Rohit De, A People’s Constitution: The Everyday Life of Law in the Indian Republic, Princeton University Press (2024). Pp. 172-175.
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How did the prostitute make the journey into the heart of the Constitution?
To understand this, we need to recognize that the prostitute in India was entirely a creation of colonial law. Although both ancient Indian texts and medieval sources referred to a class of prostitutes, the term became invested with legal consequences under the colonial state. Through the nineteenth century, women— ranging from temple dancers, aristocratic concubines, courtesans, classical musicians, and dancers to widows, vagrant women, and sex workers found in the town bazaars— came to be categorized as prostitutes and were thus subject to state regulation and violence and marked as sources of immorality and disease.i2 For both the colonial state and the new Indian elite, sexuality could be accepted only within a heterosexual household. For the colonial state, the prostitute became the focus of concerns about venereal disease and racial mixing, whereas for Indian nationalists she appeared as a threat to a national culture based on the ideal of middle- class domesticity.
The nineteenth and early twentieth centuries witnessed three phases of legal engagement with prostitution: regulationist (late nineteenth century), antitrafficking (early twentieth century) and abolitionist (1920s and 1930s).13In the regulationist phase, laws were enacted on the basis of concern over the spread of venereal disease among soldiers, and the goal was to closely monitor brothels and supervise military prostitutes. In the antitrafficking phase, the state was driven by internationalist anxieties of white slavery and miscegenation and therefore focused on the presence of European prostitutes in the colony. The abolitionist phase was a product of the growing influence of Indian reformers and nationalists who saw prostitution as a threat to respectable public morals. Common to all three phases was a concern with the effect of prostitution on the public, and not with the prostitute herself.
What changed in the Constituent Assembly? Prostitution became a constitutional issue because of the significant presence of female members in the assembly, many of whom had more than two decades of experience in organizing.14 Well before the proceedings of the Constituent Assembly began, its female members seized the initiative to present a comprehensive plan for women in the Indian republic. In December 1945 All India Women’s Conference (AIWC) President Hansa Mehta reminded the members that for Indian women, postwar reconstruction was a question not just of mere adjustments here and there but of the reconstruction of “our entire national life.”15 Members were instructed to collect the relevant clauses dealing with women’s rights from various constitutions.16
In 1946 the AIWC adopted the Charter of Rights of and Duties for Indian Women and forwarded it to the central and provincial governments, strongly urging that the fundamental- rights and economic and social directives embodied in it form “an integral part of the Constitution. ”17 The AWIC charter argued for complete civil and political equality, sought to expand the welfare functions of the state, and promoted the economic rights of women. It recognized that in order to achieve these goals, a total mobilization of the nation’s human and material resources was necessary, which could be achieved only through a network of specialized social service ministries. These ministries would be required to mobilize all available human resources to supplement the existing health, education, and welfare services, and to this end they would train teachers, doctors, nurses, and social workers.18
Thus, in the vision of the AIWC, state instrumentalities would be harnessed for the purpose of social welfare to ensure the Indian woman’s rightful place in society. Conversely, social welfare would also be cast as a special responsibility of women. Purnima Banerjee complained of the replacement of female members of the Constituent Assembly, on their death or resignation, by men; she pointed out that “since the entire basis of the state has changed and it is no longer a police state, certain social functions such as education and health now feature among the major items of the state’s development, which made the association of women in the field of politics indispensable. ”19
Freedom thus held a distinct meaning for the women in the Constituent Assembly. Freedom, in their view, would not only mean formal equality between men and women but would also include the active duty of the state to intervene to bring about substantive equality. Article 15 of the Constitution, which prohibited discrimination on the grounds of sex, race, caste, religion, or place of birth, stipulated that this would not restrain the state from making special provisions for women and children. Action in the area protected by this proviso would require the creation of a welfare-state apparatus directed toward the needs of women. It was natural in these circumstances that the state would feel impelled to intervene significantly to emancipate prostitutes. A prominent leader of a nationalist women’s organization stated, “Democratic India, which upholds the highest spiritual and moral values and looks at its women as the symbol of purity and unselfish love, cannot go on tolerating a segment of its daughters being exploited and degraded through prostitution.” The goal of women’s organizations after independence was to “end such exploitation and to restore to the victims of such exploitation an honorable place as useful citizens with dignity and self- confidence as the women and workers of a free India.”20
The regulation of prostitution and the prevention of trafficking were pressing concerns for the female members of the Constituent Assembly and formed a significant part of their agenda. Article 6 of the AIWC charter had highlighted the role of women in maintaining moral standards. It had also noted with concern that poor social conditions and economic distress had led to helpless and destitute women being enticed into immoral activities, and it emphasized the need for laws to prevent trafficking. The AIWC demanded an equal moral standard for men and women and suggested that the roles of men in prostitution (as buyers and sellers) also be criminalized. Moreover, they wanted rescue homes to be established for the women, which would be closely supervised by a government agency.21 This new approach to prostitution was dominated by the question, How did women become prostitutes? Studies were commissioned by women’s organizations that focused on poverty, oppression within existing family systems, and disruption caused by the violence of partition as the leading causes.22 Thus, the major focus of women’s organizations—reform of family law, provision of economic opportunities, and the recovery and rehabilitation of abducted women— were all framed by the concern with prostitution. Prostitution was seen as a product of external circumstances and not as a choice that someone excerising agency would ever make.
(Excerpted with permission from Dr Rohit De, and Princeton University Press).
[i]2. For an overview, see Wald, From Begums and Bibis, and Ashwin Tambe, Codes of Misconduct: Regulating Prostitution in Late Colonial Bombay (Minneapolis: University of Minnesota Press, 2009).
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