Supreme Court: Consent of Adult Sex Workers Must Guide Rehabilitation
The Supreme Court of India, in a judgement delivered on May 29 in the case of Prajwala vs Union of India, has ruled that the consent of adult sex workers must be the primary consideration in decisions regarding their rehabilitation. The decision has been welcomed by the Durbar Mahila Samanway Committee (DMSC), one of the largest sex workers' collectives in the country.
A Bench comprising Justices J.B. Pardiwala and R. Mahadevan upheld the importance of individual consent while hearing a plea for the preparation of a 'Victim Protection Plan'. The Court rejected paternalistic assumptions underlying Section 17 of the Immoral Traffic (Prevention) Act, 1956 (ITPA), which often led to coercive rehabilitation measures. The Bench observed, "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 directed that a threshold inquiry must be conducted by a magistrate when an adult is produced under Section 17 to determine whether the individual is an adult and engaged in sex work voluntarily. The inquiry must also assess whether the person is willing to be rehabilitated in protective custody. This requirement is intended to prevent arbitrary actions that have caused trauma to adult sex workers.
DMSC, which emerged from the internationally recognised Sonagachi Project—a community-led HIV intervention that successfully reduced HIV transmission while empowering sex workers—hailed the judgement. In a statement, the collective emphasised that trafficking and voluntary adult sex work are distinct realities that must not be conflated. "Such conflation often leads to ineffective interventions, violations of rights, and misplaced policy responses," the statement noted.
The judgement draws upon principles from the 2022 Budhadev Karmaskar judgement, in which DMSC was a party. The Court acknowledged that while trafficking victims have a right to protection and rehabilitation, such rehabilitation cannot be imposed through coercive rescue or detention of consenting adults. "The requirement that authorities undertake meaningful inquiries regarding age, consent, and individual circumstances before intervention is an important safeguard," DMSC said.
DMSC also welcomed the Victim Protection Plan outlined by the Court, which aligns with the collective's Self-Regulatory Boards that work to identify minors and trafficked persons while ensuring decisions respect consent and dignity. However, the collective cautioned that judicial recognition must be backed by effective implementation. "The journey towards equality and recognition is far from complete," DMSC stated, reaffirming its commitment to work with governments, institutions, and civil society to uphold rights and combat trafficking.
