SEX WORK AND THE LAW - HIV/AIDS Data Hub

ange of other benefits. 133 In 2011, the Supreme Court ordered a review of identity card
entitlements for sex workers (see Karmaskar case summary, below).
Constitutional rights and the role of the judiciary
India
The Constitution of India guarantees the right of citizens to live with dignity and to carry on
any trade, business or profession. 134 Although in theory sex workers enjoy human rights
guarantees under the Constitution of India, little progress has occurred in enforcing or
applying these rights to achieve improvements to the lives of sex workers or to support
HIV responses in the context of sex work.
Kaushalya’s Case
In State of Uttar Pradesh v. Kaushalya, 135 the Supreme Court upheld Section 20 of the
ITPA, which empowers a magistrate to direct a sex worker to move away from an area
in the interests of the general public and to prohibit the sex worker from re-entering an
area without written permission from the magistrate. Section 20 was challenged on the
ground of violation of guaranteed fundamental rights to equality, to move freely and to
reside in any part of India. The Supreme Court observed that one of the objects of the
Act is to control the ‘growing evil’ of sex work and the restrictions imposed by Section
20 were found to be in the public interest, taking into account ‘morals and health’. The
court held that the difference between a sex worker and a non-sex worker is a reasonable
classification, which justifies the difference in treatment. This decision has been criticized
as follows:
This ruling completely ignores several other rights of the women. For instance it
denies them their social capital that they have developed in the area. This in turn
could affect their right to livelihood. It further violates their right to live in any part of
the country. These are fundamental rights guaranteed by the Constitution of India. 136
Sahyog Mahila Mandal Case 137
In 2003, a sex workers’ collective in Gujarat challenged the ITPA on the grounds that its
provisions violated constitutional rights to equality before law, freedom of speech, life
and personal liberty, and thereby livelihood. 138
The case arose after police raided the red-light district of Surat, Gujarat. Police entered
premises without search warrants, destroyed property, arrested residents and forcibly
evicted women. Many women were harassed and physically abused. Approximately 1,500
women were affected by the police actions.
The court rejected the sex workers’ contention that sex work ought to be recognized as a
legitimate means of livelihood and that they should be permitted to carry on their work
outside notified areas. The court held that the restriction of personal liberty imposed
by Section 7, i.e. the deprivation of liberty to work in public places, is in the interest of
the general public and is in keeping with procedures established by law as well as the
133 See: Sex workers demand voting rights, IANS, 30 June 2008; 250 sex workers get voter identity cards in
Kolkata, Indian Express, 21 November 2008.
134 Article 23 of the Constitution of India, 1950.
135 AIR 1964 SC 416.
136 Rao S., Slugget C., (2009) op cit., p.24.
137 Sahyog Mahila Mandal & Another v. State of Gujarat & Ors [Special Civil Application No 15195 of 2003 with
Special Civil Application No 4594 of 2003]
138 Articles 14, 19 and 21.
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