When courts rule on the lives of vulnerable communities without grounding their decisions in lived realities, the result is often not protection but harm. In July 2025, the Kerala High Court (‘the Court’) gave a controversial judgment in Sarath Chandran v State of Kerala, which exemplifies this danger. By holding that clients who pay for sexual services may be prosecuted under Section 5(1)(d) of the Immoral Traffic (Prevention) Act (“ITPA”) for ‘inducing’ prostitution, the Court avoided directly criminalising sex workers but simultaneously destabilised the economic foundation on which they depend.

At the heart of the ruling lies the assertion that a sex worker is not a product and a person availing the service of prostitution is not a customer. On a surface level, this appears progressive — no human should be reduced to a commodity. Yet, jurisprudentially, it strips consensual adult sex work of its commercial legitimacy. With no ‘customers,’ the very transaction that sustains this labour is rendered illicit. The result is paradoxical: sex work remains lawful in theory but impossible in practice. This article argues that such a legal structure, while avoiding direct criminalisation of sex workers, consequently achieves the same outcome by collapsing their livelihood into illegality through the back door.

In Budhadev Karmaskar v State of West Bengal, the Supreme Court recognised that voluntary sex work is not illegal and that sex workers are entitled to the fundamental rights under Articles 14, 19, and 21 of the Indian Constitution. The Court’s decision effectively hollows out these protections: what meaning does the right to practise a profession under Article 19(1)(g) retain if the essential commercial relationships necessary to sustain that profession are criminalised?

During the COVID-19 pandemic, the National Human Rights Commission recognised sex workers as informal workers, acknowledging their heightened vulnerability and need for social protections. The Commission urged states to treat them as legitimate members of the workforce. However, such recognition is undermined when the client relationships that render their work economically viable are outlawed.

The tension arises from definitional flaws in the ITPA. Section 2(f) defines prostitution as the ‘exploitation’ or ‘abuse’ of persons for commercial purposes. This linguistic trap allows judicial overreach, treating all commercial sexual transactions as inherently coercive. A more precise legal taxonomy is necessary where ‘prostitution’ refers narrowly to coerced arrangements, while ‘sex work’ means consensual transactions. Without this distinction, sex work remains vulnerable to judicial erasure under the guise of anti-trafficking efforts.

The Court’s use of Section 5(1)(d) of the ITPA illustrates this overreach. The provision was designed to penalise coercion — inducing someone into prostitution through force or deception. Applying it to consensual transactions is not merely an expansive interpretation but a fundamental misapplication of legislative intent. Moreover, there exists no legal mechanism for determining whether a sex worker is operating consensually or under coercion, thus leaving space for moral arbitrariness.

The complexity of sex workers’ circumstances demands nuanced socio-legal approaches rather than blanket moral judgements. Consider those who were exploited at a young age but now continue voluntarily because structural inequalities leave them with no employment alternatives. Sadly, India’s state reform projects prioritise moral disciplining over practical skill development, and this is why sex workers themselves advocate for sex work’s legalisation. Without comprehensive socio-economic frameworks, the theoretical ‘freedom’ to continue sex work becomes a trap rather than a choice.

International evidence underscores the dangers of client criminalisation. A large systematic review concluded that criminalising clients produces rushed negotiations, reduced condom use, increased violence, and displacement of workers to isolated, dangerous locations. Studies from Canada, the EU, and the UK corroborate these harms. The UN Working Group shares similar observations.

The illegality of brothels compounds these problems. Section 3 of the ITPA illegalises brothels, whereas empirical research indicates that sex workers in organised venues have better access to health services, greater bargaining power for safe practices, and lower rates of violence compared to street-based ones. In fact, one Indian study found women who work in a non-brothel-based framework face a high risk of contracting HIV/STIs. My contention is that brothels should be regulated in a license-based structure.

Comparative human rights law offers promising alternatives. In New Zealand, the Prostitution Reform Act 2003 decriminalised sex work and introduced regulated brothels. Around two decades of evidence show improved worker safety, reduced violence, and better health outcomes. Australian jurisdictions report similar results. Interestingly, German studies found that regulation does not undermine anti-trafficking efforts. Therefore, the comparative evidence is clear: regulation protects rights, while criminalisation exacerbates vulnerability.

The way forward requires judicial broad-mindedness and legislative clarity. India needs a comprehensive legal framework that allows sex work to be practised as a profession like any other, and not just be theoretically recognised with vulnerable loopholes. The question ‘Is sex work a service?’ should be answered through principles of dignity, autonomy, and equal protection, informed by empirical evidence of policy effectiveness, not moral prejudice disguised as legal reasoning. Only then can India’s legal framework align with international human rights standards.