Judicial challenge to India’s paternalistic anti-trafficking framework – 360

The Supreme Court distinguishes trafficking from voluntary adult sex work, but legislative reform and effective implementation remain essential to protect dignity and autonomy.

For decades, India’s anti-trafficking framework has rested on a flawed assumption: that trafficking and prostitution are essentially the same thing. As a result, women trafficked through force or deception, women who remained in prostitution after being trafficked, and adults who say they engage in sex work voluntarily have often been put through the same legal process. The law has frequently failed to distinguish exploitation from agency.

In Prajwala v Union of India (2026), decided on May 29, 2026, by a Bench of Justices J B Pardiwala and R Mahadevan, the Supreme Court has attempted to address this problem. The judgement, arising from a petition pending since 2004, lays down a detailed Victim Protection Plan, calls for a comprehensive anti-trafficking law and, most importantly, recognises that the existing framework inadequately separates trafficking from voluntary adult sex work. The distinction may seem obvious, but Indian law has struggled with it for decades.

The Immoral Traffic (Prevention) Act, 1956 (ITPA) emerged from a period when prostitution was viewed largely through a moral lens, and its machinery of rescue, detention and rehabilitation reflects that origin. Over time, it treated very different women in the same manner.

A woman trafficked against her will, a woman trafficked years earlier who remains in prostitution, and an adult voluntarily engaged in sex work may all find themselves before the same magistrate under the same statutory process. The Court now recognises that the one-size-fits-all model as a serious problem.

Its answer is a threshold inquiry. If an adult rescued during a raid states that she is engaged in sex work voluntarily and does not wish to be institutionalised, the magistrate must first determine whether that choice is genuine before ordering rehabilitation or long-term custody. This may seem procedural, but it is a significant shift. It challenges the assumption that every woman found in a brothel cannot make choices about her own life and introduces respect for agency into a framework long dominated by paternalism.

Judicial push-back

The Victim Protection Plan builds on this logic. It governs every stage of intervention, from rescue to prosecution and reintegration. It rests on principles such as non-criminalisation, informed consent, privacy and individualised care, and bars punitive practices inside protective homes. It also strengthens Anti-Human Trafficking Units and legal aid through District Legal Services Authorities.

The most compelling aspect of the judgement is its emphasis on dignity. Justice Pardiwala repeatedly stresses that trafficking violates human dignity because it reduces human beings to commodities. At the same time, the Court recognises that the absence of dignity often precedes trafficking. Poverty, homelessness, lack of education and economic vulnerability are not mere background conditions; they make exploitation possible.

Drawing upon Articles 21 and 23 of the Constitution, the Court holds that rehabilitation is not merely a welfare measure but a right. This matters because governments have traditionally treated rehabilitation as policy rather than entitlement. By locating it within constitutional protections, the Court elevates rehabilitation from charity to obligation, one a survivor can enforce in court. A survivor denied shelter, counselling, skills training or support can now approach a court as a matter of right, rather than plead for a favour.

The judgement also builds on Budhadev Karmaskar v State of West Bengal (2022), where the Court had already invoked Article 21 to uphold the dignity of sex workers. Prajwala insists that the dignity of trafficking victims and of voluntary adult sex workers must both be protected.

The judgement arrives when trafficking remains a serious concern. A government report reveals that India recorded 2,135 human trafficking cases in 2024, with roughly 5,800 victims identified. Yet a persistent criticism of India’s anti-trafficking regime is that success is measured by raids and rescues rather than long-term outcomes.

Unanswered questions

We know how many people enter the system, but far less about what happens afterwards. How many survivors receive meaningful rehabilitation? How many gain access to education, employment and stable housing? How many are re-trafficked? The judgement acknowledges these shortcomings but offers limited answers on implementation.

Another unresolved issue is autonomy. The Court observes that sex workers can hold rights even without a recognised right to sex work. While it protects adult sex workers from arbitrary detention and police harassment, it avoids asking whether consensual adult sex work itself deserves legal recognition. If an adult engaged in sex work voluntarily is entitled to dignity, liberty and constitutional protection, why does the law hesitate to recognise her agency fully? The Court may have sidestepped the question because the case centred on trafficking, but the tension remains.

There is also a question of voice. Critics note that sex workers’ collectives, whose lives the judgment most directly affects, were not heard in open court. A framework that depends on distinguishing coercion from choice will work only if those who live that distinction help design and monitor it.

Implementation is the other test. The Plan’s promises of privacy, individualised care and legal assistance will be delivered by district officials, magistrates and shelter managers who have long worked within a rescue-first culture. Guidelines on paper change little unless training and accountability follow.

The judgement also raises a broader constitutional question. Invoking Article 142, the Supreme Court has effectively created a nationwide anti-trafficking framework that will operate until Parliament legislates. The Court may have felt compelled to act after more than two decades, but judicial directions cannot substitute for legislative reform indefinitely. 

Courts can lay down guidelines; they cannot build the shelters, train the police or fund the legal aid those guidelines demand. A statute could also do what a judgement cannot: align the ITPA, the trafficking provisions of the Bharatiya Nyaya Sanhita and child-protection laws into one coherent scheme.

Ultimately, Prajwala is as much a judgement about state failure as it is about trafficking. The Court identified a flaw that has persisted in Indian law for decades, the inability to distinguish exploitation from agency, and laid the foundation for a more humane, rights-based framework.

The framework’s success depends on what follows. Without legislative action, institutional capacity and sustained political commitment, even the most progressive judicial vision risks remaining on paper. The Supreme Court has drawn an important line between trafficking and voluntary adult sex work. Parliament must now ensure that it becomes part of law and practice rather than another missed opportunity.

Shashank Shekhar is Assistant Professor of Law at Lloyd Law College, Greater Noida, Uttar Pradesh.

Divya Sridhar is Assistant Professor at Jindal Global Law School, O.P. Jindal Global University, Sonipat, Haryana.

Originally published under Creative Commons by 360info™.