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On May 29, 2026, the Supreme Court delivered a judgment that both strengthened the state’s duty to combat trafficking and prohibited the forcible rescue of adult sex workers who choose their profession voluntarily. Both positions are constitutionally defensible, and the court reconciles them through consent: the absence of consent triggers the state’s obligations to prevent trafficking and forced labour under Article 23, while voluntary sex work falls within the autonomy protected by Article 21.

The difficulty is that the framework for determining consent operates in circumstances that make reliable assessment unlikely. Voluntary sex workers are likely to bear the greatest cost of erroneous consent determinations, even though the court’s non-interference principle is designed to protect them.

What the judgment gets right

Three holdings in Prajwala v. UOI (2026) deserve to be understood before the structural critique is made, because the critique does not rest on disputing any of them.

First, the court extends the prohibition on trafficking in Article 23 to commercial sexual exploitation and derives a fundamental right to rehabilitation. This is not a welfare entitlement the state can dispense or withhold but a constitutional obligation based on the prohibition on trafficking itself. The right to live with dignity under Article 21, the court also holds, includes the right not to be treated as an object, the right to access minimum material conditions for a meaningful life and the right to recognition.

Second, the structural problem in the Immoral Traffic (Prevention) Act’s (ITPA) is identified with unusual clarity. The Act requires no “means” element – that is, any act by a third party in furtherance of prostitution attracts liability, regardless of whether force, coercion or deception was used.

This is a significant departure from the definition of trafficking under the Palermo Protocol, which India has ratified and which the court heavily relies on to interpret the trafficking framework. Under the Protocol, “means” is a required element for adult trafficking and consent is irrelevant only when those means are established.

Section 143(1) of the Bharatiya Nyaya Sanhita (BNS) aligns with this approach, requiring act, means and purpose all to be established. The ITPA does not. The result is that under the ITPA, all prostitution involving a third party is treated as trafficking regardless of consent, and every woman found during a raid is processed through the machinery of Sections 15 to 17.

Sections 15 to 17 govern the entire rescue-to-rehabilitation pipeline: Section 15 empowers the police to search and remove persons from suspected premises, Section 16 allows a magistrate to direct such removal and Section 17 provides for the production of removed persons before a magistrate. The magistrate determines whether to detain them in a protective home or restore them to their families. The court holds that applying this machinery uniformly to voluntary sex workers is constitutionally wrong, reaffirming Budhadev Karmaskar.

Also read: Why the Prajwala Judgment Feels Like a D. K. Basu Moment for Sex........

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