“Movement from one place to another is not always necessary for human trafficking. Movement i.e., through transfer or transportation is merely one possible way through which the ‘action’ element identified in the definition can be satisfied. The inclusion of terms like “receipt” and “harbouring” shows that human trafficking not only refers to the process whereby someone is forcefully or deceitfully moved into situations of exploitation but also extends to the maintenance of that person in such a situation”
A combined reading of Articles 21 and 23 of the Constitution establishes that victims of trafficking for Commercial Sexual Exploitation (CSE) have a fundamental right to rehabilitation, and this right imposes positive obligations on the State. With this assertion, the Supreme Court has emphasised that such right encompasses not merely physical safety from traffickers but also material well-being, reduction of stigma, and a rehabilitation process designed with primacy of the victim’s own consent and choices.
The constitutional standard requires the Court to assess whether the State is taking ‘reasonable measures’ towards the progressive realisation of the minimum core of this right, and whether those measures are being implemented in both letter and spirit. Accordingly, the Court adopted a human rights approach to trafficking, firmly holding that prosecution and punishment of traffickers alone cannot exhaust the State’s obligations, and that the victim’s needs, safety, medical care, financial support, reintegration, must be placed at the centre of the response, not at its margin.
The Apex Court explained that the legal landscape in India is broad but fragmented, comprising multiple statutory instruments, the Immoral Traffic (Prevention) Act, 1956 (ITPA), BNS, Juvenile Justice Act (JJA), POCSO Act, and the Constitution, each of which operates simultaneously and no single piece of legislation operates in isolation. An investigating officer must approach each case with a holistic appreciation of the applicable legal framework.
Under the ITPA, the Court found that by conflating sex trafficking with prostitution and bringing all third-party involvement in prostitution within its net without requiring any coercive “means”, the ITPA treats a heterogeneous group of persons through the same mechanism under Section 17 without differentiation. The Victim Protection Plan must account for this by incorporating a threshold inquiry to identify voluntary adult sex workers and by giving primacy to the victim’s consent in the magistrate’s final decisions on detention and reintegration. Under the BNS, unlike the Palermo Protocol, the ‘means’ element must be established even where the victim is a child, a concerning anomaly requiring immediate legislative attention.
A Two-Judge Bench comprising Justice J.B. Pardiwala and Justice R. Mahadevan observed that a combined reading of Article 21 (right to live with dignity) and Article 23 (right against exploitation) establishes, without any doubt, that victims of trafficking for CSE have a constitutional right to rehabilitation. The obligation owed by the State to victims of exploitative structures extends well beyond identification and rescue to include rehabilitation. Rescue without rehabilitation merely returns the victim to the same conditions of poverty and vulnerability that made her a target in the first place.
The Bench highlighted that the absence of a Victim Protection Plan is a serious lacuna. Without a clear, guiding, and binding framework for how victims are to be handled both during and after rescue, the manner of protection and rehabilitation offered is arbitrary and contingent on the will or whims of the person charged with the victim’s care at the ground level, thereby seriously and systemically impairing the realisation of the victims’ fundamental rights.
The Bench further found that the implementation of existing measures is poor and non-uniform across States and Union Territories. In several States, approved One Stop Centres (OSCs) are not functional; referral staff at OSCs and Shakti Sadans is grossly inadequate; no mental health care, de-addiction or de-toxification support is being provided to victims at Shakti Sadan homes in many States; and no State has provided information on half-way homes.
Thus, the Bench issued a detailed Victim Protection Plan to hold the field until Parliament enacts a comprehensive law on the subject. As a pre-rescue initiative, the Bench directed that Anti-Human Trafficking Units (AHTUs) are to be strengthened with a prescribed composition including DSP-level heading, at least two designated special police officers under Section 13(1) ITPA, at least two women police officers, Child Welfare Police Officers, cyber-crime officers (wherever possible), social workers, and officials from the Departments of Women and Child Welfare, Labour, Social Welfare, Health, and Prosecution.
The Bench also directed that rescue operations are to be preceded by proper planning; unplanned and publicised mass raids are to end. Female police officers and NGO members must be mandatorily included. Victims and perpetrators are to be separated at the place of rescue itself.
At the same time, the Bench emphasised that victims are to be transferred to protective homes at the earliest; statement recording to be deferred until safety is ensured and initial trauma overcome. Psychological and counselling support to be provided at all times. Age verification to be done through scientifically approved procedures. Child victims to be produced before the Child Welfare Committee (CWC) immediately in accordance with the JJA. Protective homes are to be made victim-friendly, with adequately trained and sensitive staff, immediate psychiatric counselling, medical care including HIV/AIDS management, de-addiction and de-toxification support, anti-retroviral drugs, and reproductive health care. Adequate provision of clothing, toiletries, education, vocational training suited to the contemporary job market, and legal aid.
Moving further, the Bench asserted that before repatriation, a due diligence home investigation is to be conducted, commencing 45 days before and concluded 15 days before the intended release, to ensure the victim would not be exposed to abuse or re-trafficking. If danger is found, reintegration at the destination State is to be effected with the victim’s consent. If repatriation is safe, the victim is to be accompanied by two police personnel (at least one woman). NGO workers of the AHTU are to conduct monthly follow-ups for the first six months post reintegration or repatriation, thereafter quarterly for three years. Identity and history of the victim are to be kept strictly confidential throughout.
The Bench also directed all State Governments to re-evaluate in consultation with the High Court the need for special courts under Section 22A ITPA. Witness protection under Section 398 BNSS is to be extended to trafficking victims. Evidence to be recorded by video-conferencing where appropriate, and High Courts to ensure effective implementation of Section 395 BNSS (compensation).
For prevention and training, the Bench proposed vigil at transit areas, identification of vulnerable source areas, and targeted intervention programmes. It said that standardised training resource materials to be developed by the Anti-Human Trafficking Cell under the MHA and implemented at national, State, and district levels for all stakeholders including police, judicial officers, prosecutors, NGO workers, and medical officers.
Additionally, the Bench directed: (a) all States/UTs to notify “recognised welfare institutions or organisations” under Section 15(6A) ITPA; (b) all States/UTs to prepare a State-wide list of social welfare workers eligible to form the non-official advisory body under Section 13(3)(b) ITPA; (c) all States/UTs to designate the ADGP-level officer heading the Anti-Trafficking Bureau as Police Nodal Officer; and (d) all States/UTs to designate the Secretary, Department of Women and Child Development, as the Government Nodal Officer.
The Bench also recommended the Parliament for amendment of Sections 7, 8, and 20 ITPA to incorporate a proviso or qualification expressly excluding victims of trafficking from the ambit of those provisions. The recommendation also suggested that anomaly in the BNS requiring the ‘means’ element to be proved even when the victim is a child, deviating from the Palermo Protocol, needs immediate legislative correction. Further, the Bench suggested that a separate and comprehensive legislation on trafficking addressing all forms of exploitation (not merely CSE) is needed, and the Union government was urged to give earnest consideration to this.
Briefly, Prajwala, an anti-trafficking organisation based in Hyderabad, had filed a petition before the Supreme Court, highlighting the gross inadequacy of the law and institutional framework governing raids, rescue of sex workers and trafficked victims, and their rehabilitation. The core grievance was that throughout all phases of the anti-trafficking process, rescued persons were treated as criminals rather than as victims or survivors of a heinous crime. A specific complaint was raised regarding the absence of a robust ‘Victim Protection Plan’ covering pre-rescue, rescue, and post-rescue operations, and the consequent risk of rendering rescue efforts counterproductive.
The original writ was disposed of on Dec 09, 2015, upon the Union of India furnishing two undertakings before this Court: (a) creation of an Organised Crime Investigation Agency (OCIA) under the MHA, to be set up by Sep 30, 2016 and made functional by Dec 01, 2016; and (b) constitution of an Inter-Ministerial Committee under the Secretary, MWCD, to prepare a comprehensive legislation on human trafficking, within six months.
Despite these undertakings, no OCIA was created. A draft Trafficking in Persons Bill was prepared and passed in the Lok Sabha in 2018, but lapsed upon dissolution of the 16th Lok Sabha. A revised Bill of 2021 remained pending cabinet approval and was never introduced. The petitioner accordingly sought compliance of the order dated Dec 09, 2015. By the time the Second application came to be heard, the Union of India had shifted its stance entirely, submitting that the enactment of the BNS, BNSS, and BSA, together with the ITPA and existing schemes, rendered both commitments unnecessary.