INTRODUCTION
Behind every police raid on a dimly lit building, every eviction notice pasted on crumbling brothel doors, and every whispered insult hurled at a woman in a red saree standing by the roadside lies a paradox that India has long refused to confront: Prostitution is not illegal, yet almost everything around it is criminalized. Our laws claim neither to prohibit nor promote prostitution. But what do they do? They criminalize soliciting in public, punish those who manage or reside in brothels, and target anyone living off the earnings of sex work — even if it’s a dependent child or an aged parent. In the name of morality, the system strips sex workers of dignity, legal safety, and freedom, pushing them further into invisibility.
The result? A world where sex work exists in plain sight but under constant fear. A woman may sell her body to feed her children, but she cannot rent a room without risking arrest. She can be “legal,” yet the moment she advertises, takes help, or finds shelter, she becomes a criminal.
So, what does it mean when a profession is not illegal, yet nearly every activity required to survive in it is punishable by law? Can a law be called just if it protects only in theory, but punishes in practice? And most importantly, do our laws serve to protect sex workers, or simply silence and erase them?
EVOLUTION OVER TIME
Prostitution in India is not a new or modern phenomenon; it has existed across centuries, evolving with the country’s social and legal fabric. In ancient India, prostitution was not viewed with moral disdain; the concept of Nagarvadhu, or “bride of the city,” reflected a socially accepted and even revered status, as exemplified by Amrapali, a celebrated courtesan of Vaishali.[1] Texts like the Kamasutra treated sex work as a profession, acknowledging its place in society without moral judgment.[2] During the medieval period, courtesans continued to hold significant roles, often in royal courts, contributing to music, dance, and poetry.[3] However, the British colonial period introduced a shift in perception, and prostitution began to be policed and stigmatized. Laws such as the Contagious Diseases Acts (1864–1869) subjected sex workers to medical inspections and reinforced the notion that they were vectors of disease. In post-independence India, while the Constitution guaranteed fundamental rights to all citizens, the state adopted an abolitionist stance through the Immoral Traffic (Prevention) Act, 1956[4], focusing on the eradication of trafficking but leaving the status of voluntary sex work in a legal grey area.
In the early 2000s, recognizing the need for a nuanced and rights-based approach towards sex work, the Justice Pradip S. Samant Committee was constituted to study the legal and social conditions of sex workers in India.[5] The committee suggested the decriminalization of consensual sex work, distinguishing it from trafficking, and emphasizing the importance of safeguarding the dignity and rights of sex workers.[6] Although many of its recommendations were not immediately implemented, it reflected a shift in institutional thinking — one that gradually influenced later legal reforms and judicial observations.
THE CORE LEGAL POSITION: SEX WORK IS LEGAL, BUT THE PRACTICE IS PENALISED
Prostitution in India operates within a grey area[7]. While sex work itself is not illegal, various associated activities are criminalized, which creates a legal paradox. This contradiction complicates the legal landscape surrounding sex work. Thus, individuals may find themselves in precarious legal situations despite the lack of a direct ban on sex work. [8] The central legislation governing this issue is the Immoral Traffic (Prevention) Act, 1956 (ITPA), which does not outlaw prostitution per se. Still, it criminalises activities such as soliciting in public places (Section 8), running or managing a brothel (Section 3), living off the earnings of a prostitute (Section 4), and procuring or inducing someone for the sake of prostitution (Section 5).Thus, a person may engage in sex work voluntarily, but the legal environment criminalises almost every means of carrying it out. This creates a confusing contradiction, where what is permitted in theory is penalised in practice. The law appears to indirectly push sex workers into vulnerable and hidden conditions, making them more susceptible to exploitation, which is contrary to the intention of protecting them.[9]
ITPA: A TOOL FOR PROTECTION OR CONTROL?
The Immoral Traffic (Prevention) Act, enacted in 1956, was originally intended to address human trafficking and exploitation; however, it inadvertently governs and penalizes voluntary sex work under the pretense of moral standards. This Act, with its colonial hangover, often fails to differentiate between forced trafficking and consensual sex work, resulting in the misuse and harassment of sex workers by authorities. For instance, Section 20 allows a magistrate to remove a woman from any place on mere suspicion of being a prostitute.This approach overlooks the agency of adult women who voluntarily choose this work. Instead of empowering sex workers, the ITPA contributes to their stigmatization and exclusion from labour protection. In reality, this law is mostly enforced through so-called rescue operations. But instead of helping, these actions often strip sex workers of their basic rights and dignity. Many are taken away to shelter homes against their will, making it clear that the law is less about justice and more about controlling their lives.
CONSTITUTIONAL DISHARMONY: A VIOLATION OF FUNDAMENTAL RIGHTS
The current legal system stands in sharp contrast to the promises of dignity, privacy, and livelihood guaranteed by the Constitution. Article 21 protects the right to life and personal liberty, which the Supreme Court has also understood to mean living with dignity and choosing one’s own livelihood.[10] Similarly, Article 19(1)(g) grants the freedom to practise any profession.[11] Yet, in practice, sex workers are routinely denied these rights. They face arbitrary arrests, police abuse, and the weight of social stigma.[12] On top of this, they are excluded from labour protections such as health benefits or workplace safety laws, leaving them even more vulnerable. This gap between the Constitution’s ideals and the day-to-day reality of sex workers highlights the urgent need to rethink how voluntary sex work is treated under Indian law.
JUDICIAL DEVELOPMENTS: SUPREME COURTS EVOLVING STAND
In May 2022, the Supreme Court of India delivered a landmark judgment in Budhadev Karmaskar v. State of West Bengal.[13]. In this ruling, the Court formally recognized sex work as a profession and made it clear that sex workers who engage in consensual work should not be arrested, prosecuted, or harassed. The decision is based on the principle that every individual, regardless of their occupation, is entitled to dignity and equal protection under the law. The Court also stressed the need to protect sex workers from discrimination, safeguard their privacy, and prevent their confinement in rehabilitation centers against their will. By using its powers under Article 142, the Court sought to ensure complete justice.[14] Yet, despite this progressive step, the application of these guidelines has been uneven across states, underlining the continuing need for legislative reforms.
CONCLUSION
In a democracy built on the values of dignity and freedom, the continued marginalization of sex workers is not just a failure of law, but also a failure of conscience. India must move away from antiquated moralistic perspectives and embrace a rights-based, inclusive approach to sex work, considering it through the framework of consent, labor, and autonomy. True justice is not about rescuing women from their choices but about ensuring that these choices are safe, acknowledged, and legally protected. The discussion is no longer about the legitimacy of sex work; it is about affirming the humanity of those who participate in this profession. As Dr. B. R. Ambedkar famously stated, “So long as you do not achieve social liberty, whatever the law provides freedom is of no avail to you.
Author(s) Name: Bhupathiraju Sri Lakshmi Vinusha (Ramaiah College of Law, Bengaluru)
References:
[1]Monika Saxena, ‘Ganika in Early India: Its Genesis and Dimensions’ (2006) 34(11/12) <https://www.jstor.org/stable/27644180> accessed on 8 August 2025
[2] Vatsyāyana, The Kama Sutra of Vatsyayana: The Classic Burton Translation ( 3rd edn, Dover Publications 2006).
[3] Sukumari Bhattacharji, ‘Prostitution in Ancient India’(1987) 15(2) < https://doi.org/10.2307/3520437 > accessed on 7 August 2025
[4] The Immoral Traffic (Prevention) Act, 1956.
[5] Budhadev karmaskar (3) v state of West Bengal (2011) 10 SSC 277
[6] ibid
[7] ibid 283
[8] ibid
[9] The Immoral Traffic (Prevention) Act 1956, ss 3, 8, 4, 5, 20
[10] Constitution of India 1950, art 21
[11] Constitution of India 1950, art 19(1)(g)
[12] Priti Rajendra Salunkhe and Piyush Maheshwari, ‘Decriminalising Consensual Sex Work in India: A Constitutional and Human Rights Critique of the Immoral Traffic (Prevention) Act,1956 (YourLawArticle, 3 June 2025) <Decriminalising Consensual Sex Work in India: A Constitutional and Human Rights Critique of the Immoral Traffic (Prevention) Act, 1956> accessed on 7 August 2025
[13] Budhadev Karmaskar v State of West Bengal and others (2022) 20 SCC 220
[14] Constitution of India 1950, art 142
