Priyadarshee Mukhopadhyay, a second-year law student at National Law University Odisha in India, discusses the current status of sex workers in India and how it disproportionately increases their risk of exposure during the COVID-19 pandemic...
“Are we not human that we have been left to die like this?”
This was implored by one of the estimated 3 million sex workers in India whose existence is consistently disdained by the government. Historically, social inequality has been an indisputable part of sex workers’ lives. In India, the prohibitionist approach of criminalizing sex work has led to a vicious cycle of social insecurity, economic exploitation, and public exclusion.
The COVID-19 pandemic has zeroed out the clientele of most of the Indian sex workers resulting in overnight economic incapacitation. Their existence is disregarded by the policymakers who have excluded them from public welfare policies during this pandemic. Such obscure identities block their access to the emergency social protection measures which the government has introduced in the form of economic relief packages and Public Distribution Systems (PDS), threatening their survival due to lack of basic necessities like food and medicines. The PDS, meant for people below the poverty line (BPL), requires supporting identity proof from sex workers. A study conducted by the United Nations Development Programme (UNDP) reported that more than 43% of respondent sex workers do not have a ration card and only 13% reported having a BPL card.
Social distancing and other preventive measures are non-viable for the majority of sex workers. This occurs in Kamathipura, one of the red light areas located in Mumbai, where six to eight individuals occupy a ten-foot by twelve-foot room with 50 people sharing a bathroom. More than 25,000 sex workers are estimated to reside there. Such circumstances exponentially increase their risk of COVID-19 infection. Many sex workers who are already immunocompromised due to HIV and tuberculosis are at a greater risk of infection but cannot afford critical medical treatments. For this population, starvation and eviction for failure to pay rent is a much closer reality than the virus’s fatality.
Such dereliction not only violates the multitude of international treaties that India has duly ratified but also is inconsistent with the proposed changes of the Supreme Court panel constituted in 2011 to evaluate the sex workers’ status in India. The opinion points out that due to criminalization, sex workers face difficulties while acquiring identity proofs, like ration cards, due to their lack of proof of residence. The majority of the sex workers reside in brothels though renting a premise for the purpose of sex work constitutes a criminal offense. The panel further recommended that state authorities should provide rations cards to sex workers with relaxed verifications. However, even after nine years, these suggestions remain unimplemented by the government.
These passive denials to government emergency services have led to acute food insecurity, and lack of medicines and housing amongst the sex workers during this pandemic. Such state-driven social insecurity and a lack of dignity for the sex workers’ identity constitute grave violations of their human rights enshrined under the International Covenant on Economic, Social and Cultural Rights (ICESCR) and Universal Declaration of Human Rights (UDHR). Article 9 of ICESCR recognizes the right social security. Further, General Comment no. 19 from the Committee on Economic, Social and Cultural Rights (CESCR) provides that social security was recognized as a human right in Articles 22 and 25(1) of the UDHR and that everyone has the “right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.” The Committee further noted the particular importance of the right to social security in the context of endemic diseases such as HIV/AIDS, and the need to provide access to preventive and curative measures.
While recognizing the needs of the marginalized community, the committee explicitly provided that state parties should give special attention to those individuals and groups who traditionally face difficulties in exercising this right, in particular women, the unemployed, workers inadequately protected by social security, and persons working in the informal economy. The government’s inaction towards the protection of the social security of sex workers constitutes a violation of the rights enshrined under the Covenant. Violations through acts of omission can occur when a state party fails to take sufficient and appropriate action to realize the right to social security. In the context of social security, such violations include the failure to take appropriate steps towards the full realization of everyone’s right to social security and the failure to remove obstacles which the state party is under a duty to remove in order to permit the immediate fulfillment of a right guaranteed by the Covenant.
Due to such rampant social insecurity, sex workers in India are plagued by severe food insecurity and lack of critical medicines. These further violate Article 11 of ICESCR, which protects the right of everyone to an adequate standard of living, adequate food, clothing, and housing. It also recognizes the fundamental right of everyone to be free from hunger. The Committee in General Comment no. 12 recognize the right to adequate food is indivisibly linked to the inherent dignity of the human person and is indispensable for the fulfillment of other human rights. It also plays an integral role in realizing social justice. General Comment no. 3, confirms that state parties have a core obligation arising from Article 12 to provide essential drugs and ensure equitable distribution of all services. The blockage of sex workers’ access to emergency relief funds and supplies is a contravention of these fundamental human rights.
Provisions like Article 39(e) of the Constitution of India states that “the health and strength of women and the tender age of children shall not be abused and citizens shall not be forced by economic necessity to enter into avocations unsuited to their age or strength.” Article 46 directs the State to promote the economic interests of women and people of weaker sections of society and protect them from social injustice. The government’s negligence towards the sex workers remains contradictory to these sacrosanct canons.
To rescue the sex workers during this pandemic, the Joint United Nations Programme on HIV/AIDS (UNAIDS) has proposed guidelines which include: granting “access to national social protection and income support schemes . . . [e]mergency financial support for those facing destitution . . . [and] [a]n immediate end to evictions and access to appropriate emergency housing for homeless sex workers.” Three months have passed in lockdown and yet there is no indication that the government has even attempted to implement these. While multiple High Courts of India have taken suo moto cognizance of the similar plight of the transgender community and have directed the states to provide them with medicines and food grains without insisting for ration cards or other identity proofs, sex workers who also face mistreatment by the government remain without any social protection and face fatal health hazards during this pandemic.
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Priyadarshee Mukhopadhyay is a second-year law student at National Law University Odisha (NLUO), India. He serves as an editorial board member for NLUO Student Law Journal, NLUO Human Rights Law Journal, and International Review of Human Rights Law.
Suggested Citation: Priyadarshee Mukhopadhyay, Criminalization and COVID-19: Acute Social Insecurity and the Critical Condition of Sex Workers in India, JURIST – Student Commentary, July 8, 2020, https://www.jurist.org/commentary/2020/07/priyadarshee-mukhopsdhyay-covid-sex-workers/.
This article was prepared for publication by Gabrielle Wast. Please direct any questions or comments to her at firstname.lastname@example.org
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