Abstract
India’s prostitution is a Contested and Misunderstood Cause—treading the fine line between exploitation and empowerment. Due to its pervasiveness, the law still criminalizes related activities so that millions of women are stuck in the gray area of protection and persecution. This research article examines the socio-legal realities of prostitution in India and analyses whether legalization is able to usher in dignity, security, and agency for sex workers as well as address apprehensions regarding trafficking and exploitation. It describes the historical and colonial origins of Indian prostitution law, addresses constitutional and human rights implications, and evaluates comparative models from jurisdictions where prostitution has been regulated effectively. The paper’s argument is that criminalisation increases vulnerability, whereas a regulatory system grounded in rights, consent, autonomy, and equality has the power to transform sex work from a site of oppression to a site of empowerment. Ultimately, the issue is not whether sex work will exist—it will—but whether the law will continue to criminalise those it is unable to protect.
- Introduction
Sex work has existed in India for centuries, deeply as a part of its social, cultural, and economic fabric. From courtesans of yesteryear to present-day red-light areas, its forms have transformed, but always its position has been tenuous—between legal confusion and moral censure. With Victorian morality and colonial legislation enacting their chivalrous roles, the Indian State has oscillated for centuries between criminalization and tolerance. Therefore, sex workers—mostly women who are members of marginalized groups—are trapped in poverty, stigma, and the law.
The case regarding legalizing or decriminalizing prostitution is not only ethical but also constitutional. It involves questions of equality (Article 14), freedom of profession (Article 19(1)(g)), and the right to life with dignity (Article 21) enshrined in the Constitution. It also challenges whether the State has the power to deny consenting adults the right to earn their livelihood through prostitution.
The Supreme Court in Budhadev Karmaskar v. State of West Bengal (2011) recognized that sex workers are equally entitled to the same constitutional rights and dignity as any citizen. Yet, in spite of such judicial evolution, legislative change remains stagnant. The Immoral Traffic (Prevention) Act, 1956 (ITPA) still criminalizes prostitution activities, indirectly punishing sex workers and further entrenching their marginalization.
This paper seeks to examine the complexities of legalizing sex work in India from constitutional, feminist, and human rights perspectives. It addresses whether controlled decriminalization or legalization is able to reconcile protection from exploitation with the legitimacy of sex work as a labor entitled to dignity, security, and social acceptance.