India: Where Rape & Prostitution are Legal

Erotic Kama statues of Khajuraho Hindu Temple (source: Le Temple de Lakshmana (Khajurâho))

In some cases. Hear me out.

The Bollywood movie Pink (2016) puts three men and three women on trial: the men for rape and the women for assault when one of them repulses the advances of a minister’s nephew by braining him with a bottle.

But the real goal of the movie is to ask whether “no means no, even if it’s a prostitute who says it.” An interesting premise in socially conservative India, but one that had to be engineered into the script through some questionable courtroom theatrics where the accused women perjure themselves by lying about accepting money in return for sexual services. I assume the manufactured transformation from “assailants” to “harlots” is some sort of Indian censor board contrivance that demanded the girls not be actual prostitutes, but could only be mistakenly deemed so. A legal fiction, if you will, since prostitution is considered a taboo subject in modern India, and rarely discussed in respectable company.

At the end of the movie (spoiler warning!), the men are convicted and the women get off scot free.

Wait, if the women admitted in a court of law that they accepted money for sexual services, how is it that they weren’t charged with prostitution? Well, it turns out prostitution is legal in India. To be clear, soliciting sex in public, as well as organized prostitution (such as the running of brothels) are illegal, but not something like escort services where women can offer sexual services privately.

WTF? A country that is not exactly liberated in the way they treat women, including the continued legalization of women being raped by their husbands has somehow instituted an incredibly enlightened policy with respect to prostitution? What’s going on?

If you guessed it has something to do with the British, no prize. After all, the Brits not only figuratively fucked India in 1947 by partitioning it into rival nations, but literally as well, by legalizing the practice of “chaklas” or regimental brothels, which paid the wages of twelve to fifteen Indian women who were expected to service an entire regiment of one thousand(!) British soldiers.

Okay, time for a bit of history.

Prostitutes can be found in India’s oldest known literature, the Vedas, and were a common sight at the courts of Indian rulers for centuries. India’s Mughal era (16th-18th century) was famous for its courtesans (known as tawaif) who were highly cultured in music, dance and literature. Predating the tawaif were the Devadassi, women learned in dance and music that dedicated their lives to serving in Hindu temples and sexually serving India’s social elites. But the British East India Company and subsequent Raj eras (1797 thru 1947) eventually outlawed the Devadassi, and replaced the tawaif with common prostitutes paid directly by the British authorities in order to protect their military and sailors from the threat of homosexuality (no, for real). The British Cantonment Act of 1864, which officially enacted state-regulated prostitution in colonial India, was the law of the land up until the 1930’s when the government finally succumbed to pressure from a combination of local “Suppression of Immoral Traffic Acts” legislation (aka the SITAs), “white slavery” abolitionist campaigning against the influx of European prostitutes, and anti-trafficking movements.

But it would take nine years after Indian independence in 1947 before the newly formed national government passed the Immoral Traffic (Suppression) Act of 1956, which expressly criminalized the brothel system, along with pimping and soliciting, but left a loophole for private prostitution. The question is, why?

Obviously, the tens of thousands of prostitutes that had formerly served the British Indian army didn’t disappear overnight. Although they had every right to be rehabilitated, reeducated and reintegrated into society, most would have gravitated to the private brothels in the larger city centers — the brothels that the SITAs were specifically designed to eradicate. Perhaps the loophole of private prostitution was designed to offer an alternative to brothel life? While this is nothing more than speculation, we do have the actual transcripts of the prostitution debate in the Constituent Assembly, which pitted the pragmatists against the idealists. Here’s an excerpt:

Dr. P. S. Deshmukh: There are licensed public houses where doctors periodically visit […] This is not a novel thing; this has been done already in many countries. If prostitution has to be there, it is necessary that it should be under State control.

Shri R. K. Sidhva: Mr. President, I was rather surprised at the attitude [that] says this institution is centuries old and it cannot be abolished. Prostitution in India is a disgrace and shame to us.

Shri Brajeshwar Prasad: If you [try to] abolish, the whole thing will go underground.

Seth Govind Das: We, who have worked under the leadership of Mahatma Gandhi for the last thirty years, had formed new ideas about the standard of morality and had expected that under the new Constitution […] institutions [such] as prostitutes, bars and gambling would become extinct.

The SITA of 1956, then was nothing more than a compromise, effectively outlawing the institutional aspects of prostitution while leaving in place the ability (though not the right) for women to make a private living selling their bodies. However, it has since become obvious that the Indian government has regretted the loophole, clamping down by passing the Immoral Traffic (Prevention) Act of 1986, which introduced a six month jail term for any prostitute making her phone number known publicly. Additionally, the Indian Penal Code includes several clauses that deal with offenses related to public health, decency, morals, and public nuisance, all of which are vague enough to allow for the exploitation and extortion of prostitutes at the hands of the police.

The result is that, much like in the movie Pink, prostitution in India is little more than a legal fiction; a loophole that continues to be tightened until it’s all but impossible to conduct in real life. But unfortunately, it’s still legal* for a man to rape his wife. Just don’t discuss it in polite company.

*To be fair, there are dozens of countries where this is still true.

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