- Sex workers are protected by Right to Dignity Under Article 21 of the Constitution.
- Sex workers are eligible for dry rations under government schemes even when they can’t produce identification or proof of residence.
- The State Governments/Union Territories must immediately commence the process of issuance of Voters Identity cards/ration cards to sex workers.
- The government must take necessary steps for rehabilitation of sex workers by providing alternative livelihood options.
An appeal was filed in the Supreme Court of India on 29th September 2020 by Durbar Mahila Samanwaya Committee, which sought direction to the authorities to make available dry rations and also provide cash transfer to the sex workers struggling during pandemic.
The principle grievance of the applicant was that the people involved in sex work were struggling to obtain rations on the ground that they don’t have a registered proof of identity or permanent address.
Acting on the application, the court directed the state governments and Union territories to provide dry rations to sex workers identified by NACO (National Aids Control Organisation) with a prerequisite that no sex worker should be compelled to share their proof of identity.
The court issued further directions while acting on an application (I.A.No.80140/2020) of similar nature on 28th October 2020, where the state governments were asked not to use police authorities. The directions under the previous order were also reiterated to provide sufficient quantity of dry ration formulated under any central or state scheme. However, the counsel for the applicant submitted that the directions issued by the court are not being implemented. It was further stated that ‘dry ration was distributed for a few months and thereafter stopped’.
A reference was also made to the affidavit filed by the Government of Gujarat which stated that ‘12,291 sex workers out of the 24,579 sex workers registered with NACO are not willing to avail the benefits of the schemes’.
In 2011, Supreme Court of India appointed a committee to look into problems relating to to‘prevention of trafficking, rehabilitation of sex workers who wish to quit sex work and the conditions conducive for sex workers to live with dignity in accordance with Article 21’ of the India Constitution. On recommendations of the committee, the court passed multiple orders in this respect:
a. Information on sex workers
The court directed the state to collect information of sex workers on whether they have been allotted any alternative form of employment for their rehabilitation.
b. Helpline Number
The State Legal Services Authorities were instructed to introduce a helpline number specifically for sex workers, so that, they can avail free legal aid.
The court directed the central government to increase the scope of its rehabilitation schemes and broaden its coverage to include victims of sex trafficking.
d. Identity proof
The states were also instructed to speed up the process of allotment of Voter Identity Cards, Ration Cards and Bank Accounts by relaxing the rules of verification of permanent residential addresses.
e. Facilities for children
The Court directed that the facilities of Crèche, Day Care and Night Care Centres be provided for Children of Sex workers so that their right to education can be protected.
Later, in the year 2016, the final report of the committee was placed on record. The major issue on which the report laid most emphasis on was- legal recognition of identities of sex workers such as Pan Card, Voters Identity Card, Ration Card etc. The report recognized how sex workers are intentionally kept out of record owing to the fact that they don’t possess proof of permanent residence. The report also stated that due to this reason the children of sex workers are also not recognized by District Authorities. Resultantly, everyone involved in sex work has been denied their basic fundamental rights.
Order of the Court
The Supreme Court in its order dated 14th December 2021, noted how the state governments and union territories have failed assuage the situation of sex workers when the order for same was given a decade ago. The court also noted that ‘Right to dignity is a Fundamental Right that is guaranteed to every citizen of this country irrespective of his/her vocation.’ The governments are bound by the duty to provide basic amenities to every citizen of the country. The court issued multiple directions to the state and union governments in this regard:
a) The State Governments/Union Territories must immediately commence the process of issuance of Voters Identity cards/ration cards to sex workers from the list maintained by National Aids Control Organisation. NACO. Authorities can also take the assistance of State AIDS Control Societies who are directed to prepare a list of sex workers after verifying the information provided to them by Community Based Organisations.
b) Meanwhile, the authorities should continue distribution of dry ration to sex workers without insisting on verification of their ration cards. The identity of sex workers should also be kept confidential during the process. The State and Union Governments were then directed to file status reports within a period offour weeks from the date of the order.
Right to dignity
Right to Dignity is protected by the Constitution of India under article 21. Oxford dictionary defines dignity as ‘the fact of being given honour and respect by people’. Dignity is subjective and could very well be linked with law and morality, but many judicial pronouncements serve as a benchmark as to what could be encompassed by the Right to Dignity.
In the case of Maneka Gandhi v. Union of India, the Supreme Court first derived this new dimension to Art. 21 where the right to life was held to be not merely a physical right but includes within its ambit the right to live with human dignity.
In the case of Bandhua Mukti Morcha v. Union of India Characterising the court gave a broad meaning to Article 21 by incorporating the right to dignity ‘It is the fundamental right of everyone in this country… to live with human dignity free from exploitation. This right to live with human dignity enshrined in Article 21 derives its life breath from the Directive Principles of State Policy and particularly clauses (e) and (f) of Article 39 and Articles 41 and 42’.
The Supreme Court of India in the landmark case of Naz Foundation V. Government of NCT and Others explained the relation between the constitution and dignity -“The Constitutional safeguard of human dignity expects us to recognize the worth and value of all people as an individual of our society”.
The court in the current case has commented on neglect of sex workers and how the state has failed in their rehabilitation despite multiple directions over the years. Commenting on the profession and its relation with dignity the court observed that ‘this exercise is taken up because sex workers are also human beings and hence they are entitled to a life of dignity. The word "life" in Article 21 of the Constitution means a life of dignity and not just an animal life. Sex workers obviously cannot lead a life of dignity as long as they remain sex workers.’
This is not the first time the court has directed the government on rehabilitation of sex workers so that they can live a dignified life. The High Court of Delhi in case of Tara V State also emphasised on state of sex workers in India, commenting ‘the Central and the State Governments through Social Welfare Boards should prepare schemes for rehabilitation all over the country for physically and sexually abused women commonly known as prostitutes as we are of the view that the prostitutes also have a right to live with dignity under Article 21 of the Constitution of India since they are also human beings and their problems also need to be addressed.’ A woman indulges in prostitution not by her free will but compulsion due abject poverty. If such a woman is given the opportunity through technical or vocational training, she would be able to earn her livelihood by such vocational training and skill instead of by selling her body. Therefore, the state can be a great facilitator to make this shift.
COVID-19 pandemic and consequential lockdowns have landed a critical blow to the state of sex workers in India. A new research revels that over 90 per cent of commercial sex workers across three states will be pushed into permanent debt bondage by end of this year.This unprecedented calamity has caused loss in livelihood as well social marginalization of the sex workers. The judicial intervention came at a high time as fundamental rights can’t be excused even in the state of calamity.