The Indian grundnorm has guaranteed human rights protection to all Indian people, regardless of religion, race, caste, sex, or place of birth. Certain fundamental rights are guaranteed to citizens in the form of inalienable positive rights under Part III of the Indian constitution. That is to say, those rights are vested in the people without prejudice, and the state does not need to do anything to enforce them. The most fundamental human right, under part III of the constitution, which is vested in a person just for being human, is the ‘Right to Life.’
The further extension of the right to life brought us to the ‘dignity’ part of it. Which means that a human being has the right to live his or her life in dignity. Article 21 of the Indian Constitution expressly addresses the fundamental right to life, and through judicial intervention, it inserts the phrase “right to life with dignity.”
It also means the right to life with dignity, as well acknowledged by the Supreme Court, is guaranteed to oppressed elements of our society, such as community of sexworkers. The Supreme Court of India in the Budhadev Karmaskar case considered sex workers to have the ‘right to life with dignity’. Adding to that court stated that, they are also human beings and their concerns must be dealt with.
IMPACT OF COVID-19 ON SEX WORKERS
The unprecedented pandemic of its kind has indeed pushed the country to its extent and exposed the loopholes in our system. On the one hand, government is still trying to grapple with the situation, while people of the country are looking at the judiciary and constitution with an optimistic view.
But, the question is, did they succeed? This question becomes more pertinent when we consider it in the context of Indian social structure. The most affected strata of our society are those who are primarily reliant on daily income. The situation worsens when members of that society are stigmatised and treated with contempt by other members of our society.
The sex workers’ community is one of our society’s most disadvantaged groups. They earn a living on a daily basis, therefore maintaining a household became challenging for them during the lockdown. Furthermore, many sex workers live in larger cities on a rental basis, so they had to pay rent in addition to other expenses for basic necessities. As a result, their situation had deteriorated significantly.
Although sex trade is typically associated with immoral and unethical conduct, it is not illegal per se. Other activities related with it, such as owning a brothel, solicitation, trafficking, and pimping, are, however, prohibited and serious offences under The Immoral Traffic (Prevention) Act, 1956.
During the lockdown, sex workers faced a variety of hardships, including a lack of nutrition, difficulty to pay rent and expenses, and, most significantly, a lack of access to healthcare. Because of their status as a “informal” class, sex workers were also denied government relief help intended for needy segments of society (sex workers are also classified as “informal of informal”).
Another major cause for sex workers’ exclusion from all social support schemes is a lack of identifying documents. According to a survey, more than 43 percent of sex workers in India do not have an identity card or ration card, and only 13 percent have a BPL card, resulting in sex workers being excluded from all social welfare systems.
Organizations like All India Network of Sex Workers (AINSW) and National Network of Sex Workers (NNSW) had written to state governments as well as to the Union government for the inclusion of sex workers into social welfare schemes and made them beneficiaries of PDSs (Public Distribution Schemes). These requests were made while taking into account the rights of 8,00,000 active sex workers as well as the rights of their dependents.
NATIONAL HUMAN RIGHTS COMMISSION’S RECOMMENDATIONS TO GOVERNMENT
The National Human Rights Commission, the rights watchdog, released an advisory in October 2020 designating the group of sex workers as a “informal” society, making them eligible for all social security systems provided by State and Union governments. The rights watchdog had formed a committee called the ‘Committee of Experts on the Impact of the COVID-19 Pandemic on Human Rights and Future Response‘ for this purpose.
However, the NHRC revised the clause providing sex workers a “informal” status in November 2020. NHRC had updated the guideline and recommended to the government that sex workers be given all of the benefits that informal workers are entitled to during the COVID-19 outbreak on “Humanitarian grounds”. NNSW presented these proposals to the NHRC in order to further the human rights protection of sex workers. The non-binding recommendations of the NHRC to government included requesting support and relief for sex workers during the epidemic, as well as issuing temporary passports to avail and have access to social welfare systems, as many of them do not have any citizenship documentation.
THE INTERVENTION OF JUDICIARY
The Supreme Court of the land had taken notice of the plight of sex workers. The Supreme Court, in a PIL filed by the Durbar Mahila Samanwaya Committee (DMSC), directed states, union territories, and the union government to take steps to provide them (sex workers) with relief in the form of financial and healthcare aid. It’s worth noting that, prior to the apex court’s order, only a few NGOs and sex worker collectives were organising relief camps for sex workers with whatever resources they could find. The court further directed that dry rations, medical assistance, and other necessities be provided to sex workers as soon as possible, regardless of whether they had any kind of identity documents or not.
Recently, the Guahati High Court heard the concerns of some sex workers and their families who are suffering as a result of the pandemic. The High Court has directed the DLSA to provide them with immediate relief in the form of rations and other daily necessities.
The supreme court’s order reaffirmed the meaning of “life” under Article 21 of the Indian constitution, asserting that “life does not mean mere animal existence” and that “dignity” is the quintessence of human rights. The Supreme Court reiterated the importance of sex workers’ rights in this order, as it had in the Budhadev Karmaskar case.
The catastrophic nature of this pandemic has undoubtedly exposed our lack of preparedness for such events; but, governments are also doing their best to offer all necessary services despite limited resources. However, it wouldn’t be wrong in saying that in the midst of all this chaos, human rights had lost their value in the face of the desire for fundamental human necessities. Although statutory and judicial bodies such as the National Human Rights Commission and the Supreme Court have shown a ray of hope by acknowledging the vulnerability of the poor and marginalised strata of our society, there is still hope.
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