Sex Work (7 Issues in Contemporary Indian Feminism)

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Sex Work<!-- left--> focuses on the specificities of debates around sex work in the Indian women’s movement over the last decade: the influence of international abolitionism and public health campaigns vs. the construction of sex work as a violation of human rights and women’s right to equality and freedom from exploitation. It offers a serious engagement with different approaches to regulating sex work, from recommendations for increased criminalisation, partial decriminalisation or legalisation involving registration and compulsory health checks for sex workers.

The book comprises four major sections: colonial legal histories of sex work; post-independence feminist debates on sex work; some contemporary ethnographies of sex work; and the mobilisational politics of sex workers themselves. It also includes documents and manifestos from the sex workers’ movement.

Prabha Kotiswaran is Lecturer in Law at the School of Law, School of Oriental and African Studies, University of London, where she teaches Criminal Law, Law and Social Movements and Feminist Legal Theory. Her research interests are in the areas of gender and the Sociology of Indian law. She is the author of Dangerous Sex, Invisible Labor: Sex Work and the Law in India (forthcoming 2011).

In 2007, the South Asia office of the United Nations Office on Drug Crime (UNODC) commissioned an eight-minute documentary One Life, No Price. Prominent Bollywood actors recounted narratives of women and children trafficked into various forms of employment. But, half way, the docu-fiction narrowed its focus back to sex work showing a powerful and vigilant state cracking down on the commercial sex trade, arresting customers and rescuing victims, Repeated shots of locked-up brothels became the resounding message of the public service announcement which ends with Amitabh Bachchan telling us to get organised to fight what has now become the ‘organised crime of human trafficking’. Barely a few months before the announcement was aired, however, sex workers articulated a rather different understanding of human trafficking. The National Network of Sex Workers (NNSW), a network of Indian sex workers’ groups mobilised 4000 sex workers to march to Parliament protesting a now-lapsed amendment to the Immoral Traffic Prevention Act, 1986 (ITPA) which sought to criminalise customers of sex workers. Sex workers formulated the problem of trafficking as involving ‘the sexual exploitation of girls and child brides in the vast majority of our homes; our stunted, topsy-turvy yet multi-faceted sexual culture; our sex-ratio imbalances; our avoidance of sex education; and the reality of human trafficking in our vast human ocean of wage-less slavery.’ (Durbar Mahila Samanwaya Committee 2006b)

These two contrasting takes on trafficking exemplify the ideological sparring that the current global sex panic (Weitzer 2006; Brennan 2008: 49) has unleashed where, under the aegis of the erstwhile abolitionist Bush administration, international resources targeting trafficking have explicitly attempted to abolish sex markets around the world (Bernstein 2007; Brennan 2008: 49-50). In the process, the embattled figure of the enslaved third world sex worker has made its way into the popular imagination. As her image continues to be powerfully problematised by feminists (Kapur 2005; Kempadoo et al. 2005) and sex workers themselves, this volume will focus on the specificities of the Indian sex work debates which unfolded well before this international impulse towards abolition.

The scale of the ‘problem’<!-- left-->

The moral panic around sex work and human trafficking is fuelled in large part by the scale of the problem and its complexity, prevalence and resilience. According to the entry for India in the June 2008 Trafficking in Persons (TIP) Report published by the United States’ State Department, approximately 20 to 65 million Indians are affected by forced and bonded labour (US Department of State 2008). Estimates of the Indian sex industry, being one of the recipients of trafficked labour, also vary between the National AIDS Control Organisation’s figure of 831,677 to 1,242,819 sex workers (NACO 2006: 21) and 10 million (Saxena 2002; EPW 2007). More generally, 10 million women are said to sell sex in Asia with 75 million regular customers, 30 million of whom are in India (Commission on AIDS in Asia 2008: 23, 38). Despite such fluctuating estimates, sex accounts for 86 per cent of HIV transmission cases (NACO 2006: i). Specifically, NACO claims increasing evidence that India’s HIV epidemic is driven by sex worker-client interactions (Ibid.: 19). Interestingly, however, contrast the images of trafficked women in brothels permeating through the United Nations Global Initiative to Fight Human Trafficking and abolitionist campaigns against the claims of the Joint United Nations Programme on HIV/AIDS (UNAIDS) and NACO referring to the increase in mobile and street-based sex work in India.

Some terms clarified

The terms used for sex work and sex workers are varied as they are contentious. Indian feminists and indeed the National Commission for Women (NCW) have for long used the term ‘prostituted woman’ rather than sex worker to connote Indian women’s coerced entry into sex work. Variations include victims of commercial sexual exploitation (CSE) and survivors of CSE connoting women in sex work and those rescued from it respectively (Sen and Nair 2004). 1 use the term sex work here instead of prostitution and sex worker instead of prostitute to de-exceptionalise sex work as a form of female reproductive labour performed for the most part under conditions of extreme inequality.

Apart from sex workers’ efforts to reclaim the legitimacy of sex work in the context of HIV, pre-existing domestic etymologies of sex work in regional languages reflect sex workers’ own sense of their labour and identity as well as the political economy of sex markets. Sex workers for instance use the term pani (work in Telugu) or thoril (occupation in Tamil) for sex work. Housewives colloquially refer to them as ‘being in business’, as do sex workers themselves when they speak of engaging in dhanda or ‘business’ (Menon 2007: xxxviii). Further, they may, instead of expressing their identity as sex workers refer to their work arrangements such as working ‘on contract’, doing ‘secret’ sex work or working with an ‘owner’ or ‘broker’. That the primary referent for the above terms is labour, if only in a descriptive rather than normative sense, could suggest the unspeakability in the Indian context of the sexual component of sex work or may signify sex workers’ entrepreneurial experience of sex work transactions. Alternatively, sex workers may experience sex work as work because women understand sex as work. Kakar reports that wives in a study used the term kaam and dhanda or business for sex (Kakar 1989: 22) suggesting that women viewed sex more as a chore or involving ‘contractual and impersonal exchange relations’ (Ibid.) rather than a pleasurable marital activity. If following Kakar, sex became work then the world of work perpetually demanded sex. To illustrate, sexual demands from owners, contractors and other labourers are an integral part of poor women’s livelihood (Devi 2002) whether they are trafficked tribal labourers in Kolkata’s brick kilns or Punjab’s prosperous farms. This insight repeatedly emerges in the pamphlets of sex worker organisations where sex workers mention it as a reason for deciding to sell sex. Conversely, sex work transactions are often structured around existing work practices for migrant labour in the unorganised sector. It is at these intersections where sex becomes work and work demands sex that sex work needs to be understood rather than by fetishising sex as necessarily reciprocal and pleasurable and work as always dignified.

The Indian sex work debates: some points of departure<!-- left-->

Surveying the landscape of sex work debates worldwide, the Indian sex industry presents some points of difference which has a bearing on the normative and regulatory status of sex work. These relate primarily to the size of the Indian sex industry (1.2 million female sex workers versus about 1500 in Sweden, the harbinger of demand-curbing policies), chronically under- explored sectors of the industry such as sex work contracts or sex work associated with pilgrim economies and finally, the exceptional levels of physical and sexual violence inflicted by the Indian police on sex workers. As for feminist debates, the acrimonious tone of the conversations between feminists and sex workers elsewhere (Bell 1987: 11) has been muted in the Indian context. Also, unlike western sex worker movements where a sex radical emphasis on sexual pleasure and freedom is palpable, in India, the overwhelming motif for sex worker identity is that of the working class woman with familial obligations. This is not to reinforce the abolitionist claim that coerced sex work in India is induced by poverty, or to de-emphasise sex workers’ role in giving and receiving pleasure. Indian sex workers’ claims also differ in that they do not see themselves primarily as wage labourers, independent contractors or self-employed professionals but as workers in the unorganised sector. This is reflected in the rights discourse they deploy. While sex worker movements elsewhere have advocated for civil and political rights, the Durbar Mahila Samanwaya Committee (DMSC) has instead argued for collective rights and the right to resist (Gooptu & Bandyopadhyay 2007: 263). A senior sex worker activist from New Zealand, a country that has undertaken pioneering prostitution law reform thus opines that DMSC is 50 years ahead of sex workers there (DMSC 2005: 32).

The cross-currents of science and ideology

When the Indian Parliament dissolved in 2009 without, the passage of the proposed amendment to the ITPA by both houses, sex workers’ groups across the country breathed a sigh of relief. The governmental dissonance which resulted in this legislative failure was produced by the convergence of a worldwide push towards abolition fuelled by US radical feminists and religious conservatives (Bernstein 2007) and operationalised globally by the Bush administration on the one hand, and the international public health imperative of preventing the spread of HIV/AIDS on the other. Both trends have differing understandings of the institution of sex work, of sex workers and of the role of the law in regulating sex work.

The abolitionist position largely maps onto the radical feminist analysis of sex work viewing it as an institution of coercion, discrimination and inequality. Sex workers are viewed as victims. There is a heightened emphasis on the role of the criminal law given its assumed unidirectional effect in repressing sex markets. In fact, both international and domestic US laws provide a primary vehicle for the abolitionist movement’s influence worldwide. The primary international law is the 2000 United Nations Protocol to Prevent, Suppress and Punish Trafficking Against Persons (UN Protocol 2000) supplementing the United Nations Convention Against Transnational Organised Crime. The domestic US law with international ramifications is the Victims of Trafficking and Violence Protection Act, 2000 (VTVPA) under which the US Department of State releases rankings of national governments who received US aid, based on their performance in preventing trafficking, prosecuting traffickers and protecting the victims. Countries that do not comply with a certain minimum standard for the elimination of trafficking so that they fall within Tier 3 of the annual TIP Report risk withholding of non-humanitarian, non-trade-related foreign assistance (Halley et al. 2006: 363). National law reform can have immediate effects on a country’s placement in the TIP report. Israel for example, was initially in Tier 3 but was promoted to Tier 2 once a parliamentary committee on the trafficking of women was convened (Ibid.: 364). Even ratification of the UN Protocol assists with a higher placement in the tiers (Ibid.: 367).

Although India signed the UN Protocol on December 12, 2002, it has yet to ratify it. India figured in Tier 2 for the first three years (2001, 2002 and 2003) of reporting and has since 2004 been on the Tier 2 Watch List. The urgency with which the amendment to the ITPA was pursued by the Indian government was commonly believed to be related to its placement in the TIP report’s rankings. Irrespective of whether one subscribes to this belief or not, the abolitionist agenda of the US government has generally had a chilling effect on the public discourse around sex work with sharp lines being drawn between those who want to eradicate sex work and those who are more ambivalent about such an absolutist stance. Anecdotal accounts of Indian activists on either side confirm this. After all, NGOs perceived to advocate legalisation have faced swift sanctions through the loss of international funding (Nagarajan 2005). Domestic abolitionist organisations and international outposts of US church-based organisations were thus well funded under Bush administration policies, ostensibly to counter sex trafficking and rescue and rehabilitate sex workers but which in turn had the potential to create a rescue industry with sex workers bribing activists to stay in brothels (Thinley 2002). There is no indication to date that the Obama administration will reverse or alter the US stance on the issue. More significantly, international abolitionism has led to the local level micro-surveillance of women and girls. To illustrate, in its response to a query from the Supreme Court of India about the steps taken by the state government to enforce the 1998 Plan of Action to Combat Trafficking and Commercial Sexual Exploitation of Women and Children proposed by the Department of Women and Child Development (DWCD), with Ministry status from 2006 (MWCD) (DWCD 1998), the state of Gujarat claimed to have increased surveillance near women’s educational institutions and working women’s hostels, Similarly, Vasudha Mishra, the secretary to the Andhra Pradesh Department of Women and Child Development literally advocated the formation of community vigilante groups to combat trafficking.

Science not ideology

Lest we overestimate the influence of the abolitionist agenda, the anti-HIV/AIDS machinery has been equally influential. Anti-pandemic efforts have led to the formation of public- private partnerships, struck between the state (at both the central and state levels) and foreign donors, including multilateral institutions like UNAIDS, development agencies like the United States Agency for International Development (USAID) and Department for International Development, UK (DFID), venture philanthropists like the Gates Foundation and celebrities with deep pockets. With the expansive role for civil society in these partnerships, NGOs have proliferated, producing purveyors of sexuality, who have created a knowledge base on hitherto unexplored sexualities like MSM (men having sex with men) and F’SW (female sex workers). Informed by the liberal attitudes of the medical profession, this complex demonstrates tolerance for varied sexual practices, including sex work. However, its support for sexually marginalised groups is constrained by a utilitarian calculus that permits interventions amongst sex workers but only to the extent necessary to prevent the spread of HIV to the general population, innocent wives and children in heterosexual marital families. Thus NACO is set to scale up targeted interventions in Phase III of the National AIDS Control Programme to organise one million sex workers by 2011. This agenda requires an understanding of sex workers not as victims but as ‘change agents’ who can negotiate relations with customers.

As such, this complex has no legal agenda of its own. The law is perceived to be an ‘environmental factor’ or a barrier to effective large-scale interventions. Public health bodies typically call for a rights-based approach to sex work without unequivocally advocating decriminalisation. To illustrate, NACO’s strategy for combating violence against sex workers is to scale up community-based organisations who, trained by the NNSW, will deal with police harassment and street violence, assisted by access to rights, speedy redressal of violations, and sensitised law enforcement authorities and service providers. Yet, nowhere does NACO call for the repeal of the ITPA (NACO 2006: 142). Similarly, the Commission on AIDS in Asia (2008: 187) calls for the removal of barriers to sex workers’ organising and for the protection of right to work without fear of violence and arrest (The Lancet 2004: 297 99). Only the UNAIDS and World Health Organisation (WHO) have called for the decriminalisation of sex work if no victimisation is involved (Ahmad 2001: 643; Rekart 2005: 2129). So, on the one hand, while the exigencies of pandemic control would be a slippery slope on which to base a campaign for sex workers’ rights, it counteracts the abolitionist project, which altogether refuses to countenance sex work or sex workers, In this sense, it offers a space for resisting the increased criminalisation of sex work.

The two international projects outlined above coexist in deep tension with each other and have a cascading effect on a range of domestic and international actors, both governmental and non-governmental, who coalesce around their differing positions. The abolitionist space for instance has come to be occupied by the MWCD, the Ministry of Home Affairs, the National Human Rights Commission (NHRC), the NCW and certain state women’s commissions, who have recently adopted an Integrated Plan of Action to Prevent and Combat Human Trafficking calling for increased criminalisation. They are joined by the South Asia offices of UNIFEM and UNICEF and most recently, UNODC under whose auspices, anti-human trafficking units (AHTU) have been set up in certain states with the aim of shutting down places of CSE and rescuing victims. Arresting customers and traffickers, the AHTUs treat trafficking on par with organised crime. These government and international agencies are in turn aligned with domestic abolitionist NGOs on whom the state often depends given its lack of monetary or human resources.

The public health position on the other hand, is orchestrated by the Ministry of Health, NACO, the Planning Commission and the Second National Commission on Labour at the domestic level and UNAIDS and WHO at the international level. The Planning Commission (Ghildiyal 2005) and the Second National Commission on Labour (2002: 614) have recommended legalisation, registration for frequent health check-ups and sex workers to be treated as self-employed persons to enable their access to health policies and insurance respectively. Thus their opposition to criminalisation is tempered by their support for aspects of conventional legalisation like mandatory testing, which sex workers’ groups have repeatedly rejected.

Although the influence of international abolitionism and public health campaigns on the construction of sex work cannot be underestimated, a vigorous domestic debate was well under way before the pressures of the VTVPA took hold. Yet, despite the extensive engagement of the women’s movement with issues of violence against women, it hardly provided the impetus for a fundamental rethink of sex work policy in the 1980s and 1990s, The discovery of HIV in 1986 led to a few ill-informed legislative attempts which did not materialise. By the early 1990s, more considered proposals (included in this volume) were being made by academic institutions like the National Law School of India commissioned by the DWCD to reform the ITPA. Although these proposals were problematic on many fronts (Centre for Feminist Legal Research 1999; Kotiswaran 2001), generally speaking, they demonstrated a serious engagement with the different approaches to regulating sex work, rather than the more well-worn option of criminalisation. This was also the time when open-ended sociologies of sex industries were being commissioned by the government and undertaken by NGOs to identify the contours of the sex industry. By the mid-1990s, the NCW developed an interest in the issue commissioning several reports. It understood sex work as a violation of human rights and women’s right to equality and freedom from exploitation. It highlighted the power of patriarchy, the irreparable harms of sex work, collapsed all sex work into sexual servitude and slavery, assumed the impossibility of any sex worker consent, however circumscribed, given Indian women’s poverty, and refused to distinguish between child prostitution and adult prostitution and between sex work and trafficking. We find here the elevation of a radical feminist perspective on sex work. This was a clean break from the then prevalent tolerationist view of sex work as a necessary social evil catering to insatiable male sexual need. Instead, the discriminatory enforcement of the ITPA revealed the hypocrisy of the patriarchal state, prompting the NCW to call for changes (not the repeal of) to those ITPA provisions that criminalised sex workers and were used most often against them and to criminalise male customers instead. The NCW had already set the tone for future government policy on the issue.

While the central government showed no signs of amending the ITPA, NGOs mobilised the courts to elicit a policy statement from the executive. The DWCD’s 1998 Plan of Action was one such statement issued during the Bharatiya Janata Party’s (BJP) tenure in power. The Plan mimicked the radical feminist speak found in earlier NCW documents, but in fact, demonstrated a conservative sexual ethic whereby the sale of sex for money was immoral, justifiable only by women’s grinding poverty. It distinguished between victims of CSE who were willing to be rehabilitated, and therefore deserving of state help, and those who were not, thus reinforcing patriarchal codes for female sexuality that feminists were targeting to begin with. It went on to recommend the forced institutionalisation of child victims and children of sex workers and the isolation of HIV-positive sex workers in the terminal stages of AIDS in separate shelter homes (DWCD 1998: 37). Rather than call for the repeal of sections of the ITPA used most often against sex workers, the 1998 Plan of Action instead recommended its review to prevent the re-victimisation of sex workers, but also to pin liability on customers, traffickers, pimps, brothel keepers, parents, guardians, and other colluders.

In 2004, the NHRC based on a substantial study on trafficking in 13 Indian states called for increased criminalisation under the ITPA. In fact, the report sought to legally entrench the distinction seen in the 1998 Plan of Action between a victim of CSE and a sex worker willing to do sex work recommending that only minors and victims of CSE not be prosecuted under Section 8 for soliciting. In other words, a sex worker who solicited voluntarily, without any coercion, threat, deceit, force, compulsion or intimidation (Sen and Nair 2004: 231) and with the state of mind required by the offence could still be prosecuted under the section. Further, the report called for prosecuting customers for soliciting and carrying on prostitution in public. As criminalisation was sought to be stepped up, rehabilitation was touted as the ‘creative essence of the preventive process’.

Through the 1990s, the NCW and DWCD and since 2004, the NHRC, while cognisant of the discriminatory enforcement of the ITPA against sex workers, were not prepared to even recommend partial decriminalisation whereby the sections that criminalised sex workers would be repealed, much less consider the repeal of the ITPA. Around 2002 however, the DWCD moved its position slightly to propose the repeal of Sections 8 and 20 of the ITPA, Section 8 being most commonly used against sex workers. In addition to expanding the definition of trafficking to track word for word, its definition in the UN Protocol, the proposed amendment increased penalties against brothel keepers and traffickers.’° There was no mention here of criminalising customers. But the passage of the VTVPA, and the subsequent downgrade of India to the Tier 2 Watch List, possibly led the DWCD to reconsider its proposal in 2004. By 2005, the DWCD had a new proposal, the Immoral Traffic (Prevention) Amendment Bill, 2005, now marked by a 2006 date (ITPA Amendment). This continued to propose the deletion of Sections 8 and 20 of the ITPA and substantially conformed to the definition of trafficking in the UN Protocol. Yet it undid any potential benefits of repealing Section 8 by criminalising customers.

When sex workers’ groups caught wind of the amendment which was not made public, 4000 sex workers marched to Parliament in March 2006 in protest. The amendment was nevertheless introduced in Parliament in May 2006 and referred to the Parliamentary Standing Committee of the Ministry of Human Resource Development. In its report to Parliament, the Standing Committee trod the middle ground. Trying to reign in the abolitionists, it called on the government and the MWCD to review the ITPA in its entirety and especially to rethink the criminalisation of customers and the definitions of prostitution and the trafficked victim. The AIDS lobby was not spared either and was urged by the Committee to redirect HIV prevention efforts to non-brothel-based sex workers and to prioritise the rehabilitation of sex workers with the involvement of the MWCD. Although the Committee saddled the middle ground, by the very nature of its limited mandate, it remained ensconced within the framework of criminalisation. Even more problematically, it called for the implementation of the 1998 Plan of Action.

Ultimately, if we were to trace the trajectory of prostitution law reform in India since the 1990s, it is clear that barring an experimental phase in the early 1990s, with the advent of the NCW and the strands of feminism that it propelled into governance mode, the options for legal reform have become circumscribed with government agencies typically oscillating between complete criminalisation and partial decriminalisation. Meanwhile, the Ministry of Health and NACO have largely reacted to the proposals of the MWCD rather than propose laws to more fully protect sex workers’ rights. The women’s movement has not intervened and its protest against the ITPA Amendment was almost absent. Although several countries, which had not considered prostitution law reform prior to the enactment of the VTVPA, capitulated to American pressure to reform their laws, in India, the space for reform was already quite constricted and international abolitionism merely tipped the balance in favour of increased criminalisation by hastening the impulse for reform and its direction in terms of the criminalisation of demand.

Yet, the fortunes of the ITPA Amendment were determined by dissonance (Chatterjee 2006: 805) between the law and order and health ministries of the Indian government and this ultimately led to its demise. The polarities between the MWCD and NACO had after all become sharply accentuated in recent years with Sujatha Rao, the Director General of NACO openly criticising the ITPA Amendment (Lawyers Collective 2007). And as activists had hoped, their disagreement’2 over legislatively balancing trafficking and HIV concerns became the last hope for halting the ITPA Amendment.