India
-Gaurav Sharma
The Supreme Court has held that adults who choose sex work cannot face criminal action under the Immoral Traffic (Prevention) Act, 1956. The court clarified that the nearly 70-year-old law does not outlaw consensual prostitution by adults. However, the bench underlined that running, managing or operating a brothel still remains a punishable offence under the statute.
The bench said that when police raid premises under the Immoral Traffic (Prevention) Act, authorities must not detain or arrest adults who are voluntarily engaged in sex work. The judges stressed that such individuals should not be treated as offenders. The court also warned against using rescue homes or shelters as tools for unwanted confinement of such adults.
The Supreme Court ruled that adults choosing sex work cannot be criminalized under the Immoral Traffic (Prevention) Act, 1956, though operating brothels remains illegal and forced rehabilitation is prohibited.
Supreme Court ruling on sex workers and ITPA
In detailed directions to law enforcement, the Supreme Court instructed police not to harass adult sex workers who are in the trade by choice. The bench of Justice JB Pardiwala and Justice R Mahadevan said that any interference with such adults, when no trafficking or coercion is alleged, would be outside the scope of the Immoral Traffic (Prevention) Act.
Explaining the logic, the court noted that authorities often describe voluntary sex workers as persons needing compulsory rescue. The bench rejected that view, stating, “Its reasoning was simple; since such women are engaged in prostitution voluntarily, the question of their ‘rescue’ does not arise,” as reported by Live Law. This reasoning places consent at the centre of police response.
Supreme Court, sex workers and rehabilitation consent under ITPA
The Supreme Court further held that rehabilitation cannot be forced on any adult sex worker. Authorities and police were told not to push individuals into rehabilitation schemes or institutions against their will. Rehabilitation can begin only when a sex worker clearly asks for such help, and must then be carried out with respect for that decision.
Clarifying the scope of State responsibility, the bench stated: “The constitutional right to rehabilitation obligates the State to provide victims with the means and support to pursue rehabilitation. However, it does not authorise the State to impose a rehabilitative process upon her against a victim’s will.” The court said this principle must guide all official programmes.
The judgement arose from a petition seeking clear guidelines to protect the fundamental rights of people trafficked for commercial sexual exploitation. While dealing with that plea, the Supreme Court drew a sharp line between trafficking victims and adults who enter sex work voluntarily. The court said that any framework for rescue and support must begin by listening carefully to each person involved.
The court devoted special attention to Section 17 of the Immoral Traffic (Prevention) Act, which governs the handling of persons removed from brothels or similar places. The bench criticised the section’s current use, saying it assumes authorities always know what is best. It noted that practice under this section usually treats everyone in the same way, ignoring individual consent.
The judges described this standard model as a “one-size-fits-all” method that needs change. The ruling called for case-by-case assessment in rehabilitation, reintegration and protective placement, especially for sex workers identified during raids. The court said that future action must recognise personal circumstances and choices, while still providing strong protection and support for those actually trafficked or exploited.
