The Supreme Court today has issued an extensive set of directions and guidelines under Articles 32 and 142 of the Constitution to safeguard, identify and rehabilitate trafficking survivors while drawing a crucial distinction between trafficking and voluntary adult sex work.
A Bench of Justice J.B. Pardiwala and Justice R Mahadevan undertook a comprehensive examination of the legal framework governing human trafficking, commercial sexual exploitation and victim rehabilitation. The Court traced the history of the litigation, analysed international and domestic legal regimes, and considered the adequacy of existing mechanisms for protecting victims.
The judgment extensively discusses the Palermo Protocol and the international definition of trafficking in persons, including the act, means and exploitation elements of trafficking, the irrelevance of consent where trafficking is established, and the need for effective prosecution, prevention and protection measures. On the domestic front, the Court examined Article 23 of the Constitution, the Immoral Traffic (Prevention) Act, 1956 (ITPA), provisions of the Bharatiya Nyaya Sanhita, 2023, the Juvenile Justice Act, the Protection of Children from Sexual Offences Act, 2012, and various governmental schemes and institutional mechanisms dealing with trafficking and commercial sexual exploitation.
The Court discussed the central theme which is the need to avoid conflating prostitution with trafficking. The Court highlighted the importance of correctly identifying victims of trafficking and distinguishing them from adults who may be engaged in sex work voluntarily. Stressing that consent must be the determining factor, the Court underscored the necessity of a threshold inquiry before treating an adult sex worker as a trafficking victim and warned against mechanical rescue-and-rehabilitation measures that disregard individual autonomy.
The Bench also examined the statutory mechanisms relating to rescue, removal and rehabilitation under Sections 15, 16 and 19 of the ITPA, the functioning of Child Welfare Committees, anti-human trafficking units and victim support programmes. It emphasised that victims of trafficking for commercial sexual exploitation possess an enforceable right to rehabilitation and to live with dignity, and assessed whether adequate measures have been taken by authorities to secure those rights.
Invoking its constitutional powers under Articles 32 and 142, the Court framed a detailed Victim Protection Plan and issued wide-ranging guidelines governing identification, rescue, rehabilitation and reintegration of trafficking survivors. The directions seek to ensure a victim-centric approach, prevent wrongful identification, strengthen institutional responses and safeguard the dignity and autonomy of affected persons.
While issuing extensive directions, the Court clarified that it was not issuing any mandamus regarding the constitution of a specialised organised crime investigation framework, observing that the existing statutory structure is sufficient and that the other directions issued would adequately address the concerns raised.
The matter has been directed to be listed after three months for reporting compliance with the Court’s directions.
For detailed directions, we await the copy of the Judgment.