The recent proposal by the Chairperson of India’s National Commission of Women to legalise sex work in India has sparked of a debate around the polarizing subject of prostitution. Sex work, the term being increasingly used by organisations of people in prostitution, itself provokes outrage across a broad spectrum in India, from the conservative to the progressive and feminist. The fact that sex worker/prostitute evokes such strong reactions invites scrutiny.
Morality at Play
In a society with tremendous divides of caste, class, gender and ethnicity sex workers are at the bottom of the ladder. The law and its working are illustrative of the way sex workers are looked upon in society. The law pertaining to prostitution enacted in 1956 was called the Suppression of Immoral Traffic Act. The origins as well as the title of the legislation itself reflect the conception of sex work as being synonymous with trafficking and its stigmatisation. The legislation was enacted in pursuance of the 1950 ratification by the government of India of the International Convention for the Suppression of Traffic in Persons and of the exploitation of the prostitution of others. The law does not directly criminalize sex work, but treats all acts around it like soliciting, running a brothel, and living off the earnings of prostitution as offences. The “raid and rescue” procedure violates the dignity and the privacy of the individual and makes no distinction between adults and minors with regard to consent. Invariably, the women “rescued” feel they have been “arrested” and imprisoned. Regardless of the initial mode of entry, the wishes of an adult individual must be ascertained before any “rescue” goes forward – an adult, could well choose to remain in sex work. Discriminatory provisions abound in law violating the right to live and work in liberty and dignity, the right to move unhindered, the right to reside in a place of choice and the right to migrate – in short, the right of a sex worker to live freely as a full-fledged adult citizen of the country.
Prohibition, legalising and de-criminalization
The debate with regard to law and sex work centres around the three options of prohibition, legalising and de-criminalization. Total legal prohibition is a demand enjoying considerable support in society. Numerous institutions including international women’s organisations work in this area with the perspective of the total outlawing of sex work. Legalising prostitution the recommendation of the Indian National Commission of Women translates into regulation and involves state control of sex workers through licensing. The option would involve registering with the government, inspections, the issuance of licences and mandatory testing for HIV amongst other requirements. The system is prevalent in Germany and Netherlands. However, in India the compendium referred to as ‘licence raj’ has been particularly ineffective particularly in implementing social welfare legislations like labour laws, safety and child labour. Experience has also shown that licensing leads invariably to a large section of ‘unlicensed’ sex workers even more vulnerable to coercion, extortion and violence. Similarly, coercive practices like mandatory testing fail to meaningfully address the HIV epidemic perpetuate stigma and alienate and drive vulnerable populations away from the resources that they need to safeguard their health.
Decriminalisation refers to repeal of laws that prohibit sale of sexual services and appears to be the best option for sex workers in India and is a strategy advocated by sex worker rights organisations. The model of decriminalization has been followed in New Zealand and studies indicate that working conditions, access to health services and justice has improved for sex workers. There is no evidence to support the fear that decriminalization would lead to an increase in trafficking into prostitution.
Lust and Shame
Freud (1917 [1916-17]) observes “On the exact analogy of ‘hunger’, we use ‘libido’ as the name of the force (in this case that of the sexual instinct, as in the case of hunger that of the nutritive instinct) by which the instinct manifests itself.” (p.313).This perspective has few takers in the socio-cultural milieu of India. Lust and sexual excitation has the dubious distinction of being at the top of the “bad” in Indian culture. Across the board law makers, police, judges, media, ordinary people find refuge from the shame evoked by lust in total denial of the emotion. In the workshops I conducted for judges at the National Judicial Academy at Bhopal, the capital of the central Indian state of Madhya Pradesh and Delhi Judicial Academy at New Delhi as well as for Forest Service officers at the Tata Institute of Social Sciences, Mumbai, lust was one of the most difficult emotions for the participants to acknowledge. Brahmacharya or celibacy is valorised for Hindu males and the discharge of semen is perceived as weakening of the body, spirit and mind. Alter (1992) observes: “A wrestler must not only abstain from sex, he must also build up his stock of semen and ensure that once built up it is as potent and strong as it can possibly be. The basis for this preoccupation is a belief that physical, personal, and intellectual strength emanates from semen. Semen is the locus of a person’s moral character and physical prowess”.
POSTER ON PUBLIC TOILET WALL IN DELHI, INDIA INVITING SOLUTIONS TO SEXUAL PROBLEMS OF MALES BY TRADITIONAL HEALERS.
Projections
The unacknowledged feelings of lust manifest themselves in projections. In sexual crimes it is fairly common on the part of the perpetrator to be in denial about his lust, project and take the defence that the woman was provocatively enticing and to be blamed for the episode. Forest Service officials posted in areas inhabited by indigenous peoples are notorious for exploitative sexual relations with tribal women, considering them “loose” and “immoral”, rather than an acknowledgment of their own emotions. Freud (1913) in the context of death of dear ones observes: “The survivor then denies that he had ever harboured any hostile feelings against the dead loved one; the soul of the dead harbours them instead and seeks to put them into action during the whole period of mourning.”
Pure and Impure
The split between the “pure” and the “impure” is manifested at its most extreme with sex workers as the source of pollution in society and is amply reflected in the working of the law. Shukla (2004) writes “Carrying an order by the Goa bench of the Bombay High Court, for the identification and demolition of 250 huts being used by sex workers, the state government set about bulldozing hundreds of hutments right in the midst of heavy rains lashing the area. The rationale: The restoration of an “unspoilt Goa” by cleansing it of the “sin” of sex work.”Across communities the split of woman glorified as wife and mother and woman as sexual object is reflected in the sex worker as immoral, corrupting, polluting and luring men into sin. The “whore and the goddess” split is also manifested in the arena of inter-community relations where “our” mothers and sisters are pure and under threat of violation by the beast like lusts of the males of the other communities. In contrast the women of the “other” community are looked upon as bitch-like and enjoying sex and fair prey serving as means to emasculate the enemy males.
Fluid Genders and male insecurities
In theory the criminal law makes no distinctions as to the identity of the victim/survivor or the perpetrator. However, the invalidating of “consent” of adult sex workers is reflected in the near impossibility of getting the case of rape of a sex worker registered. The case of male and trans-gender sex workers is even more complex. The transgender hijra and kothi in sex work do not fit into the neat binary of “man” and “woman” and seem to feed into the sexual insecurities of the Indian male and provoke vicious violations of a sexual nature by local goondas and hoodlums as well as by the police. Psychoanalytical insights apart the insecurities of the Indian male pertaining to sex are succinctly put down and encashed by sundry traditional healers in posters in public toilets across the country. The accompanying poster stuck on a public toilet wall in Delhi representative of the genre titled “Sex Power + Obstacle” roughly translated lists them as Looseness in sex; Small/Crooked/Thin penis; Sins of childhood (euphemistic reference to masturbation) and Low sperm count, and the transgender sex workers seem to feed into the insecurities provoking fury, anger and a lashing out in violence against them.
Shukla (2012) notes: “The sex workers have little recourse to the criminal justice system against the perpetrators. Refusal by the police to lodge a First Information Report (FIR in common parlance) is the norm. Demand for protection money and free sex by the police is also common. In addition to beatings, the highly visible non conforming sexuality of the hijra and the kothi becomes the focus of verbal humiliation as well as the infliction of physical assault on the intimate and sexual parts of the person”. (p. 230).
The Way Ahead
The attempt by sex workers to be looked upon as part of the entertainment industry with a framework like the film industry ensuring safe working conditions has few takers. Speaking of the aims of the feminist porn movement Taormino, Shimizu, Penley and Miller-Young (2013) write “It favours fair, ethical working conditions for sex workers and the inclusion of underrepresented identities and practices” (p.15). Seshu and Murthy (2013) write “No one can deny that sex work often involves poor health, financial exploitation and physical and sexual abuse. However, these abuses are not intrinsic to sex work but are the result of the stigmatization and marginalization of sex workers”. (p.41).
The way ahead could be to initiate group processes of acknowledging, accepting and owning up the “dirty”, “bad” parts and learning to take responsibility for one’s projections and taking them back at a collective level rather than splitting and projecting onto sex workers. This could be reflected in arena of law by actively involving sex workers in the move to change the law and separate consensual sex work by adults from the entry of minors and the abominable practice of human trafficking.
References:
Alter, Joseph S. (1992). The Wrestler’s Body, Identity and Ideology in North India, University of California Press.
Freud, S. (1913). Totem and Taboo, Standard Edition Vol XIII.
Freud, S. (1916-17). Introductory Lectures on Psycho-Analysis (Part III), Standard Edition Vol XVI.
Seshu, M.S. and Murthy, L. (2013). The Feminist and the Sex Worker. In Murthy, L. and Seshu M.S. (Ed.), The Business of Sex (p. 41), Zuban.
Shukla, R. (2004). http://infochangeindia.org/women/analysis/baina-beach-demolitions-what-about-the-sex-workers-right-to-shelter.html
Shukla, R. (2013). A Walk through the labyrinths of sex work law. In Laxmi, M. and M.S. (Ed), The Business of Sex (p. 230), Zubaan.
Taormino, Shimizu, Penley and Miller-Young. (2013). Introduction in Taormino,T., Shimizu, C.P., Penley, C. and Miller-Young M.(Ed), The Feminist Porn Book (p. 15), The Feminist Press.
