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Sword or Shield?
a
Prabha Kotiswaran
a
Dickson Poon School of Law, King's College, London
Published online: 19 Nov 2013.

To cite this article: Prabha Kotiswaran (2013) Sword or Shield?, Interventions: International Journal of
Postcolonial Studies, 15:4, 530-548, DOI: 10.1080/1369801X.2013.849423

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 SWORD OR SHIELD?
The Role of the Law in the Indian Sex Workers’
Movement
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Prabha Kotiswaran
Dickson Poon School of Law, King’s College, London
................ In the contemporary neoliberal moment, the judicial discourse of appellate
Indian sex Indian courts has sought to normalize the identity of sexual minorities such as
workers bar dancers and the LGBT community. While the recognition of the rights of
abject sexual groups is welcome, this essay argues that the legal space for
ITPA normalization is hardly equally available or even the same for all sexual
minorities. Indian sex workers are a case in point. Although the Indian sex
legal system
workers’ movement has engaged with the legal system for well over a decade
prostitution now, it has only encountered legislative proposals for increased criminalization
law reform fostered by a global abolitionist movement against trafficking. In a bid to plot
the trajectory of the movement’s engagement with the legal system, I elaborate
sex workers’ on the familiar legislative and policy realms in which the ‘prostitution question’
movement
plays out, while also addressing the relatively unexplored arena of sex work-
sexual minori- related litigation. While sex workers could be broadly understood to operate in
ties ‘political society’ vis-à-vis the Indian state, I argue that viewing their legal
mobilizational struggles through a social movement lens and over the life of a
................ movement offers a more nuanced account of the varied registers on which their
rights claims are based and their shifting strategies for using the venues of formal
state law. This, I suggest, helps elaborate on the conditions under which the

.....................................................................................
interventions, 2013
Vol. 15, No. 4, 530
548, http://dx.doi.org/10.1080/1369801X.2013.849423
# 2013 Taylor & Francis
 SWORD OR SHIELD?
Prabha Kotiswaran
........................
531

claims of abject sexual subjects to citizenship in neoliberal India might be

possible.

Sexual Minorities and the Indian Legal System: An Introduction

As the extensive legal struggles of the Indian women’s movement have

demonstrated, the law has always been a major discursive site for the
negotiation of gender and sexual identity (Sunder Rajan 2003). The law also
has significant ramifications for material practices, rendering it an institution
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that social movements cannot afford to ignore. Nevertheless, for sexual

minorities, their interactions with the Indian legal system often occur at the
immediate and mundane level of the day-to-day law enforcement of criminal
laws. Here Duncan Kennedy’s (1993) concept of the tolerated residuum
articulated in the context of women’s sexual abuse is quite useful. Kennedy
argues that due to the limits of the formal law and the actual workings of the
legal system, men commit considerable sexual abuse against women without
any official sanction. Thus, at any given moment, the legal system tolerates a
certain level of abuse, which he calls the tolerated residuum of abuse.
Specifically, some of this abuse is attributable to contestable social decisions
about what abuse is and how important it is to prevent it, and that this in
turn affects practices of abuse and social practices of both men and women,
irrespective of whether they themselves are abusers or victims.
In the case of sex work however, far from addressing violence, the state
exacerbates it, generating more violence itself. The exemplary levels of
abuse, sexual and otherwise, produced by the Indian legal system,
particularly through the anti-sex work criminal law, the Immoral Traffic
Prevention Act, 1956 (ITPA), have been well documented. Here, despite the
centrality of the ITPA in the sex work debates, significant levels of abuse are
also generated through legal provisions not specifically relating to sex work,
such as general provisions of the Indian Penal Code, 1860 (IPC) and a host of
other ‘special and local laws’ in the vocabulary of the National Crime
Records Bureau, like the Gujarat Prevention of Anti-Social Activities Act,
1985. Yet laws such as the ITPA
whether in fact used on the ground or
not
produce a strong signalling effect that disadvantages the day-to-day
bargaining power of sexual minorities, thus mystifying the abuse-generating
role of the state and its rent-seeking practices. In this sense, the mapping of
the tolerated residuum of abuse in the Indian legal context is ongoing. The
experience of other sexual minorities including bar dancers and the lesbian,
gay, bisexual and transgender (LGBT) community is hardly any different in
this respect. Feminist and public health discourses which view female sex
workers as ‘victims of abuse’ or as ‘agents’ necessary for HIV prevention
efforts, respectively, do sometimes influence the senior ranks of the police
 i n t e r v e n t i o n s
15 :4 532
.........................
bureaucracy, who may direct that the lower ranks desist from harassing sex
workers, thereby altering the tolerated residuum of abuse. These variations
in the tolerated residuum are however not significant. The disposition of
these sexual minorities towards the law, although complex, is therefore
predictably one of disaffect.
This critical orientation towards the law has however not precluded the
use of the courts as a site of law reform. Indeed, in recent years, Indian courts
have offered sexual minorities much cause for celebration. In 2009 the Delhi
High Court read down Section 377 of the IPC to decriminalize consensual
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sex between adults of the same sex, thus validating the rights claims of the
LGBT community. The decision has since been celebrated in many quarters,
even being heralded as the Indian equivalent of Roe v. Wade (Liang 2009).
Similarly, in words assured to resuscitate feminist faith in the law as a site for
progressive politics, in 2006 the Mumbai High Court held that an
amendment to the Bombay Police Act, 1951, banning bar dancing in
Maharashtra violated Articles 14 and 19 of the Constitution, a decision
which has been recently affirmed by the Indian Supreme Court. Here the
High Court berated the state government for taking away bar dancers’ only
source of livelihood while offering them no suitable employment opportu-
nities.
Admittedly, litigation in both instances was undertaken on behalf of the
LGBT community and bar dancers by an HIV-prevention NGO, and bar
owners, respectively. A more exhaustive account of the numerous variables
and dynamics that animated these legal mobilizational efforts is emerging
(Narrain and Gupta 2011). So far, however, commentators have been critical
of the liberal legal reasoning inherent in the resultant decisions. The 377
judgement, they suggest, performed the ‘tolerance’ of the LGBT community
(Kapur 2009) while trying but not sufficiently complicating the distinction
between private sex, on the one hand, and public sex or sex work (Shah
2010) on the other. Indeed, one might closely interrogate the normalization
of abject sexualities in neoliberal economic times enabled through the
discourse and imagery of the rights-wielding individual subject.
What is remarkable is that over the same time period, even these formal
legal victories have eluded sex workers. Despite mobilizing over the past
twenty years for prostitution law reform, Indian sex workers have had no
dramatic successes to report. In 2009, as an amendment to the ITPA, which
criminalized customers of sex workers (‘Amendment’) lapsed in parliament,
it barely registered a blip in the media. Equally strikingly, there has been
little momentum around court-oriented reform for sex workers’ rights. Even
worse, as I have discussed elsewhere in relation to the Mumbai High Court
decision on bar dancing (Kotiswaran 2010), positive legal outcomes have
been realized at the expense of sex workers’ rights. In that case, despite the
significant structural similarities between the bar dancing and sex work
 SWORD OR SHIELD?
Prabha Kotiswaran
........................
533

sectors and the position of women workers within them, the court drew a
bright line distinguishing the two
bar dancing fell within the proper realm
of commercial exchange and sex work without. Sex workers’ groups like the
60,000-member Sonagachi-based Durbar Mahila Samanwaya Committee
(DMSC) sense that despite the solidarity that they have offered to bar
dancers and the LGBT community, they have been left to lament their
disparate legal treatment when compared to these groups. While the status of
1 There are, Indian sex workers as a population group in ‘political society’ (Chatterjee
generally speaking, 2004) accounts well for their continuing subalternity in legal discourse, I
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four major policy

options for
draw on socio-legal scholarship and social movement theory to offer a more
regulating sex work precise account of the strategic deployment of the law by the Indian sex
(Halley et al. 2006). workers’ movement over the past twenty years. I track broadly four phases
These are:
prohibition or
of such engagement with the law. In doing so, I deliberately focus on formal
complete state law while postponing for the moment a more ethnographic account of
criminalization the movement’s malleable use of the ‘law’, understood as intensely plural,
where all aspects of
sex work and actors,
and the varied rights discourses, and layered legal consciousness that this
including sex understanding generates.
workers, are Specifically, I outline four phases of sex workers’ mobilizational struggles:
criminalized;
complete
an early phase between 1992 and 1997, from 1997 until 2005, between 2005
decriminalization and 2009 and from 2009 to date. For each phase I will briefly describe the
where any special organizational dynamics of the movement, state policies towards prostitu-
anti-sex work
criminal law is
tion during this period, and the movement’s mode of engagement with the
repealed, leaving sex legal system. Based on this, I suggest that Indian sex workers during the early
work to be regulated phase consolidated movement organizations, intensely lobbied political
by other laws
applicable to all
parties and invoked the vocabulary of workers’ rights for staking their
citizens, including intertwined claims to both recognition and redistribution. In the second
the general criminal phase they creatively used the law as actors in political society while
law; abolition or
partial
displaying reluctance to litigate, in stark contrast to their abolitionist
decriminalization counterparts who
keen to eradicate sex work as a form of modern-day
where all aspects of slavery
proactively engaged the Indian courts. The abolitionist regulatory
and players in sex
work, including
impulse1 against sex work meanwhile gathered momentum worldwide,
customers, are including in India, culminating in an amendment to the ITPA proposed in
criminalized 2005 to criminalize customers of sex workers following the Swedish model.
although sex workers
themselves are not;
Sex workers’ groups redirected all their advocacy efforts against the
and legalization, Amendment, which eventually lapsed in parliament in 2009 due to the
where the form of disagreement on the issue within the Union Cabinet itself but also due to
regulation could
vary, but where in
strong opposition from the HIV prevention complex. In the process,
addition to the repeal however, they sharpened their oppositional instincts against the ITPA. In
of the anti-sex work the latest phase of the sex workers’ movement, we find groups drawing on
criminal law, special
rules regulating sex
their newfound confidence from opposing the Amendment, reconsidering
work are put into anew their legal options, including litigation, despite the dramatic legal odds
place. stacked against them.
 i n t e r v e n t i o n s
15 :4 534
.........................
Model Project to Social Movement: The First Phase of Sex Worker Mobilization
(1992
1997)

Some explanation is warranted here for the apparent conflation between

DMSC and the Indian sex workers’ movement. Although the movement is
larger than DMSC itself, DMSC has been a key player since its inception and
is its most visible member politically speaking. Indeed, the contemporary sex
workers’ movement could be said to have started with DMSC’s formation in
1995 from a model public health initiative set up in 1992 wherein sex
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workers successfully leveraged resources meant for HIV prevention to

address structural issues affecting them, including health, education, access
to credit and social stigma. DMSC soon began to view itself as a social
movement (DMSC 1997). What distinguishes DMSC to date from an HIV-
prevention NGO and indeed most of the other member organizations of the
National Network of Sex Workers (NNSW) is its independence, its
resolutely political identity, a non-hierarchical and transparent organiza-
tional structure, and an unapologetic movement ideology that treats sex
work as legitimate work. To elaborate, DMSC has extensive reach in the
state of West Bengal, undertakes pioneering activities such as setting up self-
regulatory boards to combat trafficking and routinely goes beyond the
‘project’ mandates of funding agencies. In its political persona, DMSC
organizes protest marches both against state violence and harassment from
and exploitation by stakeholders within the sex industry. Further, DMSC
accumulates political goodwill through consistent lobbying with political
parties, trade unions, the intelligentsia and the media in West Bengal. In this
sense, DMSC redefines advocacy as directed not solely towards the state but
also towards opinion-makers and the lay public whose views politicians as
lawmakers are ultimately likely to bear in mind.
DMSC also adopts a critical organizational stance towards middle-class
professionals, so that each project is headed by a professional and sex worker
working as equals. Professionals and administrative staff are required to
attend all rallies and demonstrations. Sex workers’ visibility in all public
events is prioritized and sex workers are groomed as organic intellectuals.
There is an insistence on transparency and financial sustainability so that a
shortfall in annual conference funding was once made up by sex workers
donating a day’s wages. Finally, the movement ideology permeates its
organizations. Hence, the credit cooperative is meant for the financial
empowerment of sex workers, not their rehabilitation. Sex worker identity is
claimed with pride and the movement newsletter Samvaad is read out weekly
in red light areas to update the sex worker community about DMSC’s
advocacy activities. Commentators thus attribute DMSC’s mobilizational
success to its egalitarian organizational culture and a culture of political
activism against injustice and inequality (Gooptu and Bandyopadhyay 2007;
 SWORD OR SHIELD?
Prabha Kotiswaran
........................
535

Gooptu 2002). To the extent that DMSC is an organized collectivity acting

outside of institutional channels to challenge extant authority, whether
institutionally or culturally based (Snow et al. 2004), it is a social movement.
The emergence of the Indian sex workers’ movement could be explained
through the three prerequisites set out by the political process model
(McAdam 1982). These are indigenous organizational strength (networks
that provide the social glue for marginalized populations), political
opportunity (any event or broad social process that serves to undermine
the calculations and assumptions on which the political establishment is
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structured) and cognitive liberation (the subjective prerequisite which

translates grievance into action). Sex workers’ spatial concentration in
Sonagachi in the thousands helped their proactive leveraging of HIV
prevention resources to build the movement’s organizational strength
through DMSC’s several membership-based organizations. Meanwhile, its
political activities helped foment the cognitive liberation of sex workers who
undoubtedly experienced the injustice of their occupational stigma and their
criminal status but whose collective consciousness was splintered by the
competitive dynamics of the sex industry. Some may view the Indian state’s
prioritization of HIV prevention not as a ‘political opportunity’ but as
regulation through a watch-care model of surveillance (Ghosh 2005)
wherein worker identity and the full rights of citizenship eluded sex workers.
Yet as Menon (2007) notes, the unpredictable spillover effect of the HIV
prevention agenda into forms of radicalization is hard to ignore. Indeed, HIV
prevention as a political opportunity has only become increasingly salient for
the Indian sex workers’ movement.
As sex workers mobilized between 1992 and 1997, the federal government
was working through the implications of the AIDS pandemic, rendering its
disposition towards prostitution law reform broadly experimental. Towards
the end of this period, however, the National Commission for Women
(NCW) articulated a radical feminist view of prostitution reframing it as a
human rights violation (Chatterji 1997). Correspondingly, it called for the
abolition or partial decriminalization of sex work, thereby already setting
the tone for future policy statements and legislative proposals from the
Indian state.
DMSC’s interaction with the law during the early phase had mostly to do
with the registration of movement organizations. DMSC overcame repeated
obstacles here in a non-legalistic manner, broadly indicative of its disposition
towards the legal system. To illustrate, when DMSC sought to register the
Usha Multipurpose Cooperative Society in 1995, the Registrar of Coopera-
tives objected that the Cooperatives Act, 1973 required cooperative members
to be of good moral character. DMSC then lobbied the cooperatives minister
to waive this requirement on the basis that sex workers were not criminals or
women of bad character but working women who supported their families.
 i n t e r v e n t i o n s
15 :4 536
.........................
DMSC thus obtained an exemption from the law’s operation by bringing
political pressure upon an elected politician in a state where claims to worker
status were politically resonant.

‘Shield not sword’: Legal Consciousness in the Second Phase of Sex Worker
Mobilization (1997
2005)

In the second phase of sex worker mobilization, DMSC consolidated its

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advocacy efforts and developed a national platform by organizing its first

national conference in November 1997 and demanding workers’ rights.
Annual sex worker conferences followed, attended by thousands of sex
workers from all over India and abroad, as well as by representatives of the
state, international organizations and civil society. Meanwhile NGOs
working in sex worker communities in Sangli, Tirupati, Delhi and Kerala,
which were ideologically aligned with DMSC, came together to form the
NNSW.
Although the AIDS crisis had precipitated a governmental rethink of the
ITPA during this period, it still took public interest litigation (PIL) initiated
by activist Supreme Court lawyers to elicit a policy statement from the state.
As far back as in 1990 in Vishal Jeet v. Union of India (1990 AIR 1412), the
Supreme Court had issued directives for the formulation of a national plan of
action and the formation of central and state advisory committees on
prostitution, but with little success. The Gaurav Jain case (1997 8 SCC 114)
then provided the impetus for the formulation of the 1998 Plan of Action to
Combat Trafficking and Commercial Sexual Exploitation of Women and
Children (‘Plan of Action’) put forth by the erstwhile NDA regime. The Plan
of Action recommended that customers, traffickers, pimps, brothel keepers
and colluding parents/guardians be made liable but stopped short of
decriminalizing sex workers themselves. It instead set up a divide between
victims of commercial sexual exploitation willing to be rehabilitated, and
deserving of state help, and those who were not, thus reinforcing
conservative codes for female sexuality. The Plan had other highly
problematic provisions but for the most part confirmed the NCW’s influence
in limiting available policy options to the status quo, that is, retaining the
ITPA with minimal amendments.
However, by 2000, international trends on prostitution policy underwent
a significant change, especially with the negotiation that year of the UN
Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially
Women and Children, supplementing the United Nations Convention
Against Transnational Organized Crime (‘UN Protocol’). Although the
UN Protocol targeted the trafficking of both men and women into sex work
as well as other labour markets, domestic law reform initiatives narrowly
 SWORD OR SHIELD?
Prabha Kotiswaran
........................
537

targeted trafficking for sex work, in turn conflated with sex work. In
particular, the Swedish model of criminalizing customers of sex workers
while decriminalizing sex workers gained international popularity. About
the same time, the Victims of Trafficking and Violence Protection Act, 2000
(VTVPA), which ranked countries according to their efforts to prevent,
prosecute and punish trafficking, was passed in the United States. The
annual Trafficking in Persons Report issued by the US State Department
under the VTVPA demoted India from Tier Two to the Tier Two Watch
List in 2004. In 2005 the then Department for Women and Child
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Development proposed to amend the ITPA to criminalize customers of

sex workers.
Sex workers’ interactions with the Indian legal system between 1997 and
2005 are best characterized as deploying the law as ‘shield not sword’. At a
workshop in 2004 a DMSC spokesperson coined this phrase to express how
sex workers viewed the law neither as omnipotent nor as irrelevant. The law
was rather ineffective in addressing sex workers’ most pressing concerns,
namely, social stigma and harassment by police and local goons. Sex
workers may therefore not use the law as a sword but could potentially use
it defensively, in other words, as a shield. Some observers may attribute this
minimalist approach to the law to the fact that DMSC’s demands for
workers’ rights have, substantively speaking, never been anything more than
a demand for social recognition entailing the repeal of the ITPA rather than
for redistribution requiring the application of labour laws to the sex
industry. I have elaborated elsewhere (Kotiswaran 2011) how DMSC’s
demands could be viewed through Nancy Fraser’s (1996) lens as
transformative demands for both recognition (in a non-identitarian sense)
and redistribution (in terms of workers’ rights rather than rehabilitation).
Given this, the ‘shield not sword’ metaphor is better understood in terms of
the distinction between the myth of rights and the politics of rights. Socio-
legal scholars use the term ‘myth of rights’ to signify the disposition of
certain social movements for whom law and litigation imply the realization
of rights and social change, resulting in the privileged position of both
litigation and lawyers within the movement. Given that sex workers bear
the brunt of law’s everyday violence, it is hardly surprising that the
movement from the very start believed in an alternative conception of
rights, namely the ‘politics of rights’ (Scheingold 2004; McCann 1994),
viewing rights as a contingent resource and litigation as most effective when
used in conjunction with political methods. The legal mobilizational
metaphor of ‘shield not sword’ is particularly borne out through what I
call the litigative paradox, namely the intense litigation-shyness of the
Indian sex workers’ movement in contrast to other stakeholders in the sex
work debates.
 i n t e r v e n t i o n s
15 :4 538
.........................
Litigative asymmetries and productive alliances

There have been several cycles of litigation around the Suppression of

Immoral Traffic Act, 1956 (SITA), the predecessor statute to the ITPA, and
the ITPA itself, by varied constituencies including sex workers, lawyers, law
academics and abolitionist groups. When the SITA was passed in 1956 it
faced constitutional challenges by sex workers who claimed that it infringed
their right to profession, but by the mid-1960s, courts upheld its underlying
framework, namely, to criminalize commercialized sex rather than the sale
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of sex per se. In the 1980s, with the flowering of the social action litigation
movement, the Indian Supreme Court treated letters by law academics like
Upendra Baxi on the appalling conditions in state-run protective homes as
writ petitions. Since the 1990s, however, a distinct profile of litigation
around sex work has emerged in Indian courts. After all, the only major
policy statement on sex work from the Indian state other than the recent
ITPA Amendment, namely, the Plan of Action, was the result of a Supreme
Court order. Consequently, ever since the Vishal Jeet and Gaurav Jain cases,
abolitionist NGOs have overwhelmingly resorted to filing PILs as a way of
challenging executive and legislative inaction in the face of what they view as
the extensive trafficking of women and girls and their inadequate rehabilita-
tion.
Abolitionist NGOs like Prajwala, Prerana and Shakti Vahini have become
repeat players before the Supreme Court and the Delhi and Mumbai High
Courts, which are the most active appellate courts in sex work-related
litigation. The petitions have demanded the prosecution of exploiters (Sen
and Nair 2004) and traffickers (Human Rights Law Network [HRLN] 2008
[www.hrln.org]), the framing of a Victims’ Protection Protocol, guidelines
for proper rehabilitation (HRLN 2008), ameliorating subhuman conditions
in rescue homes (Patkar and Patkar 2000; Sen and Nair 2004; 2003 BomCR
(Cri) 481), providing compensation to victims and the implementation of the
Plan of Action (Civil Writ Petition 190 of 2002). Given the petitioners’
abolitionist agenda, courts are invited to focus on non-contentious issues
such as the prostitution of minors or the rehabilitation of trafficked females
rather than on sex work as a form of criminalized labour performed by
female sex workers voluntarily but under force of circumstance, the social
and legal penalties for which they bear overwhelmingly. The resultant court
decisions even cite from the Coalition against the Trafficking of Women, a
US-based abolitionist group.
The focus on rehabilitation in particular resonates with courts that find the
moral mandate to rehabilitate too compelling to resist. Hence, even as
recently as February 2011, the Indian Supreme Court in a matter relating to
a sex worker’s murder (Budhadev Karmaskar v. State of West Bengal
MANU/SC/0115/2011) directed central and state governments to prepare
 SWORD OR SHIELD?
Prabha Kotiswaran
........................
539

rehabilitation schemes for ‘physically and sexually abused women commonly

known as prostitutes’. Similarly, courts have sometimes suo motu taken
notice of rights violations reported in the press by directing the police or an
NGO to raid and rescue sex workers from brothels in red light areas
(Fernandes and Ray 2000; Sen and Nair 2004). However, where the
executive lacks resources for rescue and rehabilitation, the judiciary has
proactively facilitated partnerships between the police and abolitionist
NGOs (Sen and Nair 2004), leading the National Human Rights Commis-
sion (NHRC) to commend this paradigm shift in justice delivery (Sen and
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Nair 2004). Sex workers themselves have experienced such court-mandated

raids as police-inflicted violence (Choudhury 2002).

The judicial management of sex markets

A subset of cases during this period dealt with executive action against red
light areas in the older parts of major Indian cities, which constitute prime
commercial property. Examples include the demolition by the state of Goa’s
Baina beach red light area in 2004 and the eviction of sex workers from the
Chakla Bazaar red light area of Surat in 2003. In both instances the police
deployed land use and public order statutes along with the ITPA. It is
premature to tell whether these legal disputes reflect a broader trend towards
the neoliberal gentrification of city centres. However, in anticipation of such
a trend, I use the Surat case to suggest that these cases are not merely about
sex work and that the state’s abolitionist legal rhetoric exists in deep tension
with sex workers’ claims to economic citizenship.
In 2003 the Surat police were allegedly responsible for arbitrary searches,
arrests, physical abuse and the harassment of fifteen hundred sex workers in
the Chakla Bazaar red light area. They also intimidated landlords into
terminating leases with sex workers, leading to their forcible evictions. Local
sex workers organized into the Sahyog Mahila Mandal and challenged the
constitutionality of provisions of the ITPA under which police action had
been taken for violating Articles 14, 19 and 21 of the Indian Constitution.
The sex workers were resoundingly defeated as the Gujarat High Court
upheld the constitutionality of these provisions (Sahyog Mahila Mandal and
Anr v. State of Gujarat and Ors 2004 2GLR 1764). The court further
rejected sex workers’ claims to the right to privacy and invoked the US
radical feminist Catharine MacKinnon to equate prostitution with modern
slavery and as facilitating trafficking before calling on the state to constitute
a high-level committee to rehabilitate the evicted sex workers.
Interestingly, the judgment reveals that prior to the eviction the state had
offered sex workers a rehabilitation package of 35,000 rupees along with an
offer to negotiate the release of sex workers’ deposits from landlords and
 i n t e r v e n t i o n s
15 :4 540
.........................
accompany non-native sex workers home under full police protection. Yet
not a single sex worker accepted this proposal. They demanded 200,000
rupees each and viewed police action against them as instigated by builders
keen to develop a commercial complex. Elsewhere I have elaborated on the
political economy of Sonagachi and how elaborate tenancy practices fostered
by decades of rent-control laws translate into high payouts to sex workers
for vacating their rooms (Kotiswaran 2008). If this is anything to go by, the
role of the judiciary in enforcing the ITPA to uphold the eviction of sex
workers from city centres assumes significance.
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Litigation shyness

In the context of sex work-related litigation, the litigation shyness of sex

workers’ groups like DMSC and NNSW
even in scenarios where legal
victory appeared certain
is striking. To illustrate, when in 2001 the
governor of West Bengal on the appeal of certain women’s groups revoked
DMSC’s permit for an annual sex workers’ conference, DMSC chose not to
contest the infringement of its freedom of expression, instead lobbying
governmental actors to have the ban revoked (Kapur 2001). Even a lawyer
who ran DMSC’s legal literacy programmes had no inkling of the crisis that
DMSC faced literally days before the conference. Although DMSC and
NNSW routinely petition a range of governmental actors including high-
ranking police officers, ministers, the NCW and the NHRC, they tend not to
approach the courts even in the face of considerable state violence. Rarely,
when desperate sex workers like those evicted from Surat’s Chakla Bazaar
red light area did use the courts as a defence mechanism, it was not in
consultation or coordination with DMSC or the NNSW. Thus, for the most
part between 1997 and 2005, DMSC was the only organization within the
NNSW to build its capacities in dealing with the judicial system by
challenging at a local level in Kolkata, evictions of individual sex workers
and police abuse while supporting sex workers in their non sex-work related
disputes. In the process, DMSC also defended a criminal case filed by the
police against it. DMSC thus grasped what it took to navigate the judicial
system: political connections, resilience to wait out judicial delays, the ability
to apply psychological pressure on perpetrators of violence and the
vulnerabilities of the legal system to media publicity.

Lawyering in political society?

In a sense, the litigative paradox I have identified so far can be attributed to

the subaltern citizen (Ghosh 2005) status of Indian sex workers. Deploying
 SWORD OR SHIELD?
Prabha Kotiswaran
........................
541

Chatterjee’s (2004) notions of civil and political society, one could view
abolitionist NGOs as respectable citizen groups who realize their political
selves in civil society by approaching courts and the legislature, usually at the
national level. The sex workers’ movement, on the other hand, operates in
political society where, unsure of the promises of liberal citizenship and
always at the receiving end of state-generated abuse, it has stayed away from
the courts for fear of a regressive judicial outcome. DMSC’s fear on this
count was borne out in the Surat case. At the same time that sex workers
negotiate their claims to citizenship, however, they also constitute a ‘high-
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risk’ population group targeted by public health initiatives for HIV

prevention, so that they have become proficient in making claims on the
governmentalized state, a few examples of which I offer below.
Sex workers constantly fashion themselves according to governmental
categories such as ‘day labourers’ and ‘people living below the poverty line’.
At a May Day rally, the Godavary Mahila Samakhya, a sex workers’ group,
requested local authorities for inclusion in welfare programmes as a ‘needful’
category, demanding land pattas as landless people, as well as old age
pensions, night shelters and a safe working environment. Interestingly, the
logic of governmentality is invoked even in the absence of redistributional
possibilities. This explains DMSC’s attempts to register the Binodini
Srameek Union under the Trade Unions Act of 1926 despite repeated
stalling from the Registrar of Trade Unions and the lack of a meaningful
constituency of ‘employers’ within the ‘industry’ to bargain with. We find a
similar aspiration for being ‘categorized’ correctly when during the 2001
census the authorities tried to categorize sex workers as ‘beggars/vagrants/
street children’ or as ‘singers and dancers’. Similarly, even when demanding
workers’ rights, DMSC invokes a particular category of worker, namely, of
those in the ‘unorganized sector’ such as rag pickers, street vendors and
scavengers, all population groups, which have been the focus of recent state
policies. Their method for seeking governmental recategorization is also
interesting. DMSC has for years lobbied the West Bengal labour commis-
sioner to simply add sex work to the occupation schedule of the central and
state ministries of labour. This is in stark contrast to mounting a
constitutional challenge to the ITPA on the basis of discrimination or its
infringement of sex workers’ rights to profession.
Interestingly, the state seems to respond favourably to such claims by sex
workers and may in fact prefer making these concessions instead of
legislating workers’ rights for them. To illustrate, the Plan of Action in
1998 recommended special benefits for sex workers in housing, health and
education as members of ‘economically weaker sections of society’ although
it was hostile to appeals for decriminalization, much less workers’ rights. An
erstwhile mayor of Kolkata donated disputed land to DMSC for constructing
a hospital, urged the commissioner of police to dispense with no-objection
 i n t e r v e n t i o n s
15 :4 542
.........................
letters for sex workers’ applications for identity documents and was even
willing to issue licences for sex work. Examples abound of such negotiations
by the sex workers’ movement with state and local authorities in political
society. Indeed, NNSW’s invocation of sex workers’ status as a population
group key to the state’s HIV prevention efforts and the ‘health of the nation’
in its mobilization against the Amendment was particularly resonant and
possibly contributed to its lapse in parliament.
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Amplifying Governmental Dissonance, Resisting the ITPA: Indian Sex Workers

March to Parliament (2005
2009)

Between 2004 and 2009, NNSW continued to expand its membership even
as the National AIDS Control Programme aimed to mobilize one million sex
workers by 2011 and the Avahan initiative funded by the Bill and Melinda
Gates Foundation sought to replicate the Sonagachi model nationwide. The
radical thrust of DMSC had now found expression in newer groups like the
Karnataka Sex Workers’ Union (KSWU), which gained trade union status
through affiliation with the New Trade Union Initiative, a national trade
union federation of independent trade unions in the organized and
unorganized sectors. Like DMSC, the KSWU has organized May Day rallies
in Bangalore and demanded not just the decriminalization of sex work but
also ‘fair working conditions, quality health services, housing, retirement
benefits, PF, ESI, insurance, education for children and full security’ within
sex work.
On the legislative front, however, there was a significant possibility that
parliament would follow the Swedish abolitionist model and amend the
ITPA to criminalize customers of sex workers. Consequently, from
November 2005 when NNSW first got wind of the Amendment, it
orchestrated consultative meetings with sex workers’ groups nationwide,
which culminated in a rally of four thousand sex workers to parliament in
March 2006 protesting against the Amendment. Despite these protests, the
Ministry of Women and Child Development (MWCD) introduced the
Amendment in parliament on 22 May 2006, which given its controversial
provisions was referred to the Parliamentary Standing Committee. The
Standing Committee after extensive national consultations adopted a middle
ground when it called upon the MWCD to review the ITPA in its entirety
while exhorting HIV prevention groups to prioritize the rehabilitation of sex
workers.
Emboldened by the Standing Committee’s equivocal stance on
the Amendment, the NNSW chipped away at the certitude with which the
MWCD had proposed it by mobilizing individual cabinet ministers with the
help of the Lawyers Collective, a Delhi-based legal advocacy organization.
 SWORD OR SHIELD?
Prabha Kotiswaran
........................
543

NNSW criticized the Amendment on technical legal grounds, its inability to

realize its own objectives, the Amendment’s potentially adverse conse-
quences for sex workers’ human rights and the fundamentally undemocratic
nature in which it was formulated. Its main argument, however, highlighted
the negative consequences of criminalizing customers for the public health
agenda, a stance reinforced by the HIV prevention complex. Influential
public health experts went so far as to issue a statement framing public
health bodies as pragmatic and rights-respecting in contrast to the MWCD
whose approach was ‘moralistic and antithetical to rights’ (Statement from
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the National Consultation on Sex Work, HIV and the Law 2007). Mean-
while, newsletters of influential donors like the Gates Foundation spoke of
the deleterious effects of criminalization on HIV prevention efforts, as did
the report of the Commission on AIDS in Asia which was released by the
prime minister himself.
By the time the MWCD presented a revised Amendment for Cabinet
approval in September 2007, it faced opposition from within the cabinet.
The MWCD and the Home Ministry supported it while the Health Ministry
did not and no consensus could be found. Meanwhile the government had
been hit by a political scandal and the main proponents of the Amendment
lost their ministerial berths. The Amendment lapsed in parliament in March
2009. Thus a range of factors helped ward off the Amendment, including the
lack of consensus at the highest levels of policymaking, the vocal opposition
of the National AIDS Control Organization and the support offered by the
HIV prevention complex. Interestingly, the very basis on which sex workers
constituted a population group for a governmentalized state ultimately
helped oppose the increased criminalization of sex work.
Returning to the litigative paradox, one might ask why even in the face of
the draconian Amendment did DMSC or NNSW not challenge the ITPA in
court? NNSW had of course always internally disagreed on the strategic
value of litigation, which was broadly reflective of its members’ differences
on prostitution policy, their varied regional political economies of sex work
and their mobilizational repertoires. The setbacks that the Section 377 PIL
faced offered no comfort either. Under the renewed circumstances, even if a
successful challenge to certain discriminatory provisions of the ITPA would
not have warded off the Amendment, it could have mobilized public opinion
against it. The DMSC itself no longer viewed the law as a reserve to be used
as a ‘shield’. Indeed, a DMSC protest rally in 2008 showcased a hangman’s
platform with a sex worker hanging from the noose with a banner urging the
ITPA to stop killing sex workers. Resisting the Amendment had heightened
DMSC’s oppositional consciousness against the law, producing a palpable
shift in its appetite for litigation. Despite its keenness to litigate, however,
this time around, the DMSC lacked the necessary legal resources to access
the courts.
 i n t e r v e n t i o n s
15 :4 544
.........................
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Figure 1 Protesting the ITPA Amendment (Photo courtesy DMSC).

The Law as Sword: Sex Workers Approach the Courts (Finally) (2009
to date)

In the aftermath of the Amendment’s lapse, the eighteen-member strong

NNSW registered itself as the All-India Network of Sex Workers (AINSW)
and deliberated over its future legal advocacy efforts. Spurred by the Indian
Supreme Court’s suggestion that the state ought to consider legalizing sex
work, the AINSW declared its intention to contest various sections of the
ITPA in different High Courts (Sengupta 2009). In August 2010 DMSC filed
a PIL in the Kolkata High Court challenging the constitutionality of
Sections 4, 8 and 18 of the ITPA. When resisting the Amendment, the
AINSW learnt that many MPs were sympathetic to their cause but unwilling
to initiate law reform without a fundamental shift in public opinion. In West
Bengal alone, upwards of 50 per cent of parliamentary and state election
candidates were willing to repeal the ITPA and support labour rights for sex
workers. DMSC also sensed public support for the decriminalization of sex
work. Having prepared the ground of public opinion all these years, a
fundamental shift in values now rendered litigation a more appropriate tool
than before when an adverse judgment would have set back the movement
through a negative precedent. Although litigation remains resource intensive
and funds for it scarce, DMSC now felt confident as a repeat player in the
 SWORD OR SHIELD?
Prabha Kotiswaran
........................
545

legal system to convert even a setback in court to mobilize public opinion

against the ITPA. As one DMSC spokesperson put it, ‘Politics will not stop
because of judicial decisions’.
The AINSW’s decision to litigate may also be related to the fact that HIV
prevention is a less urgent political priority today than even five years ago,
with the UN reporting a 50 per cent reduction in new infections in India over
the last decade. Key funding bodies like the Bill and Melinda Gates
Foundation will also end large-scale funding so as to impose responsibility
on the Indian government to counter HIV (Thacker 2011). This would have
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adversely affected sex workers’ mobilization since DMSC is the only major
membership-based sex workers’ organization which can withstand the loss
of HIV funding. The scaling back of HIV prevention resources may have
precipitated DMSC’s move to resort to what has always been its last option,
the law as sword
finally. Moreover, if the legal odds are anyway heavily
stacked against potential constitutional challenges to the ITPA, there is little
to lose and much publicity to gain.
Interestingly, though, DMSC has not had to wait long for its day in court.
The Indian Supreme Court in the Karmaskar case has continued its
longstanding legacy of directing the executive to rehabilitate sex workers.
Viewing a life of sex work as devoid of dignity, it has set up an advisory
panel for rehabilitation that for the first time includes sex worker
representation through the DMSC. Although DMSC has so far interrogated
the feasibility of rehabilitation instead of opposing it, the panel with
DMSC’s input has clarified that rehabilitation should be voluntary and
unconditional and not limited to trafficked victims. The state had little
trouble accepting this but has firmly opposed the panel’s recommendations
for improving the lives of those who wish to continue in sex work. Thus, it is
in this highly stylized legal arena of the Supreme Court that a sex workers’
group like DMSC, with its newfound respectability, will negotiate the
fundamentally political yet vexed question of whether sex work can ever be
legitimate work.

Conclusion

Contemporary neoliberal conditions in India have substantially reconfigured

its sexual economies. The increased visibility of both hegemonic and
marginalized sexualities seems palpable amid expanding material spaces
for their articulation and consumption. The law, far from being a purely
repressive force, has played an important role in the discursive mediation of
these new sexual forms, often involving the normalization of abject
sexualities. Yet, as I have demonstrated through the case of the Indian sex
 i n t e r v e n t i o n s
15 :4 546
.........................
workers’ movement, the possibilities for recognition by state law, even if it is
of symbolic value, are not equally available to all sexual minorities. One
could explain this predicament in terms of the subaltern citizen status of sex
workers and their ability to realize a limited order of rights only as a high-
risk population group in political society. Yet, drawing on social movement
theory and socio-legal scholarship to plot the legal mobilization of the Indian
sex workers’ movement over the past twenty years, I offer a more complex
picture. Over this period the Indian state’s disposition towards prostitution
law reform, informed by a global sex panic, has become increasingly
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abolitionist, producing a rather constricted policy space for a movement

insistent on nothing less than workers’ rights. HIV prevention efforts, on the
other hand, despite their circumscribed regard for sex workers’ rights,
provided the impetus for the emergence and consolidation of the sex
workers’ movement, provided a foothold for demanding benefits of the
governmentalized state and ultimately became the linchpin for orchestrating
governmental dissonance. However, this does not detract from the resolutely
political nature of sex worker mobilization, a prerequisite given the janus-
faced nature of the Indian state and its unmitigated violence. Indeed, like
many social movements, the Indian sex workers’ movement has been
circumspect with litigation, resorting to it only after successfully mobilizing
against a criminal law that would have dramatically increased the tolerated
residuum of abuse against sex workers, undermined their fledgling move-
ment and closed off venues for redistributive law reform. To conclude,
‘political society cannot exist autonomously of civil society’ (Chatterjee
2011: 231). Indeed, for a social movement, they are not mutually exclusive,
as its struggles flicker through both civil and political society. This was
evident in the latest round of rapelaw reforms in India when the AINSW was
able to forge an alliance with the Indian women’s movement to reject the
contraction of all forms of prostitution whether voluntary or not with
exploitation for purposes of the definition of trafficks. It is only through an
account of the schizophrenic nature of state power and the constant
strategizing of a social movement can we explain how the lumpenproletariat
today find themselves in the theatres of state power.

Acknowledgements

I am grateful to V. Sreeram, Tripti Tandon and Dr Smarajit Jana for their

insights into the sex workers’ movement, to the essay’s anonymous reviewers
for their valuable suggestions and to Sakshi Ruz for research assistance.
Many thanks to DMSC for sharing the photo herein.
 SWORD OR SHIELD?
Prabha Kotiswaran
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