'Not Realistic' : Supreme Court Expresses Doubts Regarding Number Of Sex Workers Identified By WB & Maharashtra

"Having dealt with the status reports filed by West Bengal and Maharashtra, it is not necessary to take up the status report of each State separately. A scrutiny of the status report filed by State Government shows that directions issued by his Court has been implemented in part. We direct all the State Governments/UTs to continue with the process of identification of sex workers who do not have any proof of identity and who are deprived of distribution of ration."

A Bench comprising Justices L. Nageswara Rao and B.R. Gavai was hearing a application filed on behalf of the country's oldest sex workers' collective seeking directions to State Governments to provide food and financial aid to sex worker in view of the pandemic.

The Bench was doubtful about the number of sex workers that the States, in particular West Bengal and Maharashtra, have identified to be based on the criteria enunciated by it in the order dated 10.01.2022. The Bench had asked the State Governments to not restrict its enquiry to the NACO list, but also include the data provided by the community based organisations in the process of identification of sex workers in the State. The Bench reiterated its order passed on 10.01.2022.

"The figures that has been given are not realistic, efforts have to be made by State Governments to take support of community based organisations without relying only on the list submitted by NACO for the implementation of direction…Apart from ratio cards, States shall also take steps to issue voter cards to the sex workers…The State Governments/UTs shall continue to distribute dry ration to sex workers without any proof of identity. The status reports regarding the implementation of the directions issued by the Court on 10.01.2022 should be filed within a period of two weeks from today…"

At the outset, Advocate, Mr. Pijush Kanti Roy, the Amicus Curiae apprised the Bench that instead of issuing ration cards the State of West Bengal had provided Khadya Sathi coupons to the identified sex workers. He indicated that the State Governments across the board did not seem to be too keen to undertake the process directed by the Apex Court.

The Bench reckoned that a pessimistic approach would not be helpful in a public interest matter. The State Governments have to be persuaded to implement the Court orders. The Bench noted that most of the States have identified a large number of people. Therefore, it cannot be said that there is no progress.

West Bengal

Coming back to the implementation of the directions of the Court by the West Bengal Government, as pointed out by Mr. Roy, the Bench enquired -

"What has the State of West Bengal not done?"

He submitted that for the purpose of distributing dry ration the Government has provided Khadya Sathi coupons in lieu of ration cards.

Advocate Raghenth Basant appearing for the State of West Bengal informed the Bench that the Government had identified 6227 sex workers. Out of which 3784 hold ration card and 2002 sex workers hold Khadya Sathi special coupons.

The Bench expressed its doubt with respect to the identification so made, considering the other states have identified a much higher number of sex workers. Given that West Bengal is a large State, the Bench was hesitant to believe that there are only 6227 sex workers in the State.

"All the States are showing 80,000, 90,000 and 1 lakh. How can we go by the number of 6227. This is not proper identification. If you take the NACO (National AIDS Control Organisation) list it would be 10 times more than this."

It asked the Counsel to ensure that the identification is done properly. Assuring the Bench that he would check with the concerned authorities, Mr. Basant submitted that in August, 2020 the State came up with a scheme by which digital ration card would be provided to the sex workers and transgender persons without insisting them to provide any identity card. In the interim the Government provided Khadya Sathi food coupons as the distribution of the ration cards would take some time. It was also pointed out that if the application for ration card was rejected then there was provision for a Khadya Sathi special coupon by which they can avail 5 kg of food gain per head per month without any cost. The said scheme, though initially available till 30th June, 2021, has now been extended to 30th June, 2022.

The Bench enquired, "What is the basis for this identification…In our last order we said you have to follow NACO list and apart from that take into account those persons whose names are in the list of local NGOs…How did you identify them?"

Mr. Basant responded, "As per my instructions, they have gone by NACO list and officers on the ground have identified."

The Bench noted -

"Let us say Tamil Nadu. They have identified 87238 sex workers…Some State says 1 lakh…They appear to be practical figure…It cannot be 6227. Much smaller States are reporting 30,000, 40,000 sex workers. We are asking you to identify to ensure that they can get dry ration at least for survival purposes."

The Bench noted in the order -

"On 10.01.2022, we directed the State Governments/UTs to complete the process of issuance of ration cards and voter cards within a period of two weeks. It was mentioned in the said order that the basis for identification should not be restricted to the list prepared by NACO. The State Governments should take into account the list submitted by community based organisations which shall be verified by the District Legal Services authority/State AIDS Control Society. The competent authorities were directed to issue ration cards after verification of such lists… Barring a few states, the State Governments/UTs have submitted the status reports. Mr. Pijush Kanti Roy, Amicus Curiae submitted that the direction issued by the Bench on 10.01.02022 has not been complied with by the State of West Bengal as the idetification of sex workers has not been properly done. The ration cards, voter cards and Aadhar cards are not even issued to those who have been identified by concerned authorities in West Bengal. Mr. Basant…submitted that guidelines were issued for issuance of digital ration cards/food coupons…in August, 2020. As on 11.02.2022, 6227 sex workers have been identified in West Bengal and 3784 sex workers have ration cards. Such of those sex workers who do not have ration cards have been given Khadya Sathi food coupons. According to the scheme of the State Government, the coupon holders are eligible for 5 kgs of food grains without any payment till 30th June, 2022…

Looking at the sex workers identified by the other states we have doubt about the sex workers being restricted in West Bengal to only 6227…We direct the concerned authorities of the State Govt. to carry out identification of sex workers in West Bengal after requesting NACO to submit list which it has and also take assistance of community based organisations. After collating the information supplied by NACCO and community based organisations, the authorities shall verify those lists and take immediate steps to issue ration cards without insisting on any proof of identity. The process shall be completed in 4 weeks from today."

Maharashtra

Advocate, Mr Sachin Patil appearing for the State of Maharashtra informed the Bench that as per the latest affidavit submitted in February, 2022, 27,871 sex workers have been identified by NACO. The State has already issued ration cards to 15,655 sex workers.

The Bench asked Mr. Patil, "Do you personally feel this is the correct figure?"

Mr. Patil candidly responded, "I also don't personally feel this is correct."

The Bench suggested, "Why don't you ask the concerned authority to conduct a detailed study and then identify all the sex workers."

As the latest affidavit was not available with the Bench, it passed order in terms of the one submitted in December, 2021 -

"…According to the information provided by the State of Maharashtra in December, 2021, NACO has identified 25,594 sex workers and 6371 dependent children. 11, 282 sex workers have been issued ration cards. Mr. Patil submits that dry ration is being supplied to the sex workers who have been identified. In the order dated 10.01.2022, we directed the State Government not to restrict the issuance of ration cards to only those sex workers identified by NACCO. The State of Maharashtra is directed to invite community based organisations to identify sex workers which shall be verified…and ration cards shall be provided. Needless to say that the State Government will not insist on proof of identity."

[Case Title: Budhadev Karmaskar v State of WB & Ors Clr. A. No. 135 of 2010]

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