Constitutional Morality, Human Rights and Regulatory Challenges in the Legal Status of Prostitution in India

Abstract

This paper aims to examine the question of the legal status of prostitution in India in three intertwined axes: constitutional morality, international human rights frameworks and regulatory governance. “The Immoral Traffic (Prevention) Act 1956”, which is supposed to be against the exploiters of the person involved in prostitution, has instead been used to marginalize and criminalize the very same person's it is intended to protect. This paper, which uses an institutional approach to doctrinal analysis, alongside empirical information from the “National Crime Records Bureau” and the landmark “Crime in India Reports 2019-24”, highlights that the present regime: (i) fails the constitutional morality test across multiple dimensions; (ii) infringes on fundamental rights under Article 14, 19(1)(g) and 21 of the Constitution of India; and (iii) creates an enforcement paradox where the real trafficking offenders are almost free from punishment, while consenting sex workers suffer disproportionate criminal liability. NCRB data 2023 shows that the conviction rate for human trafficking is less than 10 percent across the country (as low as 2.3 percent in Andhra Pradesh and 3.7 percent in Telangana), thus revealing the failure to work in real time of ITPA. This paper argues for an international and rights-based, by drawing inspiration from the Supreme Court's pathfinder directions in “Budhadev Karmaskar v. State of West Bengal (2022)” and international regulatory frameworks as well as current literature on human rights. It also demands that there needs to be a clear distinction between consensual prostitution and trafficking and that there should be extensive changes to ITPA in accordance with India's constitutional responsibilities under Bharatiya Nyaya Sanhita, 2023.