Article 21: Analysis of Rights of Sex Workers

 ARTICLE 21: ANALYSIS OF RIGHTS OF SEX WORKERS

In order to ensure the well-being of the citizens, it is the prerogative of the state to protect their

human rights. It can take a toll on the development of a state if violations such as discrimination in

terms of access to education and healthcare, ill-treatment at work persist. Similarly, the minority

groups are subjected to discrimination even by the law enforcement officers which leaves these

groups helpless and exposed to more abuse.

India despite having passed numerous legislation has not been able to allow various groups such as

women and people belonging to lower castes to have equal access to facilities such as education and

health care due to poor implementation of the said laws.

Indian women have been at the receiving end of this discrimination for a long time now which is

evident in the poor literacy and earning rates that women have compared to men. 1 Within this

already vulnerable group lies sex workers who have been subjected to legal and societal atrocities.

Most of these sex workers are introduced to the profession at an early age without their consent and

consequently, they become more vulnerable to physical, economic, and psychological violence and

abuse. According to a study conducted in some villages of Nepal and the Sangli district of

Maharashtra, more than half of the workers were forced into sex work before they were even 14

years old. 2 Even though child sex work is illegal in India, there are more than 40% of sex workers

who are children. 3

The Immoral Traffic (Prevention) Act, 1956 is the main legislation that deals with sex workers in

India, it was implemented to give effect to United Nations International Convention for the

“Suppression of Women in Traffic in Persons and of the Exploitation in Others” signed by India in

1950. 4 There is no provision in the law that makes prostitution in itself illegal if it is practiced

independently, however, ITPA prohibits certain outward demonstrations such as maintaining a

brothel, soliciting or seducing, or carrying out prostitution within 200 meters of any public place. 5

This act underwent two amendments in the years 1978 and 1986 to make it more inclusive in terms

of gender. However, it is still laden with certain shortcomings. To discuss a few in terms of Article

21:

1 Sofia Gruskin and Daniel Tarantola, HIV/AIDS, Health, and Human Rights, 6 Can HIV/AIDS Pol'y & L Rev. 24, 24-

29 (2001).

2 See K.K.MUKHERJEE, FLESH TRADE: A REPORT (Ghaziabad, India: Gram Niyojan Kendra 1989) and

SANDIP BANDYOPADHAYA, THE "FALLEN" LEARN TO RISE: THE SOCIAL IMPACT OF STD-HIV INTERVENTION PROGRAMME

(Durbar Mahila Samanwaya Committee 1998).

3 Id.

4 THE LEAFLET, https://www.theleaflet.in/flipside-of-new-human-trafficking-bill/ (last visited Nov. 13, 2021).

5 Immoral Traffic (Prevention) Act, 1956, No. 104, Acts of Parliament, 1956 (India).

Article 21: The Indian Constitution grants Article 21 as a fundamental right that provides for

protection of Life and Personal Liberty i.e. it guarantees to the citizens and non-citizens of India a

right to live with dignity, right to livelihood, right to privacy, right to health etc. Nonetheless, sex

workers have to face discrimination even when it comes to basic healthcare facilities, especially

after the HIV epidemic. An individual is prescribed an HIV test only in cases of TB, STD, or

diarrhoea but hospitals make it mandatory for sex workers to get an HIV test done even if they are

suffering from common cold. These actions of society lead to alienation and stigmatisation of the

sex workers. Another instance was observed in a hospital in Kolkata where it is mandatory for

every sex worker, visiting the hospital, to give a blood sample without any justification. This

practice is a clear violation of the right to privacy which is given to the citizens of India under

Article 21. 6

Another area of concern is earnings for these workers, especially for child sex workers. Whatever

they earn from their services, the majority of it is seized by the brothel owners and the residuary

amount is insufficient to even afford a proper meal a day. Lack of access to education and poverty

further deteriorates their condition. In the Sonagachi district, the literacy level of sex workers was

found to be around 11%. 7