Calcutta High Court (Appellete Side)
Aishwarya Adhikari vs The State Of West Bengal & Ors on 12 June, 2025
Author: Soumen Sen
Bench: Soumen Sen
12.06.2025
Sl No.21
Court No.8
(gc)
WPA (P) 229 of 2021
Aishwarya Adhikari
Vs.
The State of West Bengal & Ors.
Mr. Anirban Ray, Ld. G.P.,
Mr. Sayan Ganguly
...for the State.
1.The writ petitioner is not represented.
2. This writ petition was filed espousing the case of sex workers, in fact, this public interest litigation filed by one Budhadev Karmaskar in which an order was passed in 2013 in Budhadev Karmaskar Vs. State of West Bengal reported at 2013 (1) SCC 294 in which the scope and purpose of the panel considered in terms of an earlier order filed by Budhadev Karmaskar reported at 2011 (10) SCC 351 (Harshendra Kumar D vs. Rebatilata Koley Etc.) was clarified, the purpose was to lay down the conditions conducive for sex workers to live with dignity in accordance with the provisions of Article 21 of the Constitution of India which, however, should not be construed as encouraging fleshed. From time to time directions were passed with regard to rehabilitation of the sex workers. On 19th July, 2011 panel was constituted by the Supreme Court under the 2 Chairmanship of Pradip Ghosh comprising Mr. Jayanta Bhushan, Senior Counsel and President of few organizations to get their recommendations relating to rehabilitation of sex workers, prevention of trafficking and establishing conditions conducive so that sex workers could leave with dignity. Recently, the Supreme Court passed an order on 19th May, 2022 (in Re: Budhadev Karmaskar) in which following directions have been issued relating to the rehabilitation measures in respect of sex workers and other connected issues. The said directions are:-
"(i) 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.
ii) 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 3 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).
iii) Whenever there is a raid on any brothel, since voluntary sex work is not illegal and only running the brothel is unlawful, the sex workers concerned should not be arrested or penalised or harassed or victimised.
iv) 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.
v) 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.
vi) 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 4 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.
Vii) 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.
Viii) 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.
ix) 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 about 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 5 to the judicial system to enforce their rights and prevent unnecessary harassment at the hands of traffickers or police."
3. Moreover, in addition to Aadhar Cards, the following suggestion of the organizations regarding the sex workers have been accepted:-
"3.1 The Gazetted Officer of the State Health Department, who is authorized to submit the proforma certificate for a sex worker who applies for an Aadhar Card but is unhable to furnish proof of residence should be specifically designated as:- "The Project Director of the State AIDS Cotrol Society, or her/his nominee." 3.2 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 Aadhar Card on behalf of NACO must be publicized on its website.
3.3 NACO and the State AIDS Control Societies should publicize the procedure for sex workers who wish to apply for an Aadhar Card but who cannot furnish proof of residence through their websites as well as through outreach under the Targetted Intervention Programmes that they implement.
3.4 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 6 said affidavit may be made readily available on the websites of UIDAI, NACO and State Aids Control Societies. 3.5. There should be no breach of confidentiality in the process, including assignment of any code in the Aadhar enrolment numbers that identity the applicant/holder of the card as a sex worker. 3.6 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."
4. It was observed, inter alia, that the 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.
5. Thereafter, the Hon'ble Supreme Court passed the following direction:-
"UIDAI has examined the
suggestions and accepted that the
procedure as proposed, can be followed.
In view of the aforementioned, Aadhar 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 Aadhar enrolment form/application. There shall be no breach of confidentiality in the 7 process, including assignment of any code in the Aadhar enrolment numbers that identify the card holder as a sex worker."
6. The report filed by the then Member Secretary, SLSA would show that the aforesaid directions have not been implemented. The State is directed to ensure implementation of the aforesaid directions and also the earlier directions passed by the Hon'ble Supreme Court in this regard.
7. A Nodal Officer may be appointed by the State at each district to ensure compliance of the direction passed by the Hon'ble Supreme Court.
8. The State shall file further affidavit in this regard on the adjourned date.
9. The matter stands adjourned for four weeks.
10. The Member Secretary, SLSA is directed to depute para legal volunteers in all the vulnerable areas, in the city as well as in the districts to ascertain the conditions and difficulties faced by the sex workers and their families presently and file a report on the adjourned date.
(Soumen Sen, J.) (Smita Das De, J.)