Author: Sneha Kumari, a student at Amity Law School, Amity University, Patna
To the Point
Indian prostitution operates in a legally uncertain and socially stigmatized framework. While the act of sex work is not expressly criminalized although the related activities are penalized under the Immoral Traffic (Prevention) Act, 1956, thereby constructing a regime of indirect criminalization. This creates significant legal and constitutional challenges, particularly infringing the fundamental rights of the Indian constitution such as Right to Dignity. This article explores the marginalization of sex workers through an analysis of statutory provisions, judicial interpretation and the intersection of law with gender, caste and class- based vulnerabilities. By understanding the landmark cases by highlighting the doctrinal inconsistencies, the article stands for a rights-based legal reform that decriminalizes consensual adult sex work and affirms the constitutional rights of the sex workers.
Abstract
This article explores the complex the complex legal and social landscape surrounding prostitution in India, focusing on the purposefully marginalization of sex workers within the current statutory framework.
Although the act of consensual adult sex work is not a crime, but the related activities are punishable under the Immoral Traffic (Prevention) Act, 1956, resulting in a contradictory legal status that exposes sex workers to harassment and violence by the authority. Through critical analysis of the precedent Supreme court judgements, such as Budhadev Karmaskar v. State of West Bengal and other cases, this article highlights the evolving recognition of sex workers’ fundamental right to dignity, privacy and autonomy under Art 14 and 21 of the Indian Constitution. This paper advocates for a right-based, decriminalized approach to sex work that prioritizes the safety, health and legal protection of sex workers, urging legislative reforms that reconcile moral concerns with constitutional mandates.
Use of Legal Jagron
Prostitution presents a critical challenge to India’s existing legal doctrines, which swing between authoritarian and constitutional permissibility. While prostitution is not in itself penalized under the Immoral Traffic (Prevention) Act, 1956 (ITPA), the surrounding legal framework imposes penal sanctions on activities native to sex work- such as brothel- keeper, ingathering’s and earnings from prosecution— resulting in a regime of constructive criminalization. This collapsed statutory scheme fails to reconcile with constitution provision which guarantees under Article 14, 19 (1)(g) and 21, which ensure equality, occupational liberty, and the right to live the life with dignity.
Interpretations made by the judiciary particularly in cases such as Budhadev Karmaskar and Puttaswamy, highlight an emerging doctrinal shift towards recognizing sex workers rights as relevant individuals entitled to decisional autonomy and protection from state interference. However, doctrinal inconsistencies, judgemental enforcement and merge of consensual sex work with trafficking underscore the urgent need for a right based on decriminalization of legal framework that affirms the sex workers to make independent decisions about their body and to have control over their economic and social circumstances.
The Proof
India’s legal position on prostitution reflects fundamental inconsistencies and a disjointed legal framework, which together fall short of offering clear and comprehensive protection to sex workers. The Immoral traffic prevention Act 1956 (ITPA) the principal legislation addressing prostitution related activities as it doesn’t explicitly criminalise the act of engaging in sexual works. However it imposes criminal liability on activities that are integral to the practice of sex work such as running a brothel Section 3, living of the earnings off sex workers Section 4 and soliciting in on near public places Section 7, the consequences is a paradoxical legal framework where the act of prostitution is not unlawful but the condition under which it occurs are effectively rendered illegal. This legal structure leads to functional criminalisation, whereby the sex workers are exposed to constant police surveillance, legal harassment and social exclusion despite not violating, any direct legal prohibition on sex work itself. This structural inconsistency result in the systematic denial of constitutional rights such as basically the fundamental rights such as article 14 right to equality, article 19 (1)(g) right to profession and article 21 right to life and personal liberty. The lack of legal recognition of sex work from labour welfare legislation, occupational health and safety protections and broader social security entitlements. In practical terms this legal invisibility deprives them of access to justice, healthcare, housing and financial services, thus perpetuating cycles of poverty, stigma and institutional neglect. Judicial discourse has, in recent years, take incremental step towards recognising the rights and dignity of sex workers in Budhadev Karmaskar v. state of West Bengal 2011, 10, SC283 The Supreme court held that individual working as a sex worker are entitled to a life of dignity under article 21 and called for welfare measures to improve their social economic conditions. More recently in its 2022 directions, court issued explicit guidelines to protect the rights of the sex workers, emphasising non-interference by the police and recognition of their legal personhood. Similarly, in the landmark privacy ruling of justice K.S. Puttaswamy v. union of India [ 2017, 10 SCC 1] court affirmed right to privacy bodily autonomy and decisional freedom principal that directly support the decriminalisation and dignified treatment of consensual adult sex work. Despite these progressive judicial pronouncements, the absence of corresponding legislative reform has left sex workers in a precarious position. The law continues to swing between the moral paternalism and constitutional permissibility lacking a coherent rights-based framework. To resolve this contradiction there is an urgent need for comprehensive legal overhaul that decriminalises consensual adult sex work, ensures access to legal protection and aligns domestic law with India’s constitutional values and international human rights obligations, including those under the Convention on the Elimination of all forms of discrimination against women (CEDAW).
Case Laws
Budhadev Karmaskar v. State of West Bengal (2011) 10 SCC 283;2022 directions
The Supreme Court affirmed dart sex workers are entitled to a life of dignity under article 21 in 2022 the court issued winding direction to prevent police harassment and insured that sex workers right to privacy healthcare and legal protection.
Gaurav Jain v. Union of India (1990) 78 SC114
The court acknowledged the need for rehabilitation of sex workers and their children. However, the approach focused on rescue rather than rights reflecting a moralistic protectionist stance.
Justice K.S Puttaswamy (retired) v. Union of India (2017) 10 SCC 1
The court held that the right to privacy is a fundamental right protected under article 21. The judgement reinforced sexual autonomy and decisional freedom strengthening the argument for decriminalisation consensual adult sex work.
Conclusion
The legal treatment of prostitution in India reveals persistent disconnect between constitutional ideals and legislative practice. While sex work is not expressly criminalised the penalisation of its surrounding aspects result in systematic marginalisation and legal exclusion. This fragmented approach not only undermines the dignity and autonomy of sex workers but also violates their fundamental rights under article 14, 19 (1)(g) and 21 of Indian constitution. Judicial intervention has led to groundwork for a more progressive and rights-based framework, yet the absence of comprehensive statutory reform continues to expose sex workers exploitation, stigma and institutional neglect. To ensure substantive equality and justice it is imperative that Indian law moves beyond moral paternalism and adopts coherent, decriminalized and inclusive legal regime that affirms sex workers as right bearing citizen.
FAQS
Is prostitution legal in India?
Technically prostitution is not illegal, but most related activities (like soliciting or running a brothel) are criminalised under ITPA, making it effectively semi criminal.
Workers seek police protection or file in FIR.
Yes, especially after the 2022 Supreme Court directions sex workers have right to legal protection under article 21 and can file complaints like any other citizen.
Is there a difference between prostitutes and trafficking?
Yes, trafficking involves coercion or deception, while sex worker is consensual between adults. Current laws often failed to make the distinction.
What is the government’s stance on legalisation?
India has not fully legalised prostitution although government schemes largely focused on rehabilitation not legal recognition of sex worker as a profession.
Which countries have legalised sex work?
Countries like New Zealand (decriminalised), Netherlands (legalised and regulated) and parts of Australia have models to protect sex workers’ rights while minimizing exploitation.
