• Parth Maniktala

How Women Are Reclaiming Public Spaces in the Interest of Democracy

Protests in Mexico for activist Isabel Cabanillas killed in Juarez, Mexico - Paul Ratje (AFP).

One of the functions of power (be it through the State apparatus or ideological frameworks) is to force the will of the powerful over powerless people. The purpose of exerting power is to deprive the individual of cherished possessions. Patriarchy as a social system, or an oppressive ideological structure, is no different. It seeks to deprive women, trans persons, queers—simply put, the entire spectrum of non-cisgender, non-male identities—of access to the most basic of rights and opportunities. In fact, it forces all other persons to identify themselves through the lens of the cis-male. The first form of deprivation that patriarchy subjects people to is that of their own identity; it robs them of the ability to view themselves as anything but the anti-thesis of the male subject. As Simone de Beauvoir puts it in the Introduction to The Second Sex: “She is defined and differentiated with reference to man and not he with reference to her; she is the incidental, the inessential as opposed to the essential. He is the Subject, he is the Absolute — she is the Other.”

International Women's Day is a symbolic reminder of the continuous struggle to reclaim all that patriarchy has denied: independence, equality, choice, dignity, opportunity, and so much more. The fight to reclaim is visible the world over. At the time of writing, women protestors of Shaheen Bagh are on the 91st day of an indefinite sit-in to protest the Modi government’s discriminatory and Islamophobic citizenship law. In Chile, more than a million women took to streets to participate in International Women's Day marches—a part of the nationwide resistance against inequality, social injustice and the high cost of living. In Pakistan, thousands of women marched across main urban centres, raising slogans of ‘Mera Jism, Meri Marzi’ (My body, my choice). Fatima Hassan, a student activist who attended the march in Karachi, said “I'm a young woman [and] I'm here today because I don't feel comfortable walking alone at night…And I'm here for all those women who couldn't be here today.” In Islamabad, radical Islamist groups attacked the women’s march by hurling rocks, chunks of mud, and even their shoes. To quote one of the protestors from Pakistan, “The thought of a women's march advocating women's rights shakes patriarchy to the very core.”

The act of reclaiming is in itself revolutionary; it is a reminder that the powerful cannot eternally continue to oppress. That someday power will be snatched from their desperate clutches. Philosopher Michel Foucault talks about the strength of counter-discourses and counter-identification, that is, individuals can take on board the stigmatised individualities that they have been assigned, such as that of ‘perverse sexuality’ and revel in them rather than seeing them in negative terms. The very use of the word ‘Queer’ to describe anti-essentialist lesbian and gay theorising is an instance of counter-identification, of celebrating the terms which have been used as condemnation.

Protests in Chile (EPA).

I shall now discuss the case of Husna Bai (as documented by Rohit De in A People’s Constitution), who sought to reclaim her autonomy and right to economic self-assertion through the means of the Indian Constitution.

In May of 1958, the Allahabad High Court saw an unusual sight. A large crowd had gathered in Justice Jagdish Sahai’s courtroom, to witness the rare presence of a young female petitioner in an overwhelmingly masculine courtroom. The petitioner was Husna Bai, a twenty-four year-old Muslim woman who had openly declared that her profession was prostitution. She was present in the court to challenge the constitutionality of the recently enforced Suppression of Immoral Traffic in Women and Girls Act, 1956 [later known as the Immoral Traffic (Prevention) Act]. The Act was framed in pursuance of the International Convention signed at New York for the prevention of immoral traffic (that is, sex work and its allied activities).

Section 7 of the Act made it a criminal offence to practice prostitution within two hundred meters of a place of religious worship, an educational institution, hotel, hospital, nursing home, or any other area notified by the Police Commissioner or Magistrate. Section 8 of the Act criminalized public ‘soliciting for purpose of prostitution’. Section 10(1)(a) of the Act enabled the court to detain a woman guilty of the aforementioned offences in a corrective institution for a period between two to five years (Note: the Act imposes a mandatory minimum sentence of two years; the Court does not have the discretion to detain the offender for a shorter duration).

Women in New Delhi's Shaheen Bagh protesting against India's Citizenship Amendment Act. Nasir Kachroo (Al Jazeera).

The Immoral Traffic (Prevention) Act represented independent India’s commitment to eliminate human trafficking and forced labor. And yet the Act stemmed from a certain puritan framework that saw sex work as an inherently immoral act. A prominent leader of a nationalist women’s organisation had 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.”

Husna Bai sought to challenge this notion through her petition. She argued that the Act was in violation of her fundamental right to practice her profession as a prostitute, which was protected under Article 19(1)(g) of the Constitution. She argued that by depriving her of her means of livelihood, the Act ‘frustrated the purpose of the welfare state established by the Constitution in the country.’ Her petition was a clear act of exercising agency as an independent actor, who sought to reclaim the economic space deprived to her under the garb of protecting the nation’s “spiritual and moral values”. The day before the Immoral Traffic (Prevention) Act came into force, 75 women claiming to be members of the Professional Singers and Dancers Association had staged a silent demonstration outside the Parliament. On the day that Husna Bai filed her petition, about 450 singers, dancing girls and sex workers formed a union to fight the Act. These were women who had hitherto occupied the margins of civil society, but were now reclaiming their voices in a discourse aimed at drastically altering their lives.

Pakistan Protest March on Women's Day. Arif Hassan (AFP).

Unfortunately, the Supreme Court rejected the contentions advanced by Husna Bai and other petitions filed by sex workers before the Delhi and Bombay High Courts. The Supreme Court admitted that section 20 of the Immoral Traffic (Prevention) Act—which allows a magistrate to evict a sex worker from her place of residence in ‘the interests of the general public’—constituted a restriction on her fundamental right to move freely and reside throughout the territory of India. However, the Court held that such a restriction was justified, given that ‘the magnitude of the evil and the urgency of the reform may require such drastic remedies.’ Provisions of the Act were upheld to prevent ‘moral decadence in a busy locality’. The Court went on to observe that ‘The object of the Act…is not only to suppress immoral traffic in women and girls, but also to improve public morals by removing prostitutes from busy public places in the vicinity of religious and educational institutions.’ [State Of Uttar Pradesh v. Kaushaliya Devi]

Whether the Immoral Traffic (Prevention) Act has helped reduce human trafficking and forced labour, or has instead become a weapon to further marginalise sex workers, is a discussion for another day. But for now, as Rohit De notes, the transformative power of this case lay in the fact that ‘a prostitute who filed a lawsuit in the Indian republic was able to represent herself as an economic actor asserting her rights in a public space.’ It is this very spirit of assertion and reclamation that is embodied by International Women’s Day. Long live this spirit!

Views expressed are solely those of the author.

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About the Author

Parth Maniktala holds a Bachelors in English from Hans Raj College, Delhi University, where he also served as the President of the Debating Society. He has been recognized as one of Asia’s top 10 speakers at the United Asians Debating Championship held in Cambodia. He has also been the chief adjudicator of the annual national schools debating championship of Nepal. Apart from debating, he has a keen interest in cinema and literature. Currently, Parth is pursuing his L.L.B. Degree from Campus Law Center, University of Delhi, India.

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