BODIES AT RISK: A LEGAL INQUIRY INTO THE HEALTH RIGHTS OF SEX WORKERS

Abstract

With an estimated 3 million individuals engaged in sex work, generating $8 billion annually, this population remains systematically excluded from formal healthcare and social protection systems in India. This article undertakes a comprehensive legal inquiry into the health rights of sex workers in India, examining the constitutional, statutory, and policy frameworks that shape their access to healthcare and dignity. It starts with tracing the historical evolution of sex work from ancient courtesans to colonial criminalization, analyzing contemporary legal debates surrounding the Immoral Traffic (Prevention) Act, 1956. Particular emphasis is placed on the multidimensional health challenges faced by sex workers, including disproportionate HIV prevalence (4.5% compared to 30 times higher risk globally), endemic violence affecting 50% of workers, and pervasive mental health crises. Drawing on data from the National Crime Records Bureau, World Health Organisation statistics, and judicial pronouncements including Budhadev Karmaskar v. State of West Bengal, the article argues that health vulnerabilities among sex workers constitute both a public health emergency and a constitutional crisis implicating Articles 14, 19, 21, and 23. The analysis demonstrates that effective health rights protection requires decriminalisation, recognition of sex work as legitimate labor, elimination of stigma in healthcare settings, and integration of community-led interventions into formal public health infrastructure, thereby aligning legal frameworks with constitutional guarantees of dignity, autonomy, and equality.

Introduction

The discourse surrounding sex work in India exists at the troubled intersection of morality, law, public health, and human rights. While an estimated 3 million individuals are engaged in prostitution across the country, generating nearly $8 billion income annually, these workers remain largely invisible from the formal legal spaces and away from the healthcare system. This invisibility is not incidental but structurally produced through legal ambiguity, social stigma, and institutional neglect. The health vulnerabilities faced by sex workers constitute both a public health crisis and a profound constitutional question concerning dignity, autonomy, and the right to health under Article 21 of the Constitution. This article undertakes a legal inquiry into the health rights of sex workers in India, examining the historical and contemporary frameworks that shape their lived realities, the multidimensional health challenges they confront, and the inadequacy of existing legal and policy responses in safeguarding their fundamental rights.

Historical background of sex work in India

The legal and social position of sex workers in India is embedded in a long historical continuum shaped by cultural ambivalence, caste-based stratification, and colonial criminalization. Sex work has never been monolithic, existing in socially differentiated forms that reflected both acceptance and marginalization. In ancient India, classical Sanskrit literature portrayed courtesans such as Ganika’s and nagarvadhus as skilled performers of music, dance, poetry, and etiquette, occupying independent economic positions while hereditary forms of sexual labour persisted among marginalised caste groups. Early Vedic texts, including the Rigveda, refer to these women as “common to many men,” acknowledging the presence of courtesans in socio-religious contexts.

Ancient epics and Dharma shastra texts further institutionalized sex work. For example, there are references in the Mahabharata treats to courtesans as integrated in elite households. The Adi Parva describes a Vaishya woman attending to Dhritarashtra when Gandhari’s was pregnant. In the Yajnavalkya Smriti, meanwhile, we find differences between Avaruddha (household concubines bound by exclusivity) and Bhujisyas (externally maintained under protection), thereby illustrating legally recognisable frameworks for sexual labour. Early Buddhist Jataka tales record categories of prostitutes along with their fees and social roles, demonstrating structured livelihoods.

During the medieval period, the tawaif culture flourished in Mughal courts. These women combined art, performance, and social influence, while caste-based, hereditary sex work persisted among communities such as the Bedias and Nats. There are references to customary systems such as devadasi, jogini, and venkatasins in the state of Andhra Pradesh, Karnataka, and Maharashtra, respectively, which reflects the entrenched sexual labor through ritual dedication of daughters, with communities like the Banchharas practicing a caste-linked prostitution practice.

Evolution of sex work in India

When the British came to India, they imposed the rules of Victorian morality, thereby framing sex work as immoral and criminal. The Contagious Diseases Acts authorized compulsory medical exams, and the Criminal Tribes Act stigmatized entire communities. The Madras Presidency banned prostitution in 1929, followed by a nationwide ban in 1947. Post-independence, the Immoral Traffic (Prevention) Act, 1956, criminalized much of sex work under the guise of anti-trafficking measures.

While much of the earlier works had restricted sex work, judicial developments, including Budhadev Karmaskar v. State of West Bengal and NALSA v. Union of India, paved the way for recognition of sex workers’ dignity and constitutional rights, thereby signaling a gradual shift from punitive regulation to a rights-based approach. This evolution underscores the need for nuanced legal frameworks grounded in historical understanding, social justice, and constitutional morality.

Debates regarding sex work in India

The contemporary discourse on sex work in India is marked by a complexity of factors which lie at the intersection of public morality, constitutional rights, gender justice, and state regulation. A central issue is the question of decriminalization versus legalization under the Immoral Traffic (Prevention) Act, 1956 (ITPA). While selling sex privately is not illegal, ITPA criminalizes activities such as soliciting and brothel-keeping, thereby pushing sex workers into unsafe and informal spaces. In Budhadev Karmaskar v. State of West Bengal (2011), the Supreme Court emphasized the right of sex workers to live with dignity and directed states to consider rehabilitation without criminalizing consenting adults, thereby also highlighting the tensions between punitive laws and constitutional protections under Articles 14, 19(1)(g), and 21.

Another debate is between consent versus trafficking. Voluntary sex work is often conflated with trafficking under ITPA, complicating legal recognition of autonomy. In Gaurav Jain v. Union of India (1997), the court acknowledged that children of sex workers should not inherit stigma while noting that not all women in prostitution are trafficked. Other cases such as Nawab Khan v. State of Rajasthan have attempted to distinguish between trafficking victims and consenting adults, thereby underscoring the need for clearer statutory differentiation between forced and voluntary prostitution.

Discussions also engage morality versus constitutional rights. Conservative perspectives frame prostitution as inherently immoral, whereas rights-based approaches emphasize dignity, autonomy, and self-determination. The Supreme Court in NALSA v. Union of India (2014) laid foundational principles of autonomy and dignity, later invoked in sex worker advocacy. Budhadev Karmaskar (Rehabilitation Committee) (2022) reaffirmed that sex workers are citizens entitled to protection against harassment or detention on moralistic grounds.

Finally, debates extend to police violence, labor rights, and policy exclusion. Courts have held in Smt. Kajal Mukherjee v. State of West Bengal has held that adult sex workers cannot be arbitrarily detained, while the absence of formal recognition as labor in India continues to limit social and economic rights. Collectively, these debates illustrate that regulating sex work is not merely a moral or legal question but a constitutional issue of dignity, choice, equality, and justice.

Sex Trafficking in India

Sex trafficking remains one of the most alarming threats to the safety, dignity, and rights of sex workers in India, revealing the structural vulnerabilities that perpetuate exploitation. According to the 2023 Crime in India report by the National Crime Records Bureau, nearly 2,183 cases of human trafficking were registered in the year. Out of 6,288 victims, 43% were minors and females (3,787) and 2,501 men. Of these, approximately 36% were trafficked specifically for sexual exploitation, thereby highlighting the ongoing prevalence of sex trafficking even as adult consensual sex work continues to exist within legal ambiguities.

State-wise, Maharashtra reported the highest number of cases (388), followed by Telangana and Odisha, reflecting regional disparities in both trafficking and enforcement mechanisms. Disturbingly, data from the Ministry of Home Affairs reveals that between 2018 and 2022, out of 10,659 human trafficking cases, only 1,031 resulted in convictions, exposing significant gaps in prosecution and justice delivery. These statistics underscore the dual challenge faced by sex workers: while adult consensual sex work often remains criminalized or stigmatized under the Immoral Traffic (Prevention) Act, a parallel network of coercion and trafficking continues to flourish, exploiting socio-economic vulnerabilities such as poverty, gender inequality, and caste marginalization. The figures further emphasize the urgent need for a nuanced legal approach that distinguishes voluntary sex work from trafficking, strengthens victim-centric rescue mechanisms, and ensures robust legal protection for those coerced into the trade, thereby aligning criminal justice interventions with constitutional principles of dignity, autonomy, and equality.

Comprehensive health challenges of sex workers

Sex workers in India face a multidimensional and deeply entrenched set of health challenges that are closely intertwined with structural inequality, social stigma, legal marginalization, economic precarity, and systemic violence. These challenges encompass physical, reproductive, mental, and social health risks, reflecting not only biomedical vulnerability but also the cumulative impact of social exclusion and institutional neglect. Addressing these issues requires a nuanced understanding of the intersectional factors that shape vulnerability, which is essential for framing effective legal and policy interventions that respect sex workers’ autonomy, dignity, and rights.

Global and national burden of disease

The World Health Organization recognizes that sex workers face an increased burden of sexually transmitted infections (STIs) and blood-borne infections globally. Female sex workers are estimated to be 30 times more likely to be living with HIV than other women of reproductive age. In 2019, the Joint United Nations Programme on HIV/AIDS estimated a mean HIV prevalence of 36% among sex workers worldwide. The average reported prevalence of active syphilis among sex workers is 10.8%, with a range between 5.8% and 30.3%. While less is known about the prevalence or incidence of other STIs and viral hepatitis infections among sex workers, increased rates have been documented in different contexts around the globe.

In India, the HIV prevalence among female sex workers is approximately 4.5%, though roughly 70% of sex workers remain unaware of their HIV status. According to the National Integrated Behavioral and Biological Surveillance (IBBS), HIV prevalence among female sex workers (FSWs) ranges from 2% nationally to as high as 16% in high-risk states. Brothel-based and street-based sex workers often show higher infection rates compared to home or bar-based workers, reflecting structural and occupational disparities. Studies from Andhra Pradesh and Nagaland indicate that over 35% of FSWs report at least one STI symptom annually, while laboratory testing reveals high seroprevalence of HSV-2 affecting roughly 70%, alongside infections such as Chlamydia trachomatis and Neisseria gonorrhoeae.

Structural determinants of health vulnerability

These biomedical vulnerabilities are exacerbated by clients’ refusal to use protection, gendered power imbalances that undermine condom negotiation, low sexual health literacy, and limited access to quality healthcare facilities. Female sex workers who inject drugs (FSW-IDs) face disproportionately higher HIV prevalence, highlighting the compounded risks at the intersection of substance use and sex work. World Health Organization modelling studies indicate that decriminalizing sex work could lead to a 46% reduction in new HIV infections in sex workers over 10 years, while eliminating sexual violence against sex workers could lead to a 20% reduction in new HIV infections.

Approximately 80% of prostitutes in India are women, and nearly 60% of sex workers are between the ages of 18 and 30. About 40% of prostitutes in India are involved in sex work due to economic necessity, with average monthly incomes ranging from ₹3,000 to ₹8,000. These economic realities force sex workers to priorities survival over health, limiting access to routine medical check-ups, protective measures, or time off work for treatment.

Violence as a public health crisis

Violence and abuse remain a critical public health concern. Around 50% of sex workers in India have reports experiencing violence and exploitation regularly. Sex workers frequently encounter physical assault, sexual coercion, harassment from clients, and abuse by law enforcement or intimate partners. Studies across Karnataka, Maharashtra, and the Northeast reveal that such violence reduces the ability to negotiate condom use, increasing susceptibility to STIs, unintended pregnancies, and long-term physical injury. Approximately 20% of street-based sex workers in India are minors, compounding their vulnerability to violence and exploitation.

Mental health and psychosocial trauma

Repeated exposure to violence produces profound psychological and mental health consequences. Surveys indicate that 20–25% of sex workers experience major depressive episodes, 10–15% report chronic depression, and up to 21% meet the criteria for post-traumatic stress disorder (PTSD). Anxiety, chronic stress, and substance dependence are common, compounded by social isolation, economic insecurity, and limited access to mental health support. These cumulative stressors undermine both individual well-being and public health efforts aimed at reducing infection rates and improving sexual and reproductive health outcomes.

Stigma and healthcare access barriers

Stigma and discrimination further amplify health vulnerabilities. Sex workers often face judgmental attitudes in healthcare settings, deterring them from accessing essential services, including STI/HIV testing, antiretroviral therapy (ART), contraceptive counselling, and general medical care. HIV-positive sex workers face layered stigma based on gender, occupation, and serostatus, which can lead to denial of care, social ostracization, and psychological trauma. Structural stigma diminishes resilience and reduces engagement with formal public health programs, forcing many to rely on informal or non-specialized services, which may be inadequate or unsafe.

Reproductive health vulnerabilities

Reproductive health risks are particularly acute for those entering the trade at a young age. Research in Andhra Pradesh shows that many FSWs experience their first sexual activity at 15–16 years, often under coercion or economic compulsion. Early initiation increases the likelihood of STIs, unplanned pregnancies, obstetric complications, unsafe abortions, and long-term reproductive morbidity. Minors involved in sex work face compounded vulnerabilities, including malnutrition, inadequate prenatal care, and lack of legal protection, further jeopardizing both physical and mental health outcomes.

Legal criminalization and health outcomes

Systemic factors such as poverty, criminalization, and legal insecurity under the Immoral Traffic (Prevention) Act, 1956, exacerbate health risks. The legal status of prostitution in India is complex, with certain activities like brothel-keeping illegal, pushing sex workers into unsafe environments. Fear of arrest or police harassment discourages visits to public health facilities, even when services are available. There are an estimated 5,500 recognized red-light districts across India, yet sex workers in these areas remain largely outside the purview of formal healthcare systems.

Community-led interventions

Community-led interventions, such as those implemented by Asho Daya Samithi in Karnataka, demonstrate the effectiveness of peer-based outreach, discreet art distribution, and mental health support, providing a model to mitigate structural and systemic barriers. The World Health Organization supports countries in their efforts to address structural barriers, ensure human rights for sex workers, and implement a comprehensive package of HIV and other STI services through community-led approaches.

Intersectional vulnerabilities

Finally, intersectional vulnerabilities, including caste-based marginalization, migration status, and age, compound health risks. Women from marginalized castes or tribal communities are more likely to enter sex work early, experience heightened violence, and face discrimination in healthcare access. Migrant sex workers face additional barriers, including language challenges, limited social networks, and fear of legal repercussions. These intersecting vulnerabilities highlight that health risks for sex workers are not merely occupational but deeply embedded in broader socio-economic and legal contexts.

In sum, the health challenges of sex workers in India represent a complex interplay of biomedical risk, psychosocial trauma, reproductive vulnerability, and systemic barriers to care. Effective interventions require holistic, rights-based approaches addressing STI/HIV prevention, mental health support, reproductive healthcare, violence prevention, and stigma reduction.

Government policies and employment barriers for sex workers

Government policies concerning sex workers in India present a contradictory picture. While some initiatives aim to rehabilitate and support, others perpetuate legal stigma, leaving sex workers socially and economically marginalized. The regulatory framework is anchored in multiple legislations and constitutional provisions. Article 23 of the Constitution explicitly prohibits trafficking in human beings and forced labor, guaranteeing protection against all forms of exploitation. India is also a signatory to the International Convention for the Suppression of Traffic in Persons and Exploitation of the Prostitution of Others (1950), which obligates the state to prevent trafficking and safeguard the rights of women involved in sex work.

Judicial pronouncements have repeatedly affirmed sex workers’ rights. In Budhadev Karmaskar v. State of West Bengal, the Supreme Court emphasized that sex workers are entitled to dignity under Article 21 and should not be harassed by law enforcement. However, these judicial safeguards rarely translate into employment opportunities or social security coverage. State-level rehabilitation schemes exist, but they are unevenly implemented and limited in scope. Haryana’s “Rehabilitation of Female Sex Workers and Sexually Abused Women” scheme provides vocational training through ITIs and Women Development Corporations, while West Bengal’s Muktir Alo initiative offers vocational training, entrepreneurship support, counselling, and health education for sex workers and trafficking survivors. Nevertheless, uptake remains low due to fear of exposure, social stigma, and privacy concerns.

Access to broader government schemes and social security programs is impeded by bureaucratic hurdles. Many sex workers lack identity documents such as Aadhaar, ration cards, or voter IDs, which restricts participation in welfare programs. The Supreme Court in Budhadev Karmaskar (2011) noted that sex workers and their children are routinely denied such documentation, limiting access to pensions, skill-development programs, and healthcare. Schemes like the Pradhan Mantri Shram Yogi Maandhan (PMSYM) for unorganized workers or the Pradhan Mantri Kaushal Vikas Yojana (PMKVY) for vocational training have potential, but sex workers often cannot safely enroll without fear of exposure or social reprisal.

Joint United Nations Programme on HIV/AIDS (UNAIDS) welcomed the Supreme Court’s decision in Budhadev Karmaskar (2022) as a step toward recognizing the human rights of sex workers, including protection from discrimination and access to social protection. NGOs such as Women’s Initiatives (WINS) provide leadership training, vocational skills, and assistance in accessing government schemes, but their reach is limited and heavily reliant on local cooperation and donor support.

Conclusion

The health rights of sex workers in India cannot be meaningfully addressed without confronting the legal, social, and structural inequalities that render their bodies perpetually “at risk.” The evidence is unequivocal: criminalization, stigma, violence, and institutional neglect converge to produce health vulnerabilities that are both preventable and unjust. Constitutional guarantees under Articles 14, 19, 21, and 23 provide a robust foundation for recognizing sex workers as rights-bearing citizens entitled to dignity, autonomy, healthcare, and livelihood security.

A paradigm shift is urgently needed—one that moves beyond moralistic condemnation and symbolic rehabilitation toward substantive legal reform, decriminalization of sex work, recognition of sex work as legitimate labour, and integration of sex workers into formal social security and healthcare systems. Integrating sex workers’ perspectives into health policy, promoting community-led initiatives, and reforming punitive legal frameworks are critical to safeguarding their health, dignity, and autonomy. Only through such comprehensive, intersectional measures can India ensure equitable and effective healthcare for this marginalized and highly vulnerable population, thereby fulfilling the constitutional promise of justice, equality, and human dignity for all.