Indian colonial and post-colonial legislation and society together tried to push sex workers in India outside the domain of the ‘normal’. This exclusion was part of the anglicisation of religious text by the British and Brahammanical value system. Even after independence, the shadow of moral chastity reflected on the drafting and interpreting laws that continued to create exclusionary spaces for sex workers in India by further invisibilising them. From criminalisation to victimisation, Shivangi Banerjee describes the derogation of sex workers in India. She argues that the idealised model of women was a making of the British colonial era and constitutional elites, and explains her assertion using Rohit De’s book ‘A People’s Constitution’.
By Shivangi Banerjee, a second-year student from School of Law Presidency University, Bengaluru, Karnataka. Shivangi is also a Community Manager for Lawctopus Law School Book Club.
Imagine waking up in a world where fundamental human rights are forbidden. Bearing the label of an outlaw, you hide in a suburb, risking your life to pursue your profession, a world where your identity is stigmatised to the extent that first you’re victimised and then criminalised.
What if you get subjected to the short end of morality? What if you get blamed for your own victimisation solely for your profession?
Sounds bizarre, doesn’t it? But, unfortunately, this remains the ground reality for sex workers in India.
It is no secret that sex work or unhitched sexual expression by women remains in the cusps of an orthodox belief system. It is assumed that the Indian traditions imagine an ideal woman and demoralise her sexual freedom and desires.
Popular belief has led us to blame our culture and heritage for the plight of sex workers in India and other regressive thoughts. Yet, ironically enough, the very things that are considered alien to Indian ethos once made our country the most sexually liberated in the entire world.
The’s ample evidence to support India’s acceptance of female sexual expression. The same can be traced back to the eighth century. Be it the references found in Sufi poetry, ancient scriptures in the Chandella dynasty or the mentions of ‘prostitution’ in almost all ancient Indian literary work.
In fact, in the Mughal era, ‘tawaifs’ or prostitutes present in the Mughal Harem were considered a symbol of a high culture where rather than being reprimanded, they were given the position of courtesans and led a pleasant and respectable life.
Pre-colonial or ancient India never looked down upon consensual sex work or women owning their sexuality. So, how did sex work that was once openly practised, ended up getting trapped under regressive ideals?
The reason mainly lies on three pedestals of misogyny:
Cultural misrepresentation of women, colonial remnants and moral policing by the drafters of the Constitution and their elitism.
Cultural Misrepresentation of Women
It might come as a shock to many that starting from 5000 BC, 99.5% of mainstream historical writing engages itself with the accomplishments and lifestyle of men, leaving a mere 0.5% for women.
However, when we look at the feeble portrayal of women in both data and character, the statistics aren’t surprising. At the dawn of multiculturalism in our country, writers catering to various kings became obsessed with writing down history with valiant male representation, keeping the role of women limited to mere caretakers of the Badshah.
With time, the idea of a liberated woman soon got weighed by moral chastity and virtue.
Mughal writer Abbu Fazal was one such writer who constantly demonised empowered women to maintain their unrealistic sanctified image.
On the other hand, female writers like Gulbadan Begum gave an alternate account from their own life, nullifying Abbu Fazal’s appropriation of a certain kind of woman. She disclosed that unlike the image shaped through the male gaze, both wives and prostitutes in Mughal Harems had money in their hands and played a vital role in decision making.
Unfortunately, the sanctification of females transcends religious boundaries, and the male gaze encompasses all religious texts.
Even when it came to the written records of the Hindu women considered to be feminist, the male gaze altered anything that did not fit into their idea of an ideal female.
This alteration, however, did not limit itself to sexual liberation. Thus, for example, when celebrating an ‘ideal’ Hindu woman like Meera Bai for her religious devotion and authenticity, popular literature fails to mention that she often spoke up against female objectification and various patriarchal traditions.
Similarly, Rani Lakshmi Bai was labelled as the ‘queen of rebellion’ and celebrated by Indian nationalists for her resistance and radical movements during the war. However, there’s little to no account of her opposition to misogyny.
All this was conveniently subsided, especially for women who stood against patriarchy. And there’s only one way to celebrate them by projecting them as ideal, monogamous or morally upright.
Even with the alteration, the only women who had a chance to be idealised were either virgin saints or married women—restricting female sexuality and expression strictly under patriarchal notions of marriage.
Therefore, instead of getting the chance to be sexually and professionally liberated, any woman who was not ‘chaste’ enough got reduced to a victim or got labelled as immodest.
Colonial Remnants and Sex Workers In India
Much of what we label as ‘tradition’ today is a combination of innately sexist Hindu scriptures and equally regressive ideals of Victorian Britain. Though evidence of casteism can be traced back to pre-colonial times, the British reaffirmed it.
The lack of transparency with regard to true female expression is only the tip of the iceberg. While acceptance to sex workers in India is evident in Rigveda, but with the increased casteism in a Brahmanical society, it slowly got overshadowed by the masculine morality in the Manusmriti.
The Brahmins were the primary guides to Britishers. Thus, the anglicisation of religious texts was dictated by the upper-caste outlook and Victorian ideals.
As women were subordinated in Victorian England, the British colonisers loathed and were also intrigued when they came to India. Finding familiarity in the regressive image of women portrayed by male writers and the suppressive Brahmanical practices, the British adopted a narrowed perception of Indian culture.
Sex work was once considered a legitimate profession under the Dharma Shastra and regulated by law (vide Artha Shastra of Kautilya). However, the British victimised sex workers, making them a subject of cultural misunderstandings and colonial ideals.
Given that the misogynistic morals of Manusmriti served as the primary text of reference for British lawmaking, one can argue that the British cannot be entirely blamed for misinterpreting India. However, it is also important to note that they chose to refer to Manusmriti despite Kamastutra (which can be considered the epitome of sexual liberation in India), written in the same period. This shows that western culture and its familiarity played a significant role in curbing female emancipation in India.
The new version of India was riddled with upper-caste morals due to colonial morality and view, which we are fighting to this day.
With the spread of colonialism, the British soon began their mission to ‘civilise’ the natives by singling out sexually liberated people as ‘rogues’ or ‘criminals’, penalising them under strict laws.
They subjected groups to a grave and permanent legal disadvantage. Under the Criminal Tribes Act(1871), members of various nomadic tribes were labelled as ‘thieves’, ‘dacoits’ and ‘undesirables’. Owing to the vagrant life of tribal women, all of them easily fit into the Victorian fabrication of the ‘immoral’ women.
British hostility towards sexual liberation turned so bad that eventually, they amended the Criminal Tribes Act to outlaw ‘Eunuchs’ (Transgenders) and all other queer sexualities, penalising their existence.
These laws and acts like monogamous institutionalisation of marriage caused the gradual deconstruction of India’s position as a unique and sexually liberated country. But, consensual sex work being an essential part of it, was not spared the rod either.
Constitutional Elitism and its Impact On Sex Workers in India
In his book, ‘A People’s Constitution: The Everyday Life of Law in the Indian Republic’, Rohit De gives a detailed and well-documented account of governance and the plight of ‘prostitutes’ both during and after colonial rule.
The slow transition of sex workers from civil citizens to criminals of a commercialised vice dates back to the nineteenth century.
Ever since the Indian Contagious Diseases Act (1868) got enacted, sex workers slowly started succumbing to bribes or haftas as they sought concessions from the police for subsistence. Unfortunately, this practice is routine even today.
As our country came closer towards freedom, laws against prostitution became more and more restrictive, ruling women out of their right to choose a profession. As De puts it,
“The enactment of colonial anti-prostitution laws and increased surveillance after various episodes of moral panic led to several prostitutes trying to evade the gaze of the state.”
He further adds that sex workers in India hid their identities during this time. Adopting the culture of bribery, many sex workers turned into ‘clandestine prostitutes’ hiding behind the label of a singer or a dancing girl.
As a consequence of intrusive policing, stricter anti-prostitution laws like the Prevention of Prostitution Act (1923) together struck fear in the hearts of sex workers. Worse than it had ever been before, the laws made it clear that a belief based on moral policing had taken a turn, grave enough to criminalise visible forms of female sexuality into a new discourse of criminality.
One can locate the reason for this sudden hate in the contents of yet another anti-prostitution act implemented in the same year, The Bengal Suppression of Immoral Traffic Act (1923).
This harsh legislation brought forward a whole new aspect to the anti-prostitution agenda, conflating prostitution laws with human trafficking. Soon, the first post-colonial prostitution law was drafted under the same narrative.
The Suppression of Immoral traffic act (SITA) that came into force in 1958 was one of the first regressive legislation after independence, curbing female bodies. Unfortunately, to our disdain, this legislation became the primary medium through which the sanctified image of a moral woman directly affected sex workers.
Amidst other complexities, there was a lack of governmental interest concerning this legislation. Frustrated by governmental reluctance, an abolitionist organisation called the ‘Association of Social and Moral Hygiene’ (ASMH) approached the female members of the cabinet to deal with ‘fallen woman’.
Therefore, legislation curbing the basic human rights of prostitutes was soon celebrated as a hallmark of ‘mainstream feminism’ at the time. However, this perception of feminism cannot be entirely blamed on the cabinet. The consequences suffered by sex workers because of the implementation of SITA bore a striking resemblance to the previous anti-prostitution laws. Still, the aims of the legislation had a very significant difference.
The drafters of SITA introduced a rehabilitative or ‘rescue’ clause in the legislation. This brings back to the point mentioned above of cultural misrepresentation of women and the portrayal of unmarried women as ‘victims’.
The language of the act was pretty self-explanatory. Through this act, the drafters collectively assumed the lack of consent by sex workers and conflated all forms of sex work with trafficking and kidnapping.
The thought that a woman can choose prostitution as a profession was incomprehensible at the time. This shows that despite our newfound independence, the aftermath of colonial morality ran deep in people’s mindsets. It was so innate and archaic that even educated women failed to see the underprivileged women as autonomous beings.
In the chapter ‘Constituting Women in the New Republic’, De points out one of the many pseudo-feminist statements fueled by deeply embedded regressive thought.
While explaining the AIWC’s (All India Women’s Conference) stance on prostitution, he refers to the words of a nationalist female leader where she says,
“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 organisations after independence was to “end such exploitation and to restore to the victims of such exploitation an honourable place as useful citizens with dignity and self-confidence as the women and workers of a free India.”
It is pertinent to mention that the regressive thought in the cabinet was not limited to females.
The Gandhian phase of the national movement emphasised recruiting ‘respectable’, ‘modest’ women who ‘maintain decorum’, bringing back the moral viewpoint.
Therefore, it is not surprising that many sex workers in India often marry to evade legal action. However, the fact that marriage saved many from being criminalised makes it crystal clear that the seemingly immoral act ‘prostitution’ was paid far greater attention rather than the actual state of sex workers.
It is regrettable that instead of legalising sex work that would have helped decrease trafficking, the government chose to make lives more difficult for sex workers in India by turning them into criminals.
After years of countless prostitutes evading the law, Husna Bai, a local prostitute, took a ‘radical departure from the ordinary’and filed a petition challenging the legislation based on infringing her right to practice her profession.
Soon, it was found that the petition was not an unusual act of rebellion by an individual but ‘one part of a collective action by a loosely organised group of women engaged in sex trade’. Thus, the petition made her a representative of thousands of women deprived of their fundamental rights. De has written a detailed account of the same in the chapter ‘The Case of the Honest Prostitute’ of the book ‘A People’s Constitution’.
Ironically enough, the female representation for abolishing prostitution was considered an act of feminism, but the rebellion by a sex worker was dismissed.
The decision of making an all-women committee for sex workers was surprisingly progressive. It is, however, not a surprise that when placed against social conventions, the unapologetic ignorance by the same ‘female representatives’ towards the actual needs of the prostitutes came from a place of pure privilege.
Here it is also necessary to highlight the privilege and elitism of the Constituent Assembly, which was fraught with mostly upper-caste Hindu male members. The Constituent Assembly had only one Dalit woman, Dakshayani Velayudhan and one Muslim woman- Begum Aizaz Rasul. As mentioned above, it mainly was the most privileged and conventionally modest women who made their way in the parliament.
Their privilege led them to blatantly ignore the choices and preferences of the economically weaker or lower caste women. Even after independence, the post-colonial ‘progressive’ lens ripped the ‘underprivileged’ women off their rights based on restrictive and moral understanding.
The reaction of Lady Rama Rau, who chaired the ASMH committee, is a classic example of the privileged lens. Being from an underdeveloped village, three sex workers told her that they preferred a financially fulfilling life in brothels over leading an everyday life in their village. Lady Rama Rau dismissed their autonomy, concluding that she could not find an ‘adequate answer to their argument’.
It all adds up, even the Constituent Assembly members had internalised misogyny, and the same reflects in the legislation. Hence, the first step must be to let go of the orthodox regressive image of women and acknowledge the privileged ignorance of the drafters. Only then one can fight the counter-productivity of anti-prostitution laws, which led to the stigmatisation of sex workers, both women and transwomen.
 Arora, N., Arora, N., Editors, T., Bhasthi, D., Kumar, R., & Naqvi, W. (2021). The road to Khajuraho – Himal Southasian. Retrieved 5 July 2021, from https://www.himalmag.com/the-road-to-khajurao-indians-excerpt-2021/
 James, Delaney. “RUMI: The Homoerotic Sufi Saint.” CrossCurrents, vol. 69, no. 4, 2019, pp. 365–383. JSTOR, www.jstor.org/stable/26851798. Accessed 5 July 2021.
 Pande, R. (2021). Writing the history of women in the margins: The Courtesans in India. Mizoram University Journal Of Humanities & Social Sciences, IV(2), 1-3.
 The Hindu. (2019). Imagine Gulbadan seeing the Jesuits for the first time’: Ira Mukhoty. Retrieved from Imagine Gulbadan seeing the Jesuits for the first time’: Ira Mukhoty. (2019). Retrieved from https://www.thehindu.com/books/imagine-gulbadan-seeing-the-jesuits-for-the-first-time-ira-mukhoty/article26406126.ece
 Chakravarti, A. (2019). Caste Wasn’t a British Construct – and Anyone Who Studies History Should Know That. Retrieved from http://Caste Wasn’t a British Construct – and Anyone Who Studies History Should Know That
 Verma, A. (2019). 144 [Podcast]. Retrieved 5 July 2021, from https://open.spotify.com/episode/3bHuXlUyLViG7icYt3Zbm2
 Gupta, A. (2008). This Alien Legacy. Retrieved 7 July 2021, from https://www.hrw.org/report/2008/12/17/alien-legacy/origins-sodomy-laws-british-colonialism
 Gupta, A. (2008). This Alien Legacy. Retrieved 7 July 2021, from https://www.hrw.org/report/2008/12/17/alien-legacy/origins-sodomy-laws-british-colonialism
 DE, R. (2018). PEOPLE’S CONSTITUTION (p. 183): PRINCETON University PRES.
 DE 2018, 179
 DE 2018, 171
 DE 2018, 175
 DE 2018, 184
 DE, 2018, 190
 DE, 2018, 182
 Rao, B. (2021). Why A Feminist Engagement With Constitution Is Necessary – BehanBox. Retrieved 7 July 2021, from https://behanbox.com/2020/01/27/a-feminist-engagement-with-the-constitution-is-important-for-breaking-the-structures-of-patriarchy/
 DE, 2018, 192