In 2022, the Indian Supreme Court ruled that sex workers were covered by Article 21 of the Constitution which assures every person the right to life. It recognized that sex workers are entitled to equal protection under the law.
The court instructed both central and state governments that sex workers should not be arrested, penalised, harassed or victimised during brothel raids. (Running a brothel is illegal in India. Individual sex work is not.) Nor should the possession of condoms and other safer sex commodities be treated as evidence of an offence. And the police should be sensitised to the community’s rights.
Moreover, the court also stressed the vital need to uphold the basic protection of human decency for the children of sex workers who, “bearing the brunt of social stigma… are removed to the fringes of the society, deprived of their right to live with dignity”. This ruling will help ensure that the children of sex workers can access essential services, including healthcare and education.
To commemorate this landmark judgment, the All-India Network of Sex Workers (AINSW) conducted a three-day National Consultation titled ‘Sisterhood and Solidarity with Sex Workers: One Year Since the Historic Supreme Court Ruling of 2022’. AINSW has been working on the issues of sex worker rights since 2011 across several states.
“Laws make a difference,” said David Bridger, UNAIDS Country Director to India in his keynote address. “The Supreme Court ruling was historic because with this, India joins a handful of countries like Canada and New Zealand that have explicitly instituted legal protection for sex workers. Recognizing the equal worth and dignity of every person is not only ethical, but also critical for ending AIDS.”
While giving an overview of the Supreme Court ruling, Senior Advocate, Anand Grover, noted that sex workers have taken steps which have contributed to the decline of HIV in India by negotiating condom use with their clients. A 2021 study found that 98% of sex workers used condoms. The work to educate and empower this community to have safer sex is paying off. HIV prevalence among female sex workers is now just under 2%. Protecting the safety and human rights of key populations expands their access to HIV services, accelerating progress in the response to HIV.
Mr Grover called for a full understanding of the law and how it impacts the lives of sex workers. He also stressed the importance of community participation in law and policy development, noting that the Court itself called for sex workers to be involved in decision-making processes linked to issues which affect them.
Shyamala Natraj, Executive Director of the South India AIDS Action Programme (SIAAP), briefed the audience about what went into making the 2022 ruling possible. She said the judgment was the result of strategic and consistent advocacy which centred on the lived experiences of sex workers.
In 2020, for example, the National Human Rights Commission issued an advisory recognising sex workers as entitled to the same social protection as other informal workers for the first time. Sex workers had been among the hardest hit during the COVID-19 pandemic. Not only did they experience an abrupt loss of income, but some were excluded from state social safety net responses. The fallout was extreme, including hunger, homelessness, debt, depression, and even suicide.
The SIAAP shared an example from Usha Ram (not her real name) from the town of Theni: “I did not have money to pay rent. The house owner forced me to vacate and humiliated me in front of my neighbours for doing sex work. I was on the streets with my children and did not even get the advance back.”
Ms Natraj encouraged the community to assert their human rights and secure access to the services that would ordinarily be provided to them under the law, including the issue of Aadhar (identification) cards, rations, poverty alleviation support and proof of residence documentation.
But despite the Supreme Court’s ruling that “sex work is a profession” with the same human rights as others, and that sex workers should not be harassed by the police, inequalities, stigma, and discrimination persist. Many sex workers are still reporting police harassment; some say they are still charged for soliciting clients.
To safeguard the human rights of sex workers, experts reiterated the need to implement the Supreme Court judgment at the grassroots level. UNAIDS and its cosponsors are committed to working with communities, policy makers and law enforcement to increase awareness and to ensure the universal upholding of sex workers’ human rights.
