In a landmark judgement delivered in May this year, the Supreme Court held that the consent of a victim of sex trafficking must be “the primary and governing consideration” for her protective detention and rehabilitation.
The 297-page judgement in Prajwala vs. Union of India and Others reads like a compulsory textbook on the heavily contested discourse of sex trafficking in India. What makes this judgement landmark is its dense consideration of scholarly debates about the problematic conflation between sex trafficking and voluntary sex work, and the definitional uncertainties surrounding the adult victim.
The judgement is historic in declaring that the adult woman victim is entitled to two fundamental rights at the same time. While she has the right to rehabilitation owed by the State under Article 23 of the Constitution, her own wishes and desires shall determine her consent to rehabilitation under Article 21. This includes her choice regarding the mode of carrying out such rehabilitation to suit her unique situation. The court held that the rehabilitative process cannot be imposed upon a victim against her will, thereby upholding her agency in exercising her right to live with dignity.
For several decades, adult women found engaging in sex work during raids and rescue operations were identified as victims under the Immoral Traffic (Prevention) Act, 1956. Police and rescue officials did not bother to ascertain whether their sex work was voluntary or coerced and, as a result, meted out several human rights violations.
The Court recognised that three kinds of women are ‘clumped together as victims’ when they are produced before the magistrate under the ITPA. Those trafficked into sex work against their will, those initially trafficked but have since continued to pursue sex work voluntarily, and those who have entered and remain in sex work by choice, however structurally constrained that choice may be.
This distinction of victims that operates on a spectrum of coercion and consent takes root in the 2022 constitutional judgement of Budhadev Karmaskar V. State of West Bengal. The Supreme Court held that since voluntary sex work is not illegal and only the running of a brothel is, sex workers found in raids should not be victimised or taken into custody under the ITPA. Even then, the Prajwala judgement noted that despite directions, voluntary sex workers might still end up being produced before the magistrate, especially after difficult and time-sensitive rescue operations.
Speaking of coerced victims, the Court observed that they undergo severe trauma and hold special vulnerabilities. They are bodily exploited, forced to live in brothels, subjected to disease, substance abuse and unsafe medical procedures, and compelled to live in constant fear for their safety. The Court recognised that victims must be offered protection and rehabilitation as a matter of right and reparation for criminal wrongs that the State was unable to prevent. And so, it must not only encompass shelter, medical care, psychological support, compensation and vocational training but also reduction of stigma, isolation and marginalisation. The goal must be to ultimately achieve her genuine reintegration into the community.
But, thus far, victims who were produced before the magistrate were mechanically sent to detention in protective homes and offered rehabilitation services there. They were being viewed as passive objects with no capacity to make decisions on how they wish to be empowered.
It is at this stage that the Prajwala judgement sounded the bugle of liberty and dignity equally and to all victims.
Whether it is long-term protective detention, reintegration with family, or simply attempting to start a life anew elsewhere, the Court held that it is the victim who is best placed to determine the best path forward for herself. The State and social welfare institutions must help victims avail rights, benefits and rehabilitation measures, wherever they may choose to go. By upholding the decisional autonomy of the victim, the Court is invoking her right to live with dignity under Article 21.
Therefore, the Court issued a binding direction under Articles 32 and 142 that the magistrate shall hold a ‘threshold enquiry’ to ask two questions directly of the victim. They translate loosely to,
“Do you consider yourself to be a voluntary sex worker?” and
“Do you want to be placed in a protective home for long-term custody up to 3 years where you will be detained and provided rehabilitation services?”
The judgement makes one thing clear. Women victims who wish to be detained for rehabilitation shall be sent to protective homes by magisterial orders.
However, what finds itself in tangles is the court’s prescription when the magistrate feels that the victim is tutored by traffickers, either to falsely claim sex worker status or withhold consent to rehabilitation. In such a case, the magistrate may order inquiries into assessing the voluntariness of the victim’s statement in a report to be submitted by social workers.
Even as the court states that consent is “incapable of being fully captured or understood by an external observer through an objective test,” it has directed a procedural mechanism when there is the presence of what it calls ‘cogent reasons.’ In other words, when in doubt, it vests real consent in the social worker and the magistrate’s final discretion about the victim’s long-term custody. How the shifting power of consent plays out in the lower courts is for the higher judiciary to examine in due course.
In response to an RTI application in April this year, the Hyderabad District Welfare Officer, Women, Children, Disabled, and Senior Citizens Department in Telangana shared data from the only rescue home in Hyderabad. It reveals that while 3,929 women were rescued and detained between the years 2020 and 2025, only 1,047 women were released during the same period.
The discrepancy between these figures indicates that even as the State conducts extensive rescue under ITPA, there is a dismal effort to ensure the release and reintegration of women inmates into the mainstream of society.
A visual graph of the data begs several questions - How is an inmate under lock-and-key accessing remedies outside? How is she dismantling the State’s fear of risk to her safety that may not continue to exist? How does she contact family, friends or lawyers for an early release order? What if she has no well-wisher or permanent home and yet seeks to go out and earn a living like other free women?
In the judgement, the court noted that ITPA subscribes strictly to an institutionalised, detention-based protection model. It includes no freedom of movement, separation from her loved ones, an end to her privacy under institutional control and impaired ability to earn a livelihood for herself. Mandatory long-term protective custody would slowly begin to mirror penal custodial institutions with prison rules. The conditions of these homes in several States are characterised by severe shortage of funds, material resources, mental health care, education, vocational training, trained staff, and so on.
Read together, the court’s exposition of protective homes reflects latent violations of the victim’s rights under Articles 14, 19 and 21 when she is dealt with under the ITPA. And so, the court recommended that the government must reconsider this detention model. Even if it is insisted upon, options for alternate modes of rehabilitation must be made available.
There are comforting provisions for the naysayers and protectionists, too. If a victim changes her mind after release or her fresh circumstances compel her to seek protection and rehabilitation, she can always apply for it voluntarily under Section 19 of the ITPA. The fact that the victim had denied consent earlier shall not be treated as an adverse inference against her in the present or the future. This even includes voluntary sex workers who may find the need to approach the State by themselves for rehabilitation later on.
In essence, the Prajwala judgement issues directions for a Victim Protection Plan which the Supreme Court set forth as law, not by merely interpreting statutory material but by reading it in the light of the Constitution.
Addressing the judgement’s highest preoccupation in its recommendations, the Court asked the government to re-examine the conflation between sex trafficking and voluntary adult sex work, pinned on the coercion-consent binary, in the current legislative framework.
Anju Rao G. is an advocate practising in the High Court of Telangana.
Views expressed are the author’s own.