Voluntary Adult Sex Workers Cannot Be 'Rescued' Or Detained Against Their Will : Supreme Court

In a landmark ruling aiming to mitigate the concerns of the victims of trafficking for commercial sexual exploitation (CSE), the Supreme Court has held that the consent of adult sex workers must be the primary consideration in decisions relating to rehabilitation, reintegration, and placement in protective homes.

The judgment delivered by a bench of Justice JB Pardiwala and Justice R Mahadevan held that victims cannot be treated as passive objects of rescue and rehabilitation, and that their choices and autonomy must be respected.

The Court rejected the paternalistic assumptions under the existing framework i.e., Section 17 of the Immoral Traffic (Prevention) Act, 1956 (ITPA), which often treats all persons rescued from prostitution-related situations in the same manner, irrespective of whether they were trafficked, coerced, or voluntarily engaged in sex work. According to the bench, such a "one-size-fits-all" approach fails to account for the diverse realities of those brought before magistrates.

“It is the victim's life, liberty, and future that the order will determine, and thus it would be incongruous to hold that all of this can be decided without any regard for what the victim wants.”, the Court observed.

Instead, the Court held that when an adult person is produced before a magistrate under Section 17, a threshold inquiry must first be conducted to determine whether the individual is a voluntary adult sex worker and whether she wishes to be placed in long-term protective custody.

The inquiry must determine:

• Whether the individual considers herself to be engaging in Commercial Sex Work voluntarily;

• Whether she wishes to be placed in long-term safe custody;

• Whether any expressed preference is genuinely voluntary.

The Court directed that social workers should assist in this process through a preliminary assessment, but stressed that the victim's own statement must receive primacy.

A magistrate may disregard the victim's wishes only in exceptional situations where release would expose her to a serious safety risk or where the expressed consent appears to be the product of coercion, threats, tutoring, or undue influence. Any departure from the victim's wishes must be supported by written reasons.

The Court identified three distinct groups: those trafficked against their will, those initially trafficked but later continuing voluntarily, and those who entered sex work voluntarily. It cautioned that applying identical rescue and rehabilitation mechanisms to all three categories may produce unjust outcomes.

ITPA, by conflating prostitution and trafficking, brings within its net a wide and heterogeneous group of persons, from those trafficked against their will, to those who were trafficked but continue voluntarily, to those who have chosen sex work for themselves. All of these persons are, under the current framework, processed through the same mechanism under Section 17, without differentiation.

To avoid the victim protective plan reflecting such an approach, we identified two measures that, based on the procedure in Section 17, should be factored into the plan. First is the need for a threshold inquiry to identify voluntary adult sex workers at the outset, and spare them the full machinery of the process, i.e., the principle of non-intereference. Second, is the recognition of the victim's consent as the governing factor in the magistrate's final decisions on detention and reintegration, i.e., primacy of the victim's consent. Being cognisant of the nature of the trafficking offence, we have also identified circumstances in which such a departure from the principle of non-interference and primacy of the victim's consent would be warranted, i.e., situations where the victim's safety is at risk, or the consent/wishes expressed by the victim are a product of threat, coercion or undue influence.

Referring to the case Budhadev Karmaskar v. State of W.B., (2022) 20 SCC 220, where while issuing certain directions pertaining to the rehabilitation of sex workers/prostitutes, the Court observed that the police must refrain from 'interfering' if it is found that the sex worker is an adult participating in the trade with consent and during a raid on any brothel, voluntary sex workers must not be harassed or victimised. The Court reiterated that voluntary adult sex workers should not ordinarily be subjected to rescue and detention mechanisms intended for trafficking victims, unless their explicit consent was involved.

“Its reasoning was simple; since such women are engaged in prostitution voluntarily, the question of their 'rescue' does not arise. Consequently, the Commission was of the view that it would not be appropriate for the ITPA to empower the police or the court to take any action for the removal or custody of such women. This position has been affirmed by this Court in Budhadev Karmaskar (supra), where it was unequivocally observed that since voluntary sex work is not illegal and only the running of a brothel is, voluntary sex workers found during raids on such brothels must not be victimised, i.e. be taken into custody and dealt with under Sections 15, 16 and 17 ITPA respectively. This Court further emphasised that rehabilitation of the sex workers will not be coercive in any manner, and it shall be voluntary on the part of the sex workers.”, the court observed.

“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 added.

Also from the judgment - Supreme Court Issues Comprehensive Victim Protection Plan For Human Trafficking Survivors, Calls For Legislative Reforms

Cause Title: PRAJWALA VERSUS UNION OF INDIA & ORS.

Citation : 2026 LiveLaw (SC) 574

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