Sex Work and the Political Gaze

Quite apart from serious scholarly debates on the issue, it is not at all unusual for public figures and lay people alike to frequently assert the need for legislation on sex work. While the actual content of such opinions may vary, that ‘something needs to be done’ is often assumed. How do we make sense of such a political and social sensibility surrounding the issue of sex work? While this may have something to do with the overwhelming emphasis that is often placed on legislative fixes for many political, social and economic problems, I wish to make sense of this oft expressed opinion in the light of what Tambe (2009) has referred to as the ‘unusually interested political gaze’ (p. xiv) invited by the issue of sex work. Through a study of lawmaking around prostitution in colonial and post-colonial Mumbai, Tambe has argued that the extent and repetitiveness of legislative initiatives are almost entirely incommensurate with their actual effectiveness and impact on the sex trade. On the contrary, such measures can be seen as directed at producing, in a Foucauldian vein, a significant political constituency. I suggest that, even beyond the context of actual legislative efforts, it is possible to view a whole range of political and legal attention directed at sex work in this light.

Let me give a few examples of the unusual attention and interest which the issue of sex work attracts in the Indian context. Even while her appointment was caught up in bureaucratic bickering, one of the first things that Swati Maliwal, chairperson of the Delhi Commission for Women (DCW), did was to visit G.B. Road in Delhi and meet with women in various brothels. Soon after, she made provocative statements equating prostitution and rape which drew the ire of a wide cross-section of activists (Bhatnagar, 2015, August 7). Many subsequent acts of hers, including the demand for setting up a Panel on Sex Workers might have impressed the public of her commitment to work on this issue. But they may also be understood within the framework of ‘governance feminism’, a term coined by Janet Halley, which refers to the ‘incremental but by now quite noticeable installation of feminists and feminist ideas in actual legal-institutional power’ (Halley, Kotiswaran, Shamir, & Thomas, 2006, p. 340). In the present case, the ideas are apparently shaped by a radical feminist sensibility. But are such actions and statements only a reflection of feminism in a governance mode? What other readings of such actions are possible than the ones which are available on the surface?

To take another instance, in October 2014, soon after she was appointed the chairperson of National Commission for Women (hereinafter NCW), Lalitha Kumarmangalam sparked a similar controversy, although she had made a statement favouring the legalisation of sex trade, a view different from the one Maliwal advocates. The statement was apparently made in an interview with the newspaper, The Hindu (Ramachandran, 2014, October 28) and subsequently it was widely reported and debated in the media. ¹ At least in this case, there are reasons to believe that the statement was not a very serious one. Some reports claimed that the chairperson later insisted that this was her personal opinion (Press Trust of India, 2014, November 20). A press release on the NCW website stated that the chairperson had been misquoted in the newspaper and was not forthcoming on the position of the NCW chief herself ²

These two instances might indicate that the issue of sex work is a top priority for Indian women’s commissions, which are guided by various feminist and non-feminist sensibilities. ³ But one should also consider whether such gestures are primarily concerned with those involved in the sex trade or are they also directed at a much larger constituency and have as much to do with creating a particular view of the state, its different organs and its functionaries as with any other overtly stated purposed. It is not without significance that instances such as the ones cited above generally provoke intense media debate and controversy.

To provide further substance to this argument, I will consider in detail one judicial context in which sex work and sex workers have been debated in the recent past. Here I am referring to the proceedings in Budhadev Karmaskar vs. State of West Bengal, a case which led the Supreme Court of India to constitute a panel on sex workers in 2011. The murder of a woman in 1999 in a Kolkata brothel ⁴ provided the backdrop for this case. Some background of the Karmaskar case is however necessary before we proceed further.

Ironically, the case had little to do with sex work in a direct sense and actually involved the brutalisation of a 45-year-old woman who lived in a building in a ‘red light area’ in Kolkata in 1999. The woman suffered fatal injuries when she happened to come in the way of a customer visiting another woman. The accused in this case was found guilty under section 302 of IPC ⁵ by the Calcutta High Court and sentenced to rigorous imprisonment for life. An appeal by the accused brought the case to the Supreme Court in 2011. While the High Court judgment of 2007 is silent on the occupational identity of the woman, the Supreme Court judgment claims that she was ‘evidently a sex worker’. ⁶ Upholding the High Court verdict in the case, Judges Markandey Katju and Gyan Sudha Mishra observed that women in prostitution ‘are also entitled to a life of dignity in view of Article 21 of the Constitution’ and converted the case into a public interest litigation (hereinafter PIL). ⁷ With a leap that took the case to a different level of judicial discourse, in its next hearing ⁸ the court constituted a Panel on Sex Workers headed by Advocate Pradip Ghose and also included DMSC (Durbar Mahila Samanwaya Samiti), a Kolkata-based sex worker’s collective which represents sex workers, as well as some NGOs which provide employment avenues for poor women. The terms set for the panel by the Advocate Jayant Bhushan, who was also Amicus Curie in the case, were as follows:

Prevention of trafficking.

The panel submitted its report in September 2016. ⁹ Instead of examining the outcome of this panel, which indeed must be done considering the quantum of public resources which were pumped into it, ¹⁰ in what follows I will consider how the court’s pronouncements in this case exemplify the imperative to create a public impression about judicial intentions.

Such an imperative, in the first place, is especially evident in the way in which the figure of the sex worker is represented by the judges. While the terms of the panel seem to entertain the possibility of a life of dignity while continuing to remain in the sex trade, the learned judges made repeated statements to the effect that no woman would enter or remain in sex work out of choice and that a life of dignity was not possible within the trade. They made frequent statements such as these: ‘A person becomes a prostitute not because she enjoys it but because of poverty. Society must have sympathy towards the sex workers and must not look down upon them.’ ¹¹ Such depictions of sex workers in condescending, sympathising and patronising tones have a long history in the Indian judicial and political discourse (Solanki & Gangoli, 1996) and also resonate with the sensibilities associated with governance feminism.

The orders and judgments, which although not necessarily read by the wider public, nonetheless seem to be addressed to what has been termed as an ‘imagined audience’ by Tambe, an audience which is exhorted to have sympathy for sex workers. Thus in the very first order which initiated the PIL, Chief Justice Katju refers to the figures of women engaged in some form or the other of sex work in the works of Bengali writer Sharat Chandra Chattopadhyaya, in a poem of Sahir Ludhianvi (Chakle, which we are also told was sung in the film, Pyaasa), the figures of Sonya Marmeladov in Fyodor Dostoevsky’s Crime and Punishment and the legendary, Amrapali. In a later order, the judge began with a couplet of Mirza Ghalib and in yet another with verses from Ludhianvi. The figures of the prostitute found in Victor Hugo’s Les Miserables and Charles Dickens’ Oliver Twist and David Copperfield also find mention. ¹² These depictions are ostensibly meant to prove that sex workers also deserve a life of dignity. But while these literary digressions leave us in little doubt about the erudition of the learned judge, what other purposes can such references serve in the context of the PIL is something worth considering. That this part of the judgment, alongside some more musings, reappears in a piece of the learned judge’s blog which also refers back to the case is thus not insignificant. ¹³ That the whole exercise is directed to an imaginary audience is also evident from statements such as following,

Our effort in this exercise is to educate the public and inform them that sex workers are not bad persons, but they are unfortunate girls who have been forced to go into this flesh trade due to terrible poverty. Hence society should not look down upon the sex workers but should have sympathy with them. ¹⁴

And again that,

We are fully conscious of the fact that simply by our orders the sex workers in our country will not be rehabilitated immediately. It will take a long time, but we have to work patiently in this direction. What we have done in this case is to present the situation of sex workers in the country in the correct light, so as to educate the public. It is ultimately the people of the country, particularly the young people, who by their idealism and patriotism can solve the massive problems of sex workers. We, therefore, particularly appeal to the youth of the country to contact the members of the panel and to offer their services in a manner which the panel may require so that the sex workers can be uplifted from their present degraded condition. ¹⁴

A certain amount of tension which is palpable in the texts of the orders regarding the possibility of a dignified life while one remains engaged in sex work is also indicative of the concern with managing public opinion. It is thus significant that in 2012, the Union of India, that is the Indian state, challenged both the third term of reference of the panel and the inclusion of DMSC in the panel, a challenge which is indicative of the abolitionist approach of the Indian state. ¹⁵ The third term of reference, that is, the one seeking deliberations on ‘conditions conducive for sex workers who wish to continue working as sex workers with dignity’ was sought to be ‘suitably modified so as not to give an impression that the Union of India was in favour of encouraging the sex workers’ ¹⁶ in contravention of the provisions of the Immoral Traffic (Prevention) Act (ITPA). This term was thus modified to read as ‘Conditions conducive for sex workers to live with dignity in accordance with the provisions of Article 21 of the Constitution’ and Justice Mishra gave a lengthy justification to allay the apprehensions of the state (and by extension, the public). The demand for removal of the DMSC from the panel was based on the ground that they actively supported the revocation of ITPA and had been advocating the recognition of sex trade. It was suggested that ‘the continuance of the Samiti in the panel is giving a wrong impression to the public that the Union of India was also inclined to think on similar lines.’ However, the removal of DMSC from the panel was not accepted by the court as the members of the panel argued that the, ‘Samiti had contributed a great deal towards the understanding of the problems of the sex workers and it was not as if the said Samiti was encouraging sex trade, but were providing valuable inputs into the problems being faced by people engaged in the trade.’ ¹⁷ Such tensions within the course of a single case are surely a reflection of the larger currents of feminist and non-feminist debates around whether prostitution is or is not a form of legitimate work. But it can also be suggested that the concerns for public impression management over-rode other concerns in shaping of the court’s perspectives. Tambe argues that ‘What is sharply needed is the reminder that the state is an interested entity, a rhetorical actor performing for audiences, both domestic and international; international funding agencies, for instance, are crucial arbiters of state policies in neoliberal times’ (2009, p. xvii). She thus cautions that the real target of such proposals and moves is not prostitution per se but public opinion and political currency.

Moreover, as argued by Tambe, prostitution invites an unusually interested political gaze as it permits the performance of many ‘metonymic functions’ on a single register (2009, p. xiv). Indeed, as has been extensively documented, this issue easily lends itself to both, media hype and consequent moral panic. Studies from different parts of the world have also shown how the figure of the sex worker (as much as the raped or abducted woman) is sometimes quite central to political discourses on nationhood and identity (Blanchette, Silva, & Bento, 2013; Joshi, 2007). It is also one of the grounds for the emergence of what has been called ‘moral entrepreneurship’, a term derived from Becker’s Outsiders (1963) by Agustin (2007) to denote ‘those who assume authority for knowing what correct behaviours are, who label others deviant and who head moral crusades against social evils’ (p. 161). ‘Inducing indignation is an overt goal’ (ibid.) for moral entrepreneurs and contributes to the process of fuelling moral panics around specific issues.

Thus the contradictory and controversial public statements often made by state representatives on the issue of prostitution should invite us to examine why this issue attracts so much political, judicial and indeed social attention. Turning a murder case, otherwise having little to do with lives of sex workers, into a PIL may therefore be an attempt to remind the public of the state’s commitment to social issues which permits the state to be seen as doing something. This may even serve the purpose of enlisting public sympathy, political legitimacy, generate funding or even build an individual judge’s reputation. These discourses can also be seen as responses to a wider moral panic around the issue of sex work which is fed into by the media and popular culture. Whether any of this in fact serves to further the interest of the sex workers is a moot question.