INTRODUCTION
Sex work has been part of Indian society for a very long time, but the laws have not always seen those involved in it as full citizens with rights protected by the Constitution. For many years, the legal and social attitude was that sex workers were either victims who needed to be saved or people who broke public morality and should be punished. Neither the laws from the colonial era nor the laws made after independence were made with the idea of giving sex workers freedom or respect; they were mostly about keeping public order and stopping human trafficking.
In recent years, though, the courts have started to change their views. Over the past decade, the Supreme Court has slowly begun to see sex workers not just as people needing help, but as individuals with rights, including dignity, privacy, and equal treatment under the Indian Constitution. This change has happened without new laws, mainly through the court interpreting existing constitutional rights, especially Articles14,19, and 21. This blog looks at this change: it starts by explaining the legal rules around sex work in India, then looks at the court decisions that changed how sex workers are seen in the Constitution, considers the problems that are still around even with this recognition, and ends with ideas about how to bring the law as it is to match the law as it is experienced in real life.
LEGAL POSITION OF SEX WORKERS IN INDIA
A common misunderstanding is that sex work is illegal in India. However, an adult who chooses to engage in sex work on their own does not automatically commit a crime.[1] What the law actually targets are the activities connected to sex work, such as running or managing a brothel, living off someone else’s prostitution earnings, forcing someone into prostitution, keeping a person in a place where prostitution happens, and soliciting sex in public areas. The main law covering this area is the Immoral Traffic (Prevention) Act of 1956, which was created mainly to stop human trafficking and commercial sexual exploitation, not to punish sex work itself.
Trafficking is also covered under the Section 370 of the Indian Penal Code of 1860, as substituted by the Criminal Law (Amendment) Act, 2013, includes laws against the trafficking of people for exploitation, regardless of whether they gave consent.[2] This overlapping set of laws, and as a criminal under laws about soliciting, depends on how the police apply the law.
The difference between voluntary sex work and trafficking involves force or the exploitation of minors, while voluntary sex work, by definition, does not. However, in practice, the two are often mixed up, and consenting adult sex workers are treated like trafficking victims during raids and rescue efforts under the ITPA.
FROM VICTIMS TO RIGHT HOLDERS: JUDICIAL TRANSFORMATION
The legal basis for recognizing sex workers as rights holders comes from the Supreme Court’s broader understanding of Article 21[3] of the Constitution, which ensures the rights to life and personal liberty. This interpretation did not initially focus on sex workers specifically. In the case of Maneka Gandhi[4] The Supreme Court stated that the “procedure established by law” under Article 21 should be fair, just, and reasonable, and that rights under Articles 14,19, and 21 are connected and not separate.This broader interpretation of Article 21 laid the constitutional foundation for later recognition that sex workers, like all the citizens, are entitled to dignity, personal liberty, and protection against arbitrary state action. A few years later, in Olga Tellis v Bombay Municipal Corporation, the court included the right to livelihood under Article 21, stating that taking away someone’s means of living is equivalent to taking away their right to life. Although Olga Tellis did not directly address sex workers, its acknowledgment of the right to livelihood later helped support the idea that adults who choose to work in sex trade should not lose their means of earning a living without proper legal procedures. This ruling helped build a stronger constitutional foundation for seeing sex workers as people with rights, rather than just individuals being controlled by laws[5]
These ideas came together in the case of Budhadev Karmaskar, where the case was a criminal appeal about the murder of a sex worker, but the Supreme Court, on its own, turned into a broader look into the conditions of sex workers nationwide. On 14th February 2011, the court said that sex workers, as human beings, have the right to live with dignity under Article 21, and
told the central and state governments to develop programs for those who want to leave the profession. A committee was then formed to examine three areas: preventing trafficking, helping sex workers who want to leave the profession, and improving the living conditions of those who continue working in the field.[6] The biggest development happened on 19th May 2022, when the Supreme Court, using its power under Article 142 to ensure justice, gave new directions. The Court recognized sex work as a profession and told the police not to treat sex workers as criminals for engaging in consensual adult sex, nor to act in a coercive or discriminatory manner towards them.[7] It also said that sex workers are entitled to equal protection under the law, including protection from violence, and that their right to privacy under Article 21 must be respected, including their identity during raids, rescues, or arrests.
In National Legal Services v UOI, the Court used Article 14, 19, and 21 to self-identify their gender and to live without discrimination, which includes sex workers also as subjects for rescue or regulation, to recognise them as people with constitutional rights.[8]
CONSTITUTING CHALLENGES
Even though the courts have acknowledged the rights of sex workers, there’s still a big difference between what the laws says and how it is actually experienced in real life. Even though the courts have recognised the rights of sex workers, there is still a big gap between what is legally allowed and how things are actually done in practice. The Supreme Court’s guidelines from the case Budhadev Karmaskar in 2022 say that the police should treat consenting adult sex workers with respect and not follow the same approach everywhere in the country. Police raids under the Immoral Traffic (Prevention) Act often don’t make a clear distinction between sex workers who choose their work and those who are victims of trafficking, leading to unfair detention, forced placement in institutions, and ongoing harassment. Strong social stigma, lack of training for law enforcement, and no proper laws to support them also prevent sex workers from getting access to healthcare, shelter, education, and other basic services. As a result, the rights that the courts have recognised are not properly protected in reality.
CONCLUSION
The way the law treats sex work in India has slowly but importantly changed: from seeing sex workers mainly as people who need to be saved or punished, to now recognizing them as individuals with basic constitutional rights. This change has mostly come from the courts interpreting certain parts of the Constitution more broadly. Starting from the Maneka Gandhi case, which looked at personal freedom, to the Budhadev Karmaskar case, where the Supreme Court acknowledged sex work as a profession that deserves dignity and protection from harassment. The next step is making sure that efforts to stop trafficking don’t unfairly take away the freedom of adults who choose this work. Also, the dignity that the law talks about needs to become real in everyday life.
Author(s) Name: Soumya Samikshya Sahoo (SOA National Institute Of Law)
References:
[1] Immoral Traffic (Prevention) Act 1956
[2] Indian Penal Code 1860, s 370
[3] Constitution of India 1950, art 21
[4] Maneka Gandhi v Union of India (1978) 1 SCC 248
[5] Olga Tellis v Bombay Municipal Corporation (1985) 3 SCC 545
[6] Budhadev Karmaskar v State of West Bengal (2011) 11 SCC 538
[7] Constitution of India 1950, art 142
[8] National Legal Services Authority v Union of India (2014) 5 SCC 438