INTRODUCTION
One of the fundamental questions at the heart of the ongoing debate about sex work is whether a woman can, at all, give her permission to engage in sexual activity in exchange for something of value. India’s legal system overwhelmingly fails to affirmatively answer this question, and thus, the question of whether a woman may consent to engage in sexual activity. The Immoral Traffic (Prevention) Act, 1956 (ITPA)[1] Criminalizes almost all conditions of sex work, treating all women involved in sex work as inherently victimized and not capable of making independent choices. However, the Constitution of India protects every person’s dignity, right to equality, and liberty. This Blog will now examine how consent should be the core element of any authentic legal discussion regarding sex work, and how the law, policy, and the courts can act to provide effective legal protection for those who choose to pursue sex work as a viable option.
THE PROBLEM
- Criminalisation by presumption: The ITPA does not explicitly criminalize engaging in prostitution, but it criminalizes the ingredients necessary to engage in prostitution, such as solicitation, keeping a house of prostitution, and profiting from prostitution through Sections 3[2], 4[3], 7[4] and 8[5]. The byproduct of these provisions is that sex work becomes functionally uninhabitable because the woman who engages in sex work is not directly penalized, but all of the surrounding infrastructure is. The infrastructure of indirect criminalization is predicated upon one unexpressed premise: that all women lack real consent to engage in sex.
The Premise of No Real Consent is Unconstitutionally and Factually Unsupported. The Supreme Court case State of Maharashtra v. Madhukar Narayan Mardikar[6] established that a woman has complete legal rights, regardless of whether she has “easy virtue,” and cannot be deprived of legal protection as a result of her sexual history. The case’s reasoning supports that a woman’s sexual behavior, whether she engages in consensual sexual activity or in commercial sex, does not extinguish her legal status or her ability to consent.
- Consent vaccum: According to research about the Indian judicial system that is tracking its decisions regarding sex work there has been a gradual but noticeable change in recent years where courts are beginning to differentiate between trafficked individuals and sex workers making choices to enter into sex work on their own accord; adult women can enter into sex work knowingly in some instances.[7] While courts have started to address this distinction they have done so inconsistently and have not articulated or developed a legal doctrine that uses consent as a substantial organizing principle. As a result, sex workers exist within a state of legal ambiguity wherein their agency as individuals is sometimes recognized by the judiciary but lacks any formal protection. The European Sex Workers Rights Alliance has documented instances from around the world where this lack of legal recognition creates an environment for harm; laws that fail to recognize consent fail to provide legal protections for individuals making choices in the sex industry and provide law enforcement agencies with the authority to “rescue” women who do not wish to be rescued thereby violating their autonomy and contradicting what the state claims it is protecting.[8]
CONSENT UNDER SEIGE
Ground-level evidence from SANGRAM and VAMP shows that when anti-trafficking raids occur through the utilization of section 17 ITPA[9], they result in the ongoing separation of women from their children and destruction of their livelihoods by way of detention under the guise of “rehabilitation”. Consistently, women report increased vulnerability after these raids, not less. This is the concrete manifestation of consent issues, where the law labels all sex workers as victims by definition, and the expression of a woman’s will to refuse to accept “rescue” cannot be seen as a legitimate expression of her will. Consent being framed as false consciousness and coercion being delivered in the name of protection highlights the problematic use of the term.
The practice stands in direct opposition to the constitutional protection afforded to the individual by Article 21[10] of the Constitution. In Francis Coralie Mullin case[11] The Supreme Court held that the ambit of Article 21 does not protect mere survival; it protects the right of every individual to live and work with dignity as a basic human right. In Budhadev Karmaskar case[12] specifically held that sex workers are entitled to equal protection under Articles 14 and 21 and may never be punished for their profession. Forcibly removing a woman from her chosen livelihood and detaining her without any criminal conviction is a direct violation of both. Under this understanding of consent, it is not simply an ethical concept, it is a constitutional concept, and therefore overriding consent without due process is an arbitrary violation of the right to life.
CONSENT- CENTERED FRAMEWORK
A consent-centered approach starts by removing the criminal responsibility from interactions between consenting adults. And it does not indicate a repeal of anti-trafficking laws, but rather a sharpening of those laws. Anti-trafficking laws must be enforced to the maximum extent possible, where there are coercive, deceptive or forceful elements of an act by the offender. The Bharatiya Nyaya Sanhita (2023)[13] will criminalize sexual exploitation and enforce those provisions against traffickers as well. However, these laws must be applied separately from consensual adult sex work because combining the two will neither protect nor serve sex workers; it will hurt them.
In Budhadev Karmaskar v. State of West Bengal[14], the Supreme Court provided direction for what a corrective approach would look like. In this case, the Court created a panel to do an evaluation of the conditions of sex workers; directed that the panel would work toward creating procedures for providing identity documents to sex workers to qualify for government welfare benefits; critical to the case, the Court referred to providing benefits to sex workers in order to provide an opportunity for them to be successful in life, and it instead labelled sex workers “criminals” as they have been throughout the history of the criminal justice system. In the Prajwala case[15], the Court was also pushed to draw some distinctions between “victim” state and “agent” state. Additionally, in Gaurav Jain v. Union of India[16], the Court concluded that children of sex workers must not be discriminated against because of their parents’ occupation and that dignity must extend to all individuals living in the same household as children of sex workers.
Notwithstanding this progress, the judicial momentum is not sufficient to maintain the current judicial system; therefore, a strong theoretical foundation is needed. Theoretical support for this change is found in Fineman’s framework of state support for all types of vulnerable people, as well as in the capabilities framework of Nussbaum, who describes the ways sex workers need access to bodily integrity, and control over their bodies and health, and that any legal protection that strips those rights out of their lives via police raids, detention and denial of documents, does not satisfy those two theories, regardless of whether it was intended to do so. Hart’s insight into the way the distribution of government power and immunity by the law ultimately defines the environment within which sex workers are able to report crime and remain safe from police abuse, thus the structural relationship between the police and sex workers creates a political and structural imbalance and thus any system of law that allows police to use their powers to raid and detain while providing to sex workers no corresponding immunity or no right of recourse would not only be unable to maintain its legitimacy or neutrality, but would in fact be architecturally designed to be hostile to sex workers as a group[17]. Therefore the necessary reform must take place at the structural level in order to return legal authority to sex workers for the purpose of reporting crime without fear of being arrested, or detained; to allow them to form unions and to bring civil claims against anyone, including police, in civil court on not only equal footing with the rest of the population, but also for the expression of their legal authority to use their police power against people.
CONCLUSION
In the Constitution of India, consent is not a loophole; it is a constitutional value. India’s present-day legal framework regarding sex work does not legally recognize the consent of adult women, allowing for police operations that raid, detain, and forcibly rehabilitate women, violating the very rights they claim to protect. The courts have begun to respond to this condition, but directions from the judiciary will not be sufficient to address this situation without legislative reform. A consent-based framework (i.e., one that makes a clear distinction between coercive sex work and consensual adult sex work), that decriminalizes the conditions under which consensual adult sex work is conducted, and which provides appropriate avenues for legal redress to sex workers, is both constitutionally demanded and morally necessary. The law must learn to listen to the voice of women.
Author(s) Name: Rashi (Symbiosis Law School, Noida)
References:
[1] Immoral Traffic (Prevention) Act 1956
[2]Immoral Traffic (Prevention) Act 1956, s 3
[3] Immoral Traffic (Prevention) Act 1956, s 4
[4] Immoral Traffic (Prevention) Act 1956, s 7
[5] Immoral Traffic (Prevention) Act 1956, s 8
[6] State of Maharashtra v Madhukar Narayan Mardikar (1991) 1 SCC 57.
[7] Riya Kanwar, ‘Sex Work and the Indian Judiciary: Shifting Narratives on Consent and Choice’ (2025) 5(3) Journal of Informatics Education and Research.
[8] European Sex Workers’ Rights Alliance (ESWA), Policy Brief (October 2021).
[9] Immoral Traffic (Prevention) Act 1956, s 17
[10]Constitution of India 1950, art 21
[11]Francis Coralie Mullin v Administrator, Union Territory of Delhi (1981) 1 SCC 608.
[12] Budhadev Karmaskar v State of West Bengal (2022) SCC Online SC 704
[13] Bharatiya Nyaya Sanhita 2023
[14] Budhadev Karmaskar v State of West Bengal (2022) SCC OnLine SC 704
[15] State of Karnataka v Prajwal Revanna (Special Court for MPs/MLAs, Bengaluru, Judgment dated 1 August 2025)
[16] Gaurav Jain v Union of India (1997) 8 SCC 114.
[17] HLA Hart, The Concept of Law (3rd edn, Oxford University Press 2012) 181