On May 29, 2026, the Supreme Court delivered a judgment that both strengthened the state’s duty to combat trafficking and prohibited the forcible rescue of adult sex workers who choose their profession voluntarily. Both positions are constitutionally defensible, and the court reconciles them through consent: the absence of consent triggers the state’s obligations to prevent trafficking and forced labour under Article 23, while voluntary sex work falls within the autonomy protected by Article 21.The difficulty is that the framework for determining consent operates in circumstances that make reliable assessment unlikely. Voluntary sex workers are likely to bear the greatest cost of erroneous consent determinations, even though the court’s non-interference principle is designed to protect them.What the judgment gets rightThree holdings in Prajwala v. UOI (2026) deserve to be understood before the structural critique is made, because the critique does not rest on disputing any of them.First, the court extends the prohibition on trafficking in Article 23 to commercial sexual exploitation and derives a fundamental right to rehabilitation. This is not a welfare entitlement the state can dispense or withhold but a constitutional obligation based on the prohibition on trafficking itself. The right to live with dignity under Article 21, the court also holds, includes the right not to be treated as an object, the right to access minimum material conditions for a meaningful life and the right to recognition.Second, the structural problem in the Immoral Traffic (Prevention) Act’s (ITPA) is identified with unusual clarity. The Act requires no “means” element – that is, any act by a third party in furtherance of prostitution attracts liability, regardless of whether force, coercion or deception was used.This is a significant departure from the definition of trafficking under the Palermo Protocol, which India has ratified and which the court heavily relies on to interpret the trafficking framework. Under the Protocol, “means” is a required element for adult trafficking and consent is irrelevant only when those means are established.Section 143(1) of the Bharatiya Nyaya Sanhita (BNS) aligns with this approach, requiring act, means and purpose all to be established. The ITPA does not. The result is that under the ITPA, all prostitution involving a third party is treated as trafficking regardless of consent, and every woman found during a raid is processed through the machinery of Sections 15 to 17.Sections 15 to 17 govern the entire rescue-to-rehabilitation pipeline: Section 15 empowers the police to search and remove persons from suspected premises, Section 16 allows a magistrate to direct such removal and Section 17 provides for the production of removed persons before a magistrate. The magistrate determines whether to detain them in a protective home or restore them to their families. The court holds that applying this machinery uniformly to voluntary sex workers is constitutionally wrong, reaffirming Budhadev Karmaskar.Also read: Why the Prajwala Judgment Feels Like a D. K. Basu Moment for Sex WorkersThird, rehabilitation cannot be coercive. The state’s duty to provide the means for rehabilitation does not authorise it to impose rehabilitation against the victim’s will. Placement in a protective home without consent undermines rather than protects the rights Article 23 guarantees.These holdings are correct. Taken together, however, they reveal why the consent-determination problem is not merely practical but structural. The constitutional framework the court constructs is coherent. The real question is whether the mechanism it adopts can reliably operationalise that framework in the given circumstances.Why consent cannot do this workThe Victim Protection Plan (VPP) addresses the consent question at two distinct stages and the problem arises at both.The first stage is the raid itself. The VPP directs that members of the rescue team “shall endeavour, to the best of their capacity, to identify whether the persons intended to be rescued are voluntary sex workers or not”. This is deliberately framed as a best-efforts obligation, not a formal inquiry. The court recognises that rescue operations occur in difficult and time-sensitive circumstances and that voluntary sex workers may still be removed and produced before the magistrate despite this endeavour.The second stage is production before the magistrate under Section 17. Here, the court introduces what it calls a “threshold inquiry”: upon first production, the magistrate must ask whether the person before her is a voluntary adult sex worker who does not wish to be placed in long-term safe custody. If the person clearly and unequivocally states that she is engaging in prostitution voluntarily, the magistrate directs a preliminary inquiry by a social worker, conducted in a private setting and in the victim’s preferred language, to assess whether that voluntariness is genuine.Only if that inquiry confirms voluntariness is the person released. If the person is unable to clearly express her position, or if the social worker’s report identifies safety concerns, the matter proceeds to a deeper inquiry.The design is more considered than a simple police-stage gatekeeping mechanism. Yet the structural problem persists and it is most acute at the magistrate stage. By the time the threshold inquiry is conducted, the person has already been removed from the premises, transported to a police station and produced before the magistrate, often in interim safe custody overnight if same-day production is not possible.The court acknowledges what makes this context specifically hostile to reliable consent assessment: “traffickers exercise deep and pervasive control over their victims through a variety of means, including physical force, psychological manipulation, coercion and sustained intimidation. In such circumstances, there is a real risk that both the threshold inquiry and the primacy accorded to consent may be exploited.”The court’s answer to this risk is to grant the magistrate discretion to depart from the victim’s expressed wishes where the consent appears to be the product of coercion or tutoring. But this solution creates the problem it is meant to solve.Also read: Supreme Court Constitutes Committee to Develop Pan-India SOP on Human TraffickingThe objection here is not that voluntary sex workers lack the capacity for consent. They have it. The objection is that the conditions under which consent must be assessed make reliable external verification unlikely. The person is in an unfamiliar institutional setting. The persons who may control her economic life remain present elsewhere, with access to her. She is aware that asserting voluntariness may be the fastest route to release, whether that statement is true or not.A trafficker-tutored denial of coercion and a genuine assertion of autonomy are, in these conditions, indistinguishable to any observer conducting the inquiry.The preliminary social worker inquiry, conducted in a private setting in the victim’s preferred language, is a genuine attempt to create better conditions for honest disclosure. But the VPP places it downstream: it is triggered only after the person has already stated before the magistrate that she is voluntary.The social worker’s assessment of working conditions and freedom of movement, drawn from the report’s prescribed indicators, may help surface structural coercion in some cases. In others, the indicators will be ambiguous, particularly for persons who moved into sex work gradually, or who experienced coercion that did not leave documentary traces. The magistrate then bears the burden of deciding, on a totality of circumstances, whether to depart from what the victim has said. That judgment call, which may result in detention against a person’s expressed wishes, rests on a factual foundation that the conditions of rescue operations systematically destabilise.The practical risk inversionThe non-interference principle inverts the old default. Before Prajwala, anyone found at raided premises was presumed to be a victim and processed through the ITPA machinery. The court correctly identifies this as constitutionally wrong and overturns it. The replacement framework changes the default to: a threshold inquiry before the magistrate will determine your status and your status determines your treatment.Where consent cannot be assessed reliably, the greatest practical risk falls on the most vulnerable voluntary sex workers: those who are fearful, who have been instructed what not to say, understandably reluctant to assert their autonomy before an institutional authority or too traumatised to present themselves as acting voluntarily. They are the least likely to satisfy the threshold inquiry and the most likely to be drawn into a deeper inquiry that serves no legitimate purpose in their case.Formally, the burden remains with the magistrate, who is responsible for conducting the inquiry. In practice, however, the consequences of an adverse determination fall on the woman herself. If she fails to establish her voluntary status at the threshold stage, she may be placed in interim safe custody and subjected to a deeper inquiry. For a voluntary sex worker, the VPP thus becomes the very form of coercive intervention the judgment seeks to prohibit.The Article 23 question the judgment leaves openPrajwala expands Article 23 in a direction this court’s earlier cases established but did not extend to commercial sexual exploitation. The prohibition is absolute and operates against both state and private actors. The right to rehabilitation that flows from it is constitutionally entrenched.What the judgment does not resolve is how the absolute prohibition in Article 23 is to be reconciled with the Article 21 guarantee of autonomy in genuinely ambiguous cases. In doctrinal terms, the answer is straightforward: consent determines which constitutional protection applies. In practice, however, consent is not a sufficiently reliable basis for making that distinction under the conditions in which the inquiry takes place.Also read: For Victims of Child Trafficking, Rehabilitation and Not Just Rescue is CriticalThe magistrate’s power to depart from the victim’s expressed wishes is necessary to guard against coercion disguised as consent. Yet that same power may result in the detention of a genuinely voluntary sex worker against her will.The judgment strikes a principled balance between Article 23 and Article 21. The VPP’s threshold inquiry is a more careful approach than leaving the question to police-stage identification alone. The difficulty, however, lies deeper. The problem is not with the institutions charged with applying the framework, but with the role assigned to consent itself. The framework asks consent to bear a constitutional distinction that it cannot reliably sustain in circumstances shaped by the very coercion it seeks to identify.What must come nextPrajwala is a significant constitutional judgment. The right to rehabilitation under Article 23, the non-interference principle, the binding national protocol and the identification of the ITPA’s structural divergence from both the Palermo Protocol and the BNS are real advances, overdue and correct.The court recommended legislative reform of both the ITPA and the BNS. That recommendation is not a footnote to the judgment. It is the only available resolution to the structural problem this piece has identified. A statute that distinguishes in its text, not only in judicial interpretation, between coerced sexual exploitation and voluntary adult sex work does not need to ask a consent-determination inquiry to bear the weight of a constitutional distinction between Article 23 and Article 21.The legislature makes that distinction in advance by defining the conduct that triggers enforcement, rather than asking a magistrate to draw it under conditions in which reliable assessment is structurally improbable.Until parliament acts on that recommendation, every rescue operation will produce persons before a magistrate who must answer, under those conditions, the question on which two fundamental constitutional rights turn. The VPP makes that inquiry more structured and accountable than what preceded it. It does not make the question answerable with confidence. The persons on the wrong side of an unreliable threshold inquiry will discover the difference.Apeksha Kachhawaha is a graduate from Maharashtra National Law University, Nagpur.