Abstract

The act of prostitution has existed in India since centuries have undergone change within its nature, intensity and issues concerning it. Once, socio – culturally sanctified prostitution is now have been reconstructed and represented through language as a matter of undignified profession eventually Marginalizes ‘women in sex work’ from all Public Spaces. The power of culture and language of social morality instrumentalizes the body of women which eventually marginalizes women in sex work from all Public Spaces and denies them their most basic human rights. Consequently, it becomes a question of individual self - respect, autonomy and Equalization of access to better life conditions. The state has been equally unjust towards these women with some ambiguous and vague Laws creating conditions conducive to exploit the sex - workers by the market forces and also by state Institutions. The forms of Ritualized prostitution in India and the ‘victimization’ reinforces societal moralities on these women in such a manner that it alters their perception about their own SELF as someone indulged in immoral practice. Eventually leads to unjust attitude towards human rights issues of sex-worker. Therefore, society claims its right to intervene in the life choices of these women on the pretext of saving them from being victimized. These interventions eventually seen as benevolent act of social welfare, however, it has a patriarchic logic to control the body and spirit of women. The need is to see it comprehensively but contextually to unfold the forms of marginalities attached with this profession because the act itself has complexities and poses several ethical questions over the nature of Individual, State and society.

Contemporary Form of prostitution in Modern Market- Society

In modern market driven society because of change in perceptions of morality and sexuality, the issues concerning it have undergone with tremendous change. Contemporary prostitutes are now have been marginalized from the social fabric, stigmatized within the society and are out of Public Spaces. There are ambiguities that even though in earlier periods “women in prostitution” enjoyed considerable respect but did they enjoy autonomy while becoming a prostitute? Devdasi did not enjoy such an autonomous choice and there is hardly any account of autonomous choice in case of Ganika’s and in Modern India Prostitute clearly have almost negligible autonomy while taking a decision to be in sex – work due to compulsions of various circumstances and their relative circumstantial position[i] as (women) within Patriarchic – Society and free choice driven market economy where they have ‘limited choice’. The language of “patriarchic morality” has made it a question of (social) dignity by relating it to the Chastity through using the binaries of GOOD and BAD women. The meaning of prostitution have been (re)constructed through language of Puritanical-patriarchal morality which is being used or misused by the society to enforce and impose the conception of moral values that goes against their autonomous space. Morality of patriarchy has been instrumental to dominate and subjugate women in Prostitution. This is sought of both ‘covert and overt’ discrimination and a kind of violence generated through the structures. Consider a case of August 1999 widely published in newspapers, quoted in (Rohini Sahni eds. Prostitution and Beyond.)

A women was arrested by Police at Pune railway station on the pretext of she was buying cigarettes at 2:30 am and police have suspicion that she is a prostitute and searching for the customers . The fact was that she was a student leaving for home.

Now the question is does buying cigrattes is an attribute which only Man possess and women can’t do so? Why police indulged in moral policing? And even if she was a prostitute who she was not, does this give right to Police to arrest that woman?

These sought of structural biases we can witness in our society at large scale where women is supposed to behave in certain manner and if she chooses to have an autonomous space, she becomes (un)dignified and consequently immoral . Does this mean that women’s autonomous choice is antagonistic to societal norms and hence women’s autonomy has least societal-value?It would be much critical saying so because there has been women who uses their autonomy in largest possible manner and even in case of Prostitutes there are some categories who enjoy autonomous choice while coming into the profession and while doing the profession, if we see invisibles, Male escorts, part time sex-worker most of them if not all enjoy the autonomous choice. But, even then they have to do it in disguise manner because of fear of being identified by the society eventually leading to their marginalization and stigmatization. So, does that mean that autonomy of women in prostitution is antagonistic to society? If that is so then individual (women) preferences and choices have no value in the structure of our society.

Market society and economics of sex work

Modern market structure considers Choice as inherent within individual but ironically the same market creates conditions which harms the autonomy of some or other individuals. The ‘Invisible Hand’ is not visible and market might have Good Masters (Principles) but certainly Bad Servants (Agents) where the Rational Self – Interested individual acts in self-interest transgressing its moral/ethical judgments for the sake of individual profit and as we have seen that structures of market together with individual self-interest eventually produces consequently marginalizes many and dislocate them from competitive market. And when they chooses within this background of compulsions , a profession which destructs their individual dignity and autonomy  by the society then how can we say an autonomous choice was made by the women to be in this profession of prostitution. Their choice of autonomy is enmeshed with the resultant marginalization within society.

The market of sex trade offers an attractive way of earning income where women can earn and become independent through her sexuality. This women’s sexuality as service gives them an instrument that work both ways; in some matter it is a symbol of their autonomous space while in many it is not. In market, women already have lesser opportunities vis-à-vis male counterparts. The income of brothel based sex worker are divided between brothel owners and pimps consequently leaving marginal income for the sex-worker with no health, social and economic security and when she is at the age of 35 or more she find herself no more competitive in the market eventually substituted by some other young girls making aged prostitutes again going into the same poverty cycle from where she had started.

Power of culture, Victimization and marginalization

The cultural values and norms of society produce marginalization sometimes directly and reproduce marginalization indirectly through ‘victimization’. The cultural codes generated through structures of patriarchy reinforces particular norms for women and thus, creates gender essentialism which subtly but strongly influences the perception of these women about their own SELF. These women in sex-work therefore perceive themselves to be indulged in some sort of immoral practice which they might not think wrong in their individual judgment. But socially constructed meaning to this act robs off their own construction of SELF and reduces them to be a victim. Eventually this victimization legitimizes the intervention of society and state into the lives of these women in the name of saving them and this is a general phenomenon in most of the Third world countries. This logic of protection from so called immoral act legitimizes the power of culture and society no matter howsoever exploitative it may be. Consequently it instrumentalizes the body of women which needs protection from victimization. But this is not the only marginalization that cultural and victimization creates. There are multiple forms of marginalities attached to it where social marginalization and victimization also reinforces political marginalization as well because these women are driven out of the Public Space.

It is stated earlier that the association of prostitution with the religion has been the age old phenomenon, so in many parts of the country we can find the female dancers and singers attached to temples are generally referred to by the term ‘Devdasi, which literally means: ‘female slaves of the deity. The cult of dedicating girls to temple is prevailing all over India in different forms and names, such as Devdasi in Karnataka state, Maharis in Kerala state, Natis in Assam state and so on. As centuries passed, their services shifted from gods to earthly lords. Also, rural child prostitution is rooted in the continued exploitation of the scheduled castes and the position of girls is the most oppressed within these historically oppressed groups (Shankar, 1990). Many a times young girls of low caste, even before the onset of puberty are singled out by the rich or powerful people of the community or by parents themselves.

This is how cultural norms exploits and subjugates women and creates multiple marginalizations when it exploits women of low caste because they are most vulnerable to be exploited easily.

The victim subject is a general phenomenon internationally both in the West and the East. The victim subject reinforced the image of woman as a victim subject, primarily through its focus on violence against women. The focus on the victim subject especially with regard to violence against woman reinforces gender and cultural essentialism in the society and social constructions of human rights. This undermines the liberating potential of some other feminist discourses which challenges the Public/private distinction along which human rights issues are raised, and of traditional understanding of power emanating exclusively from a sovereign state.

Autonomy and Marginalization

Sex – work is simply a profession and not a moral condition……it is consistent with social demand (Sex worker’s Manifesto, Kolkata, 1997)

Some feminist argues that it is an active choice made by women to choose as survival strategy instead of begging, being destitute etc. It is as much a work as any other and an independent choice made by the women. But the question arises can it be called an active choice when women have limited choice either to die or to work as prostitute in a patriarchic society where women have lesser choices?A sex worker says:

I began working and a mestry (contractor) asked me to have sex with him. I had heard from others that if I refuse, either I will lose my job or will be given difficult and heavy work. And I started having sex with him and got into sex work. (Sahni, 2008, 148)

Now, the issue here is can it be called an active and independent choice when driven by such a circumstantial compulsion? Certainly, if the entry within the work is because she was exploited at work place and hence joined the profession then how can we call it an active choice when having sex with contractor is to save her job? However one may say that doing sex with contractor is her active choice but taking into consideration that she had fear of losing job made her to think in other way then can it be called an active and independent choice?

Some feminist commentators often argue that sex – work is a profession which is the symbol of Female’s autonomous choice and represents her independence in normally male dominated society. Unlike women in family who are ‘sexual slaves’ and can’t deny their husbands and have accepted the patriarchal normative life, the prostitutes have enlarged their independence by refusing to accept normative life of family by their autonomous will and so they are the most autonomous females in the society who can choose to whom they will do sex and to whom they will not[ii]. They can deny the males for sex and can have multiple partners; this is the most basic form of freedom that a woman should have at first instance in patriarchic society i.e. Sexual Freedom.

But if we contextualize the argument at the ground realities it seems much difficult to accept it as a matter of autonomy. In a survey conducted by All Bengal Womens Association in 1988 almost 86% women claimed they came in this profession out of some or other compulsions and NHRC-UNIFEM-ISS survey of 2004 showed that almost 62% women in prostitution are trafficked and forced into the work below the age of 16. The freedom of choice inherent in it seems dubious when those entering into the profession are seeking to escape poverty or because of some structural compulsions and the question that comes next is that do they enjoy autonomy within the act of prostitution? The brothel based sex-worker do not enjoy such an autonomy as legalist argue because they can only deny a client when client is making [un]professional demands, otherwise not , Can it be called an autonomous choice where autonomy is dependent on the their counterpart ? However one may say that Invisibles (call girl), street based sex worker and part time sex worker enjoys such autonomy to deny a client. In case of invisibles it is difficult to say as there is less reliable information is available on them but in case of street based sex worker and part time sex worker, it may be argued to have an autonomy to choose the partner but more often due to their nature of work where they could hardly be able to find much customers they find themselves in a difficult position to deny any client. But, at theoretical plain they do enjoy such autonomy however how they came in this profession through their autonomous will or force that remains a question as well?

In a country like India, most of the sex worker joins this profession below the age of being adult. The average age women coming into sex work in India is 14 and many come into this profession pre-menstruation. There are communities who are traditionally working and forced socially to remain in this work. TISS (Tata institute of social sciences) did a survey in 2009 and asked essentially one questionHow do women come into Red Light Area? The first answer was Poverty, Second was caste and third was rape by some relative or close friend. Now can it be called simply as a matter of choice and be legalized per se? However, there are many who choses it on their own volition and Invisibles and Part time sex workers may be included in that category, so making it illegal would be unfair, unethical and unjust towards the agency of those women.

The Duality of Indian  State

The law governing prostitution in India is Immoral Traffic (Prevention) Act 1986. The law defines “prostitution as the sexual exploitation or abuse of persons for commercial purposes”. The law does not criminalize prostitution per se but only organized form of prostitution is against law. If a women uses attributes of her body voluntarily and individually she goes unpunished. But the Act prohibits:

• Seduction/solicitation of customer
• Prostitution anywhere near a Public Place
• Publication of Phone numbers or advertisements
• Organized form of prostitution i.e. Brothels , Pimps etc
• A sex worker below the age of 18years
• Procurement and trafficking of women.

The Suppression of Immoral Trafficking Act, 1956 was first sustained legal effort concerning with prostitutes particularly. The purpose of the act was to abolish trafficking of women and young girls. The Act had some lapses which is why in 1986 it was amended. Like its predecessor the 1986 act, also doesn’t declare prostitution as illegal per se, however, the new legislation has a wider scope. It includes children and even men can be exploited for commercial purposes and should be protected. Section 3 of the Act has a broader definition of brothels, which will make easier to prosecute brothel keepers. Section 9 of the Act provides greater punishment to persons who cause, aid, or abet the seduction of women and girls, over whom they have care and custody, for prostitution. The central government under this act has powers to allow police officers to arrest without warrant in any premises where this offence is suspected of being committed and rescue a person forced in this profession. This act also have provisions for corrective and protective homes for the children, however, the living conditions of protective homes were found to be inhuman and degrading.

This seems an attractive law at first instance but it is a vague and ambiguous law .It is clear that brothels are illegal but still are functioning within the country and that is because the ACT makes it illegal to solicit a client, to invite a client, to advertise and hence makes prostitutes[iii] dependent on the PIMPS and BROTHEL owners for their client. What sought of Political Morality Indian state adopted while formulating this vague law that makes the lives of prostitutes even more difficult. It is neither legal nor illegal but ‘Quasi-legal’ that gives room for state institutions to be corrupt as the powers given to the agencies are so vast that they often are misused against the prostitutes. As Geetanjali Gangoli demonstrates in her book, unclear laws on prostitution coupled with negative social attitudes toward women have made for arbitrary enforcement, unequal punishments and lack of transparency. To date, legislative proposals in favor of legalization have been driven by patriarchic morality concerns, a desire to control vice and a concern for the safety of clients and client’s family[iv]. This is something which shows the duality of the Indian state.

Judiciary witnessed that two Fundamental rights are confronting on this issue i.e. freedom of choosing profession (under Article 19 clause 1 (g)) and Right to live {with dignity} (Article 21) and Justice Kabir and GyanSudha Mishra ordered (19july 2012) the Government that if you can’t regulate it then atleast provide them “conditions conducive to the work with human rights and dignity”. But also remarked that this does not mean to encourage prostitution but Government should make adequate rehabilitative measures for these women who are their because of their “relative circumstantial position”.

In another case, Upendra Baxi vs state of UP and others (1988) court ordered to provide adequate facilities in rehabilitation homes and vocational training programs to mainstream these women.

State uses the logic of victim subject and assumes responsibility for the social welfare of the subject, however, it is through this logic state in a way intervenes in the life of these woman and tries to control the body and space of the woman which is an obvious manifestation of patriarchic power relations. Eventually , the altered SELF of sex workers and victimization reduces them to be a ‘passive citizen’ where they find themselves to be a recipient of state’s welfare services paradoxically marginalizes them from their ‘active citizenship’ where they could demand their rights from state politically.

Conclusion

It is fairly clear that the idea of making it legal or illegal is not simply which we can apply in the Indian society as the context is problematic. If we make it outrightly illegal on the pretext of it being immoral then it would make an estimated 4million prostitutes, criminal in an over-night. Eventually, they will not be accepted by the society and would not get jobs in the market as well, consequently leading to the starvation, poverty, marginalization etc. which in anyway cannot be called an Ethical answer. On the other hand if we make it legal then in a country like India where majority of Prostitutes join the profession at the age below 18, some forced by their community or joins the profession because of their caste status, some chooses it out of survival needs because they find no other option in a ‘patriarchal Capitalism’, many have lack of education and have lesser exposure to the opportunities. In this scenario making it legal could internalize and legitimize not only the sexual violence but also the violence generated through structures of market and society that compels some or many to choose it as profession , we cannot simply call it an ‘autonomous choice’. Neo liberal market forces might get indulged in it in an intense pattern as it works as PULL FACTOR to Trafficking and consequently leads to the increase in the market system where Demand will be catered through Supply no matter ethical or not.

In this, complex and problematic situation one thing is however transparent that these women in prostitution (brothel based, street – sex worker) faces marginalization from Public Spaces and stigmatization. They are doing work with no worker’s right, facing human rights abuses, have no social and economic security. These manifestations attached with the act of prostitution have serious implications on their children too, who find themselves discriminated and nowhere in the society. It poses an ethical question , what we can do to restore the individual dignity of women , the social meaning of dignity  (re)constructed through changing times should be revisited and restructured to mainstream them within the society so that they could become part of the Public Spaces. Eventually, it becomes a question of providing the Equality of access to better life conditions and that’s not something which is a new demand and had never there in the past, infact they enjoyed that status in past then what went wrong with the changing times. There is urgent need to consider our patriarchal morality which we reconstructed and enforced on to these women needs to be restructured in order to make it more humane and to construct a ‘comprehensive ethical framework’ that offers a common minimum ethical ground derived through our initial moral instincts and use of reason to be Just and fair and to restore the real autonomy of these prostitutes.

These are victims of structures for sure but they are not Voiceless, they have a voice and society needs to consider theUnheard – Voices instead of suppressing them in the name of dignity and chastity.

Short Bio

Divyendu Jha, Completed Masters in Political Science from University of Delhi. I have worked with the Centre for Policy research as Assistant Researcher (Part time)

References

• Sahni, Rohini., V. Kalyan Shankar and HemantApte, 2008. Prostitution and Beyond: An analysis of sex work in india: Sage Publications India Pvt. Ltd.
• Kotiswaran, Prabha, 2011. Sex Work : Issues in contemporary Indian Feminisms: Women Unlimited (an associate of Kali for women)
• Gangoli, Geetanjali, 2007. Indian Feminisms: Law, Patriarchies and violence in India: Ashgate Publishing, Hampshire, England.
• Nath, Shailendra, 1999. Ancient Indian History and Civilization: New Age International Publications, India.
• Outshoorn, Joyce, 2004. The Politics of Prostitution: Cambridge University Press
• Acharya, Arun kumar, 2011. “Impact of cultural and Religious Practices of Prostitution on the Trafficking of women in India”: Trajectorias, vol. 14, pp. 95-114
• Karlebach, J.Nicole, 2008, Recognizing Women’s worth: the Human Rights Argument for Ending Prostitution in India, 28B.C. Third World Law Journel 483.
• Gangoli, Geetanjali, 2001, Silent Hurt or Choice: Attitudes to Prostitution In India and the West, Working Paper Series, London School of Economics: Asia Research Centre.
• Kotiswaran, P. 2001 . Preparing for civil disobedience: Indian sex workers and the law: Third world journal, Boston college.
• Baxi, Upendra. 1999. From Human rights to the Right to be a woman: Eastern Book Company, lucknow, India

Endnotes