This Long Article has been written by Karunakaran. Karunakaran is pursuing LL.M from Govt. Law College, Thrissur.
ABSTRACT
The Supreme Court’s ruling in Budhadev Karmaskar v. State of West Bengal (2011) was a turning point in Indian legal history. While it arose from the conviction of a man for murdering a sex worker, the Court went beyond the immediate facts and addressed the larger question of the rights and dignity of sex workers. For the first time, the Court clearly stated that sex workers, like all other citizens, are entitled to the protection of Article 21 of the Constitution, which includes the right to life, livelihood, health, privacy, and dignity. Using its powers under Article 142, the Court also formed a panel of experts and directed steps to prevent police harassment, secure access to healthcare and welfare benefits, and ensure that the children of sex workers are not stigmatised or unnecessarily separated from their mothers.
However, when examined in the context of the Immoral Traffic (Prevention) Act, 1986 (ITPA), the judgment reveals a strong conflict between constitutional rights and statutory restrictions. The ITPA, which began as the Suppression of Immoral Traffic in Women and Girls Act, 1956 and was amended in 1986, takes a largely punitive approach. Although aimed at curbing trafficking, the Act criminalises many aspects of sex work—such as running brothels (S. 3), living on earnings of sex work (S. 4), and soliciting in public (S. 8). These provisions make it nearly impossible for sex workers to practice their livelihood without breaking the law. Further, the “rescue and rehabilitation” provisions (Ss. 16–17) often result in detention without consent, undermining the very autonomy the Court sought to recognise.
The Budhadev Karmaskar case can therefore be understood as an effort to balance the constitutional promise of dignity with a law that continues to treat sex work through the lens of morality and criminalisation. While the Court’s directions soften the harshness of the ITPA, they cannot substitute legislative change. This highlights the urgent need for reform to remove contradictions between Article 21’s broad protections and the restrictive provisions of the Act.
This article critically explores the Budhadev Karmaskar judgment in relation to the ITPA, 1986. It reviews the historical development of India’s laws on sex work, evaluates the constitutional values reinforced by the Court, and analyses the gap between judicial protection and legislative control. It also compares India’s position with global approaches—contrasting the restrictive “Nordic model” with New Zealand’s decriminalisation framework. Ultimately, it argues that although the judgment is progressive, its impact will remain limited unless the ITPA is reformed to decriminalise consensual adult sex work and bring sex workers fully within the fold of constitutional rights and social protections.
Key words:
Immoral Traffic (Prevention) Act, Sex Work in India, Budhadev Karmaskar Judgment, Constitutional Rights of Sex Workers, Decriminalisation of Sex Work.
