Right to Identity of Sex Workers vis-à-vis The Recent Observations made by the Supreme Court in BUDHADEV KAMASKAR v. STATE OF WEST BENGAL (2022)

The Indian Constitution is a grundnorm for most of the rights and liberties that we exercise in our day to day life. Article 21 of the Constitution that guarantees every person of the right to life and personal liberty is one such fundamental right under Part- III of the Constitution that still remains unamended till date, but in these 72 years of its enforcement it has been interpreted several times by giving it a wider interpretation every time.

The Constitutional Courts of our country have always been vigilant while hearing a matter that involves interpretation of a person’s life and personal liberty and wherever possible has granted relief wherever it has seemed appropriate for it, and the matters that demand urgency in action the Courts have even invoked Article 142 of the Constitution to fill up the voids in the system.

One such recent landmark judgment where the Supreme Court again reflected upon the importance of effective implementation of Article 21 and casual attitude of legislature in not fulfilling the constitutional objectives was- Budhadev Kamaskar v. State of West Bengal, Criminal Appeal No. 135 of 2010, where the Court upheld sex workers right to identity and issued detailed directions for their protection and upliftment. The Court invoked its plenary power under Article 142 so as to further the objectives that it firstly laid down in the year 2010 when for the first time the Court issued directions pertaining to the right to life and liberty vis-à-vis the identity of sex workers.

The plight of sex workers in India also came into light due to the adverse impact of COVID 19 pandemic on their livelihood, since most of them lacked any means to take recourse to any social security benefits.

BUDHADEV KAMASKAR V. STATE OF WEST BENGAL- AN ONGOING JOURNEY IN INDIA’S CONSTITUTIONALISM

This case as sometimes wrongly believed was not an issue that came into light because of some PIL or Writ Petition being filed by the aggrieved community or a social activist or non- governmental organisation, but was a criminal appeal that reached the Supreme Court, the Bench while converting it into a PIL[1] directed the Centre and all State Governments to come forward so as to provide some sort of technical or vocational training to these aggrieved women so that they could be rehabilitated and here by the term “rehabilitation” the Court meant any kind of affirmative state action for these women so that they can get out of this profession without worrying about their earning and expenses.

Though the Court took serious cognizance of this issue but most Governments did not, as a result of which the Court was compelled to form a panel under the chairmanship of Mr. Pradip Ghosh[2] (Senior Counsel who appeared before the Court) and private organizations that were working for this cause.

Mr. Jayant Bhushan (who was appointed as the amicus curiae for this case) kept before the Court, the three aspects[3] on which a socio- legal research is needed i.e.-

Prevention of trafficking
Rehabilitation of sex workers who wish to leave sex work, and
Conditions conducive for sex workers who wish to continue working as sex workers with dignity

And directed the Panel to work on these aspects

Later the Apex Court while considering the taboo attached to this profession also directed all the Central and State Agencies under the aegis of different Governments to initiate this process only if there is voluntariness shown by a sex worker and not to get indulge in any use of force or violence to make this order something that it is not to be[4].

The Panel highlighted on the aspect that though sex workers on rehabilitation leave the sex work but are later compelled to return to this industry due to the following reasons[5]–

No permanent job guarantee in other vocations
Due to excess interference of pimps
Less or no income as compared to sex work
Lack of any Government policies or initiatives to support them

While examining the afore- mentioned issues, the Panel in its third interim report came up with the following recommendations[6]–

To issue ration cards to all sex workers[7]
To issue voter ID cards to all sex workers[8]
To ensure that the children of the sex workers are given admission to schools run by municipalities and district level authorities
To widen the duration of UJWALA Scheme to 6 months so as to see better results in rehabilitation, and
Such other orders that the Court deems fit for ensuring justice to this community

The Court accepted all these recommendations and directed the Governments to comply with it.

One of the main reasons that this year the Supreme Court intervened and came to the rescue of sex workers by exercising Article 142 of the Constitution was due to the inaction shown by various Governments in adhering to the directions that were given by the Apex Court almost a decade ago, and in the form of continuing mandamus issued a number of directions pertaining to ill treatment by Law Enforcement Agencies[9].

In addition to the afore-mentioned the guidelines, when Mr. Anand Grover (learned senior counsel) brought to the notice of the Court that Aadhar Cards are not being made available to sex workers who are NACO list but are unable to show their proof of residence, the Bench directed that the following steps should be taken-

Gazetted Officer at NACO or the State Health Department shall send a proforma certificate on behalf of such applicant to UIDAI.
The name of the Gazetted Officer concerned with this duty shall be publicised on the concerned website
No confidential information of the applicants shall be made public
NACO and the State Aids Control Society shall make the procedure public so as to streamline this process
Apart from those women who are on NACO List, the woman who is identified by Community Based Organisations (hereinafter referred as CBO) after verification from State Legal Service Authority or the State AIDS Control Society shall also be entitled to Aadhar Cards.

And therefore the Court in this manner tried to grant an identity to the sex workers, but the matter is still before the Apex Court and the Court would be looking to fill the voids that still exist in our Constitutional set up.

A CRITICAL ANALYSIS OF SEX WORKERS (REHABILITATION AND SOCIAL SECURITY) BILL, 2015

In India, there is only one legislation i.e. the Immoral Traffic (Prevention) Act of 1956 which explicitly covers certain aspects pertaining to sex workers but it is limited only to illegal trafficking and sexual exploitation for commercial purposes.

No legislation in India codifies the rights of the sex workers and since they belong to socially, culturally as well as economically deprived section of the society[10], there is a need of a legislation that explicitly covers this aspect. The Sex Workers (Rehabilitation and Social Security) Bill[11] that was tabled in Lok Sabha in the year 2015 was one such attempt in this direction but never got passed. The following were certain essential features of this Bill-

The Board at Centre- State Level-

The Bill mandated the establishment of two Boards both at Centre and State level. While the former being named as the Central Rehabilitation Board for Sex Workers, the latter being the State Rehabilitation Board for Sex Workers. Both the Boards shall comprise[12] of a Chairman (eminent person with distinguished contribution in the field of sex worker rights) and six other members[13].

The Rights and Safeguards-

Under its definition clause ‘sex worker[14]’ is defined as keeping in mind a broad understanding of the term by not being restrictive to only one gender but including males, females and transgender as well who receive money or goods in exchange for sexual services either regularly or occasionally and therefore is illustrating an in-depth understanding of this issue.
In addition to ‘abuse’, the act also defines ‘barrier[15]’ which includes attitudinal, cultural, economic, institutional, religious, and social or structural that restricts the participation of sex workers in the society.
Though the age of child[16] has been defined in line with the Indian Penal Code[17] but the bill could have taken a step forward to implement the recommendations that were given by the Justice. Verma Committee Report of 2013[18], as the age of consent as per scientific evaluations can be 16.
Finally, Section 3 of the bill is in the form of a positive as well as negative right as on the one hand it obligates the Government to ensure that sex workers have a right to equality, life with dignity and autonomy while on the other hand it mandates that the State shall protect that they aren’t discriminated in any form.

The Rehabilitation Clause and Functions of the Board-

Section 6 is the heart and soul of the entire legislation as it deals with the idea that the Supreme Court possessed while convicting Budhadev Kamaskar in 2011, we often say that the Court has a duty to carve out legislative intention while interpreting the Statute but here the proposed bill did the other way around by cordially giving due respect to the Judicial intention, and thereby defining rehabilitation in line with that idea.

Rehabilitation u/s 6 means particularly in health, education, financial assistance and employment of sex workers. In addition to it, the Board has also been obliged to consult organizations working for sex workers whenever they are formulating any policy for rehabilitation. The provision also protects the interest of age or ailing sex workers who are unable to work in this business.

The following are the functions of the Boards[19]–
To identify the sex workers who are newly recruited in Brothel houses
To interact with the workers who intend to leave this work and discuss on possibilities of rehabilitation
Implement rehabilitation plans by coordinating with district agencies
To suo moto or on a complaint made by an aggrieved sex worker or any person or organization on behalf of a sex worker, inquire about the violations.
Finally, there is a penal provision that makes exploiting a sex worker to work for commercial gains, punishable with an imprisonment which extends to three years and a fine which may extend to twenty- five thousand rupees[20].

THE ROLE OF NATIONAL AIDS CONTROL ORGANISATION (NACO) AND COMMUNITY BASED ORGANISATION (CBO) IN THE LIFE OF A SEX WORKER

National AIDS Control Organisation i.e. NACO was established in the year 1992 under the National AIDS Control Programme (NACP) so as to spread awareness regarding HIV Aids and at the same time prevent such cases throughout the country. Since its establishment, NACO that works under the aegis of Ministry of Health and Family Welfare, Government of India has done a commendable job.

NACO runs several programmes and schemes throughout the country in association with autonomous State AIDS Control Societies (SACS) as well as Community Based Organisations (CBO) so as to collect accurate data and deliver benefits to the general public.

After the end of every year NACO comes up with an annual report, but since the entire world was going through COVID 19 pandemic for around two years, the last annual report that is available on the website is of the Year 2019-20[21], which is an analysis of the three consecutive years i.e. 2017-18, 2018-19 and 2019-20 under Sankalak which is a comprehensive flagship report of NACO enabling evidence- based decision making under NACP.

According to the report, 91% of the female sex workers have been covered under the targeted intervention (TI), being an all- time high in the year 2019-20 which is an indication of the level of scrutiny that NACO is involved in and the reach that it has due to cordial relationship that it possesses with SACS and CBO’s. Further the report states that FSW clinical visits have increased over the years from 18.03 lakhs in 2018-19 to 19.66 lakhs to 2019-20.

In addition to NACO, the following are certain Community Based Organisations (CBO) that are working for the benefit and welfare of the sex workers in India and are aiming to make their life in line with the Constitutional objectives that are embarked in our Constitution of India 1950-

Usha Multipurpose Cooperative Society (USHA)- Kolkata, West Bengal

USHA is the largest and first ever sex worker organisation in South Asia, exclusively run by and for sex workers. It was formed in the year 1995 as a response to the socio- economic challenges that the women of Sonagachi (The red light area in Kolkata, West Bengal) were facing. It provides them low interest loans, financial security by guaranteeing them high interest rate on cash deposit and vocational as well as technical training to the women who are interested to opt out of this work.

An organisation that started with a capital of Rs. 30,000/- and 13 sex workers, now is dealing with a capital of Rs. 30 Crores in a year with a membership of around 30,000+ sex workers[22]. USHA is a leading example of how deprived women can come together to ensure protection of rights themselves, an illustration of a contraction model so as to get a societal and constitutional recognition.

Swathi Mahila Sangha (SMS)- Bengaluru, Karnataka

Established in 1994 and registered as a cooperative society in 2003, Swathi is an organisation of Women in sex work (WSW) with 13,000 active members, and is one of the largest empowerment project for HIV prevention in India[23]. It has made significant collaborations with certain hospitals in the city of Bangalore. It also runs certain gender sensitization programmes for Police, identify and groom leadership skills among sex workers, provide alcohol de- addiction services.

THE PLIGHT OF SEX WORKERS DURING COVID 19 PANDEMIC

The sex workers faced severe hardships during the two year prolonged COVID 19 pandemic as the work is in itself of a nature that requires human contact and intimacy and therefore these workers could not work for almost two years. One of the first casualties in this industry in the early phase of lockdown was not due to the infection but a suicide that was committed by a 34 year old mother of a 6 year old child, who was prior to the pandemic was earning her livelihood through sex work.

In most of the parts of our country they were not provided with rations as they didn’t possess any ration cards, in other parts they were discriminated just because society attaches pseudo morality to their profession and does not view them on par with other citizens of the country[24]. During the pandemic, this pseudo morality prevailed over their basic human rights and as a consequence of which they suffered for even the basic necessities such as food, shelter, medicines etc.[25]

In some part of the country certain community based organisations such as USHA in Kolkata, SMS in Bengaluru and Milaap (a Fundraiser organisation) etc. proved to be beneficial for sex workers as they were able to borrow, spend and save during the most difficult times when the entire country was facing difficulties in managing their accounts. Apart from CBO’s, Maharashtra Government came forward and recognised sex work as an informal employment generation activity so as to make them eligible to get free ration under the State Government Scheme[26].

In September on an application filed by Darbar Mahila Samanwaya Committee in the Supreme Court, the bench comprising of L. Nageswara Rao J. and Ajay Rastogi J. directed all the Governments to provide dry rations to sex workers, who are identified by NACO and the legal services authority without demanding any kind of identity proofs[27]. Later in October, the National Human Rights Commission (NHRC) was forced to issue an advisory[28] to various Governments so as to provide essential services to the sex workers.

The sex workers were recognised as informal workers and it was directed that temporary documents need to be issued to them who do not have any ID or rations cards so that they become eligible to all sorts of welfare measures. They were also made eligible to free medical services including COVID 19 medications and HIV aid medical facilities. Though these directives came a bit late but the workers benefitted to some extent through it.

It was a missed opportunity or the other way around that several Governments did not statutorily recognised them as informal workers even after Maharashtra Government and NHRC proposed to do it.

The guidelines that were issued a decade ago in Budhadev Kamaskar v. State of West Bengal, still are not complied by various Governments, and the human rights violations that were faced by the sex workers in accessing the basic necessities during the pandemic and even today is an illustration of non- compliance. The most that the Judiciary and sex workers organisations can expect from the other organs of the Government is to enforce these guidelines that are justifiable and have a binding effect on the Government under Article 144[29] of the Constitution.

There have been examples of State Governments such as Andhra Pradesh, West Bengal and Maharashtra who have taken small steps in order to give them recognition and space in the main stream socio- political structure in their respective jurisdictions, but the Author believes that until and unless the Union Government comes up with a uniform legislation so as to comprehensively deal with the rights of sex workers in India, such initiatives of State Governments would not get full force.

CONCLUSION

This research essay was an honest effort on the part of the Author to cover each and every aspect of the life of sex workers vis-à-vis right to identity of sex workers in India through the lens of landmark judgment of the Supreme Court in Budhadev Kamaskar v. State of West Bengal and the real picture that prevails in our country after decades of the directions that have been issued by the Apex Court.

It is quite disappointing after a research on this issue that even after detailed guidelines issued by the Supreme Court in 2012, the socially and culturally deprived sex workers of India every time have to approach through NACO and CBO’s so as to access social- welfare measures, and in some cases even have to knock the doors of Constitutional Courts so as to enforce their rights that do not form part of any explicitly written guidelines (the situation that they faced during the COVID 19 pandemic). It is also to be noted that there still exist a proportion of the population that are neither a part of NACO nor CBO and for them the path is still difficult, as even NACO states that they were able to cover 91% of the total workers population[30] under targeted intervention (TI).

Formation of more and more CBO’s in India has been advantageous for sex workers, but it should be kept in mind that individual identity and autonomy is different from an identity that a sex worker gets after associating with an organisation. Whenever discrimination is done against a sex worker, it is an offence that is committed against her solely and not against an organisation, the role of an organisation comes at a later stage in the form of a collective action. Such actions by CBO’s cannot rub off the mental and psychological effect that such abuse has on an individual.

Therefore, the country needs a uniform legislation so as to remove these daily barriers that sex workers face in India as it is said prevention is better than cure. But in this case, we need both to work, prevention of daily abuse and atrocities and cure the evil that society possesses while treating these workers as inhuman.

This paper along with other works that are available on sex workers in India, is a step for change that as a society we need to adapt, so as to instil confidence in the Government to come up with legislations, as it is said that the Government is what, it is just a true reflection of the society for which it is working for.

The Author is an LL.M Candidate at National Law School of India, Bangalore.

He can be reached at aniket.rai@nls.ac.in

[1] A woman Chayay Rani Pal alias Buri (deceased- victim) who was a sex worker, on the night of 17 September 1999 was brutally by Budhadev Kamskar (accused) as he was forcing her for sex. The Trial Court convicted the accused u/s- 302 IPC for murder, which on an appeal was confirmed by the High Court. As a result of which the appellant- accused reached the Supreme Court, before the bench that comprised of the then Markandey Katju J. and Gyan Sudha Misra J.

[2] Press Information Bureau, Measures for Rehabilitation of Sex Workers, PIB (20-March-2013 15:41 IST) https://pib.gov.in/newsite/PrintRelease.aspx?relid=94036

[3] Budhadev Kamaskar v. State of West Bengal, (2011) 10 SCC 351.

[4] Budhadev Kamaskar v. State of West Bengal, (2011) 10 SCC 277.

[5] Budhadev Kamaskar v. State of West Bengal, (2011) 10 SCC 283.

[6] Budhadev Kamaskar v. State of West Bengal, (2011) 10 SCC 354.

[7] The Panel while recommending these measures emphasized on this aspect that procedural requirements pertaining to verification of address proof shall be relaxed.

[8] ibid

[9] Police must not view sex workers as someone who is of ill moral character and should ensure equal protection of their rights by treating them with due respect and dignity; Any sex worker who is a victim of sexual assault, and needs any medical assistance immediately should be granted the protection under Section 357C CRPC in line with any other woman who is a victim of sexual assault; In case of raid, the Police should keep the fact in mind that voluntary sex work is not illegal but merely running brothel is illegal and therefore women engaging in these acts voluntary should not be harassed, penalised or arrested; The Court mentioned the role of Press Council of India in issuing guidelines so that the identities of sex workers are not revealed during any arrest or detention in any manner, and if done so Section 354C of IPC i.e. Voyeurism could be attracted; The Central and State Governments must involve sex workers or organizations working for them so as to formulate policies, schemes etc.; The Court also emphasized on the role of Legal Service Authorities at National, State and District Levels so as to educate and make them aware about their rights, what is prohibited and permitted under law.

[10] Gitanjali Misra, Protecting the rights of sex workers: The Indian Experience, 5 HHRJOURNAL, 88 (2000), https://www.jstor.org/stable/4065224#metadata_info_tab_contents.

[11] The Sex Workers (Rehabilitation and Social Security) Bill, 2015, Bill No. 316 of 2015 (India)

[12] The Sex Workers (Rehabilitation and Social Security) Bill, 2015, S. 5, Bill No. 316 of 2015 (India)

[13] One person who has been a Judge for five years either in the High Court or District Court

One person who has been a Joint Secretary or at a pay scale not below to that of Joint Secretary to the Government of India for at least three years and has adequate knowledge and expertise in this filed

A social worker who is involved in this field through advocacy, rehabilitation etc

Two sex workers who are popularly recognized as their representatives

One representative of Health and Family Welfare Department of the appropriate Government

[14] The Sex Workers (Rehabilitation and Social Security) Bill, 2015, S. 2(o), Bill No. 316 of 2015 (India)

[15] The Sex Workers (Rehabilitation and Social Security) Bill, 2015, S. 2(d), Bill No. 316 of 2015 (India)

[16] The Sex Workers (Rehabilitation and Social Security) Bill, 2015, S. 2(f), Bill No. 316 of 2015 (India)

[17] Indian Penal Code, 1860, S. 87, 375, Act No. 45 of 1860 (India)

[18] PRS India, https://web.archive.org/web/20210801143425/https://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%20report.pdf (last visited Aug. 7, 2022).

[19] The Sex Workers (Rehabilitation and Social Security) Bill, 2015, S. 7, Bill No. 316 of 2015 (India)

[20] The Sex Workers (Rehabilitation and Social Security) Bill, 2015, S. 20, Bill No. 316 of 2015 (India)

[21] National AIDS Control Organization, Sankalak: Status of National AIDS Response (Second edition, 2020), New Delhi: NACO, Ministry of Health and Family Welfare, Government of India, http://naco.gov.in/sites/default/files/Sankalak%20Status%20of%20National%20AIDS%20Response,%20Second%20Edition%20(2020).pdf

[22] Global Network of Sex Works Project (NSWP), Usha Multipurpose Cooperative Society Limited Economic Empowerment for Sex Workers National Case Study, NSWP (2020), https://nswp.org/sites/default/files/usha_case_study_nswp_2020.pdf; Global Network of Sex Works Project (NSWP), Economic Empowerment of Sex Workers, NSWP (Nov. 2021), https://www.nswp.org/sites/default/files/Summary%20Regional%20Reports%20Economic%20Empowerment%2C%20NSWP%20-%20November%202015.pdf

[23] Swathi Mahila Sangha, https://swathimahilasangha.wordpress.com/; https://www.youtube.com/watch?v=WVfTCy0NsSs

[24] Aljazeera, https://www.aljazeera.com/news/2020/4/13/indias-sex-workers-fight-for-survival-amid-coronavirus-lockdown (last visited Aug. 1, 2022)

[25] Economic and Political Weekly, https://www.epw.in/engage/article/locked-down-sex-workers-and-their-livelihoods (last visited July 31, 2022)

[26] Letter dated 23 July 2020, Women and Child Development Department, Government of Maharashtra; The Hindu, https://www.thehindu.com/news/national/other-states/maharashtra-govt-directs-officials-to-help-sex-workers/article32199125.ece (last visited July 31, 2022)

[27] Supreme Court of India, https://main.sci.gov.in/supremecourt/2007/37388/37388_2007_35_1_24189_Order_29-Sep-2020.pdf (last visited July 30, 2022)

[28] National Human Rights Commission, https://nhrc.nic.in/sites/default/files/Advisory%20on%20Rights%20of%20Women_0.pdf (last visited July 31, 2022)

[29] 144. Civil and Judicial authorities to act in aid of the Supreme Court- All authorities, civil and judicial, in the territory of India shall act in aid of Supreme Court.

[30] National AIDS Control Organization, Sankalak: Status of National AIDS Response (Second edition, 2020), New Delhi: NACO, Ministry of Health and Family Welfare, Government of India, http://naco.gov.in/sites/default/files/Sankalak%20Status%20of%20National%20AIDS%20Response,%20Second%20Edition%20(2020).pdf