UNAIDS applauds an important order by India's Supreme Court that laws governing sex work must be implemented in accordance with the fundamental rights protected under the constitution, including the right to life and liberty with respect for an individual's dignity.
After hearing arguments in Budhadev Karmaskar versus the State of West Bengal, Criminal Appeal No. 135 of 2010, the Supreme Court ruled that sex workers should not be physically or verbally abused or harassed and that the police and other relevant authorities should receive appropriate training to ensure that they are aware of sex workers' rights. The possession of condoms is no longer a criminal offence and cannot be taken as evidence of soliciting or brothel-keeping and women held against their will in "protective homes" must be released. The Supreme Court calls on state governments to conduct a survey of such facilities. The order also directs the authorities to issue Aadhar cards (containing a unique identity number) to sex workers who are unable to provide proof of residence.
The order further requires the development of media guidelines to protect the privacy and confidentiality of sex workers and for sex workers themselves to be educated and informed about their own legal rights and of their right to justice. It calls for protection and support services to be extended to sex workers who suffer sexual violence in line with existing survivor-friendly procedures and protocols for the general population.
"This historic order will save many lives and help India advance towards the goal of ending AIDS as a public health threat by 2030," said David Bridger, UNAIDS Country Director for India. "The evidence is clear-the removal of punitive laws against sex workers and other marginalized communities and protecting their rights expands access to HIV services, accelerating progress in the response to HIV by increasing the number of people on treatment and reducing new infections."
The order was passed in a case where the Durbar Mahila Samanwaya Committee-a prominent sex workers collective-is involved as a member of a court-appointed panel, with a team from the Lawyer's Collective providing representation. The next hearing in the case will be at the end of July, when the central government will respond to a further six recommendations from the Supreme Court.
"The community at large is happy with this verdict and we hope that all the recommendations made by the Supreme Court will be followed by all, especially the police and the press, who have been specifically mentioned," said Bharati Dey, Ex-Secretary, Durbar Mahila Samanwaya Committee, and Bishakha Laskar, President of the Durbar Mahila Samanwaya Committee. "We hope that the government at both the central and state level will give due recognition to the recommendations and will provide support to all sex workers in all possible ways. We hope that the recommendations will surely diminish stigma and discrimination, which is often faced by members of this community."
Sex workers and other marginalized communities often find it difficult to access essential services, such as health, because of criminalization and stigma and discrimination. The Supreme Court of India has played a significant role in protecting and extending the rights of marginalized communities over the past decade, granting hijras and other transgender people the right to recognition as a third gender, outlawing HIV-related discrimination and striking down the provision in the Penal Code that criminalized consensual same-sex sexual conduct.
India plays a vital role in the global AIDS response as a significant producer of HIV medicines and diagnostics. This judgement also underlines the country's strong understanding that evidence-informed, people-centred approaches are key to widening access to HIV treatment, prevention and care services and ending the AIDS pandemic for everyone.
