The Supreme Court of India has held that voluntary sex work, provided there is consent, is not illegal, while reviewing the Immoral Traffic (Prevention) Act. The apex court noted that while running a brothel is illegal, the 70-year-old law does not give the police power to crack down on adults involved in voluntary sex work, and they should not be victimised or taken into custody when found during raids.

A bench of Justices JB Pardiwala and R Mahadevan issued directions to the authorities on the rehabilitation of sex workers, saying that the police should refrain from harassing adults voluntarily participating in sex work.

“Its reasoning was simple; since such women are engaged in prostitution voluntarily, the question of their ‘rescue’ does not arise,” Live Law reported, quoting the bench.

The Supreme Court also observed that the rehabilitation of sex workers should not be done against their will and the process should not be coercive, but through their free will.

It said, “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.”

In what is being seen as a landmark ruling to address the concerns of trafficking victims for commercial sexual exploitation, the bench held that the consent of adult sex workers must be the primary consideration in decisions on rehabilitation, reintegration and placement in protective homes.

Supreme Court Expands Legal Scope in Child Trafficking Cases

The division bench was hearing a miscellaneous petition that sought guidelines and directions to protect the fundamental rights of the victims of trafficking for their commercial sexual exploitation. The court accepted the submission of senior advocate Aparna Bhat to lay down a Victim Protection Plan, saying that victims cannot be treated as passive objects of rescue and rehabilitation and that their choices and autonomy have to be respected.