How a Criminal Appeal by an Appellant, While Being Dismissed by the Supreme Court, Brought Succour to Sex Workers During Covid Times

FOR Budhadev Karmaskar, the appellant who was convicted for the brutal murder of a sex worker, the dismissal of his appeal by the Supreme Court in 2011 would have meant the end of all legal options to avail relief under the law.  Ironically, however, the case instituted in his name, continues to provide succour to innumerous sex workers across the country, thanks to the Supreme Court’s decision to use the hearing of the same case to continue issuing directions to improve the standard of living of sex workers, despite passage of a decade since the dismissal of the appellant’s appeal in the case.

The Supreme Court on Monday directed the state governments and the Union Territories to complete the process of issuing ration cards and voter cards to all sex workers and apprise the court of the same within two weeks.  A division bench of Justice L. Nageswara Rao and B.R. Gavai also directed that the identification of sex workers need not be restricted to the list prepared by the National AIDS Control Organisation(NACO).

The bench passed the directions while hearing the case of Budhadev Karmaskar v The State of West Bengal.  The case is a criminal appeal decided by a two-Judge bench of Justices Markandey Katju and Gyan Sudha Misra in 2011. Relying on the testimony of the eye witnesses in the case which corroborated the medical evidence, the bench dismissed Karmaskar’s plea of innocence.  While disposing of the appeal, however, the bench issued a series of directions to ensure rehabilitation of sex workers all over the country, as they have a right to live with dignity under Article 21 of the Constitution, and kept the case alive, to monitor the implementation of its directions.

The directions included preparation of schemes by Central and state governments for giving technical and vocational training to sex workers and sexually abused women in all cities. A committee, appointed by the Supreme Court in this case, submitted seven interim reports, and one final report in 2016, all of which have not yet seen the light of the day, as successive benches which heard the case, have not favoured the reports to be made public, in view of the social stigma the sex workers are likely to suffer if their identities and concerns are to be revealed. No wonder, in the latest order, the bench says, “Needless to state, the State authorities are directed to maintain confidentiality as has been stated in the earlier orders passed by this Court”.

On Monday, the bench permitted the Community Based Organisations to submit a list of members which would be verified by the concerned District Legal Service Authority/State AIDS Control Society, and on such verification, the list would be forwarded to the competent authorities in the State Governments/Union Territories for issuance of ration cards/voter cards.

The bench noted that a large number of sex workers have ration cards. The state governments/union territories informed the Supreme Court that the others who do not have ration cards are being given dry ration without insisting on proof of residence.  States which have not filed status reports with the Court submitted that issue of ration cards/voter cards to sex workers is in progress, and  the Court’s earier directions issued on December 14 last year are being implemented. The bench has directed those states which did not file a status report showing compliance with Court’s order on December 14 last year, to do so within two weeks.

Delhi claimed that ration would be distributed at 86 centres without insisting on the proof of residence.  Chandigarh Administration informed the court that money was being transferred to the accounts of sex workers who have been identified by NACO.

During the hearing, senior advocate Anand Grover, on behalf of the ‘Durbar Mahila Samanwaya Committee’, a registered society run by sex workers in Kolkata,  submitted that a large number of sex workers are left out of the lists that are available with NACO. He pointed out that as per the NACO scheme, a minimum of 1000 sex workers should be there in a community on the basis of which inclusion will be made in the list prepared by NACO. He added in case, a community is less than 1000 sex workers, the members of such community will not find their names in the list prepared by NACO.

Grover submitted that in spite of the Court’s order, the dry ration was only being provided intermittently by the State governments to sex workers. He urged the Court that all sex workers, irrespective of their gender, should be eligible for issuance of ration cards/voter cards as directed by this Court earlier.

Senior Advocate Jayant Bhushan, who is the amicus curie, in the matter, submitted that providing ration to the sex workers should not be stopped by the State Governments/Union Territories for any reason whatsoever. He also said the information provided by Community Based Organisations should be taken into account for the preparation of the list of sex workers who would be entitled to the issuance of ration cards.

On the issue of Aadhar cards to the sex workers, Bhushan contended that the reality is that the sex workers cannot produce proof of residence and therefore, the list prepared by NACO can be considered for issuance of Aadhar Cards by the authority. To this, Zoheb Hossain, the counsel for UIDAI, said he would take instructions in the matter.

Bhushan flagged an issue relating to a large number of sex workers not coming forward in some states for taking ration cards/ voter identity cards which is a matter that requires an inquiry.

Counsel for the Gujarat Government, Archana Pathak Dave, told the Court that those sex workers who have not come forward for issuance of ration cards/ voter cards were being provided with dry ration under the existing schemes which are prevalent in Gujarat.

The Court asked the Gujarat government to inquire into why a large number of sex workers are not coming forward for taking ration cards/voter cards.

Earlier, observing that fundamental rights are guaranteed to every citizen irrespective of vocation, the Supreme Court had directed the Centre and all states and union territories to commence the process of issuing voter, Aadhaar and ration cards to sex workers and keep providing dry ration to them.