Compared with its size and status in years passed, one can notice many changes upon revisiting Kamathipura in Mumbai today. It remains the most famous red-light district in India, and was once considered the largest in Asia. The name itself was part of Bollywood’s lexicon from the very beginning of the Bombay film industry, and was synonymous with prostitution, fallen women and lost honour. Yet the epic, iconic representation of Kamathipura belies the mundane nature of the everyday life that also exists there – with tailoring shops, tea stalls and restaurants crowded cheek by jowl with the century-old chawls, where people who sell sex live with their families. The legal regime that governs their daily lives, meanwhile, continues to feed off of long-held, and often unexamined, ideas about why and how people there engage in this work, and about what their existence means for the wider world.
Even as the law remains moored in the past, today the daily routines of the women, in particular, who live and work in Kamathipura are overlaid with a sense that things are changing. Recent years have seen an increase in the number of police raids on brothels, with fewer clients visiting sex workers in the area, and the ones who do having generally less money to spend. Such changes could speed up massively in the near future, as multiple ‘redevelopment’ schemes go forward, threatening to pave over one of Mumbai’s most infamous and historic areas in favour of luxury apartments, a shopping mall, or both. Importantly, the vast changes in this area are directly linked with the wealth that neoliberalism has brought to the new Indian upper class. What may be happening here has already happened to historic red-light districts in several urban areas elsewhere in India, the US and Europe, and is part of a global urban trend. In order to understand this trend with respect to Kamathipura, it is also necessary to examine the relationships between the internationalised anti-trafficking policy framework, migration and sexual commerce.
Over the past ten years, media-driven punditry about India being poised to become the next economic superpower has been accompanied by frustration in some international circles over the Indian government’s continued ‘laxity’ in controlling what is referred to as ‘human trafficking’. In this argument, ‘human trafficking’ is equated with prostitution, and with female prostitution in particular, and the only proper response is framed in terms of criminalising all sexual commerce. In fact, there is significant disagreement about what the legal definition of ‘human trafficking’ should encompass, particularly regarding the question of whether selling sexual services is inherently equivalent to human trafficking. This disagreement is both about whether prostitution should or should not be understood as trafficking per se, and about the utility of the anti-trafficking framework itself.
Critics of the framework argue that conflating trafficking and prostitution renders all sex workers as victims, rationalises a fairly heavy-handed response to prostitution by the state, and ignores the economic and social contexts for sex work. The ideas that some sex workers might be negotiating their livelihoods among a limited set of options, or that others might decide that prostitution is the best of a vast range of options, are precluded by only understanding prostitution in terms of trafficking. This telescoped understanding of trafficking – one that narrows its focus to sexual commerce and magnifies prostitution – has also tended to miss human trafficking into other industries, although the official definition of trafficking, enshrined in the Palermo Protocol, does gesture in this direction.
‘Trafficking in persons’ is defined in international human-rights discourse, through the Protocol, as the recruitment, transportation or reception of a human being where deceit, coercion or force has been used, and where their exploitation is the goal. ‘Exploitation’ is defined in terms of prostitution, forced labour and slavery or slavery-like practices. Although the term ‘trafficking’ is relatively broad in meaning, inter-governmental conversations on the issue, and the interventions that governments have promoted, have tended to reduce trafficking to either transporting women and girls into sex work, or to sex work itself. New Delhi and Kathmandu’s responses to the suggestion that human trafficking is ubiquitous has historically been to emphasise international border controls, the most infamous of which were rules imposed during the late 1990s, lasting until 2007, mandating that Nepali women and children crossing into India (or elsewhere) could only do so with explicit permission from a guardian. A grown Nepali woman could not come to India alone. Although the policy was never assessed for its impact on Nepali women entering sex work in India, it was in place for nearly ten years due to government concerns about Nepal and India’s open border, concerns that have been echoed around the world over the past decade. In this case as in others, the rationale that the anti-trafficking framework provides for controlling borders more tightly resonates with anti-migrant sentiments that have fuelled crackdowns on illegal border crossings worldwide.
‘Trafficking’ has thus not only become the dominant way to speak of female migrant workers in this region and elsewhere, but it has also become a key tool in lobbying for heightened international border controls and eliminating ‘porous’ zones between countries. While promoting this agenda has required financial and diplomatic mandates and incentives, it has also relied on seeing sex work, and red-light areas generally, as exceptionally dangerous and exploitative, and on seeing heightened state-sponsored border controls and urban policing as a panacea. Such a view assumes that most, if not all, people selling sexual services are abject women and girls who need rescue. It also assumes that these individuals have never engaged in any other paid work, or, if they have, that any other experience of paid work is irrelevant.
Legislating sexual commerce
Prostitution and trafficking were not presented as essentially equivalent until relatively recently. Although India has had laws that render aspects of sexual commerce illegal since the 1940s, the country’s policy on prostitution has largely been that of containment, and resulted in prostitution being ghettoised within a few urban spaces. This policy is markedly different from that being called for by advocates who work from the perspective of the dominant anti-trafficking framework, which calls for the abolition of prostitution altogether, and results in more state-sponsored repression of prostitution in public urban spaces. This context is important for understanding the historical development of cities such as Mumbai, which has included specifically demarcated red-light areas since the late 19th century. Kamathipura began as a set of licensed brothels for use by British soldiers and sailors of numerous nationalities who passed through the city. Thereafter, turn-of-the-century red-light districts, like slums, became targets for legislators, middle-class social reformers, health advocates, the media and almost anyone seeking to demonstrate their concern for society by aiming to help those they perceived to be the most helpless.
This local context was significant in the newly independent Indian state’s ratification of the international 1949 Anti-Trafficking Convention, one of the first conventions to be debated and sponsored by the then-newly formed United Nations. As a signatory to the Convention, India was obliged to pass legislation that would enshrine its principles in law, which New Delhi fulfilled by passing the Suppression of Immoral Trafficking Act (SITA) in 1956. This was amended twice during the subsequent three decades and ultimately renamed the Immoral Trafficking (Prevention) Act (ITPA). For its part, the 1949 Convention was based on previous anti-trafficking agreements derived from the discourse of ‘white slavery’, a term that referred to prostitution, and prioritised protecting the chastity of white women. Further, because ‘white slavery’ was essentially prostitution, signatories to the Convention inherited the burdens of overlapping and sometimes confusing references to slavery, trafficking and prostitution – burdens that survive in the contemporary debates on whether or not prostitution and human trafficking are one and the same.
ITPA exists alongside Indian police acts and anti-solicitation and anti-nuisance laws that already bestow relatively broad powers on the police to fine, arrest and remove sex workers from public areas. These are further supplemented by informal policing practices such as the enforcement of unwritten curfews in and near low-income neighbourhoods in cities like Mumbai. Although ITPA is legislatively redundant in several ways, its main clauses are still used to restrict visible signs of sex work in public spaces, such as ‘solicitation’, which is so broadly defined here, and in most anti-prostitution legislation everywhere else, that it lends itself to abuses of power by local authorities. Nowhere in Indian law is the actual exchange of sexual services and money defined as illegal; rather, solicitation, living off of the earnings of a prostitute, and being under the age of 18 and living in a brothel, for example, are criminalised (see accompanying piece by Rakesh Shukla). In other words, while prostitution itself is not illegal, certain contexts associated with prostitution are.
This legal context would have changed radically if reforms to the ITPA, submitted by the Ministry for Women and Child Development in 2007, had been passed. These reforms were ultimately scuttled by a number of factors, including resistance from sex workers’ rights groups, and a parliamentary standing committee report that pointed out that there were flaws in the proposed amendments that would have rendered the ITPA even more vague and unenforceable than it is currently. While the amendments would have included the repeal of the anti-solicitation clause, pushed by advocates of sex workers’ rights, a host of other proposed reforms were also included, such as enhanced penalties for running a brothel, lowering the rank of police officers legally empowered to conduct raids on brothels and, most importantly criminalising clients of sexual services. The proposed amendments also included a new, expanded definition of prostitution as ‘sexual exploitation or abuse of persons for commercial purposes or for consideration in money or in any other kind.’ By defining all sex work as inherently exploitative, and by defining sex work as any exchange of sex for anything at all, the amended bill would have made almost any kind of sexual exchange open to anti-trafficking measures (which likewise focus on ‘exploitation’), and would have completely outlawed the use of sexual commerce as a livelihood option.
This attempt at reforming ITPA such that it would be more closely aligned with the hegemonic anti-trafficking paradigm has important implications in the international context. While the United States government has not overtly attempted to control the Indian legislative process, it has pressured New Delhi’s legal response to sex work by placing India on the US State Department’s ‘Tier 2 Watch List’ within its Trafficking in Persons Report, an assessment of all countries’ efforts to curb human trafficking within their own borders. A Tier 3 status would mean that the US is legally allowed to withhold all non-humanitarian aid to India – which for New Delhi would be far less damaging than the international bad press that would surely ensue. Avoiding this means making its commitment to ‘ending human trafficking’ clearer – such as these recent attempts at further criminalising sexual commerce.
Decades ago, mainstream policy efforts on prostitution in the Subcontinent focused on health, if at all, and, from time to time, on rescuing women from brothels. In recent years, anti-trafficking efforts have initiated a significant shift in this focus. The currently ascendant anti-trafficking regime in India is guided by the notion that sex work is always a violation of human rights, and that it can and should be completely abolished. Much of this shift in focus can be traced back to the advent of HIV/AIDS, during the 1980s. In 1986 in Madras, the first few cases of the infection in India were identified, among male truck drivers (read: migrants) and female sex workers (read: non-migrants). Thereafter, these groups of people increasingly became categorised as ‘risk groups’ for HIV infection – a notion that, as elsewhere in Asia and Africa, lent itself to a historical trend of conflating sexual commerce with disease.
In identifying trends as the infection spread, a clear attempt was made by most public health and community-based advocates to emphasise the concept of ‘risk behaviours’ over ‘risk groups’ in public-health interventions. However, the latter concept continued to be used in shaping state and international priorities. Thus, despite the best efforts of activists to say that HIV risk is based on what one does (e.g., have unprotected intercourse with someone who is infected), the notion that HIV risk is based on what one is perceived to be (e.g., a sex worker) won out. The idea that HIV risk can be thought of as pertaining primarily to a group of people, as opposed to a group of behaviours, meant that HIV risk was thought to be inherent to that group. This vein of discourse on HIV reinforced the notion of inherent qualities pertaining to socially and economically marginalised groups of people. For sex workers, being a risk group meant not only that they were ‘inherently’ at risk for HIV, but also reinforced the sense that being a sex worker had other inherent qualities, like that of being exploited.
The notion that exploitation is inherent to sex work has given rise to interventions that see ending that exploitation as the same thing as ending sex work. However, this strategy does not explain the resistance that sex workers have demonstrated against efforts to criminalise and ban prostitution. In response to brothel raids, arrests and other state and NGO-sponsored efforts to eliminate prostitution, sex-workers’ organisations have argued that these efforts will essentially cut off their livelihood. These groups do not argue that sex workers are never exploited. Rather, they identify the sources of exploitation in a range of areas, for example in police who abuse their power, in clients who are abusive, or in the conditions of poverty and stigma experienced by many people who sell sexual services. Taken together, these ways of defining exploitation stem from a legal and social system that stigmatises prostitution and renders people selling sex as being outside the purview of any legal protection from the state. Ultimately, these understandings of exploitation challenge the foregone conclusion that the exchange of sexual services for money is, in and of itself, exploitative for everyone selling sex.
In Kamathipura, for instance, the women report that the incidence of brothel raids, conducted by police but sometimes motivated by both police and local anti-trafficking activists, have increased. In Mumbai, the raids are conducted as part of the exercise of ‘rescuing’ women and girls from brothels. These operations can result in indefinite extrajudicial detention in so-called ‘rehabilitation facilities’, although they often also result in women and girls having to spend a number of days in prison until they can borrow enough money to pay a fine. This regime of regulation begs the question of how non-brothel-based, and even episodic, sex work is regulated, as the non-brothel-based sex sector expands, and urban brothel-based sex work shrinks in both size and reach.
Public-health interventions are increasingly taking place among some non-brothel-based sex workers. For instance, women working along highways are targeted, as are those in caste-based communities where female sex work is considered ‘traditional’. Still, much of the sex work that takes place outside of brothels remains largely unseen and unaddressed. In cities such as Mumbai, non-brothel based sex work includes the solicitation of clients for sex from nakas (informal labour markets) by a percentage of daily-wage labourers. Women who solicit manual daily-wage labour in the construction industry might also solicit clients for sex, or they might exchange sexual services for paid work, blurring the lines between ‘sex’, ‘construction’ and ‘informal sector’ worker, and raising the importance of making a conceptual distinction between people who sell sexual services as their primary livelihood strategy, and those who do so more episodically. Considering episodic and non-brothel-based sex work also allows for an understanding of sexual commerce that accounts for hijra and male sex workers, while the current discourse on prostitution struggles to recognise their presence within its frame.
The changes that have already occurred in Kamathipura are emblematic of the decline in urban brothel-based sex work across the country. While Kamathipura will still exist for some time to come, it is clear that brothel-based sex work is being displaced in favour of other modes of sexual commerce. For the poor, these include street-based sex work, and continuing the practice of folding sex work into a range of often simultaneously practiced livelihood strategies. For the middle and upper classes, these modes include the Internet, five-star hotels and word-of-mouth networks that entirely avoid public spaces. Nevertheless, for the moment, the legal regime of prostitution remains focused primarily on urban brothels. The way in which this regime is enforced is emblematic of the limitations in dealing with the rapidly evolving realities of sexual commerce throughout India.
~ Svati P Shah is assistant professor at the University of Massachusetts, Amherst.