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(As part of our blog round-table book discussion, this is the second of the substantive responses to Rohit De’s A People’s Constitution, by Prof. Ratna Kapur.)

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Prof. Ratna Kapur

Rohit De’s very compelling archival and historical excavation situates the Constitution and the making of Indian constitutional law in the everyday lives of the people. But not just any people. It is driven largely by those who were left out, excluded or subordinated, both historically as well as from the postcolonial liberal democratic political space. De describes this process as “constitutionalism from the margins.” These are the subalterns whose rights claims produced a constitutional consciousness.

The `marginal’ citizens that have led this process include the sex worker. De’s chapter entitled “The Case of the Honest Prostitute: Sex, Work, and Freedom in the Indian Constitution” provides a refreshing insight into rights struggles that have informed the legal regulation of sex work and how these continue to resonate in contemporary discussions on sex work, anti-trafficking and sexual morality.

The chapter provides a close reading of the case of Husna Bai, who, in 1958, filed a writ petition in the Allahabad High Court under Article 226 of the Constitution challenging the constitutional validity of the Suppression of Immoral Traffic in Women and Girls Act1956 (SITA). Her central claim was that as a sex worker and citizen of India, her right to practice her profession as a prostitute under Article 19 of the Constitution was being infringed by the new anti-trafficking regulatory regime established by SITA.  She wanted the Act to be declared ultra vires as it struck at the means of her livelihood, and “frustrated the purpose of the welfare state established by the Constitution in the country” (p. 169). The case received extensive media attention and was supported by prostitute organisations throughout the country, triggering similar cases in other high courts, including Delhi and Bombay.

De’s narrative draws attention to three important features of Husna Bai’s intervention.  The first is how it led to a convergence of opinion amongst female members of the Constituent Assembly and parliamentarians as well as social workers who had driven the legal campaign for women’s equality rights under Articles 14 and 15 of the Constitution to outlaw what they described as “immoral traffic”, and the emancipation of the prostitute. The campaign to have human trafficking and forced labour included under Article 23 of the new Constitution was led by one of India’s first female lawyers and a member of the Constituent Assembly, Durgabai Deshmukh and supported by Hansa Mehta, President of the All India Women’s Conference (AIWC).  Deshmukh and her female compatriots were aghast that a petition could be filed for upholding the “right to carry on prostitution or the business of brothel keeping” (p. 170), which they determined would undermine the national progressive agenda in favour of women’s rights to equality and freedom. Article 6 of the AIWC’s “Charter of Rights of and Duties for Indian Women”, included the role of women in maintaining moral standards. Within this framing there was no recognition of the subjectivity of Husna Bai, either as a sex worker, or as a Muslim and a citizen of India in her claim for rights. Instead she was viewed as a victim and an abject subject, to be rescued, rehabilitated and incorporated into the dominant moral order. Her future in postcolonial India would be scripted by those who viewed themselves as the keepers and preservers of Indian womanhood and the moral dignity of the nation. The position of Deshmukh and other liberal female parliamentarians presaged the anti-sex trafficking and abolitionist position of Indian feminists that has been dominant in the contemporary moment. The construction of the identity of the nation as a sexually conservative, heteronormative, marital and reproductive arrangement was to constitute the normative scaffolding within which women’s subjectivity was to be recognized and women’s equality rights conferred in postcolonial India.

Second, Husna Bai is the first case to foreground the agency and presence of the female sexual subaltern in law. The prostitute had been constructed largely as a contaminant and a source of disease in colonial law. This construction erased the plural and varied categories of female sexual subjects in the Indian context that included temple dancers, concubines, sex workers, dancing girls, classical musicians and others.  Husna Bai’s intervention signalled the arrival of the female sexual subject, who challenged the vast bureaucratic and welfare apparatus established under SITA to manage and regulate the prostitute all without her consultation or participation. This exercise of governmentality was designed to ensure the female citizen’s compliance with the emerging conservative norms of Indian womanhood through which the identity of the Indian nation came to be established. Vast powers were conferred on local magistrates as well as the police to manage this `rogue’ subject into normative compliance or be evicted from the public arena and sequestered into protective homes and shelters that rendered her completely invisible and non-existent.

Husna Bai’s challenge, filed almost immediately after the promulgation of SITA, attested to her knowledge of its implications on a range of her fundamental rights.  It also triggered the mobilisation of sex workers in the form of both protests as well as similar legal challenges against the encroachment of the new legislation on their rights. In this struggle, women’s rights advocates were directly pitted against the rights of the women affected by the new law. While sex workers had managed to navigate their lives around earlier laws through techniques such as bribes, claiming to be married (pp.182-183), labelling themselves as dancing girls or singers to avoid prosecution as `public prostitutes’, they continued to be subjected to intense legal and moral scrutiny. Husna Bai chose not to continue with these methods, which denied her status as a prostitute. Instead she opted to fully confront the repressive nature of the laws as well as the categorisation of sex workers as immoral, criminals, or deviants.  In claiming the right to practice her trade and profession on behalf of her entire class of workers, Bai presented herself as a “labouring citizen claiming economic rights” (p.189) as well as a breadwinner for her family.  The implications of such a bold position were both legal and normative. Not only did Bai insert herself as a legitimate citizen entitled to rights claims, she also disrupted the victim/contaminant rhetoric in which the sex worker’s subjectivity had been embedded in law.

The third implication of Bai’s intervention involves the court’s response to her claims and its legacy for the female sexual subaltern as well as feminist politics in the postcolonial present. Husna Bai’s petition was ultimately dismissed but not before the court examined her substantive arguments. Justice Sahai of the Allahabad High Court was of the view that prostitution could be recognized as a trade under Article 19(1)(g), and that restrictions which totally prevented a citizen from carrying out her trade would be unreasonable and void. The fact that the act criminalised `living off the earnings of a prostitute’ was found by Justice Sahai to be unreasonable, given that the trade was usually carried on in the home of families living together, and where household expenses were also shared. Bai further challenged the provision permitting a magistrate to remove a woman from his jurisdiction if the court received information that she was a prostitute. She alleged that the provision impinged her right to mobility, violated her right to equality insofar as the prostitute was treated differently from all other women and this was an unreasonable classification, and infringed her right to freely practice her trade under Article 19(6) (pp.198-199). Justice Sahai supported Bai’s objections. He was of the view that the conferring of unfettered power on a magistrate to remove a woman from his or her jurisdiction for all time, was not only arbitrary, but only served to push her into another locality, and did nothing to liberate her from the trade. In the end, while Justice Sahai accepted the merits of Husna Bai’s challenge, he declined to entertain her petition because her specific rights had not as yet been violated, and hence the petition was premature.

In 1964 the Supreme Court upheld the constitutional validity of the various provisions of the SITA that were the subject of the legal challenges brought by Husna Bai and others after her. In the State of Uttar Pradesh v Kaushalya Devi, Chief Justice Koka Subbarao not only upheld the classification of the prostitute as a separate category as reasonable, but also held that the power conferred on magistrates to remove her from the jurisdiction depended on the “values of life in a society… and the degree and urgency of the evil sought to be controlled” (p. 208). The case sought to push the sexual subaltern back into a normative box.  But De’s inclusion of Husna Bai’s case is not located within the logic of victory or defeat. It is to demonstrate the ways in which the subaltern could perform her rights under the new Constitution as an entitled citizen, challenging the dominant myth that the Constitution was a judicially driven endeavour. Bai’s case did not die with the dismissal of her petition. Justice Sahai’s reasoning has become a peg on which the sexual subaltern has fastened her subsequent rights claims. The legacy of Husna Bai thrives in the undercurrents of subsequent challenges, especially in contemporary trans rights and LGBT rights advocacy.

De’s foregrounding of Husna Bai’s petition is a crucial intervention in the debates on sex work and trafficking, which have moved rapidly to the top of feminist national and global agendas in the contemporary moment. The narrative he pursues through Bai’s case speaks to the dissonance and disruption that the female sexual subaltern brings to the legal arena, and to the neat and tidy prescriptions on how to be a proper/good Indian woman. And as De points out, the narrative also challenges the position of those feminist scholars who view the law as inherently patriarchal and incapable of accommodating the claims of women such as Husna Bai. De demonstrates how Husna Bai’s petition produced alternative understandings of female subjectivity in the legal arena that stood in direct contrast to those being promoted by (bourgeoisie) women’s rights advocates and female parliamentarians in the aftermath of freedom. The case not only triggered a series of rights claims and litigation by sex workers, it has become a part of the genealogy of sexual subaltern subjectivity that is echoed today in the rights advocacy of groups such as Calcutta’s Durbar Mahila Samanway Committee (DMSC). The case exemplifies how sex workers have talked back to middle-class women’s groups in the language of rights (p. 210) and continue to do so.

De’s excavation of the historical narrative is a vital contribution to the archive on the female sexual subaltern’s presence in Indian constitutional legal discourse. It complicates equality rights claims by highlighting the distinction between those women who were pre-selected (or self-selected) as entitled to equality rights in the nationalist and postcolonial liberal democratic order, and those subalterns who were excluded and compelled to battle through the courts for legibility through rights claims in the newly accorded space provided by the Constitution. This contribution pushes back against the often patronising and protectionist stand of nationalists as well as women’s rights groups who usurped the subaltern voice. Partnerships or alliances between conservative religious groups, progressive-left, centre- liberal, progressive secular feminist groups as well as sex work abolitionists around issues of sex work and anti-trafficking have become commonplace in the global politics of sex and gender.  De’s foregrounding of the subaltern voice not only signals the presence of the “resistive subject” in Constitutional rights making and adjudication, it presents a history of how this voice was formative in the emerging politics of women’s Constitutional rights discourse in the aftermath of independence. It provides a crucial archive for marginalised women and sexual subalterns to draw upon in contemporary constitutional rights struggles.

(Ratna Kapur is Professor of Law , Queen Mary University of London, and Distinguished Visiting Professor, Symbiosis School of Law.)