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