A People's Constitution: The Everyday Life of Law in the Indian Republic, Rohit De
Rohit De's study of previously unexplored court records tells the history of constitutional rights litigation in the Indian republic of the r950s. The following selection comes from the chapter, “The Case of the Honest Prostitute,” which details how sex workers filed a series of constitutional challenges against anti-prostitution laws that aimed to mold women into a “moral, productive member of society.” Starting first with a Muslim woman, Husna Bai, sex workers asserted their constitutional right to a trade or a profession and to freedom of movement around the country, and questioned the procedural irregularities in such statutes as the Suppression of Immoral Traffic in Women and Girls Act of r956 (SITA).
The enactment of the Constitution transformed the everyday regulation of prostitution in India. First, by abolishing trafficking through the Constitution, the authors sought to create conditions of freedom for prostitutes (from individual exploiters) while also providing a legitimate basis for the state to regulate the daily lives of these newly freed subjects. This process of abolition and rescue by the bureaucracy of social welfare, in contrast to its colonial predecessor, became marked as an arena where women could play a role in public life. Second, a prostitute who filed a lawsuit in the Indian republic was able to represent herself as an economic actor asserting her rights in a public space. Central to such prostitutes' claims was the redefinition of the idea of the productive citizen, challenging claims made by elite women that prostitution was unproductive work.
How does one evaluate the process of litigation that began with Husna Bai's petition? What insights does it offer into the relationship between women and a postcolonial constitutional republic? If one adopts a doctrinal approach, the process of litigation initiated by Husna Bai stands defeated in the Supreme Court's decision in Kaushalya Devi's case.
The Supreme Court declared SITA to be constitutionally sound and held that the rights of prostitutes could be restricted in the interest of the general public. This reading echoed the views of Indian feminists, who have argued that law is a hegemonic project of patriarchy and modernity that legitimizes only particular ways of being and doing, and that rights lose their transformative potential when institutionalized by law. Such a reading would also find favor with American critics of the rights revolution, who have argued that courts have limited power to create social change and that the costs of litigation are not worth the small judicial victories that can be achieved. Prabha Kottiswaran, a legal ethnographer of the contemporary sex industry in India, argues that sex workers are unlikely to participate in bourgeois civil society mechanisms like litigation, winning greater victories through their participation in political society.This skepticism toward the law is a valuable corrective to triumphant accounts of legal liberalism. However, viewing the success or failure of legal mobilization purely in terms of a judicial verdict severely limits our understanding of the role of law in society.
Legal practices and rights discourses develop lives outside formal state institutions. It is remarkable that before Husna Bai's petition, there existed in the popular imagination of prostitutes the belief that the right to work in the Constitution meant that the state could not abolish prostitution. This argument was made several times to the ASMH members (Advisory Committee of Social and Moral Hygiene), so they had to recognize the fact at the beginning of their report. Prostitutes talked back to middle-class women's groups in the language of rights. Abemused Rameshwari Nehru recounted that a number of prostitutes marched to her house “to claim the freedom given to them by the Constitution to ply their trade unharrassed by police for earning their livelihood.”
Any interpretation of these cases must begin by acknowledging the significance of both the number of prostitutes who became litigants and the confident assertion of their rights.
This challenges us to rethink the belief that the courts in India were the exclusive domain of the bourgeoisie. Muslim prostitutes like Husna Bai faced several degrees of marginalization and do not fit easily with other oppressed groups whose presence in the colonial courtroom has recently been studied. Nita Verma Prasad and Mitra Sharafi attribute the legal successes forged by Hindu widows and Muslim wives to “liberal judges” and “chivalric imperialism,” respectively. But destitute widows and abandoned wives were easier objects of sympathy than prostitutes, whose disruptive presence was recognized even by judges who gave favorable hearings.I would argue that the presence of prostitutes in courts and their legal consciousness are both products of their marginalization. Prostitutes became subject of intense state scrutiny and regulation since the mid-nineteenth century. Their lives and movements were often circumscribed by regulations, the breach of which subjected them to harassment from state authorities. Prostitutes had multiple points of contact with state agencies, ranging from policemen and doctors to social workers. Their experience with the criminal justice system would bring them into contact with lawyers. Thus, they would have greater awareness of the laws that affected them than middle-class or elite women, who had little direct contact with the state. [...]
More significantly, prostitutes rarely acted alone. Almost all the cases that appeared before court had multiple petitioners, and even in Husna Bai's case it becomes clear that her petition was being supported by other prostitutes in the city. The role of associations in supporting legal mobilization has also been emphasized. Living in geographically restricted areas and linked to each other with kinship and caste ties, prostitutes began forming organizations in the r950s. The Allahabad Dancing Girls Union and the Calcutta organizations had already been discussed.
As professional associations, these organizations were distinct from charitable groups that worked with prostitutes.
A study of the Bombay red-light district contrasted the Gomantak Maratha Samaj, an organization led by middle-class men who sought to prevent the dedication of girls of the Naik community, and the activities of the Association of Tawaifs and Deredars, a prostitutes' society that ostensibly promoted music and provided facilities for its members to train in music and dance. Although the first organization was praised for its success in providing matrimonial opportunities to Naik girls, the second was described as a “shield to protect the unscrupulous from lawenforcing activities.”The role of caste in this process cannot be overemphasized; it provided a resource for organizing, and the existence of a hereditary group of prostitutes complicated the narrative framed by trafficking. Despite the efforts of colonial law to homogenize all nonconformist sexual practices as prostitution, the courts were able draw upon the cultural memory of categories such as courtesans. It is striking that no other common- law jurisdiction recognized or sustained arguments defending the right to practice prostitution as a profession. It is this recognition of cultural categories that has allowed for the Supreme Courts of India, Pakistan, and Bangladesh to recognize rights of sexual autonomy for hijras and kwajasarahs (traditional transgender communities) while rejecting claims by gay men and lesbians.
Studies of legal mobilization emphasize that every culture offers only a limited stock of resources and practices from which citizens draw to construct meaning and negotiate social interactions. The enactment of the Constitution created a powerful new resource and added to this stock. The ability of prostitutes to mobilize the resources was limited by the biases the figure of the prostitute evoked in the judicial system. This interplay becomes clear when we notice what arguments have greater legal traction. Husna Bai's claim that SITA restricted her freedom to practice her profession is more easily dismissed than her complaint that the powers of expulsion granted to the magistrate were arbitrary and violated her right of free movement.
The prostitutes were successful to the extent that they were able to show that SITA adversely affected society at large, such as by granting unregulated powers to a magistrate. Michael McCann observed, “To take advantage of contradictions, to open up silences, to turn the rules against the rulers, to work for change within existing cultural traditions - these generally are the most effective strategies available to traditionally oppressed and marginal groups.”This recognition by the court was not insignificant, and till the decision in Kaushalya Devi, it operated as a precedent in almost all cases. Even after the decision in Kaushalya Devi, the judgments for Husna Bai and Begum Kalawat circulated in legal textbooks and commentaries and continue to be used by lawyers.
Litigation was also one of those rare instances in which a subaltern would appear to speak. This remained its most discomfiting feature, particularly for female leaders who had carved a role for themselves within the postcolonial state by speaking on behalf of these marginalized women. This form of speech also manifested itself in petitions of habeas corpus brought by women who were confined to rehabilitation and shelters and were seeking to free themselves from the state's interference. These moves drove one editorial to sarcastically remark that “the primary assumption behind the rescue of fallen women now being systematically undertaken in the country in obedience to SITA is that the fallen women are anxious to be rescued”; however, the escape of women from shelters and their challenges to their confinement should compel sociologists and psychologists to address themselves to the “mystery of certain women's prejudice against respectability.” I am not suggesting that this was the authentic voice of the prostitutes, but the Constitution did allow for a voice that represented the prostitute to become visible in a public domain. [...]
Since the early 1990s scholars and activists have increasingly being paying attention to sex-worker mobilization in India and other developing countries for decriminalization and access to welfare.
However, this is held to be catalyzed by the rise of transnational NGOs and the concerns over HIV and AIDs, which led to a greater engagement with the needs of sex workers. The argument that sex can be work is a radical position that emerged in the West in the 1980s. Husna Bai's case revealed a long history of sex workers organizing in India and a rights narrative shaped by engagements with the Indian Constitution, contrary to the vision of the Indian women's movement. Despite judicial pronouncements, the belief that the right to work in the Indian Constitution guarantees the right to exchange sex for money continues to be asserted by prostitutes' organizations. In 2012, four decades after Kaushalya Devi, the Darbar Mahila Samanwaya Committee, a prostitutes' union in Calcutta, distributed pamphlets to its members that open with Articles 19 and 21 of the Indian Constitution, asserting the right to a trade and a profession, as well as to life and liberty.