In Prajwala v. Union of India, the Supreme Court held that victims of trafficking for commercial sexual exploitation (“CSE”) have a right to rehabilitation under Article 23 read with the right to dignity under Article 21.

While the judgment has been celebrated for its three-dimensional dignity framework, it is a missed opportunity to articulate a constitutional basis for protecting the rights of sex workers. The Court’s dignity framework – calibrated against objectification in trafficking – is insufficient alone to address persons who assert agency over their work. I argue that reading it alongside decisional autonomy fills the gap: it grounds the Court’s procedural safeguards for sex workers in enforceable constitutional rights while respecting the institutional boundary between judicial protection of persons and legislative determination of sex work policy.

The Limits of Dignity in Prajwala

In Prajwala, the Court observed that human trafficking law has traditionally been framed from a crime-control perspective: one that prioritises punishment of the perpetrator over the rights and needs of victims. In this view, since trafficking is a crime against society at large, the victim’s interests are subsumed within society’s interest in accurate prosecution. The victim, their rights, and their special needs are only incidentally, if at all, addressed.

Against this backdrop, the Court adopted a human rights approach: victims are rights-holders independent of the criminal justice system’s goals, and their rehabilitation is constitutionally mandated alongside punishment of the perpetrator. The Court relied primarily on the right to dignity under Article 21 to elaborate on the rights of trafficking victims. It held that while dignity is a malleable concept capable of supporting contrary positions, there exists a minimum content that cannot be derogated from.

Building on earlier jurisprudence, the Court identified three dimensions of dignity guaranteed to every person [para. 264]. First, inherent dignity: the intrinsic worth of every human being as an end in themselves. Second, dignity in its material dimension: access to the basic conditions necessary for a dignified life. Third, dignity as recognition: protection against the concrete harms caused by pervasive stigmatisation and social exclusion.

The Court held that trafficking violates inherent dignity by objectifying persons: the trafficked individual is reduced to their value to the buyer, stripped of intrinsic worth [para. 265]. The material dimension is implicated because the absence of basic conditions – shelter, livelihood, safety – creates the vulnerability that trafficking exploits [para. 272]. Finally, trafficking victims are particularly disadvantaged along the recognition dimension: their suffering is frequently treated as self-inflicted or undeserving of concern, resulting in social isolation and inaccessibility of legal assistance.

Reading Article 21 alongside the prohibition on trafficking under Article 23, the Court held that trafficking victims have a right to rehabilitation enforceable against the State, a right that extends beyond punishment and rescue. This framework informed the binding guidelines the Court laid down, exercising its jurisdiction under Article 142, which empowers it to pass orders necessary to do “complete justice”, covering the full spectrum from rescue to reintegration.

The Court did not, however, extend this framework to voluntary sex workers despite making two observations that closely track its own dignity analysis. First, it noted that the law fails to address the conditions of vulnerability and abuse in which sex work takes place: an observation that maps onto dignity in its material dimension [paras. 407, 408]. Second, it observed that society’s moral condemnation of sex workers as willing participants in indecent work produces concrete harms – isolation and inaccessibility of legal assistance – which is precisely what dignity as recognition is designed to address [para. 409].

This omission is especially curious given the Court’s own holding that the rights of sex workers can be protected independently of a right to sex work. The Court could have recognised sex workers’ right to dignity, particularly in its material and recognition dimensions, while leaving the status of sex work itself to the Legislature.

Autonomy as the Missing Constitutional Principle

The Court likely refrained from grounding sex workers’ claims in the right to dignity because its inherent dignity formulation was specifically calibrated to trafficking: it targets objectification – the reduction of a person to their value to the buyer. Applying that formulation to sex work as such would risk treating it as inherently involving self-commodification, without acknowledging the agency of persons who engage in it voluntarily. This would effectively endorse the abolitionist position – one the Court deliberately declined to take [para. 314].

Autonomy, an analytically distinct principle developed in Puttaswamy (9J) remedies this. Where inherent dignity concerns a person’s intrinsic worth as an end in themselves (a quality that exists independently of their relationships), autonomy is relational: it protects the individual’s choices from interference by the State or third parties. I argue that the two principles can coexist and, together, cover what neither covers alone.

In Puttaswamy, the judges converged on the autonomy principle as the basis of privacy. Chandrachud J. and Nariman J. both held that the right to privacy protects decisional autonomy over fundamental personal choices. Most significantly for present purposes, Chelameswar J. held that this autonomy encompasses “the freedom to choose either to work or not and the freedom to choose the nature of the work” – a formulation that applies directly to sex workers’ claims [para. 38].

The Puttaswamy court also addressed the relationship between privacy and dignity. Nariman J. held that privacy of choice is a prerequisite for the self-development encompassed by the right to dignity [para. 85]. Bobde J. went further, holding that the two rights are inextricably intertwined under Article 21 [para. 30].

In the context of sex work, however, dignity and decisional autonomy can pull in opposite directions. The Puttaswamy court leaves this tension unresolved. The question is therefore how courts should approach it – and the Prajwala judgment itself offers a framework.

The Prajwala Court observed [para. 317]:

“In all of us, agency and vulnerability coexist. What varies is the extent to which one bears upon the other, and this is determined largely by the circumstances of our lives. For a person who faces poverty, social exclusion, and the absence of livelihood alternatives, their vulnerability may significantly narrow the range of choices available to them. But it does not extinguish choice altogether. Acknowledging this co-existence has two important implications when it comes to those who engage in prostitution. First, viewing a woman who has entered prostitution voluntarily as an ‘agent’ does not mean that one becomes blind to the vulnerabilities that shaped and constrained her decision. Understanding her agency requires understanding the circumstances in which it was exercised, thereby necessitating measures in cases where agency is severely constrained. Secondly, viewing a trafficked or coerced woman as a ‘victim’ does not mean she is without agency. Even within conditions of exploitation and coercion, she retains the capacity to make decisions about her present and her future.”

This passage yields a workable constitutional test. The default position must be that where a person asserts voluntary engagement in sex work, their decisional autonomy is engaged and the State bears the burden of establishing that agency-diminishing circumstances were so severe as to negate meaningful choice. Only where that burden is discharged should inherent dignity override autonomy.

In this inquiry, the person’s own statement about voluntariness carries presumptive weight – rebuttable only where there is objective evidence of coercion or third-party control, assessed by a Magistrate rather than the police. The burden of producing such individualised evidence lies on the State; it may include documentary records or indicators of third-party control. This is grounded in Maneka Gandhi v. Union of India, where the Court held that under Article 21, any procedure affecting life or liberty must be fair, just, and reasonable. Where the State proposes to restrict liberty on the ground that a person’s apparent consent is not real, due process consequently requires that the person be heard on whether their agency was compromised. The right to be heard requires that the person’s account be genuinely weighed – it cannot be nullified by a blanket presumption that persons in sex work lack agency.

A possible objection is that recognising decisional autonomy in relation to sex work effectively endorses decriminalisation, resolving a contested legislative policy question by judicial fiat. This objection misreads the argument. First, the ITPA already permits sex work for personal benefit without third-party involvement (subject to the limited exceptions in Sections 7 and 8); the constitutional right operates within that existing legal space, not beyond it. Second, and more fundamentally, the right would attach to sex workers as persons – not to the activity of sex work – in line with the Court’s own framing. Recognising that a person has a constitutional right to make choices about their work is categorically different from recognising a right to sex work; the former constrains how the State may treat individuals, while the latter would constrain legislative authority over the activity itself.

It may be argued that decisional autonomy presupposes a choosing subject who is free from structural coercion – yet sex work in the Indian context takes place within conditions of extreme poverty, caste subordination, and patriarchal constraint. However, relational autonomy theory, which analyses how autonomy operates under conditions of structural constraint, holds that the presence of such conditions does not extinguish autonomy altogether.

Diana Meyers distinguishes three forms of autonomy. Programmatic autonomy – the most demanding – involves ownership of one’s major life decisions and overall life plan. Narrowly programmatic autonomy is the capacity to make autonomous decisions within a particular significant domain of one’s life. Episodic autonomy is the ability to identify one’s immediate wants and act on them in a specific situation. While programmatic autonomy may be systematically diminished by structural oppression, Meyers argues that narrowly programmatic and episodic autonomy survive because they depend on skills such as emotional perceptiveness and self-awareness that oppressive conditions do not necessarily destroy. The choice to engage in sex work reflects narrowly programmatic autonomy, as it involves evaluating economic options, assessing risk, and comparing alternatives within a significant but bounded domain of one’s life, which is precisely the kind of decision that Meyers’ framework is designed to recognise.

Constitutional Foundations and Future Challenges

Without a constitutional foundation in dignity and autonomy, the procedural safeguards in the Victim Protection Plan rest on the Court’s Article 142 directions alone – giving rise to the compliance problem that has historically plagued such directions. Two safeguards are particularly significant. First, citing Budhadev Karmaskar v. State of West Bengal (2022), the Court held that the non-interference principle requires police to determine whether a person is a voluntary sex worker before removing them during a rescue operation under Section 15 of the ITPA [para. 362 c.(iii)].

Second, the Court acknowledged that rescue operations are often conducted in time-sensitive conditions, making it likely that voluntary sex workers will be taken into custody. When such persons are produced before a Magistrate under Section 17, the Court held that a threshold determination must be made at the outset as to whether they are voluntary sex workers who do not wish to be subjected to further custody – if so, they should not be subjected to the more intrusive inquiry under Section 17(2) [para. 335].

As matters stand, these safeguards depend on compliance with Article 142 directions – a mechanism with a poor track record. Had the Court grounded sex workers’ claims in the right to dignity and decisional autonomy under Article 21, violations of these safeguards would be directly enforceable: sex workers could challenge non-compliance through writ petitions before the High Courts under Article 226 or the Supreme Court under Article 32. The constitutional foundation would convert the Court’s directions from aspirational guidelines into justiciable rights.

Recognition of dignity and decisional autonomy would also enable incremental constitutional challenges to the ITPA’s most problematic provisions. In Shakti Vahini v. Union of India (2018), the Court extended the decisional autonomy principle from Puttaswamy to intimate association, holding that an adult’s choice of life partner is constitutionally protected. The ITPA raises analogous concerns.

Section 4(1) penalises adults financially dependent on a sex worker, potentially criminalising dependent family members; Section 4(2) punishes persons who live with or habitually keep the company of a sex worker. Both provisions burden the relationships that surround a sex worker’s choices without distinguishing exploitative third-party control from legitimate supportive association – the same defect that led the Supreme Court of Canada in Bedford (2013) to strike down a comparable prohibition on living off the avails of prostitution, and one that the decisional autonomy principle, read through Shakti Vahini, equally condemns. Section 20, which enables the removal of sex workers from a locality on the sole basis of their occupation, raises a distinct but related concern: as Bhatia has argued, it targets persons for conduct that Article 21 protects.

Conclusion

The Prajwala judgment developed a powerful dignity framework for victims of trafficking but stopped short of articulating a constitutional basis for protecting sex workers. Reading dignity alongside decisional autonomy fills that gap: it grounds the Court’s procedural safeguards in enforceable constitutional rights and provides the foundation for incremental challenges to the ITPA’s most problematic provisions. More broadly, it demonstrates that the rights of sex workers can be constitutionally secured – as the Court itself affirmed – without the Court having to take a position on the right to sex work.