'A People's Constitution' Talks About Everyday Life of Law In India

Rohit De's A People's Constitution: The Everyday Life of Law in the Indian Republic explores how the Indian Constitution enfranchised the largest population in the world. An excerpt from the chapter The Birth of SITA: The Making of a Postcolonial Prostitution Law:

The Suppression of Immoral Traffic Act, which Husna Bai challenged, was enacted in 1956 but came into force only in 1958, several years after the commitment to end trafficking had been enshrined in the Constitution as a fundamental right. Unlike in the case of cow slaughter, in which the lack of governmental enthusiasm arose from Nehru’s commitment to secularism and political compulsions, the delay in acting on Article 23 reflected the political uninterest of the central government. Prevention of cow slaughter was only a directive principle of state policy, but abolition of trafficking was in the fundamental rights section, and the Constitution gave the central government power to enforce Article 23 with legislation. The traditional narrative of SITA states that it was enacted to meet India’s international legal obligations under the New York convention for the suppression of immoral traffic. SITA was actually the product of sustained lobbying by women’s organizations and female politicians and reflected new conceptions of the state and social welfare. Leading figures of the Indian women’s movement were able to forge new alliances and utilize existing networks to place the issue on the national agenda.

SITA was actually the product of sustained lobbying by women’s organizations and female politicians and reflected new conceptions of the state and social welfare.

As a member of the Planning Commission, Durgabai Deshmukh designated funds for setting up the Central Social Welfare Board, which funded women’s groups and commissioned a national survey on social and moral hygiene that became the basis for SITA. This survey was carried out by the Association for Social and Moral Hygiene (ASMH), a leading abolitionist organization in London that had emerged in 1914 from British abolitionist efforts to repeal the Contagious Diseases Act. Led in India by Meliscent Shepherd, an Englishwoman, the ASMH achieved some success, beginning in 1928, in closing down military and public brothels. It focused on generating pressure from London on the colonial administration and building better linkages with colonial officers—thus it was viewed with suspicion by nationalist organizations.

Led in India by Meliscent Shepherd, an Englishwoman, the ASMH achieved some success, beginning in 1928, in closing down military and public brothels.

However, the ASMH completely transformed after independence, when it was led by Rameshwari Nehru, a prominent Gandhian social worker and legislator who was also the prime minister’s aunt. The postcolonial ASMH began an active membership drive and established a presence in all states and in more than 140 districts. Institutionally, it moved from being funded from London to being supported by the government through the Planning Commission. The promotion of welfare services was no longer the sole concern of unregulated private philanthropy but was a chief concern of the welfare state. The second five-year plan addressed the abolition of prostitution as a question of national economic importance. Frustrated by the government’s reluctance to enact a national law to enforce the constitutional provisions, the ASMH reached out to female members of parliament and formed a cross-party caucus comprising Congress Party and Communist Party members. They introduced private bills in both houses of parliament, castigated the government for its failure to legislate, and made frequent visits to the prime minister and the home minister, leading to SITA being enacted in 1956.

The second five-year plan addressed the abolition of prostitution as a question of national economic importance.

Why did the suppression of trafficking require a national law? The key was uniformity. Surveying the range of existing provincial legislations, the ASMH expressed concern that the individual freedom of movement guaranteed in the Constitution complicated the state’s plans, and the mobility of people across jurisdictions rendered the province powerless to deal with problems like trafficking. Moreover, although several of the provinces had some form of legislation against trafficking, these laws were rarely implemented or enforced.

The activists advised the government that while the law must be harsh on prostitution, “it must show a concern—nay, a tenderness—to the prostitute.” Rather than targeting women, the law should aim at closing the entrances to prostitution and opening several exits from it. A special committee of the ASMH noted that in the course of its survey, many people expressed the belief that prostitution could not be legislated against because the Constitution of India recognized the fundamental right of a person to practice any profession. However, the ASMH committee argued that by destroying the machinery that sustained prostitution— the network of procurers, pimps, and brothel keepers; rent laws; and the regulation of public spaces—prostitution could be eradicated.

A special committee of the ASMH noted that in the course of its survey, many people expressed the belief that prostitution could not be legislated against because the Constitution of India recognized the fundamental right of a person to practice any profession.

The committee was critical of fines and imprisonment as punishments, but this disagreement with the existing penalties was not motivated by any notion of the prostitute’s rights. Their report argued that detention for women in shelters would be more effective in helping them than a short term in prison would be (after which they would just return to their old lives). In their report the ASMH accordingly recommended that the courts should deny bail in most circumstances, on the assumption that the people bailing out the woman were likely to be their pimps or others involved in the sex trade. They proposed a new criminal system that would place the burden of proof on the accused and that would provide for a speedy trial on camera. According to the report, this modified legal process would be more humane to the woman arrested and ensure her cooperation with the police, enabling them to capture the others involved in the case. Detention in a shelter would be compulsory for a woman found guilty, and only hardened cases that were likely to be considered an evil influence would be given a prison sentence.

According to the report, this modified legal process would be more humane to the woman arrested and ensure her cooperation with the police, enabling them to capture the others involved in the case.

The ASMH committee’s approach to legislation differed from the existing laws addressing prostitution in two significant ways: it placed equal emphasis on rescue and rehabilitation, and it demanded that the state create a special bureaucracy that would be staffed by specialists and female social workers to deal with the problem.

Excerpted from A People's Constitution by Rohit De with permission from Penguin Random House India

PC: Penguin Random House India