Re-negotiating Gender Justice : A Critique of Sex-Workers’ Rights in India

Ray, Nupur (2014). 'Re-negotiating Gender Justice : A Critique of Sex-Workers' Rights in India' Paper presented at the annual conference of the HDCA, 2-5 September 2014, Athens, Greece.

Contemporary discourse in liberal theory is preoccupied with two concerns: first

identification/construction of secular moral foundational principles that could guide

political structures, independent of any conception of good life or community goals

and untenable imposition of morality on individuals (RaymondPlant) secondly

determination of the nature of political institutions ( AmartyaSen) that could give

maximum freedom to individuals to pursue their life goals for reasons they value.

These concerns emerged as a response to a persistent paradox in liberal theory. It

is that inspite of its all 'inclusive' paradigm that values freedom of each individual in

leading her life, irrespective of identities with a commitment  to 'formal equality', it

has not been able to address vertical and horizontal forms of structural inequalities

in social/political and economic spheres, leading to politics of exclusion for many

vulnerable individuals and groups. This exclusion is mainly in three ways: access to

resources/ opportunities /information in society, participation at crucial stages of

political process like decision-making and objectification of the subject in intellectual discourses.

Currently three significant trends are transforming the nature of political theory:

1) Shift from individual-based claims to group-based claims like gender, ethnicity,

caste, race, religion, sexual preference etc, based on 'differentiated' conception of

citizenship(Young) which recognizes (rather than stigmatizes their identities) and

which accommodates (rather than excludes) their difference' (Kymlicka) with a

simultaneous expansion of demand for civil and political rights to social and cultural

rights, coined as  'multiculturalism', 'politics of recognition', or 'identity politics'.

2) A growing consensus and assertion among political thinkers to recognize the

principle of equality as the basis of social and political policy (Kymlicka) in order to

facilitate equitable distribution of resources for all especially historically

deprived/oppressed groups.

3) Women's issues and rights for gender equality in different societies are being

linked to human right movements (Jaggar and Young) that have led to divisive

stands in the feminist movement. On the other hand, there is more emphasis on

questioning the gender inequality in private realm of family by raising issues of

sexual abuse, 'invisible' face of women's work, reproductive rights,

domestic violence, authoritative distribution of responsibilities in family etc.

These trends have altered the context and content of debates in the rights discourse

questioning its foundations and leading to unpredicted contradictions. Liberal

theorists are grappling with issues of competing and conflicting claims between

individual rights and group rights; between different identity-based group rights

confronting each other like ethnicity, religion, caste, class, regionalism; and minority

and majority demands. The complexity of rights further becomes paramount for

groups like sex-workers whose identities are unstructured and questionable.

The debate on Prostitution in India in terms of its recognition and thus the demand

for the rights of sex-workers as 'sex-workers' has exposed critical aspects of

women's freedom of choices on livelihood options and the vulnerabilities

associated with those choices in different ways , invoking larger issues in gender

justice. The arguments in favour of sex-workers rights and against such recognition

involve serious questions of sexual violence, reproductive health rights, violation of

human rights, human trafficking, the problem with commodifying sex, right to dignity

and issues regarding choice and agency of women challenging each other.

The main objective of this paper is to critically analyze the rights discourse on sex-

work in India from the perspective of social justice and gender justice in particular

and to explore whether a framework of rights can reduce the vulnerabilities

and lack of choice for women involved? The main question is would recognition of

sex-worker's rights lead to empowerment of women in Prostitution, thereby creating

conditions of gender justice as a larger goal.

The paper has mainly three broad sections: In the first, I discuss the main

approaches to sex-work and to the demand for its legalization in an international

context focusing on the Indian case. Secondly, I draw upon four contours or sites of

contestation for women in Prostitution Body, Agency, Sexuality and Market, where

the dilemmas and contestations on social justice become acute. In the third section

I wish to explore that whether Martha Nusbaum's list of capabilities would provide an

adequate framework within which gender justice for women in Prostitution could be

renegotiated or reconstructed?

Is the framework of rights sufficient to understand and resolve questions on social

justice in general and gender justice in particular for women in Prostitution or we

need to move beyond the language of rights and reconstrsuct ideas of agency and

choice in the liberal discourse?

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