 of the Indian Constitution).
69 Sleightholme & Sinha, supra note 44, at 139, 141.
70 Id. at 125. These groups include the Kolkata-based Mahila Sangha, Nari Kalyan Samiti and Abahelita Mahila Samiti. Id.
71 Prostitutes in India Set Up a Network, BBC News Online, at http://news6. thdo.bbc.co.uk/hi/english/world/s/w_asia/newsid_71000/71808.stm (Mar. 31, 1998).
72 Sex Workers Want Anti-Trafficking Measures, BBC News Online, at http://news.bbc. co.uk/low/english/world/south_asia/newsid_1199000/1199988.stm (Mar. 6, 2001); Sex Workers To Combat Trafficking, BBC News Online, at http://news.bbc.co.uk/hi/english/ world/south_asia/newsid_1205000/1205098.stm (Mar. 6, 2001).
73 Subir Bhaumik, Demanding the Legalisation of the Sex Trade, BBC News Online, at http://news.bbc.co.uk/bi/english/world/south_asia/newsid_1200000/1200344.stm (Mar. 3, 2001).
74 Sleightholme & Sinha, supra note 44, at 138–39.
75 Id.
76 Id. at 140.
77 This was made available at the conference in the form of a revised draft bill entitled, The Prevention of Immoral Traffic and the Rehabilitation of Prostituted Persons Bill, 1993 with Explanatory Notes (on file with author). In addition, NLS was commissioned to study the laws relating to the indecent representation of women. These proposals were also discussed at the conference.
78 This proposal, entitled the Prohibition of Immoral Traffic and Empowerment of Sexual Workers Bill, 1993, was made available at the conference (on file with author).
79 See generally Too Much Heat, Not Enough Light, supra note 24. The Community-Based Law Reform Competition is an eighteen-month long competition held for South Asian law universities. The Competition deserves mention because it requires at least three months of compulsory community interaction on the part of the a team before the team arrives at a proposal for law reform. The NLS team worked on prostitution in this context. The resultant legislative proposal, called the Sex Worker-Legalization for Empowerment Bill, 1993, is seemingly the only one that has explored, in detail, the option of legalizing prostitution in India for the purposes of empowerment. See id. at 102–27.
80 Only a one page synopsis of the proposal relating to the Sex Worker-Legalization for Empowerment Bill was circulated, as our memorandum was being judged for the Community-based Law Reform Competition at that time. These law students were supported by Professor Brenda Cossman (then at Osgoode Hall Law School) and Ratna Kapur, feminist lawyer and founder of the Center for Feminist Legal Research.
81 By “feminist,” I do not intend to imply any particular definition of what it means to be a feminist, nor do I intend to reiterate the offensive divide between good feminists and bad prostitutes. However, I do wish to point out that in India, D’Cunha and Fernandes would be considered feminist voices.
82 Jean D’Cunha is considered a pioneer in the field of research on the policies regarding prostitution. To her credit, her 1989 book on the legalization of prostitution is the first Indian book, in my opinion, that steered away from the mere sociological descriptions of prostitution that typically characterized Indian literature on the issue. It was the first book that seriously dealt with the various policy and legal approaches to prostitution and discussed at some length their implementation in an international context.
83 Their feeble justification appears to be that such “high-risk groups” are easier to work with because they offer less resistance to the idea and are less inhibited when talking about sex. Bhaiya & Kapur, supra note 38, at 9.
84 Indeed, time and again, prostitute women reiterate that in their scheme of priorities, HIV prevention is neither the first nor the most immediate. Rather, they usually articulate their immediate need for boarding schools in which their children can live and attend school instead of living in red-light areas, being exposed to sexual abuse by pimps and brothel owners and potentially becoming prostitutes or pimps themselves. See D’Cunha, supra note 22, at 111.
85 There are 3.5 million HIV-positive people living in India. Kalpana Jain, 3.5 Million Indians Carry AIDS Virus, Times of India (Mumbai), Nov. 10, 1999, available at 1999 WL 29459823. Moreover, on the basis of surveillance reports as of April, 1993, the NACO reported that HIV prevalence rates among the prostitute women of Vellore, Tamil Nadu rose from 0.5% in 1986 to about 34.5% of the total prostitute population in 1990. The Nat’l AIDS Control Organisation, Ministry of Health and Family Welfare, Gov’t of India, National AIDS Control Programme India-Country Scenario: An Update, 8 (Apr. 1993). Similarly, as of 1999, NACO indicates that infection among prostitute women in Mumbai rose from one percent to fifty-one percent in five years. See National AIDS Control Program—NACO Programmes, at http://www.naco.nic.in (last visited Mar. 10, 2001). In addition, a joint study conducted by the AIDS Research and Control Centre, the International Institute for Population Sciences and the Mumbai Municipal Corporation reported that of the 85,200 HIV-positive persons in Mumbai in 1997, 27,000 were sex workers. Sameera Khan, New Study Questions a Few Myths about AIDS in India, Times of India (Mumbai), Nov. 11, 1999, available at 1999 WL 29459823.
86 Currently, heterosexual contact accounts for 80.86% of the instances of HIV transmission in India. See HIV-AIDS Indian Scenario—Current Status and Trend of HIV/AIDS Epidemic in India, at http://www.naco.nic.in (last visited Mar. 10, 2001). Yet, the percentage of the HIV-positive population in India who are prostitute women is unknown. In early 1995, newspaper reports quoted studies finding the concern over high-risk groups exaggerated. These studies instead found that about half the HIV-positive people in Mumbai came from the lower middle-income classes, not low-income classes such as sex workers, migrant laborers and truck drivers. See generally Rupa Chinai, HIV Terror Haunts Housewives, Times of India (Mumbai), Feb. 11, 1995; Rupa Chinai, 48% of AIDS-Hit in Organised Sector, Times of India (Mumbai), Feb. 2, 1995; Kalpana Jain, HIV Not Confined to High-Risk Groups, Times of India (Mumbai), Feb. 9, 1995.
87 As noted earlier, this has largely begun to change at the insistence of the sex workers themselves in Kolkata. However, both the government and NGOs contend that the experience of prostitute women in Kolkata is not necessarily replicable in cities like Mumbai and Chennai for varying reasons. For instance, NACO observes that Chennai’s lack of identifiable red-light areas restrict NACO’s HIV prevention efforts there. See NACO Programmes—S.T.D. Surveillance, available at http://www.naco.nic.in (Nov. 18, 1999) (on file with author). Also, in Mumbai, the perception is that the structure of prostitution in the red-light district is far more oppressive and brutal than that of Kolkata. As a result, prostitute women are less likely to talk openly about turning away customers for their refusal to use condoms or other empowerment issues. See Dugger, supra note 45. This may likely account for the dramatically higher rate of HIV infection in Mumbai’s red-light district. Reportedly, fifty percent of the prostitute women in Mumbai are HIV-positive. Id.
88 The Prevention of Immoral Traffic and the Rehabilitation of Prostituted Persons Bill, in Preamble and Statement of Objects and Reasons (1993) (on file with author).
89 The equality of violence argument is a view that exposes the hypocrisy that surrounds current state regulation of prostitution and likens the experiences of prostitute women to more familiar day-to-day experiences of all women, be it in terms of their sexual exploitation by customers (which they compare with the high rates of sexual abuse of women in general) or their pimps (which they compare with other women who are in relationships with men or are married). This approach, according to Margaret Baldwin, presents an intense articulation of the idea of a woman’s right to sexual expression in the manner that she wishes. Margaret A. Baldwin, Split at the Root: Prostitution and Feminist Discourses of Law Reform, 5 Yale J.L. & Feminism 47, 95 (1992). However, note that D’Cunha’s articulation of the equality of violence argument as one in which “the division between the wives and women in prostitution is an artificial construction because all women in a patriarchal society are sexually objectified” is misleading in that it comes across as a radical feminist view. Women and Children in Prostitution, supra note 30, at 31.
90 Women and Children in Prostitution, supra note 30, at 32.
91 Id.
92 I am aware that the fact that my decision not to dwell on the trafficking in and the forced prostitution of women and children could be the most severe criticism of my article. I acknowledge the seriousness of the problem, especially in light of the New Economic Policy the present government is advocating, that has, on previous occasions, economically disenfranchised women in other countries, forcing them to resort to prostitution. Also, the variety of forms that this trafficking takes, from mail order bride businesses to the marriage of girls to wealthy men from the Middle East to sex tourism, is cause for alarm. I do not suggest for a moment that we neglect the provisions meant to deal with trafficking or the circumstances which make women vulnerable to organized criminals. All I seek to highlight is the futility of trying to achieve these ends by imposing special criminal provisions on prostitution that wind up being enforced solely against prostitute women. Prostitute women bear the brunt of the criminalizing process, the costs of which far outweigh any tangible benefits.
93 D’Cunha, supra note 22, at 201.
94 Id. at 202.
95 Donna Fernandes, Prostitution: Beyond Legal Solutions (Apr. 1992) (extracts from a paper presented at the Conference on the Trafficking in Asian Women at Manila) (on file with author).
96 Id.
97 See id. According to Fernandes, the individual is the main reference point in constructing social relations in the West. In Western societies, the market determines morality, and institutions take care of inconveniences such as the elderly. In contrast, in Asia, the community is the main reference point despite increasing economic liberalization and consequent consumerism. Hence, for Western women who pursue prostitution as an occupation, legalization is a plausible policy option. On the other hand, for Asian women, most of whom are compelled into prostitution by poverty and deception in the form of marriage or promises of finding her employment, legalization could only mean endorsing and normalizing this exploitation. Id.
98 See generally Kathleen Barry, Female Sexual Slavery (1979); Human Rights Watch/Asia, Rape for Profit: Trafficking of Nepali Girls and Women to Indian Brothels (1995); Human Rights Watch/Asia, Modern Form of Slavery: Trafficking of Burmese Women and Girls into Brothels in Thailand (1993); Int’l Campaign to End Child Prostitution in Asian Tourism, The Ecumenical Coalition on Third World Tourism, Caught in Modern Slavery: Tourism and Child Prostitution in Asia (1991).
99 The Consumer Protection Act, 1986 envisages a three-tier enforcement mechanism: the Consumer Disputes Redressal Forum at the local level, the Consumer Disputes Redressal Commission at the state level, and the National Consumer Dispute Redressal Commission at the national level. See B.K. Das & S.S. Rao, Consumer Protection Act, 1986, 322–25 (2nd ed., 1998). The Act provides for inexpensive and speedy redressal of consumer grievances by way of an alternative to the regular process of instituting actions before the civil courts. The process is designed to be more efficient from the standpoint of both time and cost. See id.
100 Too Much Heat, Not Enough Light, supra note 24, at 102–09.
101 See Indian Penal Code, 1860, 37 India A.I.R. Manual 1.
102 The need for these measures is evident from the experiences of prostitute women in places where prostitution is legalized. As such, these measures are meant to address the injustices that have arisen as a result of the prevalent form of legalized prostitution. See Alexander, supra note 43, at 92. Priscilla Alexander, a scholar on feminist issues and prostitution, points out how in the United States, in Nevada, prostitute women cannot legally live outside of the brothels in which they work, nor can they travel to and from the brothels without permission. See id. Additionally, Alexander notes that, in Germany, prostitute women are forbidden from obtaining health insurance even though they are required to take STD examinations regularly. See id. Also, German judges refuse to enforce contracts on behalf of prostitute women on grounds that the contracts are immoral, whereas they do enforce contracts on behalf of clients. See id.
Moreover, these anti-discrimination measures can have an immediate impact on the lives of prostitute women. For instance, prostitute women in Kolkata, who recently wanted to form a cooperative, had to convince the law minister to exempt them from the provision of the relevant societies registration law that required the founders of the cooperative be of good moral character. There are many similar provisions that are used to discriminate against prostitute women that also need to be challenged.
103 Too Much Heat, Not Enough Light, supra note 24, at 103. Any person who causes, is likely to cause, or threatens to cause harm to a sex worker that might result in physical or mental injury, including sexual assault, sexual battery, sexual intercourse after the fifth month of pregnancy, sexual penetration with an inanimate object or sexual intercourse with either a mentally disabled or drugged sex worker, could be fined and imprisoned for up to seven years. Consent in all the above cases is immaterial provided that the sex worker consented only on the understanding that the customer or client would use a condom and subsequently refused to do so. Id. The Bill also contains provisions prohibiting aggravated abuse, such as the maiming or disfiguring of a prostitute woman or the endangerment of the prostitute woman’s life, providing for up to ten years’ imprisonment and a fine in the event of a violation of these provisions. In addition, damages for aggravated abuse must be exemplary. Id. at 104. Similar provisions prohibit the sexual exploitation of children. Id. at 105.
104 The Bill uses minimum wage laws for this purpose and allows for the input of prostitute women’s collectives that are already organized. Too Much Heat, Not Enough Light, supra note 24, at 106. The Bill also provides that if a brothel-keeper, pimp or another person pays the renumeration, notwithstanding the fact that this renumeration exceeds the minimum renumeration, such person must hold this money in trust for the sex worker and turn it over to the sex worker as soon as possible, notwithstanding any agreement for the management of funds of the sex worker or any liability of the sex worker to any such person. Id. Any violation of the right of the sex worker in receiving and/or retaining the renumeration would constitute “abuse” as provided for in the Bill. Id.
105 Too Much Heat, Not Enough Light, supra note 24, at 126–27.
106 Broken Lives, The Week, Nov. 16, 1997, available at http://www.theweek.com (on file with author); S. Seethalakshmi, Karnataka Girls Being Sold to Goa Brothels, Times of India (Mumbai), May 28, 1998, available at http://www.timesofindia.com. (on file with author).
107 Shalini SCN & Lalitha SA, Women Soliciting Change 89 (1996).
108 SAARC consists of Bangladesh, Bhutan, India, the Maldives, Nepal, Pakistan and Sri Lanka. The aim of the Association is to promote economic and social development in member states through joint action in areas of converging interests.
109 Sandesh Prabhudesai, Special Legislation Against Child Prostitution Sought, Rediff on the Net, at http://www.rediff.com/news/jul/31goa.htm (Apr. 8, 1997).
110 Soma Basu, India Plan to Combat Trafficking in Women, The Hindu (New Delhi), Apr. 25, 1998, available at 1998 WL 11568144.
111 See generally Women and Children in Prostitution, supra note 30 (describing the proceedings of the workshop).
112 The Secretary of the Department of Women and Child Welfare was present on behalf of the government at the meeting. Hence, the resolutions of the workshop reflect the views of the government on the issue. Moreover, though the opinions of the National Commission for Women, which co-sponsored the workshop are not binding on the government of India, it is fair to assume that since the government appoints the commission and since the commission works mostly on women’s issues, the government of India will look to the commission’s findings for direction in proposing legislation on this front.
113 Jyotsna Chatterji, Introduction to the Workshop, in Women and Children in Prostitution, supra note 30, at vi.
114 Id. at vi–vii.
115 Women and Children in Prostitution, supra note 30, at 114.
116 Beotra, supra note 14, at 53.
117 Id. at 61.
118 Id. at 111.
119 Women and Children in Prostitution, supra note 30, at 114–15.
120 See supra notes 70–72 and accompanying text.
121 To read about prostitution in India’s past is to invite incessant despair. Relevant works consist of either obscure reports of British officials writing on crime in India, little-studied travelogues of British abolitionists who visited India in the late 1890s, or the works of nationalist historians who blame all foreigners and, later, the British for introducing commercialized sex in India. See B.M. Barua, Introduction to S.N. Sinha & N.K. Basu, The History of Marriage and Prostitution xiii, xv (Rita D. Sil ed., 1992). See generally Elizabeth W. Andrew, The Queen’s Daughters in India (1899); S.M. Edwardes, Crime in India: A Brief Review of the More Important Offences Included in the Annual Criminal Returns with Chapters on Prostitution & Miscellaneous Matters (1924). In contrast, British reports held that the premium to produce male progeny in India was so high that Brahminical propaganda would go to any extent to endorse sexual aberrations, including prostitution, so long as a male child was the result of such relations. Sinha & Basu, supra, at 22.
122 Excellent efforts in this regard have been made by post-colonial scholars such as Janaki Nair and Sumanta Banerjee. See Sumanta Banerjee, Marginalization of Women’s Popular Culture in Nineteenth Century Bengal, in Recasting Women: Essays in Colonial History 127 (Kumkum Sangari & Sudesh Vaid eds., 1989) [hereinafter Recasting Women]; Janaki Nair, From Devadasi Reform to SITA: Reforming Sex Work in Mysore State, 1892–1937, 1 N.L.S.J. 82 (1993).
123 Chandra Talpade Mohanty, Introduction: Cartographies of Struggle: Third World Women and the Politics of Feminism, in Third World Women and the Politics of Feminism, 1, 35 (Chandra Talpade Mohanty et al. eds., 1991) [hereinafter Third World Women], quoting Honor Ford-Smith.
124 The term vedas is interchangeable with shruti, i.e., that which was heard and handed down from generation to generation verbally. Hence, the reference to Vedic hymns. See I M. Rama Jois, Legal and Constitutional History of India 19 (1984).
125 See generally R.K. Narayan, The Mahabharata: A Shortened Modern Prose Version of the Indian Epic (1978); John Campbell Oman, The Great Indian Epics: The Stories of the Ramayana and the Mahabharata (1975); Chakravarti Rajagopalachari, Mahabharata (1991); Chakravarti Rajagopalachari, Ramayana (1968).
126 Smritis are an authoritative source of Hindu legal literature. According to legal historian Rama Jois, “the compilation of the Smritis resembles the modern method of codification.” Jois, supra note 124, at 22. He notes that Smritis are a systematic subjectwise codification of all legal principles scattered in the Vedas and included in the Dharma Sutras, as well as the custom or usage which came to be practiced and accepted by society. Id. Smritis also detailed “the constitution and gradation of courts, appointment of judges, their qualification and also the procedural law for the enforcement of substantive law.” Id. at 22–23. To give us some sense of when Smritis were written, one can look to the most important of them, the Manusmriti, which was compiled sometime between 200 B.C. and 200 A.D. Id. at 27.
127 Sinha & Basu, supra note 121, at 114.
128 Id. at 194–97. I do not discuss the prevalence of the devadasi tradition in Indian society because of the distinct religious connotations of the system. This tradition of a marriage between a girl and a male or female deity was particularly prevalent in the South Indian states, where kings often undertook to build temples for deities. On the completion of construction, the King would dedicate thousands of beautiful girls to the deity. The girls would sing and dance before the deity at least twice a day. These dances brought in revenue for the state. In later times, devadasis made all the arrangements (such as washing the clothes of the deity or bringing water to the temple) for the conduct of daily rituals and worship within the shrine. There seems to be no uniformity in texts regarding the restrictions placed on their sexual relations. There are several theories explaining the origin and the social uses of the system. However, the devadasi system today has degenerated into dedicating women in the rural areas and then trafficking them to the red-light districts of Mumbai. For a detailed analysis of the system in its historical contexts, see generally K.C. Tarachand, Devadasi Custom (1991).
129 Sinha & Basu, supra note 121, at 196–97.
130 Id.
131 Id. at 207.
132 Id. (citing Kautilya).
133 Id. at 121, 240–41.
134 Sinha & Basu, supra note 121, at 207.
135 Id. at 208.
136 Id.
137 Id. at 209.
138 Id. at 171–72.
139 Cliché as this may sound, one cannot resist being surprised at and envious of the manner in which sex seems to have been celebrated in texts and social life alike in ancient India, in comparison to the reticence which surrounds the subject in India today.
140 It is tempting to blame the British alone for the degradation of Indian prostitute women. I would, however, suggest that degradation may have begun before the British came to India, namely, during Mughal rule. Surprisingly, this period has been ignored despite the detailed works that have been generated regarding the periods both preceding and following it. Except for Emperors Akbar and Aurangazeb, Mughal kings recognized prostitution as an institution. Emperor Akbar tried to regulate and reform prostitute women, while Emperor Aurangazeb attempted to ban prostitution by asking all prostitute women to either marry or leave his kingdom. See Sures Chandra Banerji & Ramala Banerji, The Castaway of Indian Society 82–83 (1989).
141 Lata Mani describes colonial discourse to mean “a mode of understanding Indian society that emerged alongside colonial rule and over time was shared to a greater or lesser extent by officials, missionaries and the indigenous elite, although deployed by these various groups to different, often ideologically opposite ends.” Lata Mani, Contentious Traditions: The Debate on Sati in Colonial India, in Recasting Women, supra note 122, at 88, 90. The meaning of the word “subaltern” can be traced from that of its opposite, i.e., the “dominant” or “elite.” “Dominant” or “elite” groups are defined as groups in power and, in the Indian case, classes allied either with the British, who held India for 300 years, or with a select number of disciples, students or epigones who in a sense collaborated with the British.” Edward W. Said, Foreword to Selected Subaltern Studies, at v–vi (Ranajit Guha & Gayatri Chakravorty Spivak eds., 1988).
142 Kenneth Ballhatchet, Introduction to Race, Sex and Class under the Raj 5 (1980).
143 Edwardes, supra note 121, at 71.
144 Id.
145 Ratnabali Chatterjee, The Queen’s’ Daughters: Prostitutes as an Outcast Group in Colonial India, Report submitted to the Chr. Michelsen Institute, Department of Science and Development 6 (1992) (on file with author).
146 In addition, the agenda of the colonial nation-state concerning the criminalization of prostitution is evident, not so much in the chapter on prostitution, as from the concluding chapter of Edwardes’s book entitled, “Crime and Indian Aspirations.” See Edwardes, supra note 121, at 149. Here, he explains that India was actually an “ancient world on a large scale” and could not be compared with civilized countries such as Great Britain, having, as it did, “wild tribes of hereditary criminals.” Id. at 149, 151. Hence, Indian criminal law had to be framed and enforced with such people in mind. This is important from the point of view of prostitution because, as explained earlier, it is the general criminal laws, often enacted during colonial rule to handle situations of law and order, and seemingly disrupted by the struggle for independence, that are currently used by Indian police to arrest prostitutes in lieu of the ITPA of 1986.
147 We also need to recognize that this decision was, in some ways, rooted in the “difference” between native women and British women. In her book, Elizabeth Andrew narrates an incident that seems to confirm this theory. The book describes a British aristocratic woman who was seized by a British soldier in India who sought to molest her. She had him expelled from the army, but not without also speaking with high-ranking British military officers about providing the British soldiers with native women so as to protect decent British women. See Andrew, supra note 121, at 13–14.
148 M. Jacqui Alexander, Redrafting Morality: The Postcolonial State and the Sexual Offenses Bill of Trinidad and Tobago, in Third World Women, supra note 123, at 133.
149 Chatterjee, supra note 145, at l–2. She notes that the participation of women in peasant struggles reflects this impact on their rights. Also, according to her, with the codification of high-caste Hindu practices relating to the distribution of land and property, women in communities where the devolution of such property had been matrilineal became dispossessed and impoverished. As a result, they often had to resort to prostitution. This view is endorsed by other scholars as well. See Kumkum Sangari & Sudesh Vaid, Recasting Women: An Introduction, in Recasting Women, supra note 122, at 6–8.
150 See Andrew, supra note 121, at 17–18.
151 One such application requested young and attractive women since some of the women already at hand at the time were not very attractive. See id. at 18.
152 Id. at 15.
153 Id. at 17, 36.
154 Id. at 34.
155 Andrew, supra note 121, at 42.
156 Andrew describes these inspections, conducted once a week, as “surgical rape.” Id. at 16.
157 Id.
158 Id. at 20. In the Bangalore cantonment, such expulsion included cutting of a woman’s hair and drumming her out of the area in the presence of a public gathering. M. Sundara Raj, Prostitution in Madras 23–25 (1993).
159 Several reasons account for the failure of this system, including corruption, faulty statistics that counted readmissions of infected men into hospitals as new cases who would be cured eventually, and the rise of clandestine prostitution.
160 The Sepoy Mutiny of 1857 refers to the revolt of Indian soldiers in the Bengal army of the British East India Company. The revolt developed into a widespread uprising against British rule in India. The mutiny was quelled by the British, who then initiated institutional reform which was marked by the replacement of the British East India Company by direct rule of the British crown.
161 Raj, supra note 158, at 35.
162 Id.
163 Id. at 37.
164 Id. at 43–44.
165 Id. at 60.
166 Raj, supra note 158, at 63.
167 Id. at 64.
168 Id. at 70.
169 Andrew, supra note 121, at 62.
170 Id. at 99–101.
171 Id. at 71–72.
172 Id. at 73.
173 Id. at 96–97.
174 Andrew, supra note 105, at v.
175 Id. at 60 (italics added).
176 Id. at 61–62.
177 See infra notes 233–236 and accompanying text.
178 Mohanty, supra note 123, at 51–53.
179 Id. at 56.
180 Nair, supra note 122, at 82. In fact, this process is especially clear in the case of devadasis. Nair describes how their sources of income were gradually stemmed, leading to their decline from professional performers to workers with nothing to offer but their sexual services. As such, the devadasi became, according to Nair, “a threat, rather than an adjunct, to the patriarchal household.” Id. at 90.
181 Barry, in her book on female sexual slavery, makes a similar observation. She notes that in the initial years of the Contagious Diseases statutes, prostitute women tended to be young and single. Barry, supra note 98, at 25. However, in the years to come, the law had made rigid the social role of prostitute women and reduced their social mobility considerably. See id. As a result, their involvement with prostitution lasted much longer. She also notes that this “social and geographical isolation [had] facilitated the criminal organization of prostitution.” Id.
182 Nair, supra note 122, at 91.
183 Susie Tharu & K. Lalitha, Introduction to Women Writing in India 1 (Susie Tharu & K. Lalitha eds., 1991).
184 Id. at 4.
185 Id.
186 Id. at 6.
187 Id. at 241.
188 See Banerjee, supra note 122, at 127.
189 Id. at 160–68.
190 Banerjee observes that women of the “rich” and “middle” stations stayed in seclusion in the andarmahals (literally translated, inner palaces, also secluded quarters for women). Id. at 128.
191 Id. at 136.
192 See id. at 141.
193 Banerjee, supra note 122, at 163.
194 See Raj, supra note 158, at 74.
195 White Slave Traffic Act (1910), microformed on History of Women, no. 9901, United States Dept. of Justice (Research Publications); Raj, supra note 158, at 74.
196 For example, in 1923, the Government of Bengal passed the Suppression of Immoral Traffic Act. Raj, supra note 158, at 94. Similarly, the Madras Legislative Council passed The Madras Suppression of Immoral Traffic Act in 1930.
197 Nair, supra note 122, at 93–94.
198 The exclusion of prostitute women extended to the political sphere as well. For example, contempt for prostitute women found expression in Mahatma Gandhi’s refusal to allow prostitute women to participate in an independence rally held at a North Indian town. His views on prostitution are such that it is too tempting not to recite them here:
Not until a woman of exceptional purity and strength of character rises and devotes herself to the task of redeeming this portion of fallen humanity, will the problem of prostitution be tackled. No doubt man can do much among men. . . . Prostitution is as old as the world, but I wonder if it was ever a regular feature of town life that it is today. In any case, a time must come when humanity will rise against the curse and make prostitution a thing of the past as it has got rid of many evil customs, however time honored they might have been.
Lakshmi Raghuramaiah, Night Birds: Indian Prostitutes from Devadasis to Call Girls v (1991) (quoting Mahatma Gandhi).
199 Nair, supra note 122, at 94.
200 See supra notes 31–32 and accompanying text.
201 The caste panchayats, or courts, openly approve of prostitution. Thus, the money a woman can earn for her family by prostituting determines her value. For instance, if a woman or girl from the community elopes with a man from the same or a different caste, the caste panchayat is known to order the boy’s parents to return the girl and to compensate her parents for the loss in earnings while she was away. In addition, filing a complaint with the police could lead to ex-communication from the caste since such eloping is an affront to the authority of the caste panchayat. Debashish Mukerji, Brothel Buster, The Week, Jan. 25, 1998, available at http://www.the-week.com (last visited Nov. 18, 1999) (on file with author).
202 I do not raise these questions in order to initiate an essentialist inquiry about Third World societies and whether formal legal systems, such as in the Western liberal democracies, can function in India. All I wish to draw attention to is the ease with which the Indian elite make certain assumptions. I propose that the Indian women’s movement be more skeptical in this regard.
203 Dugger, supra note 45, at A1. The religious composition of the prostitute community could be another level of distinction. Issues relating to the religious identity of prostitute women have not been explored yet, but it is estimated that out of the approximately 100,000 prostitute women in six major Indian cities, 84.36% of them are Hindus, 10.96% are Muslims and 0.5% are Christians. Also, 94.6% of the prostitute community in India is Indian, 2.6% are of Nepali origin and 2.7% are of Bangladeshi origin. Shalini SCN & Lalitha SA, supra note 107, at 1–2 (citing a 1994 report of the Human Resource Department Ministry).
204 In the state of Bihar, a community exists that reportedly engages in prostitution much like the devadasi system. Women and Children in Prostitution, supra note 30, at 67. In addition, prostitution is apparently practiced among Venkatasanis of the Domara community in the state of Andhra Pradesh. Id. at 80. Similarly, prostitution is also practiced by the Banchara and Bedia communities in the state of Madhya Pradesh, and the Rajnat community in the state of Rajasthan. Shalini SCN & Lalitha SA, supra note 107, at 4–5.
205 See Women and Children in Prostitution, supra note 30, at 88–89. Usha Wagh, from the city of Pune, reports that Dalit women are looked down upon in the sex trade because clients tend to prefer higher caste prostitute women. Id. Conversely, Sister Bridget, working in the state of Karnataka, notes most of the prostitute women she works with are Dalit women who are visited by upper caste men, whereas women from the upper castes are not dedicated as devadasis. Id. at 85.
206 I draw here from a review of the novel. See generally Anandhi S., Representing Devadasis: ‘Dasigal Mosavalai’ as a Radical Text, 26 Economic and Political Weekly 739 (1991) (reviewing Moovalur R. Ammaiyar, Dasigal Mosavalai Allathu Mathi Petra Minor: The Treacherous Net of Devadasis or the Minor Brown Wise (1936)). See supra note 128 for a brief overview of the devadasi system.
207 Anandhi S., supra note 206, at 739.
208 Id. at 745.
209 Id.
210 See Elizabeth Bernstein, What’s Wrong with Prostitution? What’s Right with Sex Work? Comparing Markets in Female Sexual Labor, 10 Hastings Women’s L.J. 91, 99 n.43 (1999) (quoting Lynn Sharon Chancer).
211 Wishik, supra note 4, at 26–28.
212 Too Much Heat, Not Enough Light, supra note 24, at 19.
213 Id. at 20.
214 Id.
215 Women and Children in Prostitution, supra note 30, at 58.
216 The fact that these attempts could take a lifetime is evident in the life story of Ram Sanehi, a reformer in the state of Madhya Pradesh whose personal crusade against the practice of prostitution in his native Bedia community has lasted several decades. His crusade has also taken many forms, including alerting the police to the location of brothels in urban areas, rehabilitating prostitute women, lobbying the government to grant land to families engaging in prostitution, filing public interest litigation in the High Court to have authorities notified in the state of Madhya Pradesh, and running a school exclusively for the children of prostitute women in his community. However, of the 265 Bedia families in Ram Sanehi’s town, only 120 families have quit prostitution as a means of livelihood. See Mukerji, supra note 201.
217 Women and Children in Prostitution, supra note 30, at 78.
218 Nair & John, supra note 35, at 7.
219 Too Much Heat, Not Enough Light, supra note 24, at 20 (quoting Patricia Maguire, Doing Participatory Research: A Feminist Approach 45–46 (1987)).
220 From the Floor, in Good Girls/Bad Girls: Sex Trade Workers and Feminists Face to Face 181, 182 (Laurie Bell ed., 1987) [hereinafter Good Girls/Bad Girls].
221 Valerie Jenness, Making It Work: The Prostitutes’ Rights Movement in Perspective 114, 115–16 (1993).
222 See supra notes 111–119 and accompanying text.
223 This denial of the agency of Third World prostitute women is even shared in certain non-academic quarters in North America. For instance, Carter and Giobbe note that “the overwhelmingly white leadership of this [international prostitutes’ rights] movement is comprised of academics and attorneys who don’t have to do sex work, and middle aged former sex workers who no longer do sex work. . . . [T]hese individuals exploit third world women of color who have few viable alternatives to sex work.” Vednita Carter and Evelina Giobbe, Duet: Prostitution, Racism and Feminist Discourse, 10 Hastings Women’s L.J. 37, 50 (1999) (italics in original). Thus, even though the article seeks to analyze racism and sexism in prostitution, it is able to view Third World women only as poor victims. See id.
224 See discussion supra Part I.
225 See generally Dugger, supra note 45.
226 Women and Children in Prostitution, supra note 30, at 49.
227 Id. at 85 (italics added).
228 Id. at 97.
229 They Come Out of the Shadows, The Hindu (New Delhi), May 3, 1998, at 10.
230 Id. (quoting Nimmi Bai).
231 The NGO claims to represent about 1.5 million sex workers nationally and has branches in Kolkata, Sangli, Tirupati and Delhi.
232 See supra notes 71–73 and accompanying text.
233 Mohanty, supra note 123, at 5–6.
234 See discussion supra Part IV.
235 Barry, supra note 98, at 166.
236 Nair & John, supra note 35, at 6.
237 Kamala Kempadoo, Introduction to Global Sex Workers: Rights, Resistance and Redefinition 1–2 (Kamala Kempadoo and Jo Doezema eds., 1998) [hereinafter Global Sex Workers]. Third World sex workers’ challenges on issues of accessibility and setting the agenda of the international sex worker conferences heralds their increasing visibility within the world prostitute rights movement. Id. at 23. These challenges are somewhat reminiscent of similar struggles in conferences in which Western feminists and sex workers met face to face, with the sex workers demanding a role in setting the agenda of the conference.
238 Id. at 8–9.
239 See id. at 13.
240 Id. at 14.
241 Jo Doezema, Forced to Choose: Beyond the Voluntary v. Forced Prostitution Dichotomy, in Global Sex Workers, supra note 237, at 34, 46–47. This is ironic especially because, at least historically, North American prostitute women sought to achieve exactly the opposite result with the distinction of forced prostitution and voluntary prostitution. Arguing that engaging in prostitution was an exercise of their right to choose their work was intended not to be divisive, but rather to be a move towards empowerment.
242 Id. at 45.
243 Press Release, Jyoti Sanghera, Centre for Feminist Legal Research & Global Alliance Against Traffic in Women (GAATW), Only Rights Can Stop the Wrongs (Mar. 2001) (on file with author). Apparently, some well known women’s rights activists who were participating in a meeting in Kolkata on violence against women handed a petition to the Governor of West Bengal calling for the ban on the Millennium Milan Mela, organized by sex workers for March 3–6, 2001 in Kolkata. Id. The organizing committee was soon served with a notice denying permission for the event. Id. However, the sex workers were able to muster enough political support to have the ban revoked in time for the meeting. Id.
244 Dr. Vijay Thakur made such a call for representation by prostitute women, as recorded in the proceedings of the workshop. In so doing, he urged the participants to consult prostitute women rather than start out with an ideological stance. Women and Children in Prostitution, supra note 30, at 44.
245 See Rajeswari Sunder Rajan, The Prostitution Question(s): (Female) Agency, Sexuality and Work, in Feminist Terrains in Legal Domains: Interdisciplinary Essays on Women and Law in India 122 (Ratna Kapur ed., 1996).
246 Id. at 138.
247 Id. at 139.
248 Kempadoo, supra note 237, at 8.
249 Id.
250 Id. at 13.
251 Id. at 4.
252 Id. at 5.
253 Kempadoo, supra note 237, at 5–6.
254 Supra note 104 and accompanying text.
255 I acknowledge the danger of being grouped with revivalists who bemoan the fallen status of devadasis and critically detail the role of the law in the process. According to them, the devadasi tradition was “Hindu society’s strategic way of guaranteeing the preservation of the classical arts as religious, not secular expressions.” Devedasis: India’s Legendary Temple Dancers, Hinduism Today, v.15, n.8, available at http://www.hinduism-today.com/ 1993/8/(gen4 (Aug. 1993). They clearly distinguish however, between devadasis and other “public women” such as ganikas, courtesans and dance girls. On this point, feminists and revivalists stop being strange bedfellows.
256 I briefly summarize the debate on prostitution in North America here so as to draw lessons from the North American experience. The question of how human beings, especially women, should view prostitution or sex for money has, in recent years, been the subject of much acrimony between feminists and prostitute women’s groups in the United States and Canada. Responses to the feminist intervention, or lack thereof, have assumed expressions from anger to disillusionment with the women’s movement in North America. Ironically, these sentiments are not as pronounced when it comes to the question of what legislative approach one should take toward prostitution. There seems to be a belief that decriminalization is the most appropriate policy with which to begin to address prostitute women’s needs in North America, even if this belief is a feeble one, and valid only for the short-term. Barry, supra note 98, at 235–36; Jody Freeman, The Feminist Debate over Prostitution Reform: Prostitutes’ Rights Groups, Radical Feminists, and the (Im)possibility of Consent, 5 Berkeley Women’s L.J. 75, 107–08 (1989–90) [hereinafter The Feminist Debate]. This seems to unite feminists and prostitute women’s groups alike who are usually understood to represent the two extreme positions on prostitution. However, feminists and prostitute women’s groups do differ on where decriminalization will take them. Hence, while the latter look to decriminalization as a prelude to legalization, some feminists look to it as a means of eradicating prostitution.
The feminist approaches toward prostitution closely correspond with the three feminist schools of thought namely, liberal feminism, socialist feminism and radical feminism. Freeman, supra, at 94. With the liberal feminist and radical feminist positions being at the two ends of the spectrum, it has in the North American context become clear that neither the radical feminist nor the liberal feminist positions on prostitution can by themselves comprehend the complexity of the situation. Furthermore, the division within the feminist movement regarding prostitution has hindered work towards realistic proposals for reform. Over the years however, both camps have inched towards a consensus over an immediate legislative strategy namely, decriminalization. Radical feminists acknowledge that the eradication of prostitution is not possible in the near future. They have also moved away from the original radical feminist position of partial decriminalization advocated by Kathleen Barry in 1979, presumably because it is unrealistic and could therefore, prove ineffective. See generally Barry, supra note 98. Meanwhile, liberal feminists visualize the ill effects of state regulation that would be inevitable if prostituting were treated like any other profession. Thus, it appears that notwithstanding the seemingly irreconcilable divide between the radical and liberal feminist views on prostitution, there may in fact be consensus at several levels, namely, the conceptual, philosophical and policy levels.
The most exciting developments in recent feminist legal theory on prostitution seems to come from the growing body of post-modern feminist writing. Post-modern views of prostitution have been espoused by at least two feminist writers, namely, Mary Joe Frug and Shannon Bell, the latter representing the prostitute women’s quarter. Frug appears (only by inference) to prefer decriminalization over the post-modern stance of legalization. Bell on the other hand, does not even pretend to offer any policy suggestions. Thus, this could confirm a feminist’s worst fears that post-modernism inevitably means disengagement from the feminist struggle. In understanding prostitution itself, Frug proposes first, that sex differences are semiotic. Mary Joe Frug, A Postmodern Feminist Legal Manifesto- An Unfinished Draft, in After Identity 7, 9 (Dan Danielsen and Karen Engel eds., 1995). Second, Frug argues that the nature of gender is indeterminate, incoherent and contingent. Therefore, the prostitute body engaging in sex for payment does not have an inherent meaning apart from that which the discourse that is describing her, creates of her. Bell, supra note 2, at 1–2. Also, Bell points to the “impossibility of a unitary female subject.” She instead attempts a feminism which takes into account the “positional and experiential differences” of all women including prostitute women. Id. at 6. She seeks to rescue the prostitute body from modern and feminist discourse and opens up spaces for prostitute feminist voices. Conceding that liberal, socialist and radical feminisms are counter-hegemonic when it comes to patriarchy, she observes that they are all still rooted in modernity where there is no space for the prostitute woman’s voice. A post-modern feminist reading of prostitution according to Bell, would acknowledge that “the gaps, silences and ambiguities of discourse provide the possibility for resistance, for a questioning of the dominant discourse, its revision and mutation.” Bell goes on to state that “[w]ithin these silences and gaps new discourses can be formulated that challenge the dominant discourse.” Id. at 87 (quoting Susan Hekman, Gender and Knowledge: Elemnts of a Postmodern Feminism (1990)). Hence, a post-modern reading would not engage as much in counter-identification as it would in dis-identification. In terms of the law, they contend that legal rules contain within them particular constructions of the female body. Specifically then, in relation to prostitution, legal discourse tends to at once terrorize, maternalize and sexualize the female body. Also, it makes these sex differences appear natural. The post-modern task therefore, would be to unearth these alternative meanings of the female body contained within rules directly on and related to prostitution. Legalization, to the extent that it refutes the sexualized version offered by radical feminists and the maternalized and terrorizing versions offered by the present legal system, constitutes the post-modern approach to prostitution. The post-modern suggestion is that we understand prostitution through the lenses of the radical sexual pluralism of Gayle Rubin wherein “no noncoercive sexual act, sexual identity, sexual community, or sexual object choice is morality or medically privileged over others as closer to some sexual ideal.” Bell, supra note 2, at 92. At the same time, this “does not preclude critique of gender oppression in both dominant and marginal forms of heterosexuality or analyses of the relationship among consent, desire and power in a sexist, racist, and classist society.” Id. at 95. Thus, the radical pluralist position differs considerably from the liberal pluralist position which does not take these differences into consideration.
257 Gayatri Chakravorty Spivak, Can the Subaltern Speak?, in Marxism and Interpretation of Culture 271, 306 (Cary Nelson & Lawrence Grossberg eds., 1988).
258 Id. at 308.
259 Bell, supra note 2, at 2.
260 See supra note 72 and accompanying text.
261 There are other Indian feminists who support complete decriminalization of prostitution. See Women in India, supra note 35, at 24–25. The Consultation recognized the value of the AIDS pandemic in inspiring a reevaluation of sexual mores in society, thereby providing us with an opportunity for rethinking the legislative policy on prostitution and allowing the women’s movement to build alliances across borders on the issue. The Consultation, however, also saw the danger of HIV prevention agendas that could end up violating prostitute women’s rights. Thus, it suggests decriminalization as the appropriate policy approach in contrast to legalization, because legalization allows the state too much power in regulating the lives of prostitute women. It also opines that abolition would be impracticable and would amount to ignoring the reality that prostitution is indeed an industry in and of itself.
262 See supra notes 97 & 102.
263 See supra notes 100–105 and accompanying text. I support this proposal completely except for its suggestions that prostitution be made an exercise of the right to work and, in so doing, be enforced through the framework of Indian labor laws. Moreover, I disagree with the suggestion that we treat sexual services like any other services. Despite its unmistakable leanings toward legalization, in substance, my proposal falls within the gray area between the complete legalization of prostitution and the decriminalization of prostitution with the ultimate aim of its eradication. This intermediate approach, decriminalizing prostitution while enhancing the civil rights of prostitute women, has been set out in detail by the International Committee on Prostitutes’ Rights. For details of their Charter, see D’Cunha, supra note 22, at 144–45.
264 The NCW has begun to articulate a non-discriminatory approach in certain areas. See supra notes 102–114 and accompanying text.