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SC directs Aadhaar cards be issued to sex workers without insisting on the residential proof

Court asks UIDAI to maintain the confidentiality of sex workers’ data in the Aadhaar card issuance process

Sabrangindia 25 May 2022

sex workers Aadhar Card
Image Courtesy: indianexpress.com

On May 19, 2022 Supreme Court Division Bench comprising Justice L. Nageswasra Rao, Justice B.R. Gavai and Justice A.S. Bopanna in the Criminal Appeal No. 135 of 2010 (Budhadev Karmaskar v/s. The State of West Bengal), asked the UIDAI to maintain the confidentiality of the sex workers during the process of issuance of the Aadhaar Cards.

The Bench reportedly said, “There shall be no breach of confidentiality in the process, including assignment of any code in the Aadhaar enrolment numbers that identify the card holder as a sex worker.”

The Bench was hearing the matter pertaining to the right of sex workers to live with dignity. Explaining the reach of right to life had also included to the right to live with dignity, the court held, “This basic protection of human decency and dignity extends to sex workers and their children, who, bearing the brunt of social stigma attached to their work, are removed to the fringes of the society, deprived of their right to live with dignity and opportunities to provide the same to their children.”

The Bench gave six weeks time to the Union of India to file a response to the recommendations made by the Panel and hence kept the matter for next hearing on July 7, 2022.

Court’s Order

The Bench observed that, as per learned ASG Sud, the Government of India has certain reservations in respect of some of the recommendations (except those in paras 2,4,5,6,7,9) made by the Panel which was constituted by the Court. The court directed, “The State Governments/ UTs are directed to act in strict compliance of the recommendations made in paras 2,4,5,6,7,9, in addition to the implementation of the recommendations made by the panel as mentioned above, the competent authorities under the Immoral Traffic (Prevention) Act, 1956 are directed to comply with the provisions of the Act.”

The Bench further noted in the Order, “It need not be gainsaid that notwithstanding the profession, every individual in this country has a right to a dignified life under Article 21 of the Constitution of India. The Constitutional protection that is given to all individuals in this country shall be kept in mind by the authorities who have a duty under Immoral Traffic (Prevention) Act,1956.”

The Bench upon getting informed by Senior Advocate Anand Grover that the Aadhaar Cards are not yet being issued to sex workers as they were unable to produce the residential proof stated, “We had issued notice to UIDAI and sought its suggestions in respect of waiving the requirement of proof of residence for the sex workers, to enable them to get an identity by the issuance of Aadhaar cards.”

Relying upon the affidavit filed by the UIDAI, the court said, “In the affidavit filed by the UIDAI, it was proposed that sex workers who are on NACO’s list and who apply for Aadhaar card but cannot submit proof of residence, can be issued Aadhaar Cards provided a ‘proforma certificate’ is submitted by a Gazetted Officer at NACO or the State Health Department certifying the particulars of the applicant.”

The Darbar Mahila Samanwaya Committee, the organisation representing sex workers have earlier made certain suggestions regarding the procedures to be followed by UIDAI while issuing the Aadhaar card to the sex workers. UIDAI has examined the suggestions made and had accepted to follow the procedures proposed.

The Bench further mentioned about the procedures stating, “In view of the aforementioned, Aadhaar Cards shall be issued to sex workers on the basis of a proforma certificate which is issued by UIDAI and submitted by the Gazetted Officer at NACO or the Project Director of the State Aids Control Society, along with Aadhaar enrolment form/application. There shall be no breach of confidentiality in the process, including assignment of any code in the Aadhaar enrolment numbers that identify the card holder as a sex worker.”

The Bench also appreciated the cooperation of Mr. Zoheb Hossain, representing the UIDAI for providing relief to the sex workers who will have some identity in the society.

The suggestions made by the organisation about the procedures to UIDAI

  1. The Gazetted Officer of the State Health Department, who is authorized to submit the proforma certificate for a sex worker who applies for an Aadhaar Card but is unhable to furnish proof of residence should be pecifically designated as:- “The Project Director of the State AIDS Cotrol Society, or her/his nominee.”

  2. The name and designation of the Gazette Officers who will be authorised to submit the ‘proforma certificate’ for sex workers desirous of applying for an Aadhaar Card on behalf of NACO must be publicized on its website.

  3. NACO and the State AIDS Control Societies should publicize the procedure for sex workers who wish to apply for an Aadhaar Card but who cannot furnish proof of residence through their websites as well as through outreach under the Targetted Intervention Programmes that they implement.

  4. The sample ‘proforma certificate’ submitted by UIDAI in its Additional affidavit dated 09.02.2022 in terms of the order dated 10.01.2022 as “Annexure R-1’ on pages 5 and 6 of the said affidavit may be made readily available on the websites of UIDAI, NACO and State Aids Control Societies.

  5. There should be no breach of confidentiality in the process, including assignment of any code in the Aadhaar enrolment numbers that identity the applicant/holder of the card as a sex worker.

  6. The procedure proposed by the UIDAI in its Additional affidavit dated 09.02.2011 may not be restricted to sex workers on the NACO list but also extended to those who are identified by CBOs after verification by the State Legal Services Authority or the State AIDS control Society. This is in line with the Hon’ble Court’s directions to State Governments to extend dry ration support and access to ration cards and voter ID cards to sex workers who are not on NACO’s list, vide orders dated 10.01.2022 and 28.02.2022.

The Panel recommendations

    1. Sex workers are entitled to equal protection of the law. Criminal law must apply equally in all cases, on the basis of ‘age’ and ‘consent’. When it is clear that the sex worker is an adult and is participating with consent, the police must refrain from interfering or taking any criminal action. There have been concerns that police view sex workers differently from others. When a sex worker makes a complaint of criminal/sexual/any other type of offence, the police must take it seriously and act in accordance with law.

    2. Any sex worker who is a victim of sexual assault should be provided with all facilities available to a survivor of sexual assault, including immediate medical assistance, in accordance with Section 357C of the Code of Criminal Procedure, 1973 read with “Guidelines and Protocols: Medico-legal care for survivor/victims of sexual violence”, Ministry of Health and Family Welfare (March, 2014).

    3. Any sex worker who is a victim of sexual assault should be provided with all facilities available to a survivor of sexual assault, including immediate medical assistance, in accordance with Section 357C of the Code of Criminal Procedure, 1973 read with “Guidelines and Protocols: Medico-legal care for survivor/victims of sexual violence”, Ministry of Health and Family Welfare (March, 2014).

    4. The State Governments may be directed to do a survey of all ITPA Protective Homes so that cases of adult women, who are detained against their will can be reviewed and processed for release in a time-bound manner.

    5. It has been noticed that the attitude of the police to sex workers is often brutal and violent. It is as if they are a class whose rights are not recognised. The police and other law enforcement agencies should be sensitised to the rights of sex workers who also enjoy all basic human rights and other rights guaranteed in the Constitution to all citizens. Police should treat all sex workers with dignity and should not abuse them, both verbally and physically, subject them to violence or coe4rce them into any sexual activity.

    6. The Press Council of India should be urged to issue appropriate guidelines for the media to take utmost care not to reveal the identities of sex workers, during arrest, raid and rescue operations, whether as victims or accused and not to publish or telecast any photos that would result in disclosure of such identities. Besides, the newly introduced Section 354C, IPC which makes voyeurism a criminal offence, should be strictly enforced against electronic media, in order to prohibit telecasting photos of sex workers with their clients in the garb of capturing the rescue operation.

    7. Measures that sex workers employ for their health and safety (e.g., use of condoms, etc.) must neither be construed as offences nor seen as evidence of commission of an offence.

    8. The Central Government and the State Governments must involve the sex workers and/or their representatives in all decision-making processes, including planning, designing and implementing any policy or programme for the sex workers or formulating any change/reform in the laws relating to sex work. This can be done, either by including them in the decision-making authorities/panel and/or by taking their views on any decision affecting them.

    9. The Central Government and the State Governments, through National Legal Services Authority, State Legal Services Authority and District Legal Services Authority, should carry out workshops for educating the sex workers abut their rights vis-a-vis the legality of sex work, rights and obligations of the police and what is permitted/prohibited under the law. Sex workers can also be informed as to how they can get access to the judicial system to enforce their rights and prevent unnecessary harassment at the hands of traffickers or police.

    10. As already recommended in the 6th interim Report dated 22.03.2012, no child of a sex worker should be separated from the mother merely on the ground that she is in the sex trade. Further, if a minor is found living in a brothel or with sex workers, it should not be presumed that he/she has been trafficked. In case the sex worker claims that he/she is her son/daughter, tests can be done to determine if the claim is correct and if so, the minor should not be forcibly separated.

The entire Order may be read here: 

Related:

Sex workers can’t be harassed, can’t be confined to shelter homes: SC
Courts upholds dignity of sex-workers in two important orders
Human Trafficking Bill and the government’s Saviour Complex
Covid-19: Gauhati HC directs DLSA to provide immediate ration to sex workers, their family

SC directs Aadhaar cards be issued to sex workers without insisting on the residential proof

Court asks UIDAI to maintain the confidentiality of sex workers’ data in the Aadhaar card issuance process

sex workers Aadhar Card
Image Courtesy: indianexpress.com

On May 19, 2022 Supreme Court Division Bench comprising Justice L. Nageswasra Rao, Justice B.R. Gavai and Justice A.S. Bopanna in the Criminal Appeal No. 135 of 2010 (Budhadev Karmaskar v/s. The State of West Bengal), asked the UIDAI to maintain the confidentiality of the sex workers during the process of issuance of the Aadhaar Cards.

The Bench reportedly said, “There shall be no breach of confidentiality in the process, including assignment of any code in the Aadhaar enrolment numbers that identify the card holder as a sex worker.”

The Bench was hearing the matter pertaining to the right of sex workers to live with dignity. Explaining the reach of right to life had also included to the right to live with dignity, the court held, “This basic protection of human decency and dignity extends to sex workers and their children, who, bearing the brunt of social stigma attached to their work, are removed to the fringes of the society, deprived of their right to live with dignity and opportunities to provide the same to their children.”

The Bench gave six weeks time to the Union of India to file a response to the recommendations made by the Panel and hence kept the matter for next hearing on July 7, 2022.

Court’s Order

The Bench observed that, as per learned ASG Sud, the Government of India has certain reservations in respect of some of the recommendations (except those in paras 2,4,5,6,7,9) made by the Panel which was constituted by the Court. The court directed, “The State Governments/ UTs are directed to act in strict compliance of the recommendations made in paras 2,4,5,6,7,9, in addition to the implementation of the recommendations made by the panel as mentioned above, the competent authorities under the Immoral Traffic (Prevention) Act, 1956 are directed to comply with the provisions of the Act.”

The Bench further noted in the Order, “It need not be gainsaid that notwithstanding the profession, every individual in this country has a right to a dignified life under Article 21 of the Constitution of India. The Constitutional protection that is given to all individuals in this country shall be kept in mind by the authorities who have a duty under Immoral Traffic (Prevention) Act,1956.”

The Bench upon getting informed by Senior Advocate Anand Grover that the Aadhaar Cards are not yet being issued to sex workers as they were unable to produce the residential proof stated, “We had issued notice to UIDAI and sought its suggestions in respect of waiving the requirement of proof of residence for the sex workers, to enable them to get an identity by the issuance of Aadhaar cards.”

Relying upon the affidavit filed by the UIDAI, the court said, “In the affidavit filed by the UIDAI, it was proposed that sex workers who are on NACO’s list and who apply for Aadhaar card but cannot submit proof of residence, can be issued Aadhaar Cards provided a ‘proforma certificate’ is submitted by a Gazetted Officer at NACO or the State Health Department certifying the particulars of the applicant.”

The Darbar Mahila Samanwaya Committee, the organisation representing sex workers have earlier made certain suggestions regarding the procedures to be followed by UIDAI while issuing the Aadhaar card to the sex workers. UIDAI has examined the suggestions made and had accepted to follow the procedures proposed.

The Bench further mentioned about the procedures stating, “In view of the aforementioned, Aadhaar Cards shall be issued to sex workers on the basis of a proforma certificate which is issued by UIDAI and submitted by the Gazetted Officer at NACO or the Project Director of the State Aids Control Society, along with Aadhaar enrolment form/application. There shall be no breach of confidentiality in the process, including assignment of any code in the Aadhaar enrolment numbers that identify the card holder as a sex worker.”

The Bench also appreciated the cooperation of Mr. Zoheb Hossain, representing the UIDAI for providing relief to the sex workers who will have some identity in the society.

The suggestions made by the organisation about the procedures to UIDAI

  1. The Gazetted Officer of the State Health Department, who is authorized to submit the proforma certificate for a sex worker who applies for an Aadhaar Card but is unhable to furnish proof of residence should be pecifically designated as:- “The Project Director of the State AIDS Cotrol Society, or her/his nominee.”

  2. The name and designation of the Gazette Officers who will be authorised to submit the ‘proforma certificate’ for sex workers desirous of applying for an Aadhaar Card on behalf of NACO must be publicized on its website.

  3. NACO and the State AIDS Control Societies should publicize the procedure for sex workers who wish to apply for an Aadhaar Card but who cannot furnish proof of residence through their websites as well as through outreach under the Targetted Intervention Programmes that they implement.

  4. The sample ‘proforma certificate’ submitted by UIDAI in its Additional affidavit dated 09.02.2022 in terms of the order dated 10.01.2022 as “Annexure R-1’ on pages 5 and 6 of the said affidavit may be made readily available on the websites of UIDAI, NACO and State Aids Control Societies.

  5. There should be no breach of confidentiality in the process, including assignment of any code in the Aadhaar enrolment numbers that identity the applicant/holder of the card as a sex worker.

  6. The procedure proposed by the UIDAI in its Additional affidavit dated 09.02.2011 may not be restricted to sex workers on the NACO list but also extended to those who are identified by CBOs after verification by the State Legal Services Authority or the State AIDS control Society. This is in line with the Hon’ble Court’s directions to State Governments to extend dry ration support and access to ration cards and voter ID cards to sex workers who are not on NACO’s list, vide orders dated 10.01.2022 and 28.02.2022.

The Panel recommendations

    1. Sex workers are entitled to equal protection of the law. Criminal law must apply equally in all cases, on the basis of ‘age’ and ‘consent’. When it is clear that the sex worker is an adult and is participating with consent, the police must refrain from interfering or taking any criminal action. There have been concerns that police view sex workers differently from others. When a sex worker makes a complaint of criminal/sexual/any other type of offence, the police must take it seriously and act in accordance with law.

    2. Any sex worker who is a victim of sexual assault should be provided with all facilities available to a survivor of sexual assault, including immediate medical assistance, in accordance with Section 357C of the Code of Criminal Procedure, 1973 read with “Guidelines and Protocols: Medico-legal care for survivor/victims of sexual violence”, Ministry of Health and Family Welfare (March, 2014).

    3. Any sex worker who is a victim of sexual assault should be provided with all facilities available to a survivor of sexual assault, including immediate medical assistance, in accordance with Section 357C of the Code of Criminal Procedure, 1973 read with “Guidelines and Protocols: Medico-legal care for survivor/victims of sexual violence”, Ministry of Health and Family Welfare (March, 2014).

    4. The State Governments may be directed to do a survey of all ITPA Protective Homes so that cases of adult women, who are detained against their will can be reviewed and processed for release in a time-bound manner.

    5. It has been noticed that the attitude of the police to sex workers is often brutal and violent. It is as if they are a class whose rights are not recognised. The police and other law enforcement agencies should be sensitised to the rights of sex workers who also enjoy all basic human rights and other rights guaranteed in the Constitution to all citizens. Police should treat all sex workers with dignity and should not abuse them, both verbally and physically, subject them to violence or coe4rce them into any sexual activity.

    6. The Press Council of India should be urged to issue appropriate guidelines for the media to take utmost care not to reveal the identities of sex workers, during arrest, raid and rescue operations, whether as victims or accused and not to publish or telecast any photos that would result in disclosure of such identities. Besides, the newly introduced Section 354C, IPC which makes voyeurism a criminal offence, should be strictly enforced against electronic media, in order to prohibit telecasting photos of sex workers with their clients in the garb of capturing the rescue operation.

    7. Measures that sex workers employ for their health and safety (e.g., use of condoms, etc.) must neither be construed as offences nor seen as evidence of commission of an offence.

    8. The Central Government and the State Governments must involve the sex workers and/or their representatives in all decision-making processes, including planning, designing and implementing any policy or programme for the sex workers or formulating any change/reform in the laws relating to sex work. This can be done, either by including them in the decision-making authorities/panel and/or by taking their views on any decision affecting them.

    9. The Central Government and the State Governments, through National Legal Services Authority, State Legal Services Authority and District Legal Services Authority, should carry out workshops for educating the sex workers abut their rights vis-a-vis the legality of sex work, rights and obligations of the police and what is permitted/prohibited under the law. Sex workers can also be informed as to how they can get access to the judicial system to enforce their rights and prevent unnecessary harassment at the hands of traffickers or police.

    10. As already recommended in the 6th interim Report dated 22.03.2012, no child of a sex worker should be separated from the mother merely on the ground that she is in the sex trade. Further, if a minor is found living in a brothel or with sex workers, it should not be presumed that he/she has been trafficked. In case the sex worker claims that he/she is her son/daughter, tests can be done to determine if the claim is correct and if so, the minor should not be forcibly separated.

The entire Order may be read here: 

Related:

Sex workers can’t be harassed, can’t be confined to shelter homes: SC
Courts upholds dignity of sex-workers in two important orders
Human Trafficking Bill and the government’s Saviour Complex
Covid-19: Gauhati HC directs DLSA to provide immediate ration to sex workers, their family

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