Prajwala vs Union Of India .
- Court
- Supreme Court
REPORTABLE
2026 INSC 609
IN THE SUPREME COURT OF INDIA
ORIGINAL CIVIL JURISDICTION
MISCELLANEOUS APPLICATION NO. 530 OF 2022
IN
WRIT PETITION (CIVIL) NO. 56 OF 2004
PRAJWALA …PETITIONER(S)
VERSUS
UNION OF INDIA & ORS. …RESPONDENT(S)
J U D G M E N T
Signature Not Verified
Digitally signed by
CHANDRESH
Date: 2026.05.30
17:03:14 IST
Reason:
J.B. PARDIWALA, J.:
For the convenience of exposition, this judgment is divided into the following
parts:-
I. PREFACE ....................................................................................................... 5
II. CONTEXT SETTING
................................................................................... 8
III. HISTORY OF THIS LITIGATION ........................................................... 15
A. T HE ORIGINAL WRIT PETITION AND THE CIRCUMSTANCES UNDER WHICH IT
CAME TO BE DISPOSED .................................................................................... 16
EVELOPMENTS POST THE DISPOSAL OF THE ORIGINAL WRIT PETITION
B. D ..... 24
IV. SUBMISSIONS OF THE PARTIES .......................................................... 27
C. S UBMISSIONS ON BEHALF OF THE PETITIONER .............................................. 27
D. S UBMISSIONS ON BEHALF OF THE RESPONDENT ........................................... 35
V. ISSUES FOR CONSIDERATION ............................................................. 38
VI. ANALYSIS .................................................................................................. 38
A. U NDERSTANDING H UMAN T RAFFICKING .................................................... 38
B. T HE LEGAL LANDSCAPE SURROUNDING HUMAN TRAFFICKING FOR THE
PURPOSES OF CSE .......................................................................................... 44
i. International Legal Framework on Human Trafficking – The Palermo
Protocol ....................................................................................................... 44
a. Definition of the term “Trafficking in Persons” ....................... 46
‘Action’ Element .................................................................. 47
‘Means’ Element .................................................................. 48
‘Exploitation’ Element ......................................................... 48
Irrelevance of Consent ......................................................... 51
b. Definitional uncertainties .......................................................... 52
c. Prosecution, Protection and Prevention .................................... 58
ii. Domestic Legal Framework on Human Trafficking for the purposes of CSE
.................................................................................................................... 64
Miscellaneous Application No. 530 of 2022 Page 1 of 297
a. Article 23 of the Constitution – Prohibition of traffic in human
beings and forced labour
........................................................... 64
b. ITPA, 1956 .................................................................................. 74
Necessary prelude to the ITPA – the conflation between sex
trafficking and prostitution ................................................... 74
Understanding the definition of “prostitution” and thereby,
demarcating the “victim” .................................................... 78
Punishing the perpetrators ..................................................... 81
Penalising the prostitute – how, when and under what
circumstances? ..................................................................... 86
Mechanism for intervention – removal under Section 15,
rescue under Section 16 and voluntarily application under
Section 19 ............................................................................. 91
Dealing with the persons making an application under Section
19 and those removed under Sections 15 and 16 respectively
.............................................................................................. 95
Protective homes ................................................................... 100
Establishment of special courts ............................................ 102
c. BNS, 2023 ................................................................................. 103
Section 143 ......................................................................... 107
Other aspects ..................................................................... 112
d. On a reading of the Palermo Protocol, ITPA and BNS
respectively, who can be referred to as “victims of ‘trafficking’
for CSE”? .................................................................................. 117
e. Legislations dealing specifically with children ...................... 119
JJA– Children in need of care and protection and the CWC
............................................................................................ 119
POCSO Act
........................................................................ 128
f. Other institutional and policy measures
................................ 132
Anti-Human Trafficking Cell and AHTUs ....................... 132
NALSA Scheme on Victims of Trafficking and Commercial
Sexual Exploitation, 2015 .................................................. 134
Miscellaneous Application No. 530 of 2022 Page 2 of 297
Mission Shakti Programme for Women: OSCs and Shakti
Sadans ................................................................................ 135
ICTIMS OF RAFFICKING FOR AND THEIR IGHT TO
C. V T CSE R
EHABILITATION
R … ..................................................................................... 139
i. Right to Live with Dignity – What does it include? ................................ 144
ii. Victims’ Right to Rehabilitation ............................................................... 151
iii. Scope of the right to rehabilitation of victims of trafficking for CSE ....... 156
HETHER THE TATE COULD BE SAID TO HAVE TAKEN REASONABLE
D. W S “
MEASURES TO SAFEGUARD THE RIGHT TO REHABILITATION OF THE VICTIMS
”
OF TRAFFICKING FOR
CSE?. ......................................................................... 159
E. D IRECTIONS PERTAINING TO THE “ V ICTIM P ROTECTION P LAN ” .............. 173
i. Exercise of powers under Articles 32 and 142 of the Constitution respectively
for the issuance of guidelines .................................................................... 173
ii. Precursor – Setting the Context to the Victim Protection Plan ............... 176
a. Conflation between Sex Trafficking and Prostitution –
Supporters v. Opponents ........................................................ 176
b. ITPA – Identifying the ‘victims’ and applicable procedures . 181
c. Consequences of the Conflation .............................................. 184
Need for a threshold inquiry for adult voluntary sex workers
............................................................................................ 187
Need for Consent to be the driving factor ........................ 191
d. Qualifications & Clarifications ................................................ 197
e. Other aspects ........................................................................... 199
iii. Guidelines on the “Victim Protection Plan” ........................................... 202
a. Fundamental Principles: ......................................................... 202
b. Pre-rescue ................................................................................ 204
Strengthening the AHTUs ................................................. 204
Initiation of Rescue ............................................................ 207
c. Rescue ...................................................................................... 211
d. Post-rescue ............................................................................... 212
Miscellaneous Application No. 530 of 2022 Page 3 of 297
e. Rehabilitation
........................................................................... 224
f. Repatriation/Reintegration ..................................................... 236
g. Prosecution and Trial .............................................................. 239
h. Prevention and training .......................................................... 239
i. Guidelines for persons making an application under Section 19
ITPA ......................................................................................... 241
F. C ONSTITUTION OF THE O RGANISED C RIME I NVESTIGATION A GENCY
(OCIA) ......................................................................................................... 242
i. Reasons due to which the setting up of the OCIA was considered necessary
by all stakeholders .................................................................................... 242
ii. The NIA Act and the scope of investigative powers of the NIA ............... 249
iii. Could a direction still be issued for the constitution of the OCIA? ......... 251
VII.RECOMMENDATIONS AND SUGGESTIONS .................................. 258
A. R E - VISITING CERTAIN PROVISIONS IN LIGHT OF THE PRINCIPLE OF ‘ NON -
CRIMINALISATION ’ OF VICTIMS ................................................................... 258
EIMAGINING THE MODE AND MANNER OF REHABILITATION OFFERED TO
B. R
THE VICTIMS CLOSED SHELTERS
– ‘ ’ .............................................................. 261
C. S TRENGTHENING THE RIGHTS FRAMEWORK FOR VOLUNTARY ADULT SEX
WORKERS ……. ............................................................................................. 267
NTRODUCTION OF A PROVISION CREATING AN OFFENCE FOR ABUSE OF
D. I
AUTHORITY BY POLICE OFFICERS
................................................................. 270
E. R EMOVING THE REQUIREMENT OF A ‘ MEANS ’ ELEMENT FOR CHILDREN
UNDER THE DEFINITION OF TRAFFICKING IN BNS ..................................... 272
ONTINUED CONSIDERATION OF THE NEED FOR A COMPREHENSIVE
F. C
LEGISLATION ON TRAFFICKING
................................................................... 273
G. A DDRESSING C YBER - ENABLED H UMAN T RAFFICKING ............................. 273
THER RECOMMENDATIONS
H. O ....................................................................... 275
VIII.CONCLUSION ....................................................................................... 276
Miscellaneous Application No. 530 of 2022 Page 4 of 297
I. PREFACE
1. Human trafficking, an inherently complex crime, has long been the
subject of some definitional disagreement internationally. In the late
1990s, some consensus was reached and the first ever agreed definition
came to be incorporated in the Protocol to Prevent, Suppress, and
1
Punish Trafficking in Persons especially Women and Children, 2000
(hereinafter, the “ Palermo Protocol ”), which supplemented the United
2
Nations Convention against Transnational Organised Crime. Article 3
of the Trafficking Protocol reads thus:
“ For the purposes of this Protocol:
(a) "Trafficking in persons" shall mean the recruitment,
transportation, transfer, harbouring or receipt of persons, by means
of the threat or use of force or other forms of coercion, of abduction,
of fraud, of deception, of the abuse of power or of a position of
vulnerability or of the giving or receiving of payments or benefits to
achieve the consent of a person having control over another person,
for the purpose of exploitation. Exploitation shall include, at a
minimum, the exploitation of the prostitution of others or other forms
of sexual exploitation, forced labour or services, slavery or practices
similar to slavery, servitude or the removal of organs;
(b) The consent of a victim of trafficking in persons to the intended
exploitation set forth in subparagraph (a) of this article shall be
irrelevant where any of the means set forth in subparagraph (a) have
been used;
(c) The recruitment, transportation, transfer, harbouring or receipt
of a child for the purpose of exploitation shall be considered
"trafficking in persons" even if this does not involve any of the means
set forth in subparagraph (a) of this article;
1
Protocol to Prevent, Suppress, and Punish Trafficking in Persons especially Women and Children
th th
(adopted 15 November 2000, entered into force 25 December 2003) 2237 U.N.T.S. 319.
2 th
United Nations Convention against Transnational Organised Crime (adopted 15 November 2000,
th
entered into force 29 September 2003) 2225 U.N.T.S. 209.
Miscellaneous Application No. 530 of 2022 Page 5 of 297
(d) "Child" shall mean any person under eighteen years of age. ”
(Emphasis supplied)
2. This definition makes it clear that all the perpetrators figuring in the
organised crime network, including those taking part in the
recruitment, transportation, transfer, harbouring or receipt of persons,
qualify as persons involved in the crime of human trafficking. The
‘means’ through which they secure the victim could range from the use
of threat, force, other forms of coercion, abduction, fraud, deception,
abuse of power, abuse of a position of vulnerability or the giving or
receiving of payments or benefits to achieve the consent of a person
having control over the victim. It is also emphasized that the aforesaid
must be done “ for the purpose of exploitation ” of the victim(s), which shall
include the exploitation of the prostitution of others, other forms of
sexual exploitation, forced labour or services, slavery or practices
similar to slavery, servitude or the removal of organs. If any of the
‘means’ as enumerated herein is used to cause/effect any of the modes
of exploitation as detailed above, the consent of the trafficked victim
becomes immaterial.
3. Therefore, three key elements must be present according to the
definition – (i) the action (recruitment, transportation etc.), (ii) the
means (threat, force etc.) and, (iii) the purpose (exploitation).
Cumulatively, they constitute the crime of human trafficking. However,
an exception to the three-element requirement is carved out when the
victim is a child i.e., a person below the age of 18 years. The ‘means’
element is not a pre-requisite when the crime involves children. It is
sufficient to show that the ‘action’ as described above was done for the
‘purpose’ as also described above. In other words, in case of persons
Miscellaneous Application No. 530 of 2022 Page 6 of 297
who are aged 18 years and above, all three elements must be proved for
a case of trafficking to be made out. However, for persons below the age
of 18, proving the existence of only two elements would be enough.
4. This definition has been emulated either verbatim or with slight
modifications in the national legislations of several countries, including
India. The definition highlights that all persons, irrespective of age or
gender, can become victims of trafficking. The range of potentially
exploitative practices is also intentionally left open-ended, indicating
that new or additional exploitative practices may be identified in the
future. Yet another important point to note is that 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.
5. Although human trafficking can involve various modes or forms of
exploitation and it is not strictly gendered, yet the present petition deals
only with the trafficking of a targeted group of vulnerable persons for a
certain single purpose - the trafficking of women and children, in
particular, for Commercial Sexual Exploitation (“ CSE ”). Considering
that this is the scope within which the present matter operates, while we
recognize the multi-various and nuanced forms in which human
trafficking could manifest in the present day, we have been conscious
to exclude any specific discussions on human trafficking for labour,
Miscellaneous Application No. 530 of 2022 Page 7 of 297
servitude, removal of organs, etc., since it would transgress beyond the
issues raised herein.
II. CONTEXT SETTING
6. India acts as a source, transit and destination country for the trafficking
of women and children for CSE. According to the petitioner, the CSE of
women and children is largely carried out both in and out of brothels,
houses and resorts, amongst other places. However, of late, there has
been a trend of decentralization of sex trafficking activities away from
the traditional brothels and therefore, “red light areas” are not the only
centres for CSE. Moreover, the creation of sexual exploitative material
and its widespread dissemination through the internet does not require
either the victim or the perpetrator to be at a single physical location.
Therefore, it was urged that coordinated efforts from different
stakeholders and authorities is required to completely uproot any and
all traces of CSE in the country.
7. The processes through which the victims are trafficked are inherently
varied. Owing to trafficking being a money-making endeavour for the
traffickers, all exchanges are made in an effort to maximise financial
gain and minimize financial loss or operational costs. Therefore, the
characteristics of every individual trafficking operation are situation
and victim dependent. For example, the nuances would vary depending
on the personality of the trafficker, the culture group in which they
operate, the age and gender of the victim, the behavioural tendencies of
the victim etc.
8. According to the petitioner, the very start of this nefarious crime is the
identification and subsequent manipulation of the vulnerabilities of
Miscellaneous Application No. 530 of 2022 Page 8 of 297
potential victims by the traffickers. Such vulnerabilities could relate to
age, gender and/or economic situation. The traffickers primarily target
women and girls who are severely affected by poverty, lack of access to
education, chronic unemployment, gender and caste discrimination and
dearth of economic opportunities in their States of origin with the
promise of financial allurement, better living conditions or marriage.
Vulnerabilities also tend to intensify during conflict or in post-conflict
situations. For example, the petitioner has alleged that trafficking rates
have soared during the Covid-19 pandemic and in the post-pandemic
era. The lure often also involves assurances of glamour or rescue from
troubled family or marital situations. These opportunities are
deliberately made available at far-away locations to achieve a dual goal
– one , to cut them off from their roots completely and two , to reduce the
probability of the victims obtaining effective support, either from
known persons or law enforcement, upon any realization that they have
been trafficked.
9. Some common ways of securing initial contact with potential victims
are via posting fraudulent advertisements for job vacancies, cultivating
fake romantic relationships or companionships, abduction or
kidnapping etc. These traffickers who pull the wool over the victim’s
eyes could also be known and familiar faces, and sometimes even close
relatives or friends. Some traffickers build a façade of being rich,
prosperous, and well-connected and are therefore seen as symbols of
success in the local community. Such persons pay some nominal
amount to initially take the victims away from the custody of the family
and also to reinforce that their promise of an economic opportunity for
the victim is real, genuine and well-intended.
Miscellaneous Application No. 530 of 2022 Page 9 of 297
10. The journey of each victim is unique and cannot be fit into a specific box.
There are also instances where they may be initially inducted in the
employment or given the opportunity that they were originally
promised in order to ensure that the family does not immediately report
anything. However, subsequently, they might be re-routed into the
trafficking ring and sold for CSE.
11. It is often seen that during transportation, especially where the
trafficked women and children are calculatedly deceived for the
purposes of consent, the victims are well taken care of to avoid both
resistance and suspicion, thereby rendering any interception during
transit almost impossible. It is only after reaching the destination that
the trafficked women and children are ambushed into entering the
prostitution market. For victims who have been forcefully taken, their
transport is carried out as covertly as possible to escape any prying eyes.
When initiation is resisted, collective torture, physical abuse, blackmail,
threats etc., ensues. Traffickers are known to subject the victims to
extreme violent behavior to compel them into submission.
12. This does not mark the end of their trauma; it is only the beginning of
it. The victims are forced to live within exploitative structures where all
the traffickers including the brothel owners or managers, pimps, local
goons etc., are living on her earnings. The price paid to procure her
becomes the principal debt that lies heavy on her shoulders. This debt
only reduces when 50-100 times the principal is repaid, until which she
remains trapped in debt bondage. This is one very common method by
which the traffickers legitimize their confiscation of the victim’s
earnings.
Miscellaneous Application No. 530 of 2022 Page 10 of 297
13. The reality of the victim’s life becomes grim with the passing of each
day, rampant with sexual exploitation and abuse, and with zero
autonomy or free choice over what is being done to them. After a few
days of resistance and attempts to escape, she succumbs to her
inevitable confinement. Stories of the fate of women and girls who
unsuccessfully attempted to break free are constantly fed to them in
order to erase the thought of escaping. Such stories often highlight the
alleged complicity of police officers to emphasise that their present
reality is inescapable.
14. Apart from the abundance of psychological trauma, the victims also
endure violations to their bodily integrity day in and day out. Their
health does not assume any priority in the exploitative model that is
centered around their existence. Untrained doctors attend to them only
to conduct abortion procedures or treat sexually transmitted infections.
Their medical care is often ad-hoc and unhygienic and this destroys
their physical well-being, often permanently. Medical attention is
seldom prioritized since it is expensive, and the victims are seen as
replaceable or disposable. The crime, as we mentioned above, is, after
all, hyper-focused on greed and avarice.
15. To cope with all the trauma inflicted, victims also start relying on
alcohol and drugs, which quickly morph into an addiction for various
forms of substance abuse. There are accounts of victims also being
forced by the traffickers to consume drugs or alcohol as yet another
means of exerting control over them.
16. In due course, the victims are gradually given small portions of their
earnings, released from ‘absolute’ debt-bondage and motivated to serve
Miscellaneous Application No. 530 of 2022 Page 11 of 297
as procurers of more girls from their own villages or other places for
more income. They then become entrenched in the trafficking ring
themselves, plunging deeper into the wrath of the crime that they were
once forced into. These victims then slowly rise in ranks and are
progressively incentivized to victimise countless others.
17. Over the years, it has also been seen that there is a rapid decrease in the
age of the trafficked. Children, especially between the ages of 12 and 18
years, are severely exploited in such settings. They are seen as more
submissive and less likely to negotiate their position with any trafficker
or client. The increase in demand for children in CSE is also fueled by
the perception that they are not carriers of any sexually transmitted
disease. This has led to traffickers resorting to specifically targeting
young children, grooming them and forcing them to undergo different
hormonal therapies to advance their growth for the purpose of CSE.
18. Even when rescued, in a lot of cases, the victims fail to give a true
account of their trafficking or forced prostitution to law enforcement
authorities and the Civil Society Organisations (“ CSOs ”). Throughout
the duration of their exploitation, they are tutored and taught to behave
in a specific manner during raids. They are trained to give a false name,
age and domicile to send any rescue attempt or investigation adrift. This
is not entirely because they are unwilling to be rescued but because of
the long-term complex psychological conditioning that has clawed its
way into every response of theirs.
19. Most victims also resist rescue because they consider law enforcers as
forming a significant part of the group of perpetrators and therefore,
find it difficult to internalise that genuine help can be offered by them.
Miscellaneous Application No. 530 of 2022 Page 12 of 297
Many victims fear that if they escape their servitude and initiate
investigations against their trafficker, the trafficker and their associates
will harm them or their family members. The organised nature of the
trafficker’s operation enables them to realistically follow through on
such threats. The victims are also warned that if arrested, their life in the
government homes would be worse, devoid of any earnings whatsoever
and be pervaded by ostracism. All these narratives compound and
demotivate the victim from offering any cooperation.
20. More often than not, immediately after the victims are rescued, the
traffickers ensure that they are released from police custody into the
care of those who claim to be their parents, spouse or some other
relative. It has been found that even if such persons may be the real
parents/families of the victim, the traffickers have several methods
hidden in their reserve to exert complete control over such guardians.
Therefore, re-victimisation becomes a very real possibility for any
rescued victim. Insofar as cross-border trafficking is concerned, the
routine and immediate repatriation of the victims without a fair
assessment of whether there are reasonable grounds for believing that
they would be re-victimised, also proves to perpetuate the cycle of the
crime, whose elements remain well-entrenched in the source country.
21. Extreme psychological manifestations of their trauma can range from
displaying symptoms of Post-Traumatic Stress Disorder (“ PTSD ”),
phobias, panic attacks and anxiety which is triggered by any cue of the
past traumatic stimuli. Depressive and dissociative disorders that
manifest as persistent sadness, disturbance in sleep and appetite, loss of
consciousness or amnesia, “flat affect” etc. Psychotic disorders which
may present as delusions, hallucinations or behavioral difficulties. A lot
Miscellaneous Application No. 530 of 2022 Page 13 of 297
of them also experience “trauma bonding” or “Stockholm’s syndrome”
with their traffickers.
22. Rescued victims may also exhibit signs of physical abuse ranging from
bruises, broken bones, Traumatic Brain Injuries (“ TBI ”), burns, scarring
etc. They may also diagnosed with infectious diseases, such as
tuberculosis and hepatitis, which are spread in overcrowded,
unsanitary environments with limited ventilation; chronic illnesses,
such as diabetes or cardiovascular disease; or Reproductive health
problems, including Reproductive Tract Infections (“ RTIs ”), cervical
damage, sexually transmitted diseases, urinary tract infections, pelvic
pain and injuries from sexual assault, or forced abortions.
23. The aforesaid context which has been laid out by the petitioner through
the original writ petition is an extreme way in which the crime of human
trafficking for CSE could potentially manifest. While we are cognizant
that this is the manner in which the crime may take shape for several
victims, we must acknowledge that it may be difficult to fit all cases into
this exact category or stratagem. There are varied, both subtle and non-
subtle forms in which traffickers victimise persons and we have been
careful to keep this aspect in mind while approaching the issues raised
before us.
24. The petitioner has also brought to our notice that, in an era marked by
the democratisation of the internet, a lot of criminals have leveraged the
cyberspace for committing their crimes, and that trafficking, is no
different. Therefore, it was urged that we must acknowledge Cyber-
Enabled Human Trafficking (hereinafter, “ CEHT ”) as a serious concern.
Cyber technology has expanded the range of vulnerabilities that
Miscellaneous Application No. 530 of 2022 Page 14 of 297
traffickers can exploit, transcending traditional economic reasons. It
was contended that a lot of the recruitment is also conducted through
social media platforms, matrimonial sites, job sites, gaming applications
etc. Victims are also successfully groomed online over an extended
period of time despite the anonymous nature of online relationships.
The proliferation of the internet has also led to an unprecedented surge
in the making and dissemination of Sexual Exploitative and Abuse
Material involving both children (i.e., “ CSEAM ”) and adult women.
25. It is difficult to obtain accurate data on trafficking owing to multiple
reasons which have been pointed out by us in the later parts of our
discussion. Therefore, without going into the numbers which have been
given by indicative studies conducted across the world, all we would
like to say is that even as far back as the year 2004, the admitted position
of the Union of India (hereinafter, the “ respondent no. 1 ”) was that
there are at least 30 lakh victims across the country.
III. HISTORY OF THIS LITIGATION
26. This litigation, which began in the year 2004, has had a long and
chequered history before this Court. It has been characterised by efforts
that were both commendable and proactive, but the practical
implementation of which unfortunately failed to see the light of day and
fell short of many a promise.
27. The petitioner is an anti-trafficking organisation operating in
Hyderabad, Telangana. It is stated that, over the years, they have set up
three State-recognised shelter homes, currently housing over 250
women and children who have been rescued from prostitution. The
petitioner has worked with the Central government and various State
Miscellaneous Application No. 530 of 2022 Page 15 of 297
governments inter-alia in providing training to a large number of
government functionaries, conducting several campaigns,
spearheading assessment studies, establishing Industrial Training
Institutes (“ ITIs ”) for victims/survivors, financially supporting
reintegration and repatriation costs for victims/survivors and
spreading awareness about the crime of trafficking. They have also
worked extensively on drafting Anti-Trafficking Policies and Minimum
Standards of Care Policies for Homes for several States. They have
helped in bringing about the practice of Video Conferencing during trial
for victims/survivors as a State policy, helping in the declaration of all
child victims/survivors as orphans and granting them reservations, etc.
28. All this shows that the petitioner has been at the forefront of bringing
about meaningful progress in the field.
A. The original writ petition and the circumstances under which it came
to be disposed
29. The petitioner had filed the Writ Petition (Civil) No. 56 of 2004
(“ original writ petition ”), which brought to the fore several issues and
challenges that exist in the anti-trafficking efforts undertaken in India.
30. It was submitted that the law relating to the raids of brothels, rescue of
sex workers/trafficked victims therefrom, and their rehabilitation in the
aftermath, is grossly inadequate. A point of specific mention was that,
throughout all the phases, the rescued come to be treated as ‘criminals’
instead of ‘victims/survivors’ of a heinous crime. It was added that
there is significant insensitivity and indignity involved in the rescue
process, which extends to the post-rescue phase. Moreover, it was
alleged that the victims/survivors are not afforded adequate protection
Miscellaneous Application No. 530 of 2022 Page 16 of 297
from the traffickers after their rescue, despite being aware that the threat
to their safety becomes intensified once they are removed from the
clutches of the perpetrators. In the absence of adequate attention being
paid to the post-rescue stage of rehabilitation, the victims/survivors
also end up going back to the same brothels and are re-exploited,
instead of getting reintegrated back into society. This is, especially, after
a great number of resources and manpower are spent on the rescue by
the State. All this, the petition alleges, serves to continue the cycle of
traumatisation and subjects the victims/survivors to irrecoverable
injury.
31. The petitioner identified the core reason underlying all the issues
aforementioned – the absence of a robust “ Victim Protection Plan ”.
According to it, its non-existence carries a realistic risk of rendering any
rescue effort an abortive exercise from the get-go. It allows the process
to be riddled with varying forms of violations, harassment and trauma,
both by the protectors as well as the perpetrators of the crime. In other
words, the original writ petition was of the firm view that if victim-
protection measures are not incorporated in the pre-rescue, rescue and
post-rescue stages, it would be counterproductive to carry out the
rescue itself.
32. This Court, while in seisin of the original writ petition, acknowledged
that the present matter related to the protection of women who were
victims of offences committed under the Immoral Traffic (Prevention)
Act, 1956 (“ ITPA ”) and that some sort of monitoring of the activities of
the protective homes under the ITPA may be necessary. With this object
in mind, it was thought fit to implead the National Legal Services
Authority (“ NALSA ”) as a party.
Miscellaneous Application No. 530 of 2022 Page 17 of 297
33. From the very beginning, all the parties, including the respondent no. 1,
were unanimous in their view that a comprehensive protocol was
required to be put in place. The matter did not take an adversarial turn.
This is reflected from the observation made by this Court vide order
dated 28.03.2005 recording the submission of the then learned Solicitor
General that “ the Ministry of Human Resource & Development intends to
formulate a scheme relating to the rescue and rehabilitation of trafficking
victims as also control and supervision of protective homes ”. It was never
disputed that strengthening the protective and rehabilitative measures
for victims of trafficking was necessary.
34. In accordance with the aforesaid submission, on 29.07.2005, the
respondent no. 1 had placed on record a “Draft Protocol for the pre-
rescue, rescue and post-rescue operations of child victims of trafficking
for commercial sexual exploitation” and averred that the same could be
comparably applied to adult victims as well. However, the counsel
appearing for the petitioner had pointed out some deficiencies in the
said draft protocol as regards certain aspects like the quantity and
quality of food supplied to the residents, supply of medicines including
anti-viral drugs for the treatment of HIV etc. Therefore, a consultative
process for incorporating all the aforesaid suggestions had commenced.
35. Aware of the need for a thorough and exhaustive examination, on
21.11.2005, the respondent no.1 submitted that the Government of India
was agreeable to take a holistic view of the matter and also consider the
schemes prepared by the National Commission for Women (“ NCW ”)
and NALSA, respectively, on the subject. Subsequently, on 04.04.2006,
after a review of the aforementioned schemes, the respondent no.1 had
stated that they are in agreement with all the suggestions given by the
Miscellaneous Application No. 530 of 2022 Page 18 of 297
petitioner, except those suggestions that carry huge financial
implications to the public exchequer.
36. Since several stakeholders, i.e. the petitioner, NCW, NALSA and the
various ministries of the Government of India, were involved, on
17.08.2006, this Court proposed that it would be better if everyone
coordinated their efforts and placed a common scheme before this
Court. In pursuance of the same, on 19.09.2006, a Joint-Proposal of the
NALSA and the petitioner to implement a Victim Protection Plan in the
country was filed. Over the period of time, the relevant ministries of the
Government of India and all the States were directed to file their
responses to the Joint-Proposal.
37. Vide order dated 30.10.2014, this Court had noted that certain directions
had already been given by this Court in Vishal Jeet v. Union of India
reported in (1990) 3 SCC 318, wherein a similar issue pertaining to the
protection and rehabilitation of those who had fallen victim to
prostitution, was canvassed. An affidavit was sought from the
respondent no. 1 to indicate what steps had been taken, by both the
Union and the States, in furtherance of the directions given in paragraph
16 of the said judgment, which included, amongst other things, the
formation of Central and State Advisory Committees for the purpose of
looking into (a) measures which can be taken to eradicate child
prostitution and (b) the social welfare programmes necessary for the
care, protection, treatment, development and rehabilitation of rescued
child victims. For ready reference, the said directions from Vishal Jeet
(supra) are reproduced hereinbelow:
“ 16. We, after bestowing our deep and anxious consideration on
this matter feel that it would be appropriate if certain directions
Miscellaneous Application No. 530 of 2022 Page 19 of 297
are given in this regard. Accordingly, we make the following
directions:
(1) All the State Governments and the Governments of Union
territories should direct their concerned law enforcing
authorities to take appropriate and speedy action under the
existing laws in eradicating child prostitution without giving
room for any complaint of remissness or culpable indifference.
(2) The State Governments and the Governments of Union
territories should set up a separate Advisory Committee within
their respective zones consisting of the Secretary of the Social
Welfare Department or Board, the Secretary of the Law
Department, sociologists, criminologists, members of the
women's organisations, members of Indian Council of Child
Welfare and Indian Council of Social Welfare as well the
members of various voluntary social organisations and
associations etc., the main objects of the Advisory Committee
being to make suggestions of:
(a) the measures to be taken in eradicating the child
prostitution, and
(b) the social welfare programmes to be implemented for the
care, protection, treatment, development and rehabilitation
of the young fallen victims namely the children and girls
rescued either from the brothel houses or from the vices of
prostitution.
(3) All the State Governments and the Governments of Union
territories should take steps in providing adequate and
rehabilitative homes manned by well-qualified trained social
workers, psychiatrists and doctors.
(4) The Union Government should set up a committee of its
own in the line, we have suggested under direction No. (2) the
main object of which is to evolve welfare programmes to be
implemented on the national level for the care, protection,
rehabilitation etc. etc. of the young fallen victims namely the
children and girls and to make suggestions of amendments to
the existing laws or for enactment of any new law, if so
warranted for the prevention of sexual exploitation of children.
Miscellaneous Application No. 530 of 2022 Page 20 of 297
(5) The Central Government and the Governments of States
and Union territories should devise a machinery of its own for
ensuring the proper implementation of the suggestions that
would be made by the respective committees.
(6) The Advisory Committee can also go deep into Devadasi
system and Jogin tradition and give their valuable advice and
suggestions as to what best the government could do in that
regard. […]”
(Emphasis supplied)
38. On the next date of hearing, i.e., on 25.08.2015, it was submitted that a
meeting of the Central Advisory Committee (“ CAC ”) as mentioned in
Vishal Jeet (supra) was scheduled to be convened and all the
representatives of the concerned States/UTs were invited to attend the
same. Simultaneously, NALSA had also formed a dedicated Committee
to look into some of the issues raised in the petition which had
culminated into a separate Report. The agenda for the first meeting of
the CAC was to discuss the Report prepared by NALSA as also the
judgment delivered by this Court in Vishal Jeet (supra) and place on
record what further action the government wishes to take in this regard.
39. Thereafter, on 13.10.2015, this Court directed that in accordance with the
request made in paragraph 10(iv) of the affidavit dated 09.10.2015 filed
by the respondent no. 1 (hereinafter, the “ first affidavit ”), an Inter-
Ministerial Committee comprising of the relevant
ministries/departments of the Government of India, the States/UTs
and CSOs for preparing a comprehensive legislation to tackle all aspects
of trafficking, be constituted before the next date of hearing. The details
and the mode of working of the said Inter-Ministerial Committee was
also directed to be placed on record.
Miscellaneous Application No. 530 of 2022 Page 21 of 297
40. Shortly thereafter, on 16.11.2015, the respondent no. 1 filed another
affidavit (hereinafter, the “ second affidavit ”) stating that approval has
been obtained from the Cabinet Secretariat to form an Inter-Ministerial
Committee under the chairmanship of the Secretary, Ministry of
Women & Child Development, Government of India (“ MWCD ”) for the
preparation of a comprehensive legislation. In addition to this, it was
stated that the issue of setting up the Organised Crime Investigation
Agency (“ OCIA ”) was already underway with the Ministry of Home
Affairs, Government of India (“ MHA ”), wherein a proposal costing less
than Rs.100 Crores has already been prepared and circulated for inter-
ministerial consultation.
41. Taking into account the second affidavit of the respondent no.1, vide
order dated 09.12.2015, this Court disposed of the original writ petition
by observing thus:
“ 1. Heard the learned counsel.
2. We have gone through the affidavit dated 16th November, 2015
filed on behalf the Ministry of Women & Child Development,
Government of India.
3. It has been submitted in the said affidavit that the Ministry of
Home Affairs shall set up the “Organized Crime Investigative
Agency” (OCIA). We hope that before 30th September, 2016,
OCIA shall be set up and also hope that it is made functional
before 1st December, 2016 looking to the importance of the issue
before us.
4. We also record the fact, as mentioned in the Office
Memorandum dated 16th November, 2015, that the Ministry of
Women & Child Development has taken a policy decision to
constitute a Committee under chairmanship of the Secretary,
Ministry of Women & Child Development, Government of India,
Miscellaneous Application No. 530 of 2022 Page 22 of 297
for preparing a comprehensive legislation dealing with the subject
of trafficking.
5. The afore-stated Committee is to work on the following terms
and reference :
• To study the various Acts/Legislations under the purview of
different Ministries/ Departments relating to various aspects
of trafficking.
• To consider the gaps in the existing legislation, from the point
of view of prevention, pre-rescue, rescue, post-rescue and
rehabilitation aspects.
• To strengthen victim protection protocol so as to ensure that
victims are treated as victims not as offenders.
• To draft a comprehensive legislative framework covering all
aspects of trafficking, as may be considered necessary.
• To provide for adequate shelter homes for the rescued victims.
• To prepare a comprehensive policy for law enforcing agencies,
including for lady police officers for handling the victims of
trafficking.
6. We are sure that the Committee shall do the needful at an early
date so that appropriate law can be enacted on the subject. We hope
that the Committee shall prepare and submit its report preferably
in six months.
7. In view of the above development in the matter, this petition
does not survive. The writ petition is, accordingly disposed of.
8. We record our appreciation for Prajwala and Dr. Sunitha
Krishnan for bringing such an important and humanitarian issue
to our notice and for able assistance rendered by learned Senior
Counsel Mr. Dushyant Dave and Ms. Indu Malhotra, learned
Additional Solicitor General Mr. N.K. Kaul and learned Advocate
Ms. Aparna Bhat, National Legal Services Authority and other
learned advocates in the process of disposing of this case relating
to social problems. ”
(Emphasis supplied)
42. It is evident from the aforesaid order of this Court that, the original writ
petition was disposed of by taking on record the undertaking of the
Miscellaneous Application No. 530 of 2022 Page 23 of 297
respondent no. 1 on two aspects: (a) the creation of the OCIA under the
MHA and (b) the constitution of an Inter-Ministerial Committee under
the chairmanship of the Secretary, MWCD, for the purpose of preparing
a comprehensive legislation on the subject of trafficking. The said Inter-
Ministerial Committee was tasked with inter-alia studying the relevant
legislations; identifying the existing legislative gaps from the
perspective of prevention, pre-rescue, rescue, post-rescue and
rehabilitation; strengthening the Victim Protection Plan to ensure that the
victims are not treated as offenders; drafting a comprehensive
legislative framework; providing for adequate shelter homes for the
rescued victims/survivors and; preparing a policy for law enforcement
officers guiding them to appropriately handle the victims of trafficking.
43. In the aforesaid order, this Court had also recorded hope to see the
OCIA be set up by 30.09.2016 and be made functional before 01.12.2016.
Furthermore, it was hoped that the Inter-Ministerial Committee formed
under the chairmanship of the Secretary, MWCD would look into all the
necessary aspects with utmost expediency and prepare a report,
preferably within a period of six months, so that an appropriate law can
be enacted on the subject.
B. Developments post the disposal of the original writ petition
44. Several meetings of the above-mentioned Inter-Ministerial Committee
were held, and their efforts have culminated into the Draft Trafficking
of Persons (Prevention, Protection and Rehabilitation) Bill, 2016. The
same was uploaded online inviting suggestions from the public. Upon
the receipt of widespread feedback, the draft Bill was reworked upon.
The subsequently revised Draft Bill was put up for consultation with
Miscellaneous Application No. 530 of 2022 Page 24 of 297
domain experts and CSOs in various regions of the country. Thereafter,
the revised Draft Trafficking of Persons (Prevention, Protection and
Rehabilitation) Bill, 2017 was formulated. However, for reasons best
known to the respondent no. 1, the Bill never came to be introduced
before the Parliament.
45. Owing to an absence of progress on both the constitution of the OCIA
and the enactment of a comprehensive legislation respectively, the
petitioner had filed a Miscellaneous Application being M.A. No. 451 of
2017 (hereinafter referred to as “ First M.A. ”) seeking compliance of the
undertaking furnished by the respondent no. 1 due to which the original
writ petition came to be disposed of.
46. Shortly thereafter, the Trafficking of Persons (Prevention, Protection
and Rehabilitation) Bill, 2018 was brought out in the public domain and
was also passed in the Lok Sabha. The same was likely to be taken in the
Rajya Sabha in the next session of the Parliament. Taking into account
this progress, the petitioner did not press the First M.A. and the same
came to be disposed of vide order dated 03.12.2018. The said order reads
thus:
“ Learned counsel for the petitioner says that a Bill has been passed
in the Lok Sabha and is likely to be taken in the Rajya Sabha in the
next session of Parliament. She says that the proposed Bill satisfies
the requirements of the petitioner and, therefore, she does not press
this application. Accordingly, application stands disposed of. ”
47. Despite the 2018 Bill being passed in the Lok Sabha on 26.07.2018, it
could not be considered in the Rajya Sabha due to the prorogation of the
th
16 Lok Sabha. In consequence thereof, the 2018 Bill had also lapsed
th
upon the dissolution the 16 Lok Sabha.
Miscellaneous Application No. 530 of 2022 Page 25 of 297
48. During this time, the respondent no.1 seems to have revisited the
original idea of setting up the OCIA. It had, on second thought,
considered it appropriate to empower the National Investigation
Agency (“ NIA ”) to investigate offences related to human trafficking.
Therefore, Sections 370 and 370A of the Indian Penal Code, 1860 (“ IPC ”)
were added to the Schedule of the National Investigation Agency Act,
2008 (“ NIA Act ”) by way of an amendment made in the year 2019.
49. It is the case of the respondent no. 1 that their endeavors with respect to
the enactment of a human trafficking legislation, did not cease. After
incorporating additional suggestions received from all quarters, a re-
drafted Trafficking in Persons (Prevention, Care and Rehabilitation)
Bill, 2021 was drawn up. The same was pending cabinet approval for its
introduction before the Parliament. However, yet again, for reasons best
known to the respondent no. 1, no further progress was achieved on the
matter.
50. Therefore, for the second time, the petitioner filed another
Miscellaneous Application being M.A. No. 530 of 2022 (hereinafter
referred to as the “ Second M.A. ”) seeking compliance of this Court’s
order dated 09.12.2015 disposing of the original writ petition. It is the
case of the petitioner that although much time had lapsed, yet no
progress worth the name had been made by the respondent no.1 on both
fronts. This is especially when the menace of human trafficking has
become more acute during the post-pandemic period.
51. The initial stance of the respondent no. 1 when the Second M.A. came
to be admitted by this Court was marked by one significant change –
although they had affirmed their commitment to introducing a
Miscellaneous Application No. 530 of 2022 Page 26 of 297
dedicated legislation on the subject of human trafficking, yet they
submitted that there remained no need for establishing a new
investigative agency in the form of the OCIA when the NIA had already
been empowered in that regard.
52. As some more time unfolded in the course of hearing the second M.A.,
another fundamental shift in the stance of the respondent no.1 occured
– they have submitted that the legislative developments, more
particularly, the enactment of the Bharatiya Nyaya Sanhita Act, 2023
(“ BNS ”), the Bharatiya Nagarik Suraksha Sanhita Act, 2021 (“ BNSS ”)
and the Bharatiya Sakshya Act, 2023 (“ BSA ”) respectively, along with
the ITPA and schemes already present, entirely obviate the need to
introduce a separate legislative framework as well.
53. Therefore, cumulatively seen, they have sought to canvass that both of
the initial commitments made by them before this Court did not require
implementation because they were either not necessary or because they
had become redundant.
54. To capture the arguments put forth by both sides more precisely, we
have recorded their submissions in an elaborate manner in the
following section.
IV. SUBMISSIONS OF THE PARTIES
C. Submissions on behalf of the petitioner
55. Ms. Aparna Bhat, the learned Senior Counsel appearing on behalf of the
petitioner submitted that the original writ petition was filed praying for
a “ Victim Protection Plan ” to be created for the victims/survivors of CSE
and that it thoroughly highlighted the inadequacy of, both the law and
Miscellaneous Application No. 530 of 2022 Page 27 of 297
the institutional support system, relating to the pre-rescue, rescue and
post-rescue stages of rehabilitation of victims/survivors of trafficking.
56. She also emphasised that, during the course of hearing of the original
writ petition, all the State Governments, NALSA and other stakeholders
were heard on the issue. Much progress was achieved through several
consultations and reports. At every step, this Court closely monitored
every development. Consensus was achieved amongst all on the
barebones of the legal and institutional reforms which had to be brought
into place. It was in this background that the judgment of this Court
dated 09.12.2015 was passed disposing of the original writ petition by
taking on record certain commitments by the Union of India. These
commitments were as follows:
(i) The creation of the OCIA, and;
(ii) The enactment of a dedicated and comprehensive legislation
dealing with all aspects of human trafficking, which would include
a robust Victim Protection Plan .
57. It has been submitted by the learned counsel that, during the time when
the aforesaid commitments were made, the following were the
legislative and institutional frameworks that already existed:
(i) The ITPA, which is a special legislation dealing with trafficking for
CSE keeping in line with India’s international law obligations
under the United Nations Convention for the Suppression of
Women in Traffic in Persons and of the Exploitation of the
Prostitution of Others, 1949 (“1949 Convention”);
(ii) Sections 370 and 370A which were added to the IPC, 1860 by way
of an amendment in the year 2013;
Miscellaneous Application No. 530 of 2022 Page 28 of 297
(iii) The Protection of Children from Sexual Offences Act, 2012
(“ POCSO Act ”).
(iv) The Information Technology Act, 2000 (“ ITA ”).
(v) The Juvenile Justice (Care and Protection of Children) Act, 2000
(“ erstwhile JJA ”).
(vi) An Anti-Trafficking Cell, set up by the MHA in 2006 to act as an
interface with all Central Government agencies, departments, and
ministries.
(vii) Anti-Human Trafficking Units (“ AHTUs ”) which were set up
across the country at the district-level for tackling all aspects of the
crime of human trafficking viz. prevention, rescue, rehabilitation
and reintegration;
(viii) Ujjawala Scheme – a scheme for the rehabilitation of
victims/survivors of CSE introduced by MWCD.
(ix) The NALSA Victims of trafficking and Commercial Sexual
Exploitation Scheme, 2015 (for short, the “ NALSA Scheme ”)
which details the provision of legal services to victims of trafficking
at various stages; and
(x) An Office Memorandum dated 30.04.2012 issued by the MHA
categorizing human trafficking as an Organised Crime.
58. The counsel would submit that the current stand taken by the
respondent no.1 in the present M.A. i.e., that there exists no need to
enact a separate comprehensive legislation and set-up the OCIA, is
untenable. The legislative and institutional responses that existed
during the time when the commitment was made, continue to exist as
on date, without any substantive change having been brought in.
Moreover, it has been submitted that this change in stance has been
Miscellaneous Application No. 530 of 2022 Page 29 of 297
made almost 10 years after the judgment in the original writ petition
was passed and is therefore, extremely and opportunistically belated.
The counsel would submit that the respondent no. 1 has essentially
forced a fait accompli situation in the present matter at the expense of
thousands of victims of trafficking.
59. The learned counsel would submit that apart from introducing a
separate provision for organised crime under Section 111 of the BNS,
the new criminal laws have essentially reproduced the provisions
pertaining to trafficking as they existed in the erstwhile criminal laws.
Another pertinent aspect to be noted, according to the learned counsel
was that, vide Office Memorandum No. F.NO.15011/27/2011-ATC
dated 30.04.2012 titled “Advisory on Human Trafficking as Organised
Crime” issued by the MHA, trafficking had already been recognized as
an organised crime as far back as 2012. In this context, the incorporation
of Section 111 BNS is unlikely to bring about a sea change in the
prosecution of trafficking cases.
60. It was submitted that the ITPA was enacted in the year 1956 and certain
amendments were carried out in the year 1987. However, there have
been radical changes in the way the crime of trafficking is committed
for CSE and therefore, the ITPA has become insufficient to deal with the
evolving ways in which victims are trafficked.
61. She would submit that the suggestion of the MHA to set up the OCIA
was in acknowledgment of the fact that human trafficking is an
organised crime and a dedicated body for the purpose of investigating
such organised crime is required. Such a body would be well-equipped
to address the link between money laundering and human trafficking
Miscellaneous Application No. 530 of 2022 Page 30 of 297
which can efface the said crime altogether. Different stages of trafficking
are funded by various illicit financial activities, which include
transportation, logistics, proceeds from the selling and buying of
victims, movement of funds, etc. Therefore, uncovering the financial
network behind the trafficking operation is very crucial. According to
the counsel, the current capacity building measures of law enforcement
do not lay due emphasis on this important aspect.
62. It was also submitted that the effect of the 2019 amendment to the NIA
Act, which amended its schedule to include Sections 370 and 370A of
the IPC, 1860 respectively, has also not brought any real ground-level
change since the NIA has only taken up a few cases of human trafficking
for investigation, with a majority of them being cross-border ones.
63. Therefore, according to the learned counsel, it might not be entirely true
to say that the empowerment of the NIA to investigate the crimes
pertaining to human trafficking, in conjunction with the new criminal
laws, the ITPA and the existing schemes, meet the needs originally
envisioned for the OCIA and the proposed trafficking legislation.
64. Insofar as the AHTUs are concerned, it was submitted that despite
trafficking being mostly carried out as inter-State or cross border
operations, there is a lack of coordination between the AHTUs operating
in the different States. In addition to this, it was pointed out that the
AHTUs in most States are not designated police stations. Therefore, they
are constrained to play a very limited role in intelligence gathering and
rescue, after which the victims are mandatorily handed over to the local
police station.
Miscellaneous Application No. 530 of 2022 Page 31 of 297
65. As regards the “protective homes” provided for under Section 21 of the
ITPA the counsel submitted that the Ujjawala Homes (protective homes
under the ITPA) and the Swadhar Scheme (homes for women in
distress) have been merged and resultantly, all homes now fall within
the Shakti Sadan Scheme. This merging of different categories of homes
for vulnerable populations under one umbrella has led to a situation
where persons requiring different degrees of care (persons with mental
health issues, victims of domestic violence etc.) are being housed with
victims of trafficking who may exhibit violent behaviour in the initial
days of rescue and will need treatment for substance abuse, specialized
medical treatment etc. Even in its merged form, the counsel would
submit that there are several persistent issues which are faced by these
homes which include inter-alia inadequate standards of care, poor
budgeting and inadequate monitoring. The counsel also submitted that
recent data on the number of functional Shakti Sadans reveal that there
is a stark disparity between all the States/UTs. Owing to this, the idea
of rehabilitation has acquired different meanings and interpretations
across several parts of this country. In effect, she argues that there are
no real and tangible rehabilitation options provided for rescued adult
victims. Neither economic benefits nor spaces to enhance skills or
engage in education or technical development are effectively provided
within the present institutional framework.
66. Another aspect which the learned counsel pointed out was that, in
almost all cases, prosecution is initiated only against those
persons/perpetrators found at the place of the raid. Consequently, large
sections of the trafficking network including the procurers, transporters
etc. go scot-free despite forming an integral part of the criminal
Miscellaneous Application No. 530 of 2022 Page 32 of 297
network. According to the counsel, the reason behind several key
perpetrators slipping away is because the singular path to rescue,
investigation and prosecution begins with “mass raids” by law
enforcement at known areas of sex trafficking. The learned counsel is of
the view that “mass raids” must not be initiated unmindfully or in a
routine fashion, and adequate planning must precede it so that the
entire crime network can be uncovered.
67. Additionally, she would submit that requisite investigation and
prosecution under the Prevention of Money Laundering Act, 2002
(“ PMLA, 2002 ”) are also given a go-by. The capacity building and
training efforts for law enforcement also do not give due emphasis to
this crucial aspect. The counsel argued that not addressing the link
between money laundering and human trafficking would be
detrimental in combating CSE effectively since the different stages of
trafficking are funded by various illicit financial activities. Traffickers
use several novel methods including setting up frontal businesses to
carry out illegal activities under the radar or forcing the victims to open
bank accounts in their names which are then utilized for moving funds
and escaping detection.
68. It was submitted that the issue of forced prostitution and the
rehabilitation of such victims was also the central focus in Vishal Jeet
(supra) . Therein, it was noted that despite the existence of several laws,
the desired ground results were far from having been achieved. Due to
this, several directions were passed by this Court in Vishal Jeet (supra).
Pursuant to the same, a CAC on Trafficking was formed by the MWCD
in the year 1994. The CAC comprised of state officials, civil society
partners, police and other experts. The petitioner organization was also
Miscellaneous Application No. 530 of 2022 Page 33 of 297
a part of the CAC. However, it was stated that, to the petitioner’s
knowledge, the CAC has not been functioning for the past 12 years. The
State Advisory Boards/Committees which were created, after extensive
advocacy, have also stopped functioning.
69. It was also submitted that during the adjudication of the original writ
petition, CSE was primarily associated with prostitution, sex trafficking,
production and dissemination of sexual abuse material and sex tourism.
However, in the last few years, traditional CSE has integrated cyber-
elements, and the traffickers use the cyber space to recruit, coerce and
manage the victims. In other words, it was submitted that the pre-
existing intricate web of trafficking has gotten a lot denser and more
convoluted with the camouflage provided by technology.
70. In the last, the counsel would submit that, having supported a large
number of rescued victims over a period of time, the petitioner has
realised that the existing law and policy are not equipped, both in letter
and spirit, to holistically provide the requisite support to the trafficked
victims/survivors or to prevent trafficking and re-trafficking. The
modes and methods of committing the crime have also evolved
significantly. Law enforcement and rehabilitation programs work in
parallel tracks with no synergy or coordination. Rehabilitation efforts
are confined to tracing families and handing the rescued back to them
even if the families have been instrumental in the process of trafficking.
The counsel would submit that a continuum of protection, prosecution
and rehabilitation, keeping the victim’s interests at the forefront, is
completely lacking. Adequate resources in terms of manpower,
technical support, infrastructure etc. which is needed for a workable
system has not been created even to comply with existing statutory
Miscellaneous Application No. 530 of 2022 Page 34 of 297
requirements. Therefore, she would urge that there is a dire need for a
robust “ Victim Protection Plan ”, the contours of which be clearly
demarcated with legislative clarity. She would also urge that the
original commitments made by the respondent no.1, be implemented.
71. In view of the serious vacuum existing in both the law and policy arenas
combined with the changed stance of the respondent no.1 vis-à-vis the
enactment of a comprehensive legislation and the creation of the OCIA,
the counsel for the petitioner would pray that a thorough set of
guidelines and directions be issued by this Court in order to protect the
fundamental rights of the victims of trafficking for CSE.
D. Submissions on behalf of the respondent
72. Ms. Aishwarya Bhati, the learned ASG appearing on behalf of the
respondent would submit that they have complied with and remain
committed in implementing the directions given in the judgment of this
Court dated 09.12.2015 by which the original writ petition came to be
disposed of. It is the respondent no.1’s position that they have
undertaken extensive legislative, administrative and institutional
measures to address the multifaceted issue of human trafficking and
victim protection.
73. As regards a comprehensive legislation, especially one that addresses
prevention, pre-rescue, rescue, post-rescue and rehabilitation of
trafficked victims, it was submitted that, although a comprehensive Bill
was drafted in the year 2021, yet in view of the new developments that
ensued in the intervening period, it was decided that a separate law on
trafficking was not necessary since the existing legislations provide a
robust and comprehensive legal framework to combat trafficking. More
Miscellaneous Application No. 530 of 2022 Page 35 of 297
particularly, Sections 111, 143 and 144 of the BNS respectively address
various aspects of trafficking, including organised crime and Section
396 BNSS mandates State Governments to establish victim
compensation schemes.
74. For the purpose of effectively handling human trafficking cases which
have inter-state, national and international ramifications, it was
submitted that the NIA Act was amended in the year 2019 empowering
it to investigate the offence of human trafficking. The NIA’s jurisdiction
ensures that there exists effective national-level coordination, thereby
leading to more effective investigations and prosecutions.
75. With respect to shelter homes, it was submitted that a scheme called
“Mission Shakti” is being implemented across the country with
components like “Shakti Sadan – Integrated Relief and Rehabilitation
Home”. These homes cater to the needs of women who are destitute,
distressed, marginalized, or victims of trafficking. They provide shelter,
healthcare, psychological counselling and skill development, all aiming
to reintegrate the victims back into society.
76. The ASG would submit that the Government of India has also provided
financial assistance of Rs. 10 Lakhs from the Nirbhaya Fund for the
setting up/strengthening of each AHTU to the States/UTs and the
border security forces, respectively. As on January 2025, she would
submit that 827 AHTUs are functional, including those established by
the border security forces. These units play a vital role in enforcement,
victim identification and support, working closely with NGOs and State
agencies to ensure the protection and rehabilitation of trafficked
persons. Additionally, over 14,000 Women Help Desks (“ WHDs ”) have
Miscellaneous Application No. 530 of 2022 Page 36 of 297
also been established in police stations through financial assistance
given under the Nirbhaya Fund. These desks aim to make the police
stations more accessible and responsive to women’s needs in addition
to creating a safe and supportive environment for women to report
crimes.
77. Insofar as CEHT is concerned, it was submitted that the MHA has put
in place the Crime Multi-Agency Centre (“ Cri-MAC ”) which is a
national level communication platform for the online sharing of
information on crimes and criminals, including human trafficking for
CSE. This platform is said to operate on a 24x7 basis, facilitating the
seamless flow of information between various law enforcement
agencies. It was submitted that the Cri-MAC is instrumental in
addressing the growing concern of cyber-enabled CSE.
78. It was also submitted that training programs are being conducted in
order to sensitise law enforcement personnel, including lady police
officers about the crime of human trafficking and simultaneously
equipping them to gather the necessary skills required to handle victims
appropriately. In connection to this, it was further submitted that since
“Police” and “Public Order” fall under the State List as provided in the
Seventh Schedule to the Constitution, it is the primary responsibility of
the State governments to take necessary measures for the prevention,
investigation and prosecution of human trafficking cases. Therefore, it
was prayed that appropriate directions be issued to the State
governments to strengthen their actions in this regard.
79. In light of all the aforesaid, the ASG would submit that the NIA in
conjunction with the new criminal laws and the ITPA meets the needs
Miscellaneous Application No. 530 of 2022 Page 37 of 297
originally envisioned for the OCIA and a separate dedicated legislation.
In fact, it would be her submission that they constitute a “ more robust
framework ” for the handling of trafficking offences. Therefore, it was
prayed that the extensive measures undertaken by the respondent be
acknowledged and the present MA be disposed of.
V. ISSUES FOR CONSIDERATION
80. Having heard the learned counsel appearing for the parties and having
gone through the materials placed on record, the following seminal
questions fall for our consideration:-
(i) Whether, on a combined reading of Articles 21 and 23 of the
Constitution respectively, the victims of trafficking for CSE could
be said to be entitled to the right to rehabilitation?
(ii) Whether it could be said that there is a gap or lacuna in the
present legislative and institutional framework insofar as the
rescue, protection, rehabilitation and repatriation of the victims
of trafficking for CSE is concerned?
(iii) Whether it is necessary for this Court to direct the creation of the
OCIA for the investigation of offences pertaining to human
trafficking?
VI. ANALYSIS
A. Understanding Human Trafficking
81. Before turning to the legal framework governing trafficking, it is useful
to first understand what human trafficking means in ordinary terms,
and to examine the broader web of conditions and concepts that are
inseparably connected to it. This section accordingly examines: (i) the
Miscellaneous Application No. 530 of 2022 Page 38 of 297
lack of reliable data on the extent of trafficking; (ii) the structural
vulnerabilities that make certain populations acutely susceptible to
being trafficked, and (iii) why human trafficking must be approached
as a complex social phenomenon rather than a problem reducible to any
single cause or cure. Such grounding will illuminate the legal discussion
of various intricate issues that fall before us in this present matter.
82. Trafficking, in its colloquial sense, refers to trading in something that
should not be traded in for various social, economic or political reasons.
Hence, we have terms like drug trafficking, arms trafficking and human
trafficking. The concept of human trafficking refers to the criminal
practice of exploiting human beings by treating them like commodities
3
for profit. Thus, at the core of human trafficking are notions of
exploitation, commercialisation and commodification. Some scholars
have gone further, arguing that this trade in human beings reflects the
incremental commodification of the body itself, i.e., a cultural
decomposition of the human person, stripped progressively of spirit,
personhood, and vitality, until only the body remains, offered for
4
profit.
83. It is undeniable that human trafficking is a problem of epic proportions
that needs urgent attention. However, accurate data that clearly
delineates the extent of the problem is hard to come by at both the
5
national and international levels. Challenges to developing transparent
and reliable estimates are numerous. The most fundamental reason is
3
Sankar Sen & P.M. Nair, A Report on Trafficking in Women and Children in India 2002-2003 , 2 (Inst. of
Soc. Scis., Nat'l Hum. Rts. Comm'n & UNIFEM 2004).
4
Id at 11.
5
Prabha Kotiswaran, From Sex Panic to Extreme Exploitation: Revisiting the Law and Governance of Human
Trafficking , in Revisiting the Law and Governance of Trafficking, Forced Labor and Modern Slavery 1,
3 -4 (Prabha Kotiswaran ed., Cambridge Univ. Press 2017).
Miscellaneous Application No. 530 of 2022 Page 39 of 297
the nature of the crime itself: trafficking is largely hidden, and only a
small fraction of cases ever come to the attention of officials. Criminal
6
justice statistics, therefore, do not tell the whole story. Exacerbating this
issue of statistical inaccuracy are factors such as: (i) lack of international
standardisation of definitions along the lines of the Palermo Protocol
and (ii) nuances found in the interpretation of the definition of
7
trafficking. These factors have invariably led to challenges in
developing systems capable of accurately identifying and tracking the
menace of human trafficking.
84. Such apprehensions surrounding the lack of accurate data on trafficking
are particularly acute when dealing with the issue in India. This is
especially so given the very fragmented nature of the law dealing with
human trafficking in India (an aspect which we will explore in detail
elsewhere), the vast geography of the country and its cultural and social
diversity. All these factors only make it harder to identify and track
instances of human trafficking. The lack of reliable data is an important
limitation to keep in mind, as it serves as a caution against placing too
much reliance on any given statistic when evaluating issues relating to
human trafficking.
85. While much of the discussion in the later parts of this judgment would
revolve around looking at trafficking from a legal standpoint, it is
important not to lose sight of the fact that the root cause of trafficking
lies in multifarious social, political and structural vulnerabilities that
6
Cindy J. Smith & Kristiina Kangaspunta, Defining Human Trafficking and Its Nuances in a Cultural
Context , in Human Trafficking: Exploring the International Nature, Concerns, and Complexities 19, 2
& 24 (John Winterdyk, Benjamin Perrin & Philip L. Reichel eds., CRC Press 2012).
7
Id.
Miscellaneous Application No. 530 of 2022 Page 40 of 297
plague broad sections of this country’s population. These
vulnerabilities, among other things, include poverty, oppression, lack of
human rights, lack of social or economic opportunities, dangers from
conflict or instability and other similar conditions. These vulnerabilities,
often referred to as “push factors”, play a decisive role in people falling
into the trap of perpetrators of trafficking. On the other hand, there are
also factors that “pull” potential victims towards situations that
ultimately lead to their exploitation, such as the lure of better
employment, higher earnings, or simply a more secure life. In other
words, trafficking is a phenomenon that emerges when aspirations
collide with exploitation.
86. A critical connecting factor between structural vulnerability and
trafficking is migration. It is well established that there is a close linkage
between migration and trafficking. Thus, while not all migration is
trafficking, trafficking rarely occurs in the absence of migration. For a
large majority of this country’s population, migration is a survival and
livelihood strategy; the structural vulnerabilities that drive such
movement also create conditions conducive to coercion and deception.
Viewed from this vantage point, trafficking cannot be separated from
broader migration flows. Rather, it emerges from within them,
reflecting how systemic inequalities transform a survival strategy into a
8
pathway of exploitation.
87. Now, one might wonder why there is a need, especially for this Court,
to understand the interlinkages among human trafficking, migration,
8
For a brilliant exposition on this aspect, See generally K.C. Mujeebu Rahman, Precarity, Mobility, and the
Law: Reframing Human Trafficking in India , J. Hum. Trafficking (advance online publication 2025),
https://doi.org/10.1080/23322705.2025.2602121 .
Miscellaneous Application No. 530 of 2022 Page 41 of 297
and other factors of vulnerability. The reasons which necessitate such
an understanding are two-fold: (i) it helps us not lose sight of the fact
that the cause of trafficking lies not just in a single moment of coercion
but also within a host of complex social, economic, political and
9
structural factors. Consequently, any efforts to prevent, combat and
curtail human trafficking would necessarily have to address such
factors as well; and (ii) it provides a more nuanced understanding of
10
human trafficking by positioning it as a complex social phenomenon.
88. Human trafficking, as a concept, has been examined, dissected, and
debated by practitioners and scholars across diverse fields. This is only
natural, given the complexity of the phenomenon and the diversity of
actors involved. Each one agrees to the fact that human trafficking is one
of the worst forms of human exploitation. However, the convergence
ends there. Much of the debates and discussions surrounding human
trafficking have been compartmentalised, giving rise to multiple
distinct approaches to understand and combat trafficking, each
emphasising a different aspect of the problem and prescribing a
11
different set of solutions.
89. The criminal justice approach treats trafficking primarily as organised
transnational crime. Its tools are prosecution, tougher sentencing, and
stricter border controls. The human rights approach, by contrast, places
the trafficked person at the centre, insisting that the primary task is
victim protection, access to legal remedies, and the restoration of
9
Id.
10
Julie Kaye & John Winterdyk, Explaining Human Trafficking , in Human Trafficking: Exploring the
International Nature, Concerns, and Complexities 57, 72-74 (John Winterdyk, Benjamin Perrin & Philip
L. Reichel eds., CRC Press 2012).
11
Id at 58 -72; Also see - Veerendra Mishra, Combating Human Trafficking: Gaps in Policy and Law 32,
37-44(SAGE Publications 2015) (Chapter 2: Diverse Perspectives to Combat Human Trafficking).
Miscellaneous Application No. 530 of 2022 Page 42 of 297
dignity. Feminist approaches have occupied contested ground. On one
hand, we have proponents who view prostitution as inherently
exploitative and tend to treat all sex trafficking as inseparable from
prostitution itself. On the other hand, there are those who insist on
distinguishing between coerced and voluntary sex work and argue that
conflating the two causes more harm than good. The labour and
migration approach understands trafficking as a product of unequal
global labour markets and thus its prescriptions lean toward structural
reform, workers’ rights, and better regulation of migration pathways.
Each of these frameworks captures something real. Each also carries its
12
own limitations.
90. Such a bifurcated approach to human trafficking has not only given rise
to varying and contradictory strategies but has also acted as a stumbling
block in developing holistic approaches to effectively combat
trafficking. It is our firm view that human trafficking cannot be
understood, and still less effectively addressed, through any single lens.
To illustrate, a purely criminal justice response, however necessary it
may be, leaves untouched the structural vulnerabilities that
continuously supply the crime with victims. A purely structural
response, however well-intentioned, offers little immediate relief to
those already trapped in exploitation and in need of rescue and legal
redress. No single framework is sufficient to address the complexity of
the phenomenon, and effective anti-trafficking work requires, at its core,
a multidisciplinary approach. This is the frame within which this Court
wishes to approach and address the issues before it.
12
Id; See generally Maggy Lee, Introduction: Understanding Human Trafficking , in Human Trafficking 1
(Maggy Lee ed., Willan Publishing 2007).
Miscellaneous Application No. 530 of 2022 Page 43 of 297
91. The discussion in the foregoing paragraphs has established a number of
foundational points and thereby helped chart for this Court the
limitations and challenges it will face and must address when
discussing and deciding the issues before it in this matter. With this
understanding in place, we now turn to examine the legal landscape
that governs human trafficking. In the section that follows, this Court
will examine, in some detail, both the international and national legal
frameworks operative in India, dealing with human trafficking for CSE.
B. The legal landscape surrounding human trafficking for the
purposes of CSE
92. Before dealing with the myriad of issues before us in this matter, it
becomes essential to clearly understand the legal landscape
surrounding human trafficking for CSE, both at the international and
the national level. Only when we are clear as to what the law says, i.e.,
what it prohibits, what it allows, what it considers to be trafficking, will
we be able to answer the issues before us with clarity and conviction.
Thus, in this section, we will first briefly discuss the international legal
landscape of human trafficking, focusing specifically on the various
aspects of the Palermo Protocol. Thereafter, we will lay out and discuss
the plethora of legal instruments which are simultaneously at play in
India when dealing with the phenomenon of human trafficking for CSE.
i. International Legal Framework on Human Trafficking – The
Palermo Protocol
93. At the international level, the United Nations Convention against
Transnational Organised Crime is the primary legal instrument for
combating transnational organised crime. The Convention is
Miscellaneous Application No. 530 of 2022 Page 44 of 297
supplemented by three Protocols, each of which focuses on specific
types of organized crime and are as follows: the Palermo Protocol i.e.,
the Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children; the Protocol against the Smuggling of
Migrants by Land, Sea and Air; and the Protocol against the Illicit
Manufacturing of and Trafficking in Firearms, their Parts and
Components and Ammunition. For the subject matter of this petition,
we are solely concerned with the Palermo Protocol. There is no doubt
that to understand the full scope of the protocol, it needs to be read in
conjunction with a host of other interrelated international instruments.
However, in this section, we have restricted ourselves to discussing only
the Palermo Protocol, as it is the international instrument most helpful
for contextualising and furthering our understanding of trafficking and
the laws related to it in the Indian context.
94. The Palermo Protocol comprises 20 articles and is divided into four
parts: I. General provisions (articles 1 to 5); II. Protection of victims of
trafficking in persons (articles 6 to 8); III. Prevention, cooperation and
other measures (articles 9 to 13); and, IV. Final provisions (articles 14 to
20).
95. It will be instructive to examine the preamble to the Palermo Protocol
first. The adoption of the protocol was primarily rooted in the fact that,
despite the existence of a variety of international instruments containing rules
and practical measures to combat the exploitation of persons, especially women
and children, there was no universal instrument that addresses all aspects of
13
trafficking in persons . As per the preamble, the primary goal of the
13
Preamble, Protocol to Prevent, Suppress, and Punish Trafficking in Persons especially Women and
th th
Children (adopted 15 November 2000, entered into force 25 December 2003) 2237 U.N.T.S. 319.
Miscellaneous Application No. 530 of 2022 Page 45 of 297
protocol is to lay down measures: (i) to prevent trafficking, (ii) to punish
traffickers, and (iii) to protect the victims of such trafficking, including
by protecting their internationally recognised human rights. These three
goals of prevention, punishment, and protection have commonly been
14
referred to as the 3P’s of the Palermo Protocol.
a. Definition of the term “Trafficking in Persons”
96. Before we delve into how the protocol addresses each of the 3P’s, it is
important to briefly discuss the definition and its various elements in
some depth. Since the definition of trafficking incorporated into Indian
law largely follows that of the Palermo Protocol, any discussion on the
Protocol’s definition will also be helpful, at least on a very broad level,
for understanding the definition in the Indian context.
97. Until December 2000, the term “trafficking in persons” lacked an
international definition despite its inclusion in several legal
instruments. This long-standing failure stemmed from significant
differences of opinion regarding the ultimate outcome of trafficking, its
15
defining acts, and their relative importance. This changed after the
adoption of the Palermo Protocol, which, under Article 3, defined the
term. To quickly recapitulate our discussion on the definition: (i) the
three elements (actions, means, and purpose) cumulatively constitute
the crime of trafficking; (ii) consent of a victim of trafficking in persons
14
Yoon Jin Shin, A Transnational Human Rights Approach to Human Trafficking: Empowering the
Powerless 222, 230-232 (Brill Nijhoff 2017) (Chapter 6: International Human Rights Law in the Context
of Human Trafficking).
15
U.N. Office on Drugs and Crime, The International Legal Definition of Trafficking in Persons: Consolidation
of Research Findings and Reflection on Issues Raised 1-2 (2019),
https://www.unodc.org/documents/human-
trafficking/2018/Issue_Paper_International_Definition_TIP.pdf
Miscellaneous Application No. 530 of 2022 Page 46 of 297
shall be irrelevant where any of the means have been used; and (iii) the
‘means’ element is not a prerequisite when the crime involves children.
•
‘Action’ Element
98. The first component of the definition, the ‘action’ element, is one part
(and in the case of trafficking in children, the only part) of the definition
that will constitute the actus reus of trafficking. This element can be
fulfilled by a variety of activities, including, but not limited to, the
undefined practices of recruitment, transportation, transfer,
16
harbouring, or receipt of persons. The language employed in the
‘action’ element is such that it sufficiently covers any acquisition of a
17
person. Further, the actions mentioned are disjunctive or alternatives
to one another; the presence of any one suffices. Further, it is not an
essential requirement of trafficking in persons that the victim be
18
physically moved.
99. The ‘action’ element of trafficking carries implications of what is to
come, i.e., the underhandedness and trickery employed by the trafficker
which comprises the second element of the process: the ‘means’, which
in turn qualifies the action and makes it part of human trafficking.
16
U.N. Office on Drugs and Crime, Abuse of a Position of Vulnerability and Other “Means” Within the
Definition of Trafficking in Persons 16 (2013), https://www.unodc.org/documents/human-
trafficking/2012/UNODC_2012_Issue_Paper_-_Abuse_of_a_Position_of_Vulnerability.pdf .
17
Jessica Elliott, The Role of Consent in Human Trafficking 47, 53-58 (Routledge 2014) (Chapter 3:
Defining Trafficking: The Evolution of an International Legal Definition).
18
U.N. Office on Drugs and Crime, Legislative Guide for the Protocol to Prevent, Suppress and Punish
Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention
against Transnational Organized Crime 29 (2020),
https://www.unodc.org/documents/treaties/Review_Mechanism/Review_Mechanism_2020/Webs
ite/Legislative_Guide_on_TiP/TiP_LegislativGuide_Final.pdf
Miscellaneous Application No. 530 of 2022 Page 47 of 297
• ‘Means’ Element
100. The second part of the actus reus of trafficking, the ‘means’ element, is
relevant only to trafficking in adults. This aspect of the definition
confirms the position already reflected in earlier treaties on the subject:
individuals can end up in a situation of exploitation through indirect
methods such as deception and fraud, as well as through physical force.
The ‘means’ follows on from the ‘action’, and refers to the manner in
which the action is executed. It is important to note that none of the
stipulated ‘means’ are defined, and there appears to be significant
overlap between them.
101. As per an Issue paper published by the UNODC the various ‘means’
listed out in the definition ( threat or use of force or other forms of coercion,
abduction, fraud, deception, the abuse of power or of a position of vulnerability )
are of such a nature that they sufficiently cover not only “direct means”
(such as threats, force, coercion, abduction) but also “less direct
means”(such as fraud, deception and abuse of power or position of
19
vulnerability).
•
‘Exploitation’ Element
102. The final element of the definition, ‘for the purpose of exploitation’,
introduces a mens rea requirement into the definition. Trafficking will
occur if the implicated individual or entity intended that the action
(which, in the case of trafficking in adults, must have occurred or been
19
Supra note 16 at 17.
Miscellaneous Application No. 530 of 2022 Page 48 of 297
made possible through one of the stipulated means) would lead to
20
exploitation.
103. Instead of explicitly defining the term ‘exploitation’, the Trafficking
Protocol specifies a minimum list, saying, “ Exploitation shall include, at a
minimum, the exploitation of the prostitution of others or other forms of sexual
exploitation, forced labour or services, slavery or practices similar to slavery,
servitude or the removal of organs .” By introducing the phrase “at a
minimum” into an international treaty, it is implied that a national
legislation can incorporate a more extensive list of forms of exploitation,
allowing for definitions of human trafficking to differ from country to
21
country. Exploitation as a concept is generally associated with
particularly harsh and abusive conditions of work, or “conditions of
22
work inconsistent with human dignity”
104. The requirement to show “means” affirms that exploitative conditions
alone are insufficient to establish trafficking of adults. Thus, not all
exploitation is trafficking. The forms of exploitation stipulated in the
Protocol’s definition of trafficking are not ‘trafficking’ under the
instrument unless the other required element(s) (act/means) are also
established. The only exception to this relates to trafficking in children,
the definition of which does not contain a means element. To illustrate ,
agreement to work in a situation that may be considered exploitative
will not constitute trafficking if that agreement was secured and
20
U.N. Office on Drugs and Crime, The Concept of ‘Exploitation’ in the Trafficking in Persons Protocol 24
(2015), https://www.unodc.org/documents/congress/background-
information/Human_Trafficking/UNODC_2015_Issue_Paper_Exploitation.pdf
21
Michael Dottridge, Trafficked and Exploited: The Urgent Need for Coherence in International Law , in
Revisiting the Law and Governance of Trafficking, Forced Labor and Modern Slavery 59, 60 (Prabha
Kotiswaran ed., Cambridge Univ. Press 2017).
22
Supra note 20 at 26.
Miscellaneous Application No. 530 of 2022 Page 49 of 297
continues to operate without deployment of any of the means stated in
the definition. While exploitation alone may involve criminal offences
and human rights violations, “means” must be used to constitute
trafficking of adults within the confines of the Palermo Protocol.
105. Since the focus of the present petition is on human trafficking for the
purposes of sexual exploitation, it would also be helpful to try to gauge
the meaning of the terms “ exploitation of the prostitution of others or other
forms of sexual exploitation” i.e., forms specific to the sexual exploitation.
Both the terms, while clearly broader than the term ‘prostitution’, have
been left undefined under International Law, including in the Palermo
Protocol. This was presumably because there was significant
disagreement among states over the meaning of the terms, and the
decision to leave them undefined was the only viable path to progress.
The main reasons behind the disagreement were the differing policies
23
and laws to be found within many countries regarding adult sex work.
Thus, leaving such terms undefined allowed each state to give the terms
the meaning that would allow them to be enforced in consonance with
24
pre-existing laws on prostitution and/or sex work.
106. ‘Exploitation of the prostitution of others’ is generally understood as
referring to profiting from the prostitution of another person. In that
sense, it operates to establish the locus of (usually criminal) conduct in
a person other than the prostitute. The term first appeared in
international law in the 1949 Convention, however, it also does not
provide a definition. The little international guidance available on the
possible scope of ‘sexual exploitation’ includes a proposal in the
23
Supra note 20 at 27-29.
24
Id.
Miscellaneous Application No. 530 of 2022 Page 50 of 297
UNODC Model Law that the term be defined in national law to mean
the obtaining of financial or other benefits through the involvement of
another person in prostitution, sexual servitude or other kinds of sexual
services, including pornographic acts or the production of pornographic
25
materials.
• Irrelevance of Consent
107. The baseline established by the Palermo Protocol is that the consent of
an adult victim to the intended exploitation is irrelevant if any of the
listed ‘means’ are used. The consent of a child victim of trafficking is
irrelevant, regardless of whether or not ‘means’ have been used. The
protocol does not say that the use of means must operate to invalidate
26
or damage consent. Lack of consent is not an element of the crime of
trafficking in persons. Thus, the focus should be firmly on the actions
and intentions of the perpetrators, and once the elements of the crime of
trafficking, including the use of one of the identified means (coercion,
deception, etc.), are proven, any defence or allegation that the victim
27
‘consented’ should be deemed to be irrelevant. It also means, for
example , that a person’s awareness of being employed in the sex industry
or in prostitution does not exclude such a person from becoming a
victim of trafficking. While being aware of the nature of the work, the
person may have been misled as to the conditions of work, which turned
28
out to be exploitative.
25
Id.
26
U.N. Office on Drugs and Crime, The Role of 'Consent' in the Trafficking in Persons Protocol (2014) 25,
https://www.unodc.org/documents/human-
trafficking/2014/UNODC_2014_Issue_Paper_Consent.pdf .
27
Id at 27-28.
28
Id.
Miscellaneous Application No. 530 of 2022 Page 51 of 297
b. Definitional uncertainties
108. Based on the discussion in the preceding section, the foundational
elements of what constitutes trafficking are intelligible and lucid.
However, the exact scope that some of the elements of the definition
entail is hazy and not well-established. This lack of coherence is only to
be expected, given that the definition has either left many terms
undefined or provided no clarity about the exact scope they would
cover.
109. A discussion on each of the undefined elements of the ‘acts’, ‘means’
29
and ‘purposes’ components is beyond the scope of this judgment.
Further, the debates surrounding the definitional ambiguities in the
Palermo Protocol are wide, convoluted, and ongoing. We do not wish
to explore either the undefined terms or the debates surrounding the
definitional ambiguity in depth here. Rather, our aim here is modest: to
draw the reader’s attention to certain problems that are inherent in the
definition which, rather than being merely academic, also tend to have
practical and real consequences.
110. The lack of coherence with respect to the definition is most stark when
dealing with the ‘means’ and ‘purpose’ elements. Both the ‘means’ and
‘purpose’ elements do not describe single fixed conditions but rather
span a broad continuum of possibilities. Consider the ‘means’ element
first. At one end of the spectrum sit what might be called strong means:
the use of physical force, abduction, or outright fraud. Understanding
what these terms entail and the kinds of activities they encompass is
fairly easy to gauge and non-controversial. On the other end of the
29
For an instructive guide on this See generally – Supra note 18.
Miscellaneous Application No. 530 of 2022 Page 52 of 297
spectrum, we have what we might call weak means: deception, abuse
of power or vulnerability. These are, of course, ambiguous terms that
could possibly encompass a very wide variety of acts.
111. The same continuum applies to the ‘purposes’ element as well. At one
end of the spectrum lie certain exploitative practices which are
considered to be egregious and completely unacceptable, such as those
relating to slavery or forced labour and would thus fulfil the ‘purposes’
element. Whilst at the other end of the spectrum are those practices,
which, despite being morally reprehensible, would not be considered to
fulfil the ‘purpose’ element. All forms and manifestations of
exploitation that do not belong at either end lie somewhere along this
continuum. Whether or not such forms of exploitation can be
considered to be fulfilling the ‘purposes’ element is the pertinent
question that arises in a plethora of cases. The UNODC’s legislative
guide also acknowledges this aspect:
“Certain forms of exploitation raise particular practical and
evidentiary challenges. Some forms of exploitation are often hidden
within legitimate industries and therefore difficult to identify.
Furthermore, it may be difficult in practice to delineate exploitative
conduct, in the criminal sense, from conduct that may be more akin
to bad working conditions and thus best addressed through other
30
non-criminal measures.”
(Emphasis Supplied)
112. This ambiguity, rooted in the continuum, is exacerbated by the fact that
the definition provides no guidance on the required threshold of
severity. The definition does not tell us how serious the ‘means’ must
be or how extreme the exploitation must be for the situation to qualify
30
Supra note 18 at 33.
Miscellaneous Application No. 530 of 2022 Page 53 of 297
as trafficking. Consequently, despite understanding trafficking as an
offence that falls along a continuum, there is a lack of normative clarity
as to where along the continuum trafficking actually begins.
113. Scholars have contended that this persistent doubt regarding the exact
scope of the offence of trafficking has led to anti-trafficking offences
proving ineffective in comparison to other serious offences, such as
31
homicide or rape, for which conviction rates are higher. While it can
be argued that the main culprit for the low conviction rates is the lack
of effective enforcement, it cannot be ignored that the lack of normative
clarity regarding the legal norms surrounding trafficking only
compounds the problem, i.e., lack of clarity around legal norms leads to
hesitancy in pursuing legal measures against trafficking offences.
Further, such confusion or lack of coherence is almost certainly in the
interests of individuals who exploit others, rather than in the interests
32
of those who are exploited and are supposed to be protected by law.
114. There is no doubt that defining human trafficking clearly is crucial. It is
intended to identify a crime that can be detected and prosecuted. In
other words, the point along the continuum where trafficking begins is
significant because it marks the actions that will be dealt with under the
criminal law regime. As one leading scholar on Human trafficking
notes:
“The stakes for definitional clarity (and indeed definitional
ambiguity) are high because to characterize certain conduct as
trafficking has substantial and wide-ranging consequences for
States, for the perpetrators of that conduct and for the victims. Of
relevance to States, for example, is the fact that the identification of
31
Supra note 5 at 6.
32
Supra note 21 at 77.
Miscellaneous Application No. 530 of 2022 Page 54 of 297
a particular practice as trafficking brings that practice within the
various monitoring and compliance mechanisms that have evolved
at the international, regional and national levels. Criminals involved
in a practice that is determined to be trafficking are likely to be
subject to a different and typically harsher legal regime than would
be applicable if they were charged with an alternative offence.
Persons who are identified as victims of trafficking are entitled to
special measures of assistance, support and protection, measures that
may be withheld from those who, for one reason or another, are not
33
assessed as having been trafficked ”.
115. However, achieving definitional clarity and delineating the scope and
contours of the offence of trafficking are easier said than done. This is
because the decision not to provide definitions or set forth the scope of
the terms was not an oversight but rather a conscious decision taken by
the framers of the protocol. The struggle for an international legal
definition of trafficking pre-dates the Palermo Protocol by many
decades. The key disagreements between States that prevented the
emergence of a consensus were not resolved during the negotiations of
34
this instrument. The definition of trafficking agreed in 2000 reflects the
many compromises that ultimately permitted its formulation and
adoption. Thus, the ambiguity was not accidental, but rather, part of a
broader effort to create a definition of trafficking that all States could
35
agree to. Further, the malleability of the definition, as frustrating as it
can be, allows states to tailor the offence to their needs and political,
ethical, and normative desires. This becomes all the more important
when we consider the fact that cultural and other social factors inherent
to a particular place play a significant role in shaping perceptions of
33
Anne T. Gallagher, The International Legal Definition of "Trafficking in Persons": Scope and Application ,
in Revisiting the Law and Governance of Trafficking, Forced Labor and Modern Slavery 83, 86(Prabha
Kotiswaran ed., Cambridge Univ. Press 2017).
34
Supra note 15.
35
Id.
Miscellaneous Application No. 530 of 2022 Page 55 of 297
what constitutes exploitative conduct for the purposes of establishing
trafficking.
116. Further, the flexibility inherent in the definition need not always be
viewed as a detriment or an impediment to the development of anti-
trafficking endeavours. In fact, given the nature of the trafficking
offence, it may very well be a necessity. The sociological indeterminacy
of the coercion-exploitation continuum does not easily lend itself to neat
standards. Similarly, patterns of exploitation change over time, often
leaving behind legal definitions rooted in a particular socio-economic
context. Further, the complexity of the trafficking cases makes it difficult
to apply standard definitions to specific instances. In the context of
slavery, Bales said that people are inventive and flexible, and the
36
permutations of human violence and exploitation are infinite. This is
equally applicable to the concept of trafficking. Under such
circumstances, ambiguities around the definition cannot, and indeed
should not, be definitively resolved.
117. Viewed in this context, the Protocol’s definition of trafficking embodies
both compromise and a desire for flexibility. However, whilst ensuring
flexibility, the final text of the definition also provides a sufficiently clear
37
indication that it is not intended to be overly broad or open-ended.
Drawing a clear line that would establish which cases would or would
not be considered as ‘trafficking’ is neither possible nor desirable.
However, care needs to be taken to ensure that the definition is not
interpreted in an extreme manner, i.e., a very rigid and inflexible
36
Supra note 3 at 23.
37
Supra note 33 at 87.
Miscellaneous Application No. 530 of 2022 Page 56 of 297
interpretation that makes it underinclusive or an overly broad and
open-ended interpretation that makes it overinclusive. To the extent
possible, a balancing exercise needs to be undertaken, as only that
would be in line with the intention that the framers of the protocol had
in mind. Further, when deciding whether or not an act should be
classified as trafficking, consideration should be given to the totality of
the circumstances and the fact that trafficking is a criminal offence
intended to cover instances in which individuals are moved into and/or
maintained in a situation of serious exploitation through means that
38
were themselves highly abusive.
118. It would be incomplete to close this discussion of the Palermo Protocol’s
definition by cataloguing only its ambiguities and limitations. The
definition has achieved something that had eluded the international
community for decades: a workable, widely adopted framework for
understanding and criminalising trafficking. Trafficking has now been
criminalised in the vast majority of countries worldwide, with most
domestic definitions reproducing or closely reflecting the three
elements forming part of the Protocol’s definition. However, the
definition’s biggest achievements lie in the fact that: (i) it pushed
trafficking discourse away from its preoccupation with the sexual
exploitation of women, ensuring it encompasses all genders and a wide
spectrum of exploitative practices and; (ii) it brought into the ambit of
trafficking not only those who directly exploit victims but also those
who recruit, transport, and facilitate people for the purposes of such
exploitation, i.e., the full chain of the trafficking operation.
38
Id.
Miscellaneous Application No. 530 of 2022 Page 57 of 297
c. Prosecution, Protection and Prevention
119. In order to ensure that the definition provided in Article 3 was given
effect in domestic criminal laws, the protocol under Article 5 obligates
state parties to adopt legislative and other measures as may be
necessary to establish as criminal offences the conduct set forth in
Article 3. Article 5 reads thus:
“1. Each State Party shall adopt such legislative and other measures
as may be necessary to establish as criminal offences the conduct set
forth in article 3 of this Protocol, when committed intentionally.
2. Each State Party shall also adopt such legislative and other
measures as may be necessary to establish as criminal offences:
(a) Subject to the basic concepts of its legal system, attempting to
commit an offence established in accordance with paragraph 1 of this
article;
(b) Participating as an accomplice in an offence established in
accordance with paragraph 1 of this article; and
(c) Organizing or directing other persons to commit an offence
established in accordance with paragraph 1 of this article.”
(Emphasis Supplied)
120. Criminalization is central to suppressing and punishing trafficking in
persons and to give effect to the purposes of the protocol. The protocol
also makes it clear that the criminalization obligations are not limited to
completed offences or the principal actors in the commission of the
trafficking offence. It puts an obligation on states to extend the ambit of
criminal law to (i) situations in which perpetrators attempt to traffic; (ii)
persons who knowingly participate as aiders or facilitators, and (iii) to
organisers and directors who oversee trafficking ventures and instruct
Miscellaneous Application No. 530 of 2022 Page 58 of 297
others to commit offences without necessarily becoming directly
involved in trafficking themselves.
121. Trafficking in persons is a serious crime and involves victims whose
rights need to be protected and who are in need of assistance and
support. Many victims are severely traumatised by their experiences
and may have special vulnerabilities and protection needs. For these
reasons, one of the stated purposes of the Palermo Protocol under
article 2 subparagraph (b) is the protection and assistance of victims of
trafficking, with full respect for their human rights. Article 6 of the
Palermo Protocol deals with the assistance to and protection of victims
of trafficking in persons and reads thus:
“1. In appropriate cases and to the extent possible under its domestic
law, each State Party shall protect the privacy and identity of victims
of trafficking in persons, including, inter alia, by making legal
proceedings relating to such trafficking confidential.
2. Each State Party shall ensure that its domestic legal or
administrative system contains measures that provide to victims of
trafficking in persons, in appropriate cases:
(a) Information on relevant court and administrative proceedings;
(b) Assistance to enable their views and concerns to be presented and
considered at appropriate stages of criminal proceedings against
offenders, in a manner not prejudicial to the rights of the defence.
3. Each State Party shall consider implementing measures to provide
for the physical, psychological and social recovery of victims of
trafficking in persons, including, in appropriate cases, in cooperation
with non-governmental organizations, other relevant organizations
and other elements of civil society, and, in particular, the provision
of:
(a) Appropriate housing;
Miscellaneous Application No. 530 of 2022 Page 59 of 297
(b) Counselling and information, in particular as regards their legal
rights, in a language that the victims of trafficking in persons can
understand;”
4. Each State Party shall take into account, in applying the
provisions of this article, the age, gender and special needs of victims
of trafficking in persons, in particular the special needs of children,
including appropriate housing, education and care.
5. Each State Party shall endeavour to provide for the physical safety
of victims of trafficking in persons while they are within its territory.
6. Each State Party shall ensure that its domestic legal system
contains measures that offer victims of trafficking in persons the
possibility of obtaining compensation for damage suffered.
(Emphasis Supplied)
122. The measures provided under Article 6 seek to protect victims from
further harm and retaliation, support their recovery, minimise
stigmatisation, protect their privacy and physical safety, assist in their
rehabilitation and reintegration, facilitate their participation in legal
proceedings, and enable them to remain informed about proceedings
and obtain compensation for the damages suffered. Further, Article 6
provides that, when providing assistance under the article, the age,
gender, and special needs of the victim should be taken into account,
thus bringing individualised care within the ambit of the protocol.
123. The protection measures in the Protocol are not exhaustive and should
be read in light of other relevant binding and non-binding human rights
instruments and guidelines. Victims of trafficking have rights available
to all human beings, independent of their status as victims of trafficking,
Miscellaneous Application No. 530 of 2022 Page 60 of 297
and are entitled to general protection measures available to all victims
39
of crime.
124. Article 7 of the Protocol calls on States Parties to consider adopting
legislative or other appropriate measures that permit foreign trafficked
persons to remain in the territory of the receiving State, temporarily or
permanently, in appropriate cases. Article 7 reflects the view of the
drafters of the Protocol that victims of trafficking who are not nationals
or permanent residents of the receiving State and who have no other
legal right to stay in that country deserve special consideration within
the immigration system.
125. Article 8 of the Palermo Protocol concerns measures regarding the
repatriation of victims of trafficking. In some cases, return of victims to
their home State can have serious consequences. It may be used by
traffickers as a threat, for reprisals, and may involve risks of
stigmatisation and re-trafficking. Recognising this, the Palermo Protocol
requires that the return be carried out with due regard for the safety of
victims. Article 8 of the Palermo Protocol reads thus:
“1. The State Party of which a victim of trafficking in persons is a
national or in which the person had the right of permanent residence
at the time of entry into the territory of the receiving State Party
shall facilitate and accept, with due regard for the safety of that
person, the return of that person without undue or unreasonable
delay.
2. When a State Party returns a victim of trafficking in persons to a
State Party of which that person is a national or in which he or she
had, at the time of entry into the territory of the receiving State
Party, the right of permanent residence, such return shall be with
due regard for the safety of that person and for the status of any legal
39
Supra note 18 at 55.
Miscellaneous Application No. 530 of 2022 Page 61 of 297
proceedings related to the fact that the person is a victim of trafficking
and shall preferably be voluntary.
3. At the request of a receiving State Party, a requested State Party
shall, without undue or unreasonable delay, verify whether a person
who is a victim of trafficking in persons is its national or had the
right of permanent residence in its territory at the time of entry into
the territory of the receiving State Party.
4. In order to facilitate the return of a victim of trafficking in persons
who is without proper documentation, the State Party of which that
person is a national or in which he or she had the right of permanent
residence at the time of entry into the territory of the receiving State
Party shall agree to issue, at the request of the receiving State Party,
such travel documents or other authorization as may be necessary to
enable the person to travel to and re-enter its territory.
5. This article shall be without prejudice to any right afforded to
victims of trafficking in persons by any domestic law of the receiving
State Party.
6. This article shall be without prejudice to any applicable bilateral
or multilateral agreement or arrangement that governs, in whole or
in part, the return of victims of trafficking in persons.”
(Emphasis Supplied)
126. Effectively addressing trafficking in persons must involve not only
measures criminalising and combating trafficking in persons but also
measures aimed at preventing it from occurring in the first place.
Article 9 of the Trafficking in Persons Protocol sets out several
prevention measures that States Parties shall take or shall endeavour to
take. These measures include general prevention measures, research
and information campaigns, cooperation with non-governmental
organisations and other parts of civil society, measures addressing the
factors that make persons vulnerable to trafficking and discouraging the
demand that fosters exploitation of persons. Article 9 of the Palermo
Protocol reads thus:
Miscellaneous Application No. 530 of 2022 Page 62 of 297
“1. States Parties shall establish comprehensive policies,
programmes and other measures:
(a) To prevent and combat trafficking in persons; and
(b) To protect victims of trafficking in persons, especially women and
children, from revictimization.
2. States Parties shall endeavour to undertake measures such as
research, information and mass media campaigns and social and
economic initiatives to prevent and combat trafficking in persons.
3. Policies, programmes and other measures established in
accordance with this article shall, as appropriate, include cooperation
with non-governmental organizations, other relevant organizations
and other elements of civil society.
4. States Parties shall take or strengthen measures, including
through bilateral or multilateral cooperation, to alleviate the factors
that make persons, especially women and children, vulnerable to
trafficking, such as poverty, underdevelopment and lack of equal
opportunity.
5. States Parties shall adopt or strengthen legislative or other
measures, such as educational, social or cultural measures, including
through bilateral and multilateral cooperation, to discourage the
demand that fosters all forms of exploitation of persons, especially
women and children, that leads to trafficking.”
(Emphasis Supplied)
127. Article 11 of the Trafficking in Persons Protocol deals with border
measures for preventing trafficking in persons through detecting
traffickers and victims of trafficking and sets out several measures that
state parties must take with respect to the same.
Miscellaneous Application No. 530 of 2022 Page 63 of 297
ii. Domestic Legal Framework on Human Trafficking for the
purposes of CSE
128. The legal infrastructure addressing human trafficking for the purposes
of CSE in India is broad but fragmented, comprising of multiple
statutory instruments. In this sub-section, our aim is to discuss the legal
instruments and the applicable provisions therein, particularly those
that have bearing on trafficking for the purposes of CSE. In our
examination, we will also delineate who is considered a victim of
trafficking under the Indian regime. This question is of particular
relevance under the ITPA, owing to the unique nature of what it seeks
to regulate.
129. We will – first, discuss Article 23, the anti-exploitation right provided in
Part III of the Indian Constitution. Secondly , we will discuss relevant
provisions from (i) ITPA (ii) BNS and (iii) the Juvenile Justice (Care and
Protection of Children) Act, 2015 (“ JJA ”) & POCSO, i.e., statutory
instruments which are most relevant when dealing with instances of
trafficking for CSE. Lastly , to provide a holistic picture, we will also
briefly discuss the policies already in place to address the needs of
trafficking victims. While there are a host of other legislative
instruments relevant to trafficking for non-CSE purposes, they don’t
warrant discussion given the scope of issues before us in this matter.
a. Article 23 of the Constitution – Prohibition of traffic in human
beings and forced labour
130. Article 23 is placed under the caption “Rights against exploitation” in
Part III of the Indian Constitution and reads thus:
Miscellaneous Application No. 530 of 2022 Page 64 of 297
(1) Traffic in human beings and beggar and other similar forms
of forced labour are prohibited and any contravention of this
provision shall be an offence punishable in accordance with law.
(2) Nothing in this article shall prevent the State from imposing
compulsory service for public purpose, and in imposing such service
the State shall not make any discrimination on grounds only of
religion, race, caste or class or any of them.
(Emphasis Supplied)
131. Article 23 (1) embodies two declarations: (i) the prohibition of traffic in
human beings, begar and other similar forms of forced labour; and (ii)
any contravention of such prohibition being an offence punishable in
accordance with law.
132. The constitutional concept enshrined in Article 23 is to provide citizens
with a fundamental right of guarantee against exploitation. To
understand the scope of Article 23 and the intention behind its inclusion
in Part III of the Constitution, it would be instructive to look at the
observations made by this Court in People’s Union for Democratic
Rights v. Union of India, reported in (1982) 3 SCC 235. In this case, this
Court was dealing with a writ petition alleging violations of various
labour law regulations affecting workers engaged in construction
activities for the Asian Games to be held in India. On the scope of Article
23 and the intention behind its inclusion in Part III, the Court observed
as follows:
“12 [...] Now many of the fundamental rights enacted in Part III
operate as limitations on the power of the State and impose negative
obligations on the State not to encroach on individual liberty and
they are enforceable only against the State. But there are certain
fundamental rights conferred by the Constitution which are
enforceable against the whole world and they are to be found inter
alia in Articles 17, 23 and 24. [...] It is Article 23 with which we are
concerned and that article is clearly designed to protect the
Miscellaneous Application No. 530 of 2022 Page 65 of 297
individual not only against the State but also against other private
citizens. Article 23 is not limited in its application against the State
but it prohibits “traffic in human being and begar and other similar
forms of forced labour” practised by anyone else. The sweep of Article
23 is wide and unlimited and it strikes at “traffic in human beings
and begar and other similar forms of forced labour” wherever they
are found. The reason for enacting this provision in the Chapter on
Fundamental Rights is to be found in the socio-economic condition
of the people at the time when the Constitution came to be enacted.
The Constitution-makers, when they set out to frame the
Constitution, found that they had the enormous task before them of
changing the socio-economic structure of the country and bringing
about socio-economic regeneration with a view to reaching social and
economic justice to the common man. Large masses of people, bled
white by wellnigh two centuries of foreign rule, were living in abject
poverty and destitution, with ignorance and illiteracy accentuating
their helplessness and despair. The society had degenerated into a
status-oriented hierarchical society with little respect for the dignity
of the individual who was in the lower rungs of the social ladder or
in an economically impoverished condition. The political revolution
was completed and it had succeeded in bringing freedom to the
country but freedom was not an end in itself, it was only a means to
an end, the end being the raising of the people to higher levels of
achievement and bringing about their total advancement and
welfare. Political freedom had no meaning unless it was accompanied
by social and economic freedom and it was therefore necessary to
carry forward the social and economic revolution with a view to
creating socio-economic conditions in which every one would be able
to enjoy basic human rights and participate in the fruits of freedom
and liberty in an egalitarian social and economic framework. It was
with this end in view that the Constitution-makers enacted the
directive principles of state policy in Part IV of the Constitution
setting out the constitutional goal of a new socio-economic order.
Now there was one feature of our national life which was ugly and
shameful and which cried for urgent attention and that was the
existence of bonded or forced labour in large parts of the country.
This evil was the relic of a feudal exploitative society and it was
totally incompatible with the new egalitarian socio-economic order
which “we the people of India” were determined to build and
constituted a gross and most revolting denial of basic human dignity.
It was therefore necessary to eradicate this pernicious practice and
wipe it out altogether from the national scene and this had to be done
Miscellaneous Application No. 530 of 2022 Page 66 of 297
immediately because with the advent of freedom, such practice could
not be allowed to continue to blight the national life any longer.
Obviously, it would not have been enough merely to include
abolition of forced labour in the directive principles of state policy,
because then the outlawing of this practice would not have been
legally enforceable and it would have continued to plague our
national life in violation of the basic constitutional norms and values
until some appropriate legislation could be brought by the legislature
forbidding such practice. The Constitution-makers therefore decided
to give teeth to their resolve to obliterate and wipe out this evil
practice by enacting constitutional prohibition against it in the
Chapter on Fundamental Rights, so that the abolition of such
practice may become enforceable and effective as soon as the
Constitution came into force. This is the reason why the provision
enacted in Article 23 was included in the Chapter on Fundamental
Rights. The prohibition against “traffic in human beings and begar
and other similar forms of forced labour” is clearly intended to be a
general prohibition, total in its effect and all pervasive in its range
and it is enforceable not only against the State but also against any
other person indulging in any such practice.
(Emphasis Supplied)
133. It is evident from the above that the reasons behind the inclusion of
Article 23 in Part III of the Constitution were not incidental. At the time
of independence, the social and economic conditions of the majority of
the country’s population were very abject. There was little respect for
the dignity of those who formed the lower echelons of the social or
economic ladder. The constitution makers realised that political
freedom would not be fruitful without social and economic conditions
that would enable people to enjoy basic human rights and participate
effectively in society. Directive principles were thus effectuated, setting
out the social and economic goals.
134. However, the exploitative structures and practices in place were so
severe and abject that the constitution-makers thought it unwise to
Miscellaneous Application No. 530 of 2022 Page 67 of 297
include a prohibition against such structures and practices in Part IV.
Inclusion in Part IV would have subjected their abolition to further
legislative action. The constitution makers, therefore, decided to give
teeth to their resolve by enacting a constitutional prohibition against
such practices and structures in Part III, thereby making it enforceable
and effective as soon as the Constitution came into force. The
significance of this choice cannot be overstated. By placing this
prohibition in Part III, the constitution makers ensured that it would
attain the status of a fundamental right and, consequently, be afforded
the highest possible protection and enforcement.
135. Further, two other crucial points regarding the scope and ambit of Article
23 become evident: ( i) first, the sweep of Article 23 is wide and unlimited,
and it strikes against traffic in human beings in whatever form it is found,
i.e., the term used in the Article is ‘traffic in human beings’, which is
40
evidently a very wide expression ; and (ii) second, Article 23 is not
limited in its applications against the State, but it prohibits “trafficking in
human beings and begar and other forms of forced labour” practised by
anyone. It is clearly intended to be a general prohibition, total in its effect
and all pervasive in its range, and it is enforceable not only against the
state but also against any other person indulging in any such practice.
136. There is another aspect of this Court’s decision in People's Union for
Democratic Rights (supra) that is worth mentioning. On the complaint
of non-payment of minimum wages to the workers, the State contended
that any such violation was statutory in nature and not a fundamental
rights violation. Consequently, it argued that the writ petition was not
40
¶ 7, Vishal Jeet v. Union of India, (1990) 3 SCC 318.
Miscellaneous Application No. 530 of 2022 Page 68 of 297
maintainable. After delineating the scope of Article 23 and the intent
behind its inclusion in Part III (as discussed above), the Court
established a violation of Article 23 on account of non-payment of
minimum wages in the following manner:
“13. [...] We do not think it would be right to place on the language
of Article 23 an interpretation which would emasculate its beneficent
provisions and defeat the very purpose of enacting them. We are
clearly of the view that Article 23 is intended to abolish every form
of forced labour. The words “other similar forms of forced labour” are
used in Article 23 not with a view to importing the particular
characteristic of “begar” that labour or service should be exacted
without payment of any remuneration but with a view to bringing
within the scope and ambit of that article all other forms of forced
labour and since “begar” is one form of forced labour, the
Constitution-makers used the words “other similar forms of forced
labour”. If the requirement that labour or work should be exacted
without any remuneration were imported in other forms of forced
labour, they would straightaway come within the meaning of the
word “begar” and in that event there would be no need to have the
additional words “other similar forms of forced labour”. These words
would be rendered futile and meaningless and it is a well-recognised
rule of interpretation that the court should avoid a construction
which has the effect of rendering any words used by the legislature
superfluous or redundant. The object of adding these words was
clearly to expand the reach and content of Article 23 by including,
in addition to “begar”, other forms of forced labour within the
prohibition of that article. Every form of forced labour, “begar” or
otherwise, is within the inhibition of Article 23 and it makes no
difference whether the person who is forced to give his labour or
service to another is remunerated or not. Even if remuneration is
paid, labour supplied by a person would be hit by this article if it is
forced labour, that is, labour supplied not willingly but as a result of
force or compulsion. [...] The reason is that it offends against human
dignity to compel a person to provide labour or service to another if
he does not wish to do so, even though it be in breach of the contract
entered into by him. [...]
14. Now the next question that arises for consideration is whether
there is any breach of Article 23 when a person provides labour or
Miscellaneous Application No. 530 of 2022 Page 69 of 297
service to the State or to any other person and is paid less than the
minimum wage for it. It is obvious that ordinarily no one would
willingly supply labour or service to another for less than the
minimum wage, when he knows that under the law he is entitled to
get minimum wage for the labour or service provided by him. It may
therefore be legitimately presumed that when a person provides
labour or service to another against receipt of remuneration which is
less than the minimum wage, he is acting under the force of some
compulsion which drives him to work though he is paid less than
what he is entitled under law to receive. What Article 23 prohibits is
“forced labour” that is labour or service which a person is forced to
provide and “force” which would make such labour or service “forced
labour” may arise in several ways. It may be physical force which
may compel a person to provide labour or service to another or it may
be force exerted through a legal provision such as a provision for
imprisonment or fine in case the employee fails to provide labour or
service or it may even be compulsion arising from hunger and
poverty, want and destitution. Any factor which deprives a person
of a choice of alternatives and compels him to adopt one particular
course of action may properly be regarded as “force” and if labour or
service is compelled as a result of such “force”, it would be “forced
labour”. Where a person is suffering from hunger or starvation,
when he has no resources at all to fight disease or to feed his wife and
children or even to hide their nakedness, where utter grinding
poverty has broken his back and reduced him to a state of helplessness
and despair and where no other employment is available to alleviate
the rigour of his poverty, he would have no choice but to accept any
work that comes his way, even if the remuneration offered to him is
less than the minimum wage. He would be in no position to bargain
with the employer; he would have to accept what is offered to him.
And in doing so he would be acting not as a free agent with a choice
between alternatives but under the compulsion of economic
circumstances and the labour or service provided by him would be
clearly “forced labour”. There is no reason why the word “forced”
should be read in a narrow and restricted manner so as to be confined
only to physical or legal “force” particularly when the national
charter, its fundamental document has promised to build a new
socialist republic where there will be socio-economic justice for all
and everyone shall have the right to work, to education and to
adequate means of livelihood. The Constitution-makers have given
us one of the most remarkable documents in history for ushering in
a new socio-economic order and the Constitution which they have
Miscellaneous Application No. 530 of 2022 Page 70 of 297
forged for us has a social purpose and an economic mission and
therefore every word or phrase in the Constitution must be
interpreted in a manner which would advance the socio-economic
objective of the Constitution. It is not unoften that in a capitalist
society economic circumstances exert much greater pressure on an
individual in driving him to a particular course of action than
physical compulsion or force of legislative provision. The word
“force” must therefore be construed to include not only physical or
legal force but also force arising from the compulsion of economic
circumstances which leaves no choice of alternatives to a person in
want and compels him to provide labour or service even though the
remuneration received for it is less than the minimum wage. Of
course, if a person provides labour or service to another against
receipt of the minimum wage, it would not be possible to say that the
labour or service provided by him is “forced labour” because he gets
what he is entitled under law to receive. No inference can reasonably
be drawn in such a case that he is forced to provide labour or service
for the simple reason that he would be providing labour or service
against receipt of what is lawfully payable to him just like any other
person who is not under the force of any compulsion. We are therefore
of the view that where a person provides labour or service to another
for remuneration which is less than the minimum wage, the labour
or service provided by him clearly falls within the scope and ambit of
the words “forced labour” under Article 23. Such a person would be
entitled to come to the court for enforcement of his fundamental right
under Article 23 by asking the court to direct payment of the
minimum wage to him so that the labour or service provided by him
ceases to be “forced labour” and the breach of Article 23 is remedied.
It is therefore clear that when the petitioners alleged that minimum
wage was not paid to the workmen employed by the contractors, the
complaint was really in effect and substance a complaint against
violation of the fundamental right of the workmen under Article 23.”
(Emphasis Supplied)
137. If we unpack the above observations, it is clear that this Court has
warned against interpreting Article 23 in a manner which would
deprive it of its beneficial character and thereby defeat the constitutional
aim behind its inclusion in Part III. Thus, the words of the Article should
Miscellaneous Application No. 530 of 2022 Page 71 of 297
not be pedantically read and should be given a liberal interpretation, so
as to cast the net of its benefits as widely as possible.
138. The approach taken by the Court in People's Union for Democratic
Rights (supra) is itself a perfect illustration of this. The Court first
recognised that the term ‘forced labour’ should not be restricted to cases
where no remuneration was paid, and should be read widely to cover
all cases where labour was provided against a person’s will. Further, the
Court held that the word ‘forced’ should be construed expansively to
potentially include those scenarios in which a person provides labour
due to the force and presence of structural factors such as poverty.
Applying this reasoning to the facts, this Court held that in cases where
minimum wage is not paid, it would be presumed that the labour is
provided against the person’s will.
139. Such a liberal approach has been adopted by this Court not only when
interpreting Article 23, but also in interpreting other legislative
enactments aimed at abolishing exploitative structures and practices
prohibited under Article 23. An illustration of this can be seen in the
approach taken by this court in Bandhua Mukti Morcha v. Union of
India, reported in (1984) 3 SCC 161, wherein the court was dealing with
issues relating to exploitative working conditions faced by stone quarry
workers . The Court was faced with the contention that, since the
workers did not strictly fall within the definition of ‘bonded labour’
provided under the Bonded Labour System (Abolition) Act, 1976, no
obligations under it would arise when dealing with them. The Court,
rejecting such an interpretation, made the following observation:
“24. [...] The thrust of the Act is against the continuance of any form
of forced labour. It is of course true that, strictly speaking, a bonded
Miscellaneous Application No. 530 of 2022 Page 72 of 297
labourer means a labourer who incurs or has or is presumed to have
incurred a bonded debt and a bonded debt means an advance obtained
or presumed to have been obtained by a bonded labourer under or in
pursuance of the bonded labour system and it would therefore appear
that before a labourer can be regarded as a bonded labourer, he must
not only be forced to provide labour to the employer but he must have
also received an advance or other economic consideration from the
employer unless he is made to provide forced labour in pursuance of
any custom or social obligation or by reason of his birth in any
particular caste or community. It was on the basis of this definitional
requirement that the learned Additional Solicitor-General on behalf
of the State of Haryana put forward the argument that even if the
workmen employed in the stone quarries and stone crushers were
being, compelled to provide forced labour, they were not bonded
labourers, since it was not shown by them or by the petitioner that
they were doing so in consideration of an advance or other economic
consideration received from the mine lessees and owners of stone
crushers. Now if this contention of the learned Additional Solicitor-
General were well founded, it would become almost impossible to
enforce the provisions of the Bonded Labour System (Abolition) Act,
1976 because in every case where bonded labourers are sought to be
identified for the purpose of release and rehabilitation under the
provisions of the Act, the State Authorities as also the employer
would be entitled to insist that the bonded labourers must first prove
that they are providing forced labour in consideration of an advance
or other economic consideration received by them and then only they
would be eligible for the benefits provided under the Act and this
would make it extremely difficult, if not impossible, for the labourers
to establish that they are bonded labourers because they would have
no evidence at all to prove that any advance or economic
consideration was provided to them by the employer and since
employment of bonded labourers is a penal offence under the Act the
employer would immediately, without any hesitation, disown having
given any advance or economic consideration to the bonded
labourers. [...] Therefore, whenever it is shown that a labourer is
made to provide forced labour, the Court would raise a presumption
that he is required to do so in consideration of an advance or other
economic consideration received by him and he is therefore a bonded
labourer. This presumption may be rebutted by the employer and also
by the State Government if it so chooses but unless and until
satisfactory material is produced for rebutting this presumption, the
Court must proceed on the basis that the labourer is a bonded
Miscellaneous Application No. 530 of 2022 Page 73 of 297
labourer entitled to the benefit of provisions of the Act. The State
Government cannot be permitted to repudiate its obligation to
identify, release and rehabilitate the bonded labourers on the plea that
though the concerned labourers may be providing forced labour, the
State Government does not owe any obligation to them unless and
until they show in an appropriate legal proceeding conducted
according to the Rules of adversary system of justice, that they are
bonded labourers.”
(Emphasis Supplied)
140. What flows from the above extract is clear. When dealing with Article
23 or a legislation enacted with the aim of abolishing exploitative
structures or practices, this Court would not be tethered to the rigours
of strict legal interpretation and would, where necessary and feasible,
presume that the exploited persons are entitled to the benefits flowing
from such a legislation or policy. Further, when dealing with such
legislation, this Court has also shown a willingness to extend its reach
to those who are not explicitly covered, where their conditions of
41
exploitation are found to be similar to those who are.
b. ITPA, 1956
• Necessary prelude to the ITPA – the conflation between sex trafficking and
prostitution
141. Very often, sex trafficking or trafficking for the purposes of sexual
exploitation is conflated with prostitution itself (we had briefly touched
upon this understanding while discussing the feminist approach to
trafficking), and this conflation is subtly reflected or reinforced in the
legal framework of many countries. Such an assertion is true for the
41
¶ 84, 89 & 92-96, Balram Singh v. Union of India, (2024) 11 SCC 601.
Miscellaneous Application No. 530 of 2022 Page 74 of 297
42
ITPA as well as the 1949 Convention. Notably, the ITPA is based upon
the 1949 Convention.
142. The 1949 Convention under its Preamble states that “ whereas prostitution
and the accompanying evil of the traffic in persons for the purpose of
prostitution are incompatible with the dignity and worth of the human person
and endanger the welfare of the individual, the family and the community ”.
This excerpt gives some indication about the international consensus on
prostitution which existed during that time – it was adjudged as
inherently exploitative, antagonistic to a person’s dignity and
detrimental to public interest. Coupled with this outlook was also the
strong belief that no person could ever fully and freely consent, on their
own terms, to undertake prostitution owing to the inherent nature and
conditions of work involved. Both of these views augmented each other
and gave rise to one ideological outcome: that all persons involved in
the prostitution of others are traffickers.
143. The aforesaid is precisely the fundamental approach adopted in the
ITPA too. Articles 1 and 2 of the 1949 Convention respectively, which
gave much needed impetus to the ITPA, also evidently only deal with
persons who are involved (in any manner whatsoever) in the
prostitution of others. The aforesaid two articles read thus:
“ 1. The Parties to the present Convention agree to punish any
person who, to gratify the passions of another:
(1) Procures, entices or leads away, for purposes of prostitution,
another person, even with the consent of that person;
(2) Exploits the prostitution of another person, even with the consent
of that person .
42
Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution
nd th
of Others (adopted 2 December 1949, entered into force 25 July 1951) 96 U.N.T.S. 271.
Miscellaneous Application No. 530 of 2022 Page 75 of 297
2. The Parties to the present Convention further agree to punish any
person who:
(1) Keeps or manages, or knowingly finances or takes part in the
financing of a brothel;
(2) Knowingly lets or rents a building or other place or any part
thereof for the purpose of the prostitution of others. ”
144. The precursor to the 1949 Convention i.e., the 1933 International
43
Convention for the Suppression of the Traffic in Women of Full Age
also took root in the same ideological stance and commingled
prostitution with sex trafficking. Therefore, the 1949 Convention and
thereafter, the ITPA seem to have simply followed suit.
145. At the outset, we must note that we have undertaken an exhaustive and
microscopic analysis of the provisions of the ITPA since several existing
provisions provide the foundational skeletal framework of the “ Victim
Protection Plan ” that the petitioners seek in the present application
including inter alia the manner of raid/rescue/initial intervention for
both children and adults, the determination involved in assessing
whether someone would require care and protection from the State, the
homes in which adult victims would be housed, the facilities to be made
available in such an environment etc. We have also looked into the
offences created under the ITPA to examine how holistically it
criminalises all the perpetrators involved.
43 th
International Convention for the Suppression of the Traffic in Women of Full Age (adopted on 11
th
October 1933, entered into force 24 August 1934) 150 L.N.T.S. 431, art. 1. “ Whoever, in order to gratify
the passions of another person, has procured, enticed or led away, even with her consent, a woman or girl of full
age for immoral purposes to be carried out in another country, shall be punished. notwithstanding that the various
acts constituting the offence may have been committed in different countries. Attempted offences, and, within the
legal limits, acts preparatory to the offences in question, shall also be punishable. For the purposes of the present
Article, the term "country", includes the colonies and protectorates of the High Contracting Party concerned, as
well as territories under his suzerainty and territories for which a mandate has been entrusted to him. ”.
Miscellaneous Application No. 530 of 2022 Page 76 of 297
146. The ITPA, initially referred to as the Suppression of Immoral Traffic in
Women and Girls Act (for short, “ SITA ”) was enacted in the year 1956,
at a time when only a handful of States enacted dedicated legislations
on the subject of ‘immoral trafficking’. The term “immoral traffic” in
legal parlance referred to trafficking for the purposes of prostitution as
distinct from trafficking for forced labour or removal of organs etc. It
was commonplace during the 1900s to view this specific crime from the
strict viewpoint of social morality and therefore, the term “immoral”
came to be attached to it. Not that trafficking as a whole could ever be
said to be “moral” from any perspective; however, a heightened sense
of immorality had been associated with such trafficking.
147. The necessity and desirability of a Central law on the subject was felt to
not only ensure uniformity across the country but also create a deterrent
for the widespread commercialisation of prostitution. Meanwhile, the
Government of India had also ratified the 1949 Convention. With a view
to implement the provisions of the aforesaid Convention, the
Suppression of Immoral Traffic in Women and Girls Act, 1956, found its
existence in the Indian statute books. The Act underwent amendments
in the years 1978 and 1986, respectively. In the latter of the two
amendments, its nomenclature was modified. However, since then, no
change has been made to the legislative scheme of the ITPA.
148. The Preamble of the ITPA originally read as “ An Act to provide…for the
Suppression of Immoral Traffic in Women and Girls ”. However, vide the
1986 Amendment, along with the nomenclature of the Act, the Preamble
was amended to read as “ An Act to provide…for the prevention of immoral
traffic ”. This change was the result of two major updations – one, it was
felt that the Indian approach must pivot from ‘suppression’ to
Miscellaneous Application No. 530 of 2022 Page 77 of 297
‘prevention’ signaling a stronger stance against the eradication of the
44
commercial sexual exploitation of persons and two, it was
acknowledged that this crime can victimize persons irrespective of
45
gender .
• Understanding the definition of “prostitution” and thereby, demarcating
the “victim”
149. Before proceeding further with an overview of the legislative scheme
underlying the ITPA, we find it absolutely necessary to draw some
attention to the definition of “prostitution” under Section 2(f). The
manner in which the term is defined would offer additional clarity on
the way in which “prostitutes” are legally viewed under the ITPA
framework. Prior to the 1986 amendment, prostitution was defined as
“ the act of a female offering her body for promiscuous sexual intercourse for
hire, whether in money or in kind ” and subsequently, it was amended to
read as “ the sexual exploitation or abuse of persons for commercial purposes ”.
The use of the disjunctive “ or ” between “ exploitation ” and “ abuse ”
indicates that either sexual exploitation for commercial purposes or
sexual abuse for commercial purposes, can both constitute prostitution.
Although the phrase “ for commercial purposes ” has not been defined
under the ITPA, yet from common parlance its meaning could be said
to be analogous to the expression that it replaced i.e., “ for hire, whether
in money or in kind ” which required the payment or receipt of money or
44
Rajya Sabha Debates, The Suppression of Immoral Traffic in Women and Girls (Amendment) Bill,
st
1986, 21 August 1986, 52. “ […] Suppression is done on something which is there. We accept the factum of the
crime being present and we say we are going to suppress it. Prevention is, when we say, we are not going to allow
it to take place in the first instance. There is no question of suppression because we will have prevention […] ”.
45
Id at 45. “ […] In view of the aforementioned position, it is proposed that the scope of the Suppression of Immoral
Traffic in Women and Girls Act, 1956, as amended in 1978, be widened to cover all persons, whether male or
female, who are exploited sexually for commercial purposes.[…] ”.
Miscellaneous Application No. 530 of 2022 Page 78 of 297
46
money’s worth . Therefore, some monetary or other consideration as
an exchange for the sexual exploitation or abuse, must exist. It should
47
partake the character of a business, or one carried on for profit.
150. Perceptibly, the definition underwent a drastic shift – it changed from
being gender-specific and focusing on the promiscuous offering of the
body “by the woman” for hire to viewing the trade as inherently
exploitative and abusive. The focus or spotlight was shifted from the
prostitutes themselves and instead, placed on the persons benefiting
from them. One could say that there was a significant pivot from
scrutinizing the individual activity to targeting commercial
exploitation. A principal reason for this rephrasing was to reiterate that
the ITPA was largely brought forth to punish the perpetrators and not
48
the prostitutes. We may point this out a bit more clearly by looking
into the interpretation given to the pre-amendment definition. The
Gujarat High Court in Bai Shanta v. State of Gujarat reported in 1966
SCC OnLine Gij 36 observed thus:
“10. […] what is aimed at under this Act, is not abolition of
prostitutes and prostitution as such and make it per se a criminal,
offence or punish a woman because she prostitutes herself, and that
the purpose of the enactment was to inhibit or abolish commercialised
vice namely the traffic in woman and girls for purpose of prostitution
as an organised means of living. Various provisions of the Act tend
to strengthen such a view. But there has been some exception and
that is found in Sections 7 and 8 of the Act. […] This provision
(Section 7), therefore inhibits a woman herself from the practice of
her profession in contravention of its terms and to that extent-
renders prostitution a penal offence.[…] ”
46
See K. Radhakrishnan v. State of Kerala, 2008 SCC OnLine Ker 101; Sushanta Kumar Patra v. State of Orissa,
2000 SCC OnLine Ori 244; Rajiv Puri v. State of Punjab, 2002 SCC OnLine P&H 703.
47
See Abbas K.K. v. State of Kerala, 2017 SCC OnLine Ker 3932.
48
Supra note 44 at 45. “ The Act provides a framework for penal action against those responsible for the abuse
and exploitation of women for the purposes of prostitution[…] ”.
Miscellaneous Application No. 530 of 2022 Page 79 of 297
(Emphasis supplied)
151. From a reading of the aforesaid, we are sure that abolition of
prostitution or making prostitution a criminal offence is not the
principal object of the Act. Rather, what it aims for is the inhibition or
abolition of the commercialisation of prostitution, i.e., prostitution as an
organised means of living. Sections 7 and 8 respectively which seek to
penalise individualized acts of prostitution under certain specific
circumstances are merely exceptions to this general rule.
152. However, by defining prostitution strictly in exploitative terms, we
seem to have embroiled ourselves in some ideological dissonance. The
problem of defining all acts of prostitution as exploitative is this – one
cannot then justify the non-criminalisation of the trade of prostitution
as a whole. How can it be said that something which is inherently
exploitative must not be effaced altogether and instead, be allowed to
be carried on in certain forms and/or manners? We say this with the
necessary caution that our words must not be misconstrued; we are not
trying to make a case for the absolute criminalization on the one hand,
or the absolute unregulation on the other hand, of prostitution as a
trade. All that we are trying to convey is that having made it clear that
the legislative aim is not to condemn all acts of prostitution, the
definition carries with it some normative ambiguity by painting it as
solely being abusive or exploitative. Another nuance that materialises
from this is the legislative acceptance or rather, concession that the
prostitutes themselves are capable of self-exploitation or abuse.
Miscellaneous Application No. 530 of 2022 Page 80 of 297
• Punishing the perpetrators
153. Keeping true to its object of criminalising all acts enabling the
commercialisation or the organization of the business of prostitution,
Sections 3, 4, 5, 6 and 9 of the ITPA respectively specify the
circumstances in which and the individuals upon whom criminal
liability may be fastened.
154. Section 3 relates to the keeping of a brothel. The word “brothel” which
is defined under Section 2(a) can be understood in three parts – one, as
including any house, room, conveyance, or place, or any portion of the
aforesaid; two, which is being used for the purposes of sexual
exploitation or abuse (or simply, prostitution); and three, for the gain of
another person or for the mutual gain of two or more prostitutes. The
aforesaid definition being an inclusive one, enjoins a very wide scope so
as to encompass a variety of possible locations. The third limb, which
deals with the persons gaining from a brothel refers to both a profiting
third party as well as two or more prostitutes who have organized
amongst themselves to form a jointly profiting commercial enterprise.
This is in line with the object of the ITPA seeking to do away with all
kinds of commercialization of prostitution, be it one done collectively
by the prostitutes themselves. However, it must be clarified that where
a single woman practices prostitution for her own livelihood, without
another prostitute, or some other person being involved in the
maintenance of such premises, her residence will not amount to a
‘brothel’. [See, Ratnamala v. State reported in 1961 SCC OnLine Mad
9 and Ram Devi v. State reported in 1963 SCC OnLine All 45 ]
Miscellaneous Application No. 530 of 2022 Page 81 of 297
155. Now coming to the substantive part of Section 3 itself; sub-clause (1)
states that any person who either keeps or manages, or acts or assists in
such keeping or management of a brothel shall be punished. This
essentially refers to all those persons having operational control over
the activities undertaken in the brothel. Sub-clause (2) further deals with
two other categories of persons who have ties to the premises itself; in
simpler terms, those having proprietary control – (a) persons who are
tenants, lessees, occupiers or those in charge of the premises who either
themselves use, or knowingly allow others to use it as a brothel, and (b)
the owners, lessors, landlords, or agents of the owners, lessors or
landlords who have let the premises with the knowledge that it is
intended to be used as a brothel, or is willfully a party to its use as a
brothel. As can be seen, sub-clauses (1) and (2) respectively, on a
combined reading, bring any and all persons associated with a brothel
within the fold of Section 3.
156. Section 4 covers persons living on the earnings of prostitution and states
that anyone who, over the age of 18 years, knowingly lives on the
earnings of the prostitution of another person shall be exposed to
punishment. Children can never be brought within the purview of this
provision. A unique feature herein is that there exists a presumption
clause for persons over 18 years of age who are (a) proved to be living
with, or to be habitually in the company of a prostitute; or (b) proved to
have exercised either control, direction or influence over the movements
of a prostitute in such a manner such that it can be shown as aiding,
abetting or compelling her prostitution; or (c) proved to be acting as a
tout or pimp on behalf of a prostitute. While the presumptions under
(b) and (c) flow naturally from the principal object of the Act, the
Miscellaneous Application No. 530 of 2022 Page 82 of 297
presumption under (a) moves one step further and may bring within its
fold even the dependents or other persons who share a close personal
49
relationship with the prostitute .
157. Section 5 addresses the actions of the persons who appear at the very
beginning of the crime - (a) those who procure or attempt to procure
someone for prostitution, with or without their consent; or (b) induce
someone to go from any place to a brothel with the intention that they
may either become the inmate of a brothel or frequent a brothel; or (c)
take or attempt to take, or cause a person to be taken, from one place to
another so that they carry on the trade of prostitution; or (d) cause or
induce someone to carry on prostitution, are all individuals covered
under this provision. In other words, the section deals with multiple acts
- the procurement, the inducement to move to a brothel, the
transportation and the causing or inducing a person to undertake
prostitution.
158. One very noteworthy aspect of this provision is that it renders the
consent of the person in respect of whom these acts are committed
irrelevant even without requiring the existence of any coercion, fraud,
force etc., and thereby, makes a crucial deviation from the three
‘element’ standard prescribed by the Palermo Protocol wherein the
‘means’ element makes a pivotal contribution (we have briefly already
referred to this seemingly intentional deviation). This is plainly evident
from the use of the words “ with or without their consent ” in Section 5(1)(a)
and the conspicuous absence of force, coercion etc., in Sections 5(1)(b),
5(1)(c) and 5(1)(d) respectively. No doubt, the word “ induces ” finds
49
See Soni Bachu Lakhman v. The State of Gujarat, 1960 SCC OnLine Guj 12.
Miscellaneous Application No. 530 of 2022 Page 83 of 297
mention under sub-clauses 1(b) and 1(d) respectively, however, it does
not pass the muster of the Palermo Protocol’s ‘means’. The presence or
absence of consent only affects the quantum of punishment to which the
perpetrators would be made liable. This relegation of consent to the
background without requiring the existence of the traditional ‘means’ is
also a feature of the 1949 Convention on which the ITPA is admittedly
based.
159. Section 6 brings within its scope any person who ‘detains’ another, with
or without their consent, (a) in any brothel or (b) in any premises with
the intention that such person may have sexual intercourse with an
individual who is not their spouse. A significant detail herein is that
‘intention’ to cause or induce the detained person to carry on
prostitution, or the ‘purpose’ for which such person may be detained, is
not a matter of concern or a necessary ingredient under (a). In other
words, with respect to detention in a brothel, the law assumes that the
same must naturally be for the purposes of prostitution and therefore,
the very act of detention in the brothel is considered self-sufficient. The
location, therefore, occupies center stage.
160. The 1986 amendment brought in two additional situations in which a
presumption that an offence under Section 6 has been committed could
operate – (a) when a person is ‘found’ with a child in a brothel; and (b)
when a child or minor ‘found’ in a brothel is detected to have been
sexually abused upon medical examination. With respect to (a) as
aforesaid, it can be seen that it is so widely worded that it may include
any and all persons who may be found in a brothel with a child. Insofar
as (b) is concerned, the provision feigns either deliberate or
Miscellaneous Application No. 530 of 2022 Page 84 of 297
unintentional silence on whom such a presumption would apply and
thereby, exposes a wide range of persons to criminal liability.
161. Section 9 deals with causing, aiding or abetting the ‘seduction’ for
prostitution by a specific category of individuals i.e., those having the
custody, charge or care of, or a position of authority over the individual
concerned. On a closer look, it can be seen that the punishment
prescribed herein is higher than that prescribed under 5 for causing or
inducing a person to carry on prostitution. The reason behind the same
hinges on the fact that such persons exploit or betray an existing
relationship with the individual to achieve their insidious object.
Recognising the specific vulnerability of individuals in such situations,
the law has dealt with them separately. A marked difference that
distinguishes this offence from the others that we have discussed thus
far is that it is noticeably the lone provision which falls perfectly within
the three element requirement stipulated for trafficking under the
Palermo Protocol. We say so because “ abuse of power or of a position of
vulnerability ” which is one of the ‘means’ under the Palermo Protocol is
the foundation upon which this provision is also built.
162. What a deeper analysis of all the aforesaid offence creating provisions
reveals is that, in punishing those persons involved in keeping or
allowing a premises to be used as a brothel (section 3), or those living
on the earnings of prostitution (section 4), or those procuring, inducing
or taking persons for the sake of prostitution (section 5), or those
detaining someone in a brothel (section 6), the existence of any threat,
coercion, force, deception, abuse of power etc., is made immaterial (with
the exception of Section 9). The mere third party involvement in the
commercialisation of trade of prostitution is what is seen unfavourably.
Miscellaneous Application No. 530 of 2022 Page 85 of 297
• Penalising the prostitute – how, when and under what circumstances?
163. In all the preceding provisions, the target of the offence was
predominantly anyone but the prostitute. A departure from the same is
noted in Sections 7 and 8 respectively wherein ‘open prostitution’, even
when not commercialized in the sense as understood within the Act, is
brought within the criminal radar and the prostitute is also made the
offender.
164. Section 7 states that any person who carries on prostitution and the
person with whom such prostitution is carried on in any premises (a)
which is located within the areas notified by the respective State
governments; or (b) which is located within a 200 meter distance of
public places such as places of religious worship, educational
institutions etc., shall be punished mandatorily with a sentence of
imprisonment. Indisputably, the individual falling within the phrase
“ any person who carries on prostitution ” is the prostitute. The expression
“ person with whom such prostitution is carried on ” has been the subject of
some debate, particularly as regards whether it includes a “customer”
50
or not. Some High Courts have answered in the affirmative , while
51
some others in the negative .
165. Section 8, in yet another manner, penalises certain actions of the
prostitute i.e., the seduction or solicitation for the purpose of
prostitution within or within the sight of any public place, and in such
manner as to be seen or heard from any public place.
50
State of Mysore v. Susheela & Ors., 1965 SCC OnLine Kar 183; Mathew v. State of Kerala, 2022 SCC OnLine
Ker 6263
51
Dinesh Tiwari v. State of U.P., 2024 SCC OnLine All 419.
Miscellaneous Application No. 530 of 2022 Page 86 of 297
166. As can be seen, a crucial ingredient in both these sections is the “public
place” factor. The idea being that although individual acts of
prostitution are not sought to be directly shunned, yet public decency
and social morality require that visible overtures even for such singular,
non-commercial forms of prostitution be deterred in areas surrounding
public institutions and other notified regions; even at the cost of
punishing the prostitute. Such a crackdown on open prostitution has
also been justified by lawmakers from a public nuisance standpoint.
167. Section 10A provides an alternative to the imprisonment of the female
offenders found guilty under Sections 7 and 8 respectively by placing
them in ‘corrective institutions’, which, as a concept, came to be
introduced via the 1978 amendment for the first time. Not only
offenders, but even undertrials may be placed in such institutions
according to the definition under Section 2(b). Despite gender-
neutralising the entire Act, the word “ female” has been retained here.
Under Section 10A, the Court takes into consideration three aspects in
arriving at a decision on whether a female offender under Section 7 and
8 should be subject to detention in a corrective institution for a specific
term – one, the character of the offender; two, her state of health and
mental condition; and three, the other circumstances of the case. In
passing such an order, the offender is to be given an opportunity to be
heard, and the court is to consider the report of the probation officer
appointed under the Probation of Offenders Act, 1958 (for short, the
“ PO Act ”). The court must also record its satisfaction that the offender
is “likely to benefit” by such instruction and discipline. It is evident that
the goal of detention in a corrective institution is to provide a female
Miscellaneous Application No. 530 of 2022 Page 87 of 297
offender under Sections 7 and 8 with such instruction and discipline as
is conducive to her correction.
168. One of the things of note under this provision is that, although the
maximum period of imprisonment under Sections 7 and 8 (in cases not
involving a minor or child and on second or subsequent conviction) is
three months and one year respectively, yet even the minimum period
for which an order of detention could be passed is two years – which is
at least double or more of the maximum punishment prescribed under
the offences. The State governments can, however, make specific rules
for the discharge of the female offender from the corrective institution
after the expiry of a minimum period of six months upon satisfaction
that there is a reasonable probability that the offender will lead a useful
and industrious life. There remains some ambiguity as regards what the
provision intends to “correct” as also the kind of and the manner in
which any “instruction” or “discipline” would be imparted during such
a detention, or what qualifies as a “useful and industrious life” which
would motivate the discharge of the offender. All of this is left open for
the State Governments to demystify under their rule-making powers in
Section 23.
169. Some obvious contradictions, however, inhere in the scheme of Sections
7 and 8 respectively; contradictions which have a direct bearing on
th
understanding who is a victim under the ITPA? The 64 Report of the
Law Commission of India which suggested the inclusion of a separate
definition of corrective institutions has itself observed that “ Corrective
institutions will be reserved for women who need corrective training, and who
Miscellaneous Application No. 530 of 2022 Page 88 of 297
52
are criminals rather than victims”. From this observation and the
language of Section 10A which emphasizes on the term “offender”, it
can be inferred that the prostitutes falling within the scope of Sections 7
and 8 respectively cannot be called victims. The problem, however, is
that this stance completely negates the possibility or rather, the harsh
reality that a prostitute who might be a victim of exploitation by actors
figuring in Sections 3, 4, 5, 6 or 9 of the ITPA is also most likely to be
found in a brothel falling within the notified areas mentioned under
Section 7 or found soliciting in a public place under Section 8. In other
words, although she might be an offender under Sections 7 or 8, yet she
might simultaneously be a victim as well. However, the scheme of
Sections 7, 8 and 10A respectively, at least through its legislative
language, refuses to acknowledge such a dual identity by singularly
placing them into the category of offenders who can either be subject to
imprisonment or detention upon conviction, and not be afforded
protection or rehabilitation.
170. Another provision which places its focus on the prostitute is Section 20.
The provision states that upon receipt of information that any person
who is residing in or frequenting any place within the local limits of the
magistrate’s jurisdiction is a prostitute, he/she could be removed from
such place by the magistrate. The mere factum that the said person is a
prostitute is all that is required for invocation of the provision. In other
52
Law Commission of India, Report on Suppression of Immoral Traffic in Woman and Girls Act, 1956,
No. 64, at 4.7, 1975; See also, Id at 4.34 “4.34. “ Exclusion of ‘corrective institution’ from the definition of
protective home.—The expression “corrective institution”, should be reserved for institutions where women and
girls who are not rescued but are themselves guilty of offences should be kept. The basic object in keeping
‘protective homes’ separate from corrective institution is that the former are really meant for women and girls
who are victims of circumstances, while the latter are meant for women who have reached a stage of criminality,
though it is hoped that they can be reformed by suitable treatment. That is why we are excluding corrective
institutions from protective homes. ”
Miscellaneous Application No. 530 of 2022 Page 89 of 297
words, the triggering conditions that otherwise exist in the other
provisions i.e., the requirement of an offence under the ITPA having
been committed, or the person living or residing in a brothel, or that
prostitution is being undertaken in a notified area or within 200 meters
of public place etc., are all irrelevant. This is reinforced by the use of the
words “ any place ”. There is an implicit understanding that this section
relates purely to adult ‘willing prostitutes’ who are individually
carrying on their trade and therefore, the legislature has also
consciously omitted the term “rescue” from the description of the
provision.
171. The further steps to be taken under Section 20 also differs starkly from
that of the other provisions. After recoding the substance of the
information received, the magistrate issues a show-cause notice to the
concerned prostitute who must personally appear and make his/her
case as to why they should not be removed from the said place and
prohibited from re-entering it. After inquiring into the matter and
taking necessary evidence, if it appears that such person is indeed a
prostitute and that it is necessary in the interests of the general public, a
requisite order that he/she must be removed and prohibited from re-
entering the place would be passed.
172. What requires some keen attention is that the satisfaction that the
prostitute’s removal is “ necessary in the interests of the general public ” is
not required at the stage when the information reaches the magistrate;
that consideration only weighs in when the magistrate is called to make
a decision under sub-section (3). Therefore, this provision could
potentially be used to target any individual prostitute and moves well-
beyond the secondary intent of the ITPA as well i.e., to curb ‘open’ non-
Miscellaneous Application No. 530 of 2022 Page 90 of 297
commercialised prostitution,. We say so because any overt act by the
prostitute in a public place is also not made a pre-requisite here. In other
words, it moves even beyond the scope of Sections 7, 8 and 10A
respectively
• Mechanism for intervention – removal under Section 15, rescue under
Section 16 and voluntarily application under Section 19
173. For each area to be specified by the State Government, the Act, under
Section 13, envisages the appointment of a ‘special police officer’ for
dealing with the offences under the ITPA. Section 2(i) defines a special
police officer as a police officer appointed by or on behalf of the State
government who is to be in charge of the ‘police duties’ within a
specified area for the purposes of the ITPA. The expression “ police
duties ” includes the detection, prevention and investigation of offences
and other duties which have been specifically imposed on these officers
53
under the Act. To efficiently discharge these functions, the special
police officer is to be assisted by such number of subordinate police
officers as the State Government may think fit. ‘Wherever practicable’,
it is stated that this team shall also include women police officers
indicating that it has been left to the discretion of the special police
officer who is entrusted with duties under the ITPA to include women
54
police officers as and when they are available.
174. Moreover, the respective State Governments ‘may’ also associate with
the special police officer a non-official advisory body which consists of
not more than five leading social welfare workers of that area who
53
Delhi Administration v. Ram Singh, 1961 SCC OnLine SC 96.
54
Kumari Sangeeta & Anr. v. State & Ors, 1995 SCC OnLine Del 337.
Miscellaneous Application No. 530 of 2022 Page 91 of 297
would advise him on questions of general importance regarding the
working of the ITPA. For offences having inter-State implications, the
Central Government may appoint ‘trafficking police officers’ having
pan-India jurisdiction. It is these officers, i.e., special police officers or
trafficking police officers, who carry out searches under Section 15 of
the Act.
175. Section 15 provides the special police officer or the trafficking police
officer as aforesaid the powers to enter and search a premises without a
warrant whenever they have reasonable grounds to believe that - first,
an offence punishable under the ITPA has been or is being committed
in respect of a person who is living in any premises, and secondly, that a
search with warrant cannot be made without undue delay. However,
the officers are required to record the grounds of such belief before
carrying out the search.
176. Sub-sections (4) and (5) respectively provide that such officers shall be
entitled to remove therefrom “ all the persons ” found therein and
forthwith produce them before the appropriate magistrate. The original
version of the ITPA as enacted in 1956, was different in one major way
i.e., the provision only envisaged the removal of a girl (under the age of
21 years of age). The 1978 amendment did away with this and allowed
the removal of “ all persons ” from the premises where a search is
conducted.
177. Sub-section (5A) requires that all such removed persons who are
produced before a magistrate be examined by a registered medical
practitioner for the purpose of determining their age, detecting any
injury inflicted as a result of sexual abuse or the presence of any sexually
Miscellaneous Application No. 530 of 2022 Page 92 of 297
transmitted diseases. Being aware that the persons removed under this
provision may predominantly be women, sub-section (6A) requires that
the trafficking or special police officer be mandatorily accompanied by
at least two women police officers during the search. Additionally,
where any woman or girl who is removed is sought to be interrogated,
the same must be done by a woman police officer or in case of
unavailability, in the presence of a female member of a recognized
welfare institution or organization.
178. Apart from the special or trafficking police officer as aforementioned, a
rescue effort can also be triggered by the jurisdictional magistrate under
Section 16. Herein, when the magistrate has reason to believe that any
person is either living, or is carrying on, or is being made to carry on
prostitution in a brothel, he may direct a police officer to enter such
brothel, remove the specific individual and produce the removed
individual before himself. On a closer look it comes to light that the
three categories of individuals who may be rescued are (a) persons who
are living in a brothel, irrespective of whether they are in fact carrying
on prostitution or not; or (b) those who are carrying on prostitution in a
brothel, even willingly (adults); or (c) those who are being made to
(through the use of some coercive or other means) carry on prostitution
in a brothel. Therefore, the anchor on which the rescue efforts under this
provision operates is the location i.e. the brothel.
179. The reasonable belief of the magistrate which activates the powers
under this provision can also be from three sources – one, any
information received from the police, or two, from any other person
authorized by the State government, or three otherwise from any source.
Moreover, the police officer who is directed to remove any person need
Miscellaneous Application No. 530 of 2022 Page 93 of 297
not necessarily be a special or trafficking police officer as recognised
under Section 13; it is sufficient if they are officers not below the rank of
a sub-inspector. Needless to say, that such removed person(s) must also
be forthwith produced before the magistrate issuing such an order.
180. A key distinction vis-à-vis Section 15 would be that under the former “ all
persons ” found in the premises can be removed, whereas under the
latter, the words “ such person ” indicates that the order for removal is
passed with respect to a specific individual(s) and the police officers can
only remove the said individual(s) in a targeted manner.
181. Finally, Section 19 provides recourse to the prostitute themselves to
make an application seeking an order that they be kept in a protective
home or be provided care and protection by the court in the manner
specified under sub-section (3). By far, it is the only provision within the
entire scheme of the ITPA that allows the prostitute to directly seek a
remedy without any prior intervention by the trafficking or special
police officers (section 15) or the magistrate (sections 16). Herein, a
person who is both (a) carrying on prostitution, or (b) is being made to
carry on prostitution, may make an application to the jurisdictional
magistrate. An aspect that deserves specific attention is that one of the
persons eligible to make an application under this provision is simply
someone “carrying on prostitution”. To clarify, they are not even
required to be carrying on prostitution ‘in a brothel’. In other words,
they can be adult ‘willing prostitutes’ carrying out prostitution on an
individual basis as well.
Miscellaneous Application No. 530 of 2022 Page 94 of 297
• Dealing with the persons making an application under Section 19 and those
removed under Sections 15 and 16 respectively
182. The manner in which the applicants under Section 19 would be dealt
with is provided under sub-sections (2) and (3). A peculiarity under
Section 19, however, lies in sub-section (2) thereof. Pending the inquiry
under sub-section (3), the magistrate may direct that the applicant be
kept in appropriate custody, having regard to the circumstances of the
case. Unlike Section 17 (as we will see later), there is no outer time-limit
for such pending-inquiry custody under sub-section (2). The inquiry
and consequentially, the custody, both are not tethered to any
maximum time-limit and therefore, there is a possibility for the
applicants to be kept in this pending-inquiry custody for extensive
periods of time. Another anomaly is the noticeable absence of the pre-
fix “ safe ” before the word “ custody ” under Section 19(2). Therefore, it
begs some question as to what kind of pending-inquiry custody is
contemplated under Section 19(2) and how practically different it may
be from that under Section 17(3).
183. Under sub-section (3), while deciding the application, an opportunity of
hearing is given to the applicant and the magistrate proceeds to make
such inquiry as he deems necessary, which may include an inquiry by a
probation officer appointed under the PO Act. This endeavour includes
looking into three things – one, the personality of the applicant, two the
conditions of their home, and three, the prospects of their rehabilitation.
Thereafter, if satisfied that an order should be made, the magistrate
shall, for reasons to be recorded, order that the applicant be kept in (a)
a protective home, or (b) a corrective institution, or (c) under the
supervision of a person appointed by the magistrate, for such period as
Miscellaneous Application No. 530 of 2022 Page 95 of 297
he may specify. There is no indicative minimum or maximum period
55
for the operation of the said order of final custody . To put it simply,
there is no guidance on the exact period for which the applicant could
be subject to detention in (a), (b) or (c) as aforesaid.
184. While the applicant originally makes an application for the sole purpose
of care and protection, discretion is given to the magistrate to also direct
that the applicant be detained in a corrective institution for corrective
instruction and discipline – an option that may not have been in the
initial contemplation of the applicant. However, since the detention in a
corrective institution is reserved either for undertrials or female
offenders under Sections 7 and 8 respectively, it is implicit that an
applicant must be charged with or convicted of an offence under those
sections before an order for detention in a corrective institution could
be passed. Irrespective, applicants under this section must submit
themselves to the uncertainty or risk that they may be sent into
corrective detention as well.
185. Bearing very little resemblance to Section 19 is Section 17 which, on the
other hand, provides for the intermediate custody of the persons either
removed under Section 15 or rescued under Section 16. Once removed
or rescued under Section 15(4) or Section 16(1), if the police officers are
unable to produce the persons before the appropriate magistrate, then
Section 17(1) requires that they be forthwith produced before the nearest
magistrate who shall then pass appropriate orders for the “ safe custody ”
of the removed/rescued persons for the interim period. The provision
cautions that no such removed/rescued person shall be (a) detained in
55
The use of the term “final custody” implies the custody which emanates from the final order of the
magistrate under Section 17(4) or under Section 19(3).
Miscellaneous Application No. 530 of 2022 Page 96 of 297
such intermediate custody for a period exceeding 10 days or, (b)
restored to or placed in the custody of a person who may exercise a
harmful influence over them. This condition has been inserted in
cognisance of the vulnerability of the removed/rescued persons and the
potential for their abuse during this transitionary period.
186. Sub-section (2) states that when the rescued/removed persons are
produced before the appropriate magistrate, an opportunity of being
heard is given to such persons and thereafter, an inquiry is caused to be
made. This inquiry broadly covers six aspects – first, the correctness of
the information received if the person concerned has been rescued
under section 16(1); two, the age of the person; three, their character; four,
their antecedents; five, the suitability of their parents, guardian or
husband for taking charge of them; and six, the nature of the influence
which the conditions in their home are likely to have on the
removed/rescued person in the event that they are sent home. For this
purpose, the magistrate may direct a probation officer under the PO Act
to inquire into the aforesaid and also look into the personality of the
removed/rescued person and the prospects of their rehabilitation.
Discernibly, the scope of the inquiry under Section 17 is much wider
than that under Section 19 which only included an inquiry on three
broad aspects. In discharging such functions, the magistrate may also
summon a panel of 5 respectable persons to assist him, of which 3 of
them shall, wherever practicable, be women. For this purpose, the
magistrate may also maintain a list of experienced social welfare
workers, particularly women social welfare workers operating in the
field of suppression of immoral traffic in persons. What must be kept in
mind is that the seeking out any assistance from all these stakeholders
Miscellaneous Application No. 530 of 2022 Page 97 of 297
i.e. the probation officer or the panel of social welfare workers, are all
left to the complete discretion of the magistrate.
187. While the inquiry as aforesaid is being made, the magistrate is
empowered to pass orders under Section 17(3) for the pending-inquiry
“ safe custody ” of the removed/rescued person. However, as per the
second proviso Section 17(3), such a pending inquiry-safe custody
cannot exceed a period of 21 days and cannot be under the charge of a
person who is likely to have any harmful influence over the
removed/rescued person. As pointed out previously, such a proviso
stipulating a time-limit to the pending-inquiry custody is unique to the
“ safe custody ” under Section 17, and plainly missing from the language
of Section 19.
188. After conducting the aforesaid inquiry, sub-section (4) states that where
the magistrate is satisfied on two fronts i.e., first, that the information
received is correct and secondly, that the removed/rescued person is in
need of care and protection, he may make an order that that such
person(s) be ‘detained’ for a period between one and three years, either
in a protective home or in such other custody as shall be considered
suitable. The choice of words here, especially the use of the term
“ detained” would raise some additional questions as to whether the stay
at a protective home or such other custody can be enforced against the
will of the removed/rescued person.
189. The section mandates that some heed be paid to also ensure that such
56
final custody is not entrusted with a person or a body of persons of a
56
The use of the term “final custody” implies the custody which emanates from the final order of the
magistrate under Section 17(4) or under Section 19(3).
Miscellaneous Application No. 530 of 2022 Page 98 of 297
different religious persuasion than that of the removed/rescued person.
Additionally, those entrusted with such final custody including the
persons in charge of a protective home may be required to enter into a
bond which may contain certain undertakings, wherever necessary and
feasible. These undertakings would pertain to directions relating to the
(a) proper care, (b) guardianship, (c) education, (d) training, (e) medical
and psychiatric treatment of the removed/rescued person, and (f)
supervision by a person appointed by the court which will be in force
for a period not exceeding 3 years. The words “ wherever necessary and
feasible ” renders these undertakings non-mandatory and may not be
uniformly required of all persons or protective homes taking the final
custody of someone under this provision.
190. We wish to again succinctly underscore a few of the nuanced differences
which exist between Sections 17 and 19 respectively – First, on the one
hand, Section 17 limits the pending-inquiry custody to a maximum of
three weeks whereas no such limit is found in Section 19. Secondly, while
Section 17 lays down three years as the maximum period for final
custody/detention in a protective home or such other custody, there
exists no such legislatively carved out duration under Section 19.
191. Section 17A, which was inserted through the 1986 amendment lays
down the conditions that are to be observed by the magistrate before
placing the persons rescued under Section 16(1) with parents or
guardians. At the outset, the explicit and solitary mention of Section
16(1) leads to the conclusion that this provision does not relate to those
persons removed under Section 15(4) by special or trafficking police
officers. The reason for excluding such removed persons from its ambit
is unclear. The provision reads that, notwithstanding anything
Miscellaneous Application No. 530 of 2022 Page 99 of 297
contained in Section 17(2), the magistrate making an inquiry under
Section 17 may satisfy himself about the capacity or genuineness of the
parents, guardian or husband to keep the rescued person, by causing an
“ investigation to be made by a recognized welfare institution or organization ”,
before passing an order for handing the rescued person over to the
parents, guardian or husband, as the case may be. In short, what Section
17A does is create yet another mechanism through which the magistrate
can conduct an inquiry apart from seeking assistance from probation
officers and the panel of social workers under Sections 17(2) and 17(5)
respectively. The need to carefully investigate into the parents,
guardians or husband, in detail, is due to the unfortunate empirical
reality that family members are frequently found to be complicit in the
exploitation of the rescued persons.
• Protective homes
192. Section 2(g) of the ITPA defines a protective home as an institution in
which persons who are in need of care and protection may be kept
under this Act, and where appropriate, technically qualified persons,
equipment and other facilities have been provided. As has become clear
from our discussion of the preceding provisions, it is obvious that not
all persons who are in need of care and protection are mandatorily
placed in a protective home. The magistrate also looks into the
feasibility of handing the removed/rescued person (who also may be in
need of care and protection) into the custody of the parents, guardian,
husband or other persons. Therefore, it is only a smaller sub-set of those
needing care or protection who are placed within these protective
homes.
Miscellaneous Application No. 530 of 2022 Page 100 of 297
193. The requirement of having appropriate technically qualified persons,
equipment and other facilities was brought in by way of the 1986
amendment and the same being included within the very definition
indicates that the Act regarded them as being an intrinsic component
and essential to the functioning of the protection home. All the three
terms i.e., “ technically qualified persons ”, “ equipment ” and “ other facilities ”,
have been intentionally worded in the widest manner so as to provide
flexibility and encompass any and all requirements of the persons
needing care and protection from the State.
194. Section 21 dealing more substantively with protective homes provides
a double-layered discretion to the State governments - first to establish
as many protective homes as it thinks fit and secondly, when established,
to maintain them in such manner as may be prescribed by rules
formulated in that regard. It was considered necessary to leave it to the
competencies of each State to individually assess the infrastructural
capacity they would require for housing the persons in need of care and
protection in their respective jurisdictions. Sub-section (2) clarifies that
it is only the State governments themselves or the persons/authorities
who have been issued a licence by the State government who would be
allowed to establish and/or maintain a protective home under the
ITPA. Such a safeguard was deemed essential to prevent persons from
57
turning the protective homes into places of exploitation. The nitty-
gritties of several details are sought to be left to the rule-making powers
of the State governments including the mode of application for a licence
57
Statement of Objects and Reasons, Immoral Traffic (Prevention) Act, 1956, No. 104, Acts of
Parliament, 1956 (India). “ […] But a special feature of the Bill is that it provides that no person or authority
other than the State government shall establish or maintain any protective home except under a licence issued by
the State government. This will check the establishment of homes which are really dens for prostitution. ”.
Miscellaneous Application No. 530 of 2022 Page 101 of 297
to establish/maintain a protective home, the conditions which may be
imposed upon the licence holder, the post-application investigation into
the application received, amendment of a licence etc. Wherever
practicable, the management of the home may be entrusted to women.
• Establishment of special courts
195. The concept of “ITPA special courts” was only introduced via the 1978
amendment. Like several other matters, the power to establish special
courts under the ITPA has also been assigned to the respective State
governments. As per Section 22A, if the State government is satisfied
that it is necessary to establish one or more courts in any district or
metropolitan area, for the purpose of providing speedy trial of offences
under this Act, it may do so by notification in the official Gazette and
after consulting with the concerned High Court. Unless otherwise
directed by the concerned High Court, such a court would exercise its
jurisdiction exclusively in respect of cases under the ITPA only. Section
22AA provides the Central government similar powers to establish one
or more special courts in relation to offences under the Act which are
committed in more than one State. However, the use of the word “ may ”
along with terms like “ if the State Government is satisfied that is necessary ”
or “ if the Central Government is satisfied that it is necessary ”, indicates that
the question whether such courts must be established or not has been
left to the discretion of the respective governments.
196. On a conspectus, what comes to light is that the ITPA seeks to punish
all those who profit by exploiting the prostitution of others, be it be it
the brothel keeper, the landlord, the procurer, the transporter, the
detainer, the pimp or the middle-man – all of them are considered
Miscellaneous Application No. 530 of 2022 Page 102 of 297
offenders. The Act also makes punishment for offences involving
children more stringent. In addition to charting out the offences, the
ITPA designates special police officers, provides mechanisms for search
and rescue, and lays down how such rescued or removed persons are
to be dealt with in law. The rescued or removed persons are either
handed over to the custody of a parent, guardian or husband, or sent to
a protective home, or placed in such other custody as the magistrate may
find suitable. Several particulars on the minute workings of all the
provisions have been left to be filled in by the rules which may be
brought by the respective State governments under Section 23.
c. BNS, 2023
197. From the exhaustive discussion in the preceding section on the ITPA, it
is evident that despite the nomenclature of the statute, it nowhere
defines ‘trafficking’. In fact, for the longest time, i.e., until 2013, the term
‘trafficking’ or ‘trafficking in persons’ was not defined in the Indian
legal framework.
198. In 2012, a committee was formed under the chairmanship of Justice J.S.
Verma (Retd.) to look into possible amendments to the criminal law
which would provide for quicker trials and enhanced punishment for
criminals committing sexual assault of an extreme nature against
women (hereinafter, the “ Justice Verma Committee) . The Committee
submitted a report in which it dedicated an entire chapter discussing
various issues surrounding the handling of the offence of trafficking,
especially of women and children, in India. One of the primary
recommendations of the Committee was that the definition of
‘trafficking’ contained in the Palermo protocol should be incorporated
Miscellaneous Application No. 530 of 2022 Page 103 of 297
as an independent definition in the Penal Code as a separate offence.
The Committee was of the opinion that the lack of definition of
trafficking, along with the lack of enforcement of already existing
provisions in the Penal Code, were the primary reasons behind the
proliferation of the crime of trafficking.
199. In light of the Justice Verma Committee recommendations, the Criminal
Law (Amendment) Act, 2013 (for short, the “ 2013 Amendment ”) was
passed. Amongst other things, the 2013 Amendment substituted Section
370 of the IPC with new Sections i.e. 370 and 370A respectively. It was
via this amendment that the definition of “trafficking in persons” as
contained in the Palermo Protocol was introduced and adopted into the
IPC. After the repeal of the IPC, Sections 370 and 370A respectively are
now reflected in Sections 143 and 144 of the BNS respectively which
read thus:
“Section 143 - Trafficking of person
(1) Whoever, for the purpose of exploitation recruits, transports,
harbours, transfers, or receives a person or persons, by--
(a) using threats; or
(b) using force, or any other form of coercion; or
(c) by abduction; or
(d) by practising fraud, or deception; or
(e) by abuse of power; or
(f) by inducement, including the giving or receiving of payments or
benefits, in order to achieve the consent of any person having control
over the person recruited, transported, harboured, transferred or
received, commits the offence of trafficking.
Miscellaneous Application No. 530 of 2022 Page 104 of 297
Explanation 1.--The expression "exploitation" shall include any act
of physical exploitation or any form of sexual exploitation, slavery or
practices similar to slavery, servitude, beggary or forced removal of
organs.
Explanation 2.--The consent of the victim is immaterial in
determination of the offence of trafficking.
(2) Whoever commits the offence of trafficking shall be punished with
rigorous imprisonment for a term which shall not be less than seven
years, but which may extend to ten years, and shall also be liable to
fine.
(3) Where the offence involves the trafficking of more than one
person, it shall be punishable with rigorous imprisonment for a term
which shall not be less than ten years but which may extend to
imprisonment for life, and shall also be liable to fine.
(4) Where the offence involves the trafficking of a child, it shall be
punishable with rigorous imprisonment for a term which shall not be
less than ten years, but which may extend to imprisonment for life,
and shall also be liable to fine.
(5) Where the offence involves the trafficking of more than one child,
it shall be punishable with rigorous imprisonment for a term which
shall not be less than fourteen years, but which may extend to
imprisonment for life, and shall also be liable to fine.
(6) If a person is convicted of the offence of trafficking of a child on
more than one occasion, then such person shall be punished with
imprisonment for life, which shall mean imprisonment for the
remainder of that person’s natural life, and shall also be liable to fine.
(7) When a public servant or a police officer is involved in the
trafficking of any person then, such public servant or police officer
shall be punished with imprisonment for life, which shall mean
imprisonment for the remainder of that person’s natural life, and
shall also be liable to fine.
Section 144 - Exploitation of a trafficked person
(1) Whoever, knowingly or having reason to believe that a child has
been trafficked, engages such child for sexual exploitation in any
manner, shall be punished with rigorous imprisonment for a term
Miscellaneous Application No. 530 of 2022 Page 105 of 297
which shall not be less than five years, but which may extend to ten
years, and shall also be liable to fine.
(2) Whoever, knowingly or having reason to believe that a person has
been trafficked, engages such person for sexual exploitation in any
manner, shall be punished with rigorous imprisonment for a term
which shall not be less than three years, but which may extend to
seven years, and shall also be liable to fine.”
(Emphasis Supplied)
200. For ease of reference, we have captured the offences and the respective
punishments in Sections 143 and 144 of the BNS, 2023, in a tabular
format below:
Punishment [Term of
Rigorous Imprisonment]
S.
Section Offence
No.
AND Fine
Minimum Maximum
1. 143 (2) Trafficking 7 years 10 years
Trafficking of more than one
2. 143 (3) 10 years Life imprisonment
person
3. 143 (4) Trafficking of a child 10 years Life imprisonment
Trafficking of more than one
4. 143 (5) 14 years Life imprisonment
child
Imprisonment for life, which
shall mean imprisonment for
the remainder of that person’s
natural life
Trafficking of a child on more
5. 143 (6)
than one occasion
A public servant or a police
officer is involved in the
trafficking of any person
Imprisonment for life, which
shall mean imprisonment for
the remainder of that person’s
natural life
6. 143 (7)
Knowingly or having reason to
believe that a child has been
trafficked, engages such child
for sexual exploitation in any
manner
7. 144 (1)
5 Years 10 Years
Miscellaneous Application No. 530 of 2022 Page 106 of 297
Knowingly or having reason to
believe that a person has been
trafficked, engages such person
for sexual exploitation in any
manner
8. 144 (2)
3 Years 7 Years
On a perusal of the above table, it is clear that the punishment which is
to be awarded to someone convicted of the offence of trafficking under
the BNS has been classified on the basis of the age of the victim, the
number of persons victimised, whether the crime was repetitive and the
vulnerability of victim including the amount of influence that could
have been exercised by the accused upon the victim.
201. Sections 370 and 370A of the IPC and Sections 143 and 144 of the BNS
respectively, are largely identical. To put it simply, Sections 370 and
370A have been adopted into the BNS without significant change.
However, there so exist some minor differences, they include: (i) in
Explanation 1 of Section 143 of BNS the term ‘beggary’ has been added
to the list of practices that would be covered under the expression
‘exploitation’; (ii) for the offence that is now covered under Section
144(1) of the BNS, the maximum punishment has been enhanced from
7 years to 10 years; and (iii) for the offence that is now covered under
Section 144(2) of the BNS, the maximum punishment has been enhanced
from 5 years to 7 years.
• Section 143
202. On a bare perusal of Section 143(1) of the BNS, it is evident that the
broader elements present in the Palermo Protocol’s definition have been
incorporated therein, namely: (i) the need to fulfil the three elements of
acts, means and purpose respectively, in order to constitute the offence
Miscellaneous Application No. 530 of 2022 Page 107 of 297
of trafficking; (ii) providing an open-ended list of activities that would
constitute ‘exploitation’ instead of defining it, as is evident from the use
of the word “ include ” in Explanation 1 of Section 143(1); and (iii) the
irrelevance of consent in determination of the offence of trafficking
upon fulfillment of the ‘means’ element. The discussion on the Palermo
Protocol in the above section, specifically regarding each element and
the irrelevance of consent, would also shed light and assist in
interpreting Section 143(1). As discussed, to establish the offence of
trafficking under Section 143: (i) the actus reus element has to be
established via the ‘action’ and ‘means’ elements; and (ii) the mens rea
element has to be established via the ‘purpose’ element i.e., the
individual intended that the action (made possible through one of the
means) would lead to exploitation.
203. While the acts mentioned as constituting the ‘action’ element in both the
protocol and Section 143(1) are one and the same, there are certain
differences in the components forming part of the ‘means’ and ‘purpose’
elements. In the ‘means’ element, Section 143(1) omits the ‘ abuse of
position of vulnerability’ component, while introducing a new component
referred to as ‘ inducement’. In the ‘purpose’ element, while the list has
been left open-ended, Explanation 1 to Section 143(1) differs from the
Palermo Protocol in the following ways: (i) ‘ physical exploitation’ and
‘ beggary’ are additional forms of exploitation that have been explicitly
mentioned; (ii) ‘ forced labour or services ’ as form of exploitation doesn’t
find explicit mention and; (iii) reference to ‘ the exploitation of the
prostitution of others or other forms of sexual exploitation’ is reflected simply
as ‘ any form of sexual exploitation ’. Due to the wide ambit of the term ‘ any
form of sexual exploitation ’, it is safe to assume that trafficking for sexual
Miscellaneous Application No. 530 of 2022 Page 108 of 297
exploitation of any nature or form will be amply covered as an offence
under Section 143.
204. However, the most important difference between the two definitions is
that, unlike the Palermo Protocol, under the BNS all the three elements
must be established for the offence of trafficking to be constituted, even
for children. If we recall our discussion on the Palermo Protocol, it
explicitly states that the recruitment, transportation, transfer,
harbouring or receipt of a child for the purpose of exploitation shall be
considered trafficking even if this does not involve any of the ‘means’
stated therein. However, no such explicit omission of the ‘means’
element for children is found in Section 143 of the BNS, 2023.
205. The definitional uncertainties and ambiguities inherent to the protocol’s
definition will inevitably be reflected in the definition adopted in
Section 143 of the BNS, 2023, as well. Section 143 also doesn’t define any
of the terms mentioned in the ‘means’ and ‘purposes’ elements. Nor
does it provide any guidance as to the required threshold of severity,
i.e. how serious the ‘means’ must be or how extreme the exploitation
must be for the situation to qualify as trafficking. Thus, the question
even in the Indian context remains the same: at what point along the
continuum does the offence of trafficking begin? Considering the very
grave nature of the punishments prescribed under Section 143, it
becomes even more pertinent and necessary to address this question.
206. However, as we noted earlier, the flexibility inherent in the definition
should not be viewed as a detriment, nor should an effort be made to
definitively resolve all ambiguities surrounding it. Rather, a balancing
exercise should be undertaken to ensure that the definition is neither
Miscellaneous Application No. 530 of 2022 Page 109 of 297
underinclusive nor overinclusive. Thus, whether or not an act should be
brought under the purview of Section 143(1) has to be decided on a case-
by-case basis, by giving consideration to: (i) the totality of the
circumstances and (ii) by not losing sight of the fact that trafficking is a
grave offence with a grave a punishment regime under the BNS.
207. When dealing with sexual exploitation, the uncertainty and ambiguity
that characterise other forms of exploitation, such as labour exploitation,
are, to some extent, reduced. Unlike labour exploitation, where it can be
difficult to distinguish between exploitation and merely poor working
conditions, sexual exploitation in all its forms leaves little scope for such
doubt. Further, the term ‘sexual exploitation’ is wide in its ambit and
would include all forms of sexual exploitation, including but not limited
to trafficking for prostitution, pedophilia, pornography, cyber sex, and
58
other disguised forms of sexual exploitation. However, as noted
above, what distinguishes an offence under Section 143 from offences
under other provisions pertaining to sexual abuse is the requirement
that all three elements of act, means, and purpose have to be fulfilled to
constitute the offence of trafficking for sexual exploitation, i.e., where
sexual exploitation is committed without either the ‘act’ or ‘means’
element being fulfilled, the same would not constitute an offence under
Section 143.
208. Let us now understand the correlation and overlap that exists between
the provisions of the ITPA and Section 143 of the BNS. The ITPA, despite
having the word ‘trafficking’ in its title, does not define the term. As
discussed above, what it does instead is proceed on the premise that all
58
¶ 17, Bachpan Bachao & Ors. v. Union of India & Ors. , 2010 SCC OnLine Del 4613.
Miscellaneous Application No. 530 of 2022 Page 110 of 297
prostitution is exploitative, and on that basis, criminalises all third
parties involved in and all acts done in furtherance of prostitution. Over
time, owing to the association between prostitution and trafficking in
popular and legal discourse, the acts of third parties done in furtherance
of prostitution came to be equated with trafficking itself. This conflation
was further entrenched by the absence, for a long period, of any other
legislative provision dealing with trafficking in India. The consequence
was that trafficking in India came to be understood as synonymous with
trafficking for the purposes of prostitution to the exclusion of all other
forms of trafficking. It was only with the enactment of Section 370 that
trafficking was defined and recognised as a phenomenon extending
beyond sexual exploitation.
209. However, with both Section 143 of the BNS and the ITPA now in force,
we are seemingly confronted with two different understandings of what
constitutes ‘trafficking for the purposes of CSE’. Under Section 143, for
an act of sexual exploitation to amount to trafficking, all three elements
of act, means, and purpose must be fulfilled. In other words, the act of
bringing a person towards prostitution must have been done through
one of the specified means, such as force, coercion, inducement, or
deception, for it to constitute trafficking. The ITPA, on the other hand,
operates on a fundamentally different logic. As is evident from our
discussion of its offence-creating provisions, the ITPA requires no such
‘means’. Any act done by a third party (‘act’ element) in furtherance of
prostitution (‘purposes’ element) is sufficient to attract liability under
the Act. The result is that under the ITPA, all prostitution involving
third parties is, in effect, treated as trafficking for CSE, regardless of
whether any force, coercion, or inducement was employed. Thus,
Miscellaneous Application No. 530 of 2022 Page 111 of 297
conduct that would not qualify as trafficking under Section 143 may
nevertheless constitute an offence under the ITPA. The two frameworks,
operating simultaneously, produce a situation where the threshold for
what amounts to ‘trafficking for CSE’ differs depending on which
provision is being applied.
• Other aspects
210. From our discussion of Article 5 of the Palermo Protocol, it is evident
that the protocol intended to criminalise not only completed offences
and the principal actors involved in trafficking. It puts an obligation on
states to extend the ambit of criminal law to (i) situations in which
perpetrators attempt to traffic; (ii) persons who knowingly participate
as aiders or facilitators, and (iii) organisers and directors who oversee
trafficking ventures and instruct others to commit trafficking. The
aforementioned acts of attempting, aiding, facilitating, organising and
directing are criminalised under various provisions of the BNS.
211. Section 62 of the BNS, 2023, deals with punishing the attempt to commit
offences. This section applies where no specific provision for attempting
to commit an offence has been provided in the self-same Act. Since there
is no specific provision punishing attempts to commit trafficking,
Section 62 will be applicable in dealing with those cases of trafficking in
which the offence was not completed. A person commits the offence of
“attempt to commit trafficking” when (i) he intends to commit
trafficking; and (ii) he, having made preparations and with the intention
59
to commit trafficking, does an act towards its commission. For
constituting “attempt”, it is not necessary that the act done must be the
59
¶ 24, Abhayanand Mishra v. State of Bihar, 1961 SCC OnLine SC 67.
Miscellaneous Application No. 530 of 2022 Page 112 of 297
60
penultimate act towards the commission of trafficking. It is sufficient
if such an act or acts were deliberately done, and manifest a clear
intention to commit trafficking, being reasonably proximate to the
61
consummation of the offence. What would constitute an “attempt” to
commit trafficking is a mixed question of law and fact, largely
62
depending on the circumstances of a particular case.
212. Similarly, while there are no specific provisions punishing those who
knowingly aid, facilitate, organise, or direct the commission of
trafficking, several provisions in the BNS, especially those in Chapter IV
dealing with abetment and criminal conspiracy, could be used to deal
with such players involved in committing the offence of trafficking. In
addition to these provisions, Section 111 of BNS, addresses organised
crime. In the IPC, prior to its repeal, organised crime was not recognised
as a separate offence. With the addition of Section 111, there is an
additional armour in the law enforcement’s corpus to deal with the
offence of trafficking. This is especially so considering the fact that
trafficking is usually undertaken as an organised criminal activity.
Further, the very wide ambit of people brought under the purview of
Section 111 would enable law enforcement agencies to bring to justice a
wide variety of players involved in undertaking trafficking. Section 111
of BNS reads thus:
“1) Any continuing unlawful activity including kidnapping,
robbery, vehicle theft, extortion, land grabbing, contract killing,
economic offence, cyber-crimes, trafficking of persons, drugs,
weapons or illicit goods or services, human trafficking for
prostitution or ransom, by any person or a group of persons acting
60
Id.
61
¶ 13, State of Maharashtra v. Mohd. Yakub, (1980) 3 SCC 57.
62
Id.
Miscellaneous Application No. 530 of 2022 Page 113 of 297
in concert, singly or jointly, either as a member of an organised crime
syndicate or on behalf of such syndicate, by use of violence, threat of
violence, intimidation, coercion, or by any other unlawful means to
obtain direct or indirect material benefit including a financial
benefit, shall constitute organised crime.
Explanation.—For the purposes of this sub-section,—
(i) “organised crime syndicate” means a group of two or more
persons who, acting either singly or jointly, as a syndicate or gang
indulge in any continuing unlawful activity;
(ii) “continuing unlawful activity” means an activity prohibited by
law which is a cognizable offence punishable with imprisonment of
three years or more, undertaken by any person, either singly or
jointly, as a member of an organised crime syndicate or on behalf of
such syndicate in respect of which more than one charge-sheets have
been filed before a competent Court within the preceding period of
ten years and that Court has taken cognizance of such offence, and
includes economic offence;
(iii) [...]
(2) Whoever commits organised crime shall,—
(a) if such offence has resulted in the death of any person, be punished
with death or imprisonment for life, and shall also be liable to fine
which shall not be less than ten lakh rupees;
(b) in any other case, be punished with imprisonment for a term
which shall not be less than five years but which may extend to
imprisonment for life, and shall also be liable to fine which shall not
be less than five lakh rupees.
(3) Whoever abets, attempts, conspires or knowingly facilitates the
commission of an organised crime, or otherwise engages in any act
preparatory to an organised crime, shall be punished with
imprisonment for a term which shall not be less than five years but
which may extend to imprisonment for life, and shall also be liable to
fine which shall not be less than five lakh rupees.
(4) Any person who is a member of an organised crime syndicate
shall be punished with imprisonment for a term which shall not be
less than five years but which may extend to imprisonment for life,
Miscellaneous Application No. 530 of 2022 Page 114 of 297
and shall also be liable to fine which shall not be less than five lakh
rupees.
(5) Whoever, intentionally, harbours or conceals any person who has
committed the offence of an organised crime shall be punished with
imprisonment for a term which shall not be less than three years but
which may extend to imprisonment for life, and shall also be liable to
fine which shall not be less than five lakh rupees:
Provided that this sub-section shall not apply to any case in which
the harbour or concealment is by the spouse of the offender.
(6) Whoever possesses any property derived or obtained from the
commission of an organised crime or proceeds of any organised crime
or which has been acquired through the organised crime, shall be
punishable with imprisonment for a term which shall not be less than
three years but which may extend to imprisonment for life and shall
also be liable to fine which shall not be less than two lakh rupees.
(7) If any person on behalf of a member of an organised crime
syndicate is, or at any time has been in possession of movable or
immovable property which he cannot satisfactorily account for, shall
be punishable with imprisonment for a term which shall not be less
than three years but which may extend to imprisonment for ten years
and shall also be liable to fine which shall not be less than one lakh
rupees.”
(Emphasis Supplied)
213. Moving on to Section 144, on a bare reading, it is apparent that it deals
with those people who: (i) knowingly or having reason to believe that a
child or a person has been trafficked, (ii) engages such a child or person
for sexual exploitation in any manner. Section 144 appears to differ from
Section 143 in two major ways: first , while Section 143 addresses the
offence of trafficking itself, Section 144 appears to address something
different, i.e., the actual engagement of trafficked people for the purpose
of sexual exploitation. Secondly , unlike Section 143, which deals with
both sexual and non-sexual forms of exploitation, Section 144 is
restricted only to cases of sexual exploitation. Thus, the realms in which
Miscellaneous Application No. 530 of 2022 Page 115 of 297
Sections 143 and 144 operate are different. However, this is not to say
that such realms are completely disconnected at all times. There will
undoubtedly be overlap, considering that many a times, it is the same
traffickers who also engage victims for sexual exploitation, thereby
committing offences under both Section 143 and 144 respectively.
214. Further, when dealing with instances of trafficking for CSE, an
investigating officer must take into consideration a host of other
provisions beyond those that have been discussed in the foregoing
paragraphs of this judgment. When dealing with an offence of
trafficking for CSE, the applicable legal provisions are not static. They
vary depending on a combination of factors, such as the age of the
victim, the means employed by the trafficker, and the specific nature of
the exploitative acts to which the victim was subjected. To illustrate with
some examples: where the victim is a child, the various provisions in
the BNS pertaining to procuring children and dealing with offences
against children may apply, and, in appropriate cases, the POCSO
would also come into the picture. Where the victim is a woman, in
appropriate cases, provisions in Chapter V of BNS relating to offences
against women would need to be invoked. Where the means employed
involve kidnapping or abduction, the relevant provisions of the BNS
governing such offences will be applicable. Where the exploitation
involves the creation or dissemination of sexually explicit material, the
provisions of the IT Act would become relevant. Although this list is
merely illustrative and not exhaustive, it is indicative of how different
offences may interact with one another.
215. The point we seek to drive home is that no single piece of legislation
operates in isolation when it comes to the crime of trafficking for CSE.
Miscellaneous Application No. 530 of 2022 Page 116 of 297
An investigating officer must, therefore, approach each case with a
holistic appreciation of the applicable legal framework and remain alive
to the full range of provisions that the facts of a given case may attract.
d. On a reading of the Palermo Protocol, ITPA and BNS
respectively, who can be referred to as “victims of ‘trafficking’
for CSE”?
216. Before proceeding to the provisions of certain other legislations which
cohesively form the legislative ecosystem governing trafficking and the
CSE of all persons including children, having discussed in detail the
ITPA and relevant provisions under the BNS, we must pause at this
juncture to answer a pertinent question – whether the victims under the
ITPA and BNS respectively could be collectively viewed as “victims of
‘trafficking’ for CSE”?
217. As discussed previously, two different thresholds for offenders exist
under two different legislations for the same crime of trafficking for
sexual exploitation through prostitution - (a) a lower threshold under
the ITPA without the absolute necessity of a ‘means’ element to
invalidate consent, and (b) a higher threshold under Section 143 BNS
which makes the ‘means’ element indispensable for invalidating
consent. The practical implication of this would be that, on the one
hand, not all perpetrators under the ITPA regime would fall within the
ambit of Section 143; however, on the other hand, all traffickers who
sexually exploit others through prostitution falling under the BNS
would inevitably be covered by some provision of the ITPA as well. In
simpler terms, the ITPA would criminalise certain persons as
Miscellaneous Application No. 530 of 2022 Page 117 of 297
‘traffickers’ despite the fact that they may not be viewed as such under
the BNS.
218. However, this dual system could also be said to be intentional and be
reflective of the stance that the legislature seeks to continue punishing
all those benefitting or simply involved in the prostitution of others as
traffickers under a special legislation (irrespective of whether their
actions may or may not also constitute an offence under Section 143
BNS) due to its sustained opinion that all prostitution is inherently
exploitative. Since we are not tasked with untangling whether such an
assumption which the ITPA makes is right or wrong, we wish to only
go as far as identifying this duality and possibly bridging them for a
limited purpose – to legislatively locate who all could be said to be
victims of trafficking for CSE. Such a limited exercise was necessary in
the facts of our present case wherein a “ Victim Protection Plan ” is being
sought because the necessary first-step for us, if we reach the conclusion
that such a protocol is indeed necessary, would be to delineate who
these ‘victims’ are according to the present laws including that of the
ITPA and BNS. We do not wish to leave out those victims of the ITPA
from the protective umbrella of any protocol on trafficking which may
be laid down by us upon on a strict reading of the ITPA through the lens
of the Palermo Protocol and/or the BNS, especially when there is
legislative admission that victims under the ITPA are also victims of
trafficking.
219. Hence, for all further purposes, when any reference is made to “victims
of trafficking for CSE”, it would include those persons who have been
identified as victims under the ITPA regime and those persons who
Miscellaneous Application No. 530 of 2022 Page 118 of 297
have been victimised by persons alleged to have committed an offence
under Section 143 of the BNS.
e. Legislations dealing specifically with children
• JJA– Children in need of care and protection and the CWC
220. Before proceeding to analyse the provisions of these statutes in greater
detail, it is useful to pause and explain why this exercise is necessary in
the context of the present matter. The central concern of this judgment
is the protection of victims of trafficking for CSE. A meaningful victim
protection framework cannot be constructed in a vacuum. It must be
built upon a clear understanding of what protections the law has
already envisaged (if any). It is with this approach that we have, in the
preceding paragraphs, examined the protection mechanism available
under the ITPA, 1956. The same approach must be extended to child
victims of trafficking for CSE, who form a significant and particularly
vulnerable subset of all trafficking victims. For such victims, the JJA
and, to some extent, POCSO Act, are legislations that provide
protection.
221. The JJA is a special legislation that deals with both children alleged to
be in conflict with the law and children in need of care and protection,
respectively. We are primarily concerned in this discussion with
children in need of care and protection. As per Section 2(2) of JJA, a child
is defined as a person who has not completed eighteen years of age.
Section 2(14) of JJA defines the term “child in need of care and
protection” and reads thus:
“(14) “child in need of care and protection” means a child—
Miscellaneous Application No. 530 of 2022 Page 119 of 297
(i) who is found without any home or settled place of abode and
without any ostensible means of subsistence; or
(ii) who is found working in contravention of 5[the provisions of this
Act or] labour laws for the time being in force or is found begging,
or living on the street; or
(iii) who resides with a person (whether a guardian of the child or
not) and such person—
(a) has injured, exploited, abused or neglected the child or has
violated any other law for the time being in force meant for the
protection of child; or
(b) has threatened to kill, injure, exploit or abuse the child and there
is a reasonable likelihood of the threat being carried out; or
(c) has killed, abused, neglected or exploited some other child or
children and there is a reasonable likelihood of the child in question
being killed, abused, exploited or neglected by that person; or
(iv) who is mentally ill or mentally or physically challenged or
suffering from terminal or incurable disease, having no one to
support or look after or having parents or guardians unfit to take
care, if found so by the Board or the Committee; or
(v) who has a parent or guardian and such parent or guardian is
found to be unfit or incapacitated, by the Committee or the Board, to
care for and protect the safety and well-being of the child; or
(vi) who does not have parents and no one is willing to take care of
and protect or who is abandoned or surrendered;
(vii) who is missing or run away child, or whose parents cannot be
found after making reasonable inquiry in such manner as may be
prescribed; or
(viii) who has been or is being or is likely to be abused, tortured or
exploited for the purpose of sexual abuse or illegal acts; or
(ix) who is found vulnerable and has been or is being or is likely to
be inducted into drug abuse or trafficking; or
(x) who is being or is likely to be abused for unconscionable gains; or
Miscellaneous Application No. 530 of 2022 Page 120 of 297
(xi) who is victim of or affected by any armed conflict, civil unrest or
natural calamity; or
(xii) who is at imminent risk of marriage before attaining the age of
marriage and whose parents, family members, guardian and any
other persons are likely to be responsible for solemnisation of such
marriage;”
(Emphasis Supplied)
222. From a bare reading of the definition, it is clear that all child victims of
trafficking, including child victims trafficked for CSE, would be
considered as children in need of care and protection. The observations
of this Court in Re: Exploitation of Children in Orphanages in the State
of Tamil Nadu v. Union of India & Ors, reported in (2017) 7 SCC 578,
further support such an interpretation. When dealing with the question
of who is a child in need of care and protection, this Court explicitly
noted that the category would include victims of child trafficking who
must be given protection under the provisions of the JJA. The relevant
observations made by this Court are as follows:
“64. Even though a child in need of care and protection is defined in
Section 2(14) of the Juvenile Justice (Care and Protection of
Children) Act, 2015 (hereinafter referred to as “the JJ Act”) the
definition does not specifically include some categories of children.
Consequently, we are of the view that since the JJ Act is intended for
the benefit of children and is intended to protect and foster their
rights, the definition of a child in need of care and protection must be
given a broad interpretation. It would be unfortunate if certain
categories of children are left out of the definition, even though they
need as much care and protection as categories of children specifically
enlisted in the definition. Beneficial legislations of the kind that we
are dealing with demand an expansive view to be taken by the courts
and all concerned.
65. In Workmen v. American Express International Banking
Corpn. this Court held in para 4 of the Report that:
Miscellaneous Application No. 530 of 2022 Page 121 of 297
“4. The principles of statutory construction are well settled.
Words occurring in statutes of liberal import such as social
welfare legislation and human rights' legislation are not to be
put in Procrustean beds or shrunk to Lilliputian dimensions. In
construing these legislations the imposture of literal
construction must be avoided and the prodigality of its
misapplication must be recognised and reduced.”
66. A similar view was expressed in ESI Corpn. v. Francis De
Costa when it was observed that:
“5. … It is settled law that to prevent injustice or to promote
justice and to effectuate the object and purpose of the welfare
legislation, broad interpretation should be given, even if it
requires a departure from literal construction.”
67. The necessity of giving a purposeful interpretation to a provision
in a statute was recognised in MSR Leathers v. S.
Palaniappan when this Court observed that: (SCC p. 194, para 29)
“29. … one of the salutary principles of interpretation of statutes
is to adopt an interpretation which promotes and advances the
object sought to be achieved by the legislation, in preference to
an interpretation which defeats such object. This Court has in a
long line of decisions recognised purposive interpretation as a
sound principle for the courts to adopt while interpreting
statutory provisions.”
A similar view was expressed, though in a different context,
in Badshah v. Urmila Badshah Godse. A far more detailed discussion
on the subject is to be found in the Constitution Bench decision of
this Court in Abhiram Singh v. C.D. Commachen.
68. Read in this light, the definition of a child in need of care and
protection given in Section 2(14) of the JJ Act should be given a broad
and purposeful interpretation — it ought not to be treated as
exhaustive but illustrative and furthering the requirements of social
justice. This understanding would also be in consonance with Article
40 of the CRC which stipulates that the
“States parties shall recognise rights of every child accused of
an offence and treatment of such a child shall be in a manner
consistent with promotion of the child's dignity and worth.…”
Miscellaneous Application No. 530 of 2022 Page 122 of 297
69. The learned Amicus Curiae drew our attention to the decisions
rendered by some High Courts which have taken a broad-based
approach to the meaning of a child in need of care and protection and
some other High Courts that have adopted a comparatively narrow
interpretation. These decisions were rendered in the context of the
Juvenile Justice (Care and Protection of Children) Act, 2000 and
would not really be applicable insofar as the JJ Act is concerned.
However, this does not detract from her submission that a child in
need of care and protection must be given a wider meaning and in
addition to some children in conflict with law as discussed above, it
must also include victims of sexual abuse or sexual assault or sexual
harassment under the Pocso Act as also victims of child trafficking.
Such children must also be given protection under the provisions of
the JJ Act being victims of crime under the Pocso Act and the
Immoral Traffic (Prevention) Act, 1956.”
(Emphasis Supplied)
223. Where the victim of trafficking for CSE is a child, the JJA and the rules
framed thereunder become the governing framework in all respects.
This encompasses the entire spectrum of procedural decisions that
follow upon the identification or rescue of such a victim, i.e., the forum
before which the child is to be presented, the authority vested with the
power to make decisions regarding the child’s care, the factors to be
taken into account while making such decisions, and the nature of the
institutions or homes to which the child may be sent. To the extent that
another legislation, such as the ITPA, prescribes a different procedure
63
for any of these aspects, it is the JJA that must prevail. Section 1(4) of
the JJA, furthers this view as it states that, notwithstanding anything
contained in any other law, the provisions of JJA shall apply to all
matters concerning children in need of care and protection. Section 1(4)
of the JJA reads thus:
63
See ¶ [119-133], Delhi High Court Legal Services Committee v. UOI & Anr., 2014 SCC OnLine Del
4101.
Miscellaneous Application No. 530 of 2022 Page 123 of 297
“(4) Notwithstanding anything contained in any other law for the
time being in force, the provisions of this Act shall apply to all
matters concerning children in need of care and protection and
children in conflict with law, including—
(i) apprehension, detention, prosecution, penalty or
imprisonment, rehabilitation and social reintegration of
children in conflict with law;
(ii) procedures and decisions or orders relating to
rehabilitation, adoption, reintegration, and restoration of
children in need of care and protection.”
(Emphasis Supplied)
224. Having established that child victims of trafficking for CSE would be
considered as children in need of care and protection, it would be
helpful to briefly understand the mechanism put in place by JJA to deal
with such children. First and foremost, Section 3 of the JJA sets out the
fundamental principles that should guide all decisions in implementing
the Act. Amongst other things, they include the principles of best
interest, safety, family responsibility, institutionalisation as a measure
of last resort, and repatriation and restoration.
225. Under the JJA, it is the Child Welfare Committee (“ CWC ”) of each
district which has the power to dispose of cases for the care, protection,
treatment, development and rehabilitation of children in need of care
64
and protection. The JJA further states that the CWC has the power to
deal exclusively with all proceedings under the Act relating to children
65
in need of care and protection. The CWC is vested with a host of
functions and responsibilities, primary among them is ensuring care,
64
§ Section 29(1), The Juvenile Justice (Care and Protection of Children) Act, 2015.
65
§ Section 29(2), The Juvenile Justice (Care and Protection of Children) Act, 2015.
Miscellaneous Application No. 530 of 2022 Page 124 of 297
protection, and appropriate rehabilitation or restoration of children in
66
need of care and protection, based on the individual care plan.
226. The procedure applicable to a child who has been identified as a child
in need of care and protection commences with Section 31 of the JJA,
which provides for the production of such a child before the CWC. A
notable feature of Section 31 is the breadth of persons who are
empowered to produce a child before the CWC. This is not limited to
the police or state institutions. Social workers, non-governmental
organisations, public-spirited citizens, doctors and nurses, and even the
children themselves are recognised as persons who may produce a child
before the CWC. Equally significant is the fact that the CWC is vested
with the responsibility of taking suo motu cognisance of cases and
reaching out to children in need of care and protection who have not
67
been produced before it.
227. Once a child is produced before the CWC, or the CWC takes suo motu
cognisance of a case, the inquiry process under Section 36 of the JJA is
initiated. At this stage, the CWC may pass interim orders directing
where the child should be placed pending the inquiry. Simultaneously,
it may direct a speedy social investigation to be carried out by a social
worker or a Child Welfare Police Officer.
228. Sections 31 and 36 of the JJA respectively, must be read alongside the
rules framed thereunder. The said sections themselves provide only a
broad framework. It is the rules which prescribe the detailed procedure
to be followed at each stage. In this regard, Rules 18 and 19 of the
66
§ Section 30(vi), The Juvenile Justice (Care and Protection of Children) Act, 2015.
67
§ Section 30(xii), The Juvenile Justice (Care and Protection of Children) Act, 2015.
Miscellaneous Application No. 530 of 2022 Page 125 of 297
Juvenile Justice (Care and Protection of Children) Model Rules, 2016
(“ Model Rules ”) respectively are particularly relevant. Rule 18 sets out
the procedure governing production before the CWC. It prescribes,
among other things, the directions the CWC may issue for the child’s
interim placement and the requirement for an immediate medical
examination, where necessary. Rule 19 sets out the procedure governing
the inquiry. Among other things, Rule 19 envisages: (i) formulating an
individual care plan based on case history and monitoring the
implementation of such individual care plan; (ii) steps towards
rehabilitation to begin from the date of first production of the child
itself; and (iii) follow-ups to be undertaken even after the case is
68
disposed of. Together, Rules 18 and 19 give operative content to the
framework under Sections 31 and 36 of the JJA, respectively and must
be scrupulously followed in all cases involving child victims of
trafficking for CSE.
229. Upon being satisfied, through the inquiry, that the child before itself is
indeed a child in need of care and protection, the CWC is empowered
under Section 37 of the JJA to pass a wide range of orders. These orders
may relate to the restoration of the child to her parents or guardian, with
or without supervision, where such restoration is found to be in her best
interest. Alternatively, the CWC may direct the placement of the child
in a children’s home, a fit facility, or with a fit person, for long-term or
temporary care. The CWC may issue detailed directions regarding the
care, protection and rehabilitation of the child, including directions
68
See also Rule 82, The Juvenile Justice (Care and Protection of Children) Model Rules, 2016.
Miscellaneous Application No. 530 of 2022 Page 126 of 297
relating to shelter, medical attention, psychological support, skill
training, legal aid and educational services.
230. The process of rehabilitation, social reintegration and restoration under
the JJA is governed by Sections 39 and 40, respectively. Section 39
provides that rehabilitation shall be undertaken in accordance with the
child’s individual care plan, and preferably through family-based care,
such as restoration to the family or a guardian, sponsorship, adoption,
or foster care. It is only where such restoration is not in the best interest
of the child that the child may be placed in an institution registered
under the Act or with a fit person or a fit facility, on a temporary or long-
term basis. In such cases, the process of rehabilitation and reintegration
is to be undertaken wherever the child is so placed.
231. As per Section 53 of the JJA Act, 2015, the services to be provided in the
course of rehabilitation and reintegration shall be those prescribed in
the relevant rules and may include: (i) basic requirements such as food,
shelter, clothing and medical attention; (ii) mental health interventions
including need-based counselling; (iii) educational services; (iv) skill
development; (v) occupational therapy and life skill education; (vi) legal
aid where required; and recreational activities including sports and
cultural activities. The Model Rules add further specificity to these
requirements, prescribing standards for each of the elements mentioned
69
above. Finally, the State’s obligations do not cease when a child leaves
institutional care. Section 46 provides for after care support to be
extended to any child leaving a child care institution upon attaining the
69
See Rules 29-38, The Juvenile Justice (Care and Protection of Children) Model Rules, 2016.
Miscellaneous Application No. 530 of 2022 Page 127 of 297
age of eighteen years, with the aim of facilitating her reintegration into
mainstream society.
232. It must be noted that the foregoing discussion was never intended to be
a comprehensive analysis of how child victims of trafficking for CSE are
to be dealt with under the JJA, 2015. The Act and the rules framed
thereunder are exhaustive, and we have not delved into a detailed
treatment of every provision. Our purpose in laying out the legislative
scheme of the JJA was to merely provide a broad overview of how child
victims of trafficking for CSE will be dealt with by the CWC. It is clear
that when dealing with child victims of trafficking for CSE, it is the
CWC, implementing the provisions of the JJA and the rules framed
thereunder, that will conduct the inquiry and decide all questions
relating to the custody, placement, rehabilitation, and restoration.
• POCSO Act
233. When the victim of trafficking for CSE is a child, the provisions of the
POCSO Act would, in most cases, apply alongside Sections 143 and 144
of the BNS and/or the provisions of ITPA. The reason for this is two-
fold: (i) there is no ambiguity in Indian law regarding the fact that every
act of sexual exploitation involving a child is non-consensual as a matter
70
of law , and (ii) POCSO Act was designed to cover all forms of sexual
abuse against children, including sexual harassment, aggravated sexual
assault, and the production, storage or possession of child sexual abuse
71
material, among others. Therefore, in all cases where the sexual
70
See Independent Thought v. Union of India , (2017) 10 SCC 800.
71
See § 3,5,7,9,11,13,14 & 15, The Protection of Children from Sexual Offences Act, 2012.
Miscellaneous Application No. 530 of 2022 Page 128 of 297
exploitation of a child involves acts punishable under the POCSO, the
perpetrators would be charged and prosecuted under it.
234. The primary legislative intent behind the enactment of the POCSO Act
was to create a comprehensive legal framework that would not only
punish offenders but also provide a child-friendly system for recording
evidence, investigating, and trying offences. It aimed to ensure the
safety and dignity of child victims during the legal process, with specific
provisions that mandate in-camera trials, the presence of a trusted adult
during the proceedings, and the prohibition of aggressive questioning
72
of child victims.
235. Traffickers who sexually abuse child victims would be prosecuted as
perpetrators under the relevant provisions of the POCSO Act. Those
traffickers who do not themselves engage in acts of sexual abuse but
form part of the trafficking network could be tried as abettors under
Section 16 of the POCSO Act. It is worth noting that Explanation III to
Section 16 specifically covers conduct of the nature involved in
trafficking, such as employing, harbouring, receiving or transporting a
child through coercion, fraud, deception or abuse of a position of
vulnerability, as a form of abetment under the POCSO Act. The
punishment for such abetment is the same as that prescribed for the
primary offence.
236. The crucial point to note is that once the POCSO Act is attracted, several
aspects of the prosecution change significantly. First , the procedure for
reporting the offence, recording the victim’s statement and conducting
the medical examination of the child will be governed by the specific
72
See Just Rights for Children Alliance & Anr v. S.Harish & Ors , 2024 INSC 716.
Miscellaneous Application No. 530 of 2022 Page 129 of 297
provisions of the POCSO Act which are designed to be more sensitive
73
and protective of the child’s interests. Secondly , the offence will be tried
74
before a Special Court. Importantly, while trying an offence under the
POCSO Act, a Special Court shall also try an offence with which the
accused may, under the Code of Criminal Procedure, 1973 (“ CrPC ”), be
charged at the same trial i.e., trafficking offences under the BNS and the
ITPA respectively, could thus potentially be tried along with the
75
offences under the POCSO Act. Thirdly , the trial before the Special
76
Court is required to be conducted in camera, and specific protections
are put in place to ensure that the child is not exposed to the accused at
the time of recording of evidence. Fourthly , for certain categories of
offences under the POCSO Act, the Special Court shall presume that the
accused committed or abetted or attempted to commit the offence,
77
unless the contrary is proved. The culpable mental state of the accused
78
shall also be presumed under the POCSO Act.
237. Section 42A of the POCSO Act provides that the Act operates in addition
to, and not in derogation of, any other law in force. In cases of
79
inconsistency, the POCSO Act, shall prevail. Thus, where a victim of
trafficking for CSE is also a child, and the acts of exploitation committed
constitute offences under the POCSO Act, it is the procedure prescribed
under the POCSO Act that must govern the various aspects of the trial.
To the extent that the procedure prescribed under the ITPA, 1956, or any
other legislation is inconsistent with the procedure prescribed under the
73
See Chapters V & VI, The Protection of Children from Sexual Offences Act, 2012.
74
See § 28, The Protection of Children from Sexual Offences Act, 2012.
75
See § 28(2), The Protection of Children from Sexual Offences Act, 2012.
76
See § 37, The Protection of Children from Sexual Offences Act, 2012.
77
See § 29, The Protection of Children from Sexual Offences Act, 2012.
78
See § 30, The Protection of Children from Sexual Offences Act, 2012.
79
Supra note 70.
Miscellaneous Application No. 530 of 2022 Page 130 of 297
POCSO Act, the procedure prescribed under the POCSO Act would
prevail.
238. Section 19 of the POSCO Act makes it clear that the Act itself envisages
the mandatory reporting of the matter by the police authorities to the
CWC, including the need for care and protection and the steps taken in
this regard.Thereafter, the CWC shall take all steps mandated under the
80
JJA to protect the victim. Even if the matter is not reported, the CWC
has the duty to take suo motu cognisance of such cases and reach out to
the children in need of care and protection who are not produced before
it. The Protection of Children from Sexual Offences Rules, 2020
(“ POCSO Rules ”) also provide for the care and protection of the
victims.In such cases, the POCSO Act and the POCSO Rules have to be
read along with the JJA and the relevant rules thereunder, in order to
determine the procedure to be followed and the full scope of care and
protection benefits to which the victim is entitled.
239. The discussion above makes the distinction between the roles of the JJA
and the POCSO Act, respectively, reasonably clear. The JJA is the
legislation that governs how child victims of trafficking for CSE are to
be dealt with, i.e., where they are to be produced, what the inquiry must
encompass, and what measures must be undertaken to ensure their
rehabilitation and reintegration. These are victims’ rights, and they exist
independently of the trial or prosecution of the perpetrators. The
POCSO Act, on the other hand, is primarily concerned with
prosecution-related matters, i.e., prescribing harsher punishment,
ensuring speedier trials, and making the trial process more sensitive to
80
¶ 34-35, In Re: Right to Privacy of Adults, 2024 INSC 614.
Miscellaneous Application No. 530 of 2022 Page 131 of 297
the needs of child victims. While, the JJA applies to all child victims of
trafficking for CSE, the POCSO Act is attracted only when the acts
committed upon the child constitute offences punishable under the self-
same Act.
f. Other institutional and policy measures
240. A lot of initiatives and measures taken by the Central and State
governments work in tandem with all the legal provisions
aforementioned, especially on the investigation and rehabilitation
fronts. Although it would not be possible for us to discuss all of them
exhaustively yet, the respondent no.1 has made particular reference to
a few measures that, according to them, play an especially crucial role.
They are: (a) the Anti-Human Trafficking Cell under the MHA along
with the district-level AHTUs, (b) the NALSA, Scheme and (c) the
Mission Shakti Programme. Their broad aims, objectives and actions are
elaborated below.
•
Anti-Human Trafficking Cell and AHTUs
241. The Anti-Human Trafficking Cell which has been established in the year
2006 within the MHA has focused its attention on coordinating the ‘law
enforcement response’ to human trafficking. Its functions, however,
exclude legislative, welfare and other aspects of response mechanism
81
whose responsibility lies solely within the purview of the MWCD. The
mandate of the cell being thus restricted, its duties are as follows:
providing suitable guidelines to States/UTs from time to time on
81
M INISTRY OF H OME A FFAIRS ,
https://www.mha.gov.in/en/divisionofmha/Women_Safety_Division/anti-trafficking-cell , (last
th
visited 4 May, 2026).
Miscellaneous Application No. 530 of 2022 Page 132 of 297
strengthening law enforcement responses; acting as an interface
between the different Central ministries to address issues of human
trafficking; providing guidance and assistance to States/UTs for
holding colloquiums and conferences for the purpose of sensitizing
police officers, judicial officers, etc.; and the signing of
bilateral/multilateral MoUs with various countries to address the
82 83
subject issue. So far, MOUs have been signed with Bangladesh , UAE
84
and Cambodia .
242. Since ‘Police’ and ‘Public Order’ are subjects which fall within the
purview of the States as per the Seventh Schedule of the Constitution,
the Cell only provides necessary guidance and advice for the State
government authorities to strengthen their efforts, and this is evident
from the different advisories issued from time to time.
243. The MHA has released funds to State/UT governments from time to
time to provide final assistance in the establishment of AHTUs at the
District-level across the country. The respondent no.1 has submitted
that, as on date, 827 AHTUs have been set-up.
82
INISTRY OF XTERNAL FFAIRS
M E A , Memorandum of Understanding between the Government of the Republic
of India and The Government of the People’s Republic of Bangladesh on Bilateral Cooperation for Prevention of
Human Trafficking especially Trafficking in Women and Children; Rescue, Recovery, Repatriation and Re-
integration of Victims of Trafficking, https://www.mea.gov.in/Portal/LegalTreatiesDoc/BG15B2411.pdf .
83
M INISTRY OF E XTERNAL A FFAIRS , Memorandum of Understanding between the Government of the Republic
of India and The Government of United Arab Emirates on Cooperation in Preventing and Combating of Human
Trafficking, https://www.mea.gov.in/Portal/LegalTreatiesDoc/AR17B2980.pdf .
84
M INISTRY OF E XTERNAL A FFAIRS , Memorandum of Understanding between the Government of the Republic
of India and The Government of the Kingdom of Cambodia on Cooperation for Prevention of Human Trafficking
especially Trafficking in Women and Children: Rescue, Recovery, Repatriation and Re-integration of Victims of
Trafficking, https://www.mea.gov.in/Portal/LegalTreatiesDoc/KH18B3195.pdf .
Miscellaneous Application No. 530 of 2022 Page 133 of 297
• NALSA Scheme on Victims of Trafficking and Commercial Sexual
Exploitation, 2015
85
244. In pursuance of Section 4(b) of the Legal Services Authorities Act,
86
1987, the NALSA Scheme recognised that victims of trafficking for
CSE, face a great deal of trauma not just in the immediate aftermath of
their traffic but even after their rescue. It was acknowledged that they
require protection from their traffickers and that their livelihoods must
be secured by the provision of a viable alternatives to avoid the chances
of being re-trafficked. Broadly, the NALSA Scheme tasks the State Legal
Services Authorities (“ SLSAs ”) and the District Legal Services
Authorities (“ DLSAs ”) with the responsibility to create awareness
amongst the victims of trafficking about the existence of several existing
welfare measures and providing assistance in completing the due
diligence procedure for availing various entitlements. This would range
from enabling the applicant to get all identity and supportive
documents to ensuring that the benefit reaches the recipient. For this
purpose, the NALSA Scheme envisions a three-tiered partnership: (a) at
the micro-level with the CSOs and NGOs working in the field; (b) at the
meso-level with and between district administrative mechanisms such
as the district offices of the Department of Women and Child
Development, Child Protection/Welfare Committees and AHTUs; and
(c) at the macro-level with the State and Central governments, their
Departments of Women and Child Development and other relevant
85
The Legal Service Authorities Act, 1987, No. 39, § 4(b), Acts of Parliament, 1987 (India). “ The Central
Authority shall perform all or any of the following functions, namely:— […]frame the most effective and
economical schemes for the purpose of making legal services available under the provisions of this Act ”.
86
N ATIONAL L EGAL S ERVICES A UTHORITY , N ALSA (Victims of Trafficking and Commercial Sexual
Exploitation) Scheme, 2015,
https://cdnbbsr.s3waas.gov.in/s32e45f93088c7db59767efef516b306aa/uploads/2025/04/2025040816
71720977.pdf .
Miscellaneous Application No. 530 of 2022 Page 134 of 297
ministries. Through such coordination mechanisms, the DLSAs are also
required to map out vulnerable areas and vulnerable populations
within its jurisdiction so that preventive strategies can be put into
motion.
245. A team of panel lawyers, social workers and Para-Legal Volunteers
(“ PLVs ”) are to be used for the aforesaid. Moreover, the lawyers and
PLVs are also required to help the victims of trafficking in getting the
FIRs registered and be present during all legal proceedings including
opposing the bail of the accused, obtaining court orders for protection
of the victim and witnesses, assisting in recording the statement of the
victim during trial, release of compensation under the provisions of the
CrPC and/or the State Victim Compensation Schemes etc. Finally, the
Scheme also envisages the creation of a sound Management Information
System (“ MIS ”) within the DLSAs and SLSAs respectively so that every
activity under the NALSA Scheme can be recorded, monitored,
followed up and assessed. This MIS would also enable the monitoring
of the successful rehabilitation of the trafficked victims for a period of
three years.
•
Mission Shakti Programme for Women: OSCs and Shakti Sadans
246. The ‘Mission Shakti – Integrated Women Empowerment Programme’ is
an umbrella scheme whose objective is to provide all women including
differently-abled, socially and economically marginalized and
vulnerable groups who are in need of care and protection, with both
short term and long-term services and information for holistic
development and empowerment. All its components have the broad
objectives of protecting or assisting women who are (a) victims of
Miscellaneous Application No. 530 of 2022 Page 135 of 297
violence, or (b) in difficult circumstances, or (c) are in need of
empowerment. The integration of various former sub-schemes was
effected to overcome the implementation problems which arose as a
result of various organs working in silos without adequate linkages,
lack of standardization and adequately trained staff, absence of
appropriate monitoring etc. Presently, the Mission has only two sub-
schemes i.e., ‘Sambal’ for the safety and security of women and
‘Samarthya’ for the empowerment of women.
247. The One-Stop Centres (“ OSCs ”) which are a part of the ‘Sambal’ sub-
scheme are of some significance to us. They are intended to act as the
mainstay of all activities at the District level. They facilitate immediate
emergency and non-emergency access to a range of services including
medical, legal, temporary shelter, police assistance, psychological and
counselling support etc. under one roof for women affected by violence
and distress which would include victims of trafficking. Temporary
shelter can be availed at the OSCs for a maximum period of 5 days and
for long-term shelter requirements, arrangements are made in
coordination with the Shakti Sadans. In the event, girls below the age of
18 years are referred to the OSC, they are provided services in
coordination with the authorities established under the JJA and the
POCSO respectively. OSCs are, by priority, established either within or
near existing hospitals or medical facilities so that medical care is made
realistically accessible. An important aspect is that a common pool of
referral staff for legal, psychological and medical facilitation for the
OSCs and Shakti Sadans are prepared in a combined manner.
248. The Shakti Sadans which are a part of the ‘Samarthya’ sub-scheme is a
merged version of two previously separate initiatives i.e.,
Miscellaneous Application No. 530 of 2022 Page 136 of 297
‘SwadharGreh’ for women in difficult circumstances and the Ujjawala
home which were the protective homes provided for under Section 21
of the ITPA. The following are the range of services that are to be
provided by the Shakti Sadans:
(i) Basic necessities such as food, clothing and other items of personal
use.
(ii) Legal assistance requirements through DLSAs or through lawyers
arranged separately by the implementing organisations.
(iii) First aid facilities which are to be made available within the
homes. However, health check-up and other medical facilities
would be provided through the district hospital/health and
wellness centers/CHC/PHC. Notwithstanding the above, the
implementing organisations are required to engage a part-time
doctor(s) who is required to visit the home at least once in a week
to conduct a general health check-up of the residents. Such a
doctor(s) must also be available should any emergency arise at the
home. Expenditure towards the purchase of medicines prescribed
by the doctor is to be met by the implementing organisations
through their management costs.
(iv) The common pool of counsellors under the overall charge of the
OSCs would provide psycho-socio counselling to the residents.
(v) Arrangements for vocational training and skill development
classes are also to be provided by the implementing organisations
through the Vocational Training Institutes recognized by the
Directorate General of Employment and Training under the
Ministry of Labour and Employment, or the Training Partners of
the National Skill Development Council (“ NSDC ”). The training
Miscellaneous Application No. 530 of 2022 Page 137 of 297
and examination fee for the same, if not covered by any existing
scheme, would be reimbursed to the implementing organization
on the submission of the completion certificate. Expenditure for the
travel etc., are to be met from the contingencies head.
(vi) Micro Credit would be facilitated through SIDBI, Mudra and other
relevant schemes of the Central/State government in case the
residents want to start any small-scale industry/business.
(vii) Opening bank accounts in their names is also facilitated in which
an amount of Rs. 500 per month per resident is deposited. This
amount cannot generally be withdrawn by the residents during
their stay in the home. The amount along with any interest accrued
is intended to act as seed money for the resident at a time when she
leaves the home.
(viii) Social security benefits shall also be arranged for the residents in
convergence with the relevant departments.
249. The facilities at the Shakti Sadan homes could also be availed by the
children accompanying the women i.e., unmarried girls of any age and
boys up to the age of 12 years would be allowed to stay with their
mothers. The maximum period for which women can stay in Shakti
Sadan homes is three years. However, extensions can be granted on a
need basis by the jurisdictional magistrate.
250. The Guidelines of the Mission Shakti scheme itself envisage that the
Shakti Sadans and the OSCs work in close coordination with the AHTUs
in the Police Stations. While the reintegration and repatriation of the
victims of trafficking will be facilitated through the AHTUs, the Shakti
Sadan Scheme is to provide the following services in the process:
Miscellaneous Application No. 530 of 2022 Page 138 of 297
(i) Set up Half-way Homes, which is a home within the community,
wherein a group of victims/survivors, ready for reintegration, live
and work out of. These homes facilitate a smooth transition from
life in the rehabilitation center to independent living in the
community. The women here are gainfully employed and can live
semi-independently with minimum supervision. This facility has
been created keeping in mind that a phased approach to re-
integration is required.
(ii) For inter-State repatriation, they would cover travel and other
incidental expenses of the victim and one accompanying person
from the destination area to her home city/town/village with a
view to enable restoration of the victim/survivor to their families.
(iii) As far as facilitating cross-border repatriation is concerned, the
expenses incurred in fulfilling various formalities for obtaining a
repatriation order, as well as the travel expenses to the country of
origin or the border (for both the victim/survivor and one
accompanying person) is covered by the scheme.
C. Victims of Trafficking for CSE and their Right to Rehabilitation
251. From our discussion of the Palermo Protocol in the preceding section, it
is evident that the Protocol’s primary aims were three-fold: prevention,
punishment, and protection. While Articles 6–8 provide for certain
measures to protect and assist trafficked persons with full respect for
their human rights, these provisions are soft obligations. The
criminalisation obligation under Article 5 stands in sharp contrast, as it
is mandatory and has been widely followed. At its core, therefore, the
Protocol is a crime-suppression treaty. It views trafficking primarily as
a crime involving criminals who have to be prosecuted and punished.
Miscellaneous Application No. 530 of 2022 Page 139 of 297
The protection of victims, though present in its text, has never been its
87
driving purpose.
252. In earlier paragraphs of this judgment, we briefly discussed the multiple
approaches developed to understand and combat trafficking. We noted
that no single approach would suffice, and that an effective response
must draw on elements of each. The Palermo Protocol, to its credit,
attempts to address trafficking as both a crime and a human rights
violation. However, its overwhelming emphasis on the crime-control
88
approach has produced a weak human rights framework.
253. Such a lack of primacy afforded to protection and assistance holds true
for the Indian legal landscape dealing with victims of trafficking for CSE
as well. From our detailed discussion of the primary legislations
governing trafficking and CSE, i.e., the ITPA and the BNS respectively,
it is clear that the overwhelming focus of both statutes is criminalisation,
prosecution, and punishment. The victim, though not entirely absent,
appears at the margins. There are provisions that address certain
aspects of protection and assistance, such as provisions in the ITPA,
which provide for protective homes, and the BNSS provisions, which
provide for compensation. These are not without value. But they are
piecemeal and do not reflect the victim’s broader needs. More
fundamentally, none of these provisions categorically recognise the
victim as a person whose rights have been violated, i.e., a person who
87
Tom Obokata, Trafficking of Human Beings from a Human Rights Perspective: Towards a Holistic
Approach 164 (Brill Nijhoff 2006).
88
Julie Kaye, Hayli Millar & Tamara O'Doherty, Exploring Human Rights in the Context of Enforcement-
Based Anti-trafficking in Persons Responses , in The Palgrave International Handbook of Human
Trafficking 603, 603–607 (John A. Winterdyk & Jackie Jones eds., Palgrave Macmillan 2020).
Miscellaneous Application No. 530 of 2022 Page 140 of 297
has been wronged, and who is therefore entitled to a response
commensurate with that wrong.
254. The overwhelming emphasis on criminal justice, at the expense of a
human rights framework, rests on a flawed assumption: that the
victim’s interests are somehow encapsulated within the public interest
in prosecuting and punishing the perpetrators. Of course, the public has
a genuine interest in punishing criminals and many victims would, in
fact, demand exactly that. But prosecution and punishment alone do not
improve a victim’s condition. A trafficking victim’s needs do not
disappear when a conviction is recorded. In fact, while trafficking
affects the larger society, its most tangible effects are felt and
experienced by the victims. Trafficking victims, especially those
trafficked for CSE, have diverse and deeply personal needs. They may
need safety, medical care, financial support, or reunification with their
families. None of them is addressed by a sentence handed down in a
courtroom.
255. The consequence of a primarily crime-control approach is this. It does
not place the victim and her needs at the centre of the response. It
conflates punishment of the trafficker with fulfilment of the victim’s
interests. And in doing so, it denies them the protection and assistance
they actually require. The result, well-documented and deeply
troubling, is that many victims are re-trafficked. They are returned,
without support, without safety assessments, without resources, to
precisely the conditions of vulnerability that made them targets in the
first place. A framework that does not address the needs and interests
of the victims concretely cannot be said to have addressed the problem
of trafficking at all.
Miscellaneous Application No. 530 of 2022 Page 141 of 297
256. A human rights approach to trafficking reframes the problem.
Trafficking is not only a crime to be prosecuted, but also an act which
violates the fundamental rights of real people. Shifting to a human
rights framework means shifting the lens: to seeing trafficked persons
as people who have been wronged and who bear rights. In this
framework, the victims are no longer at the periphery. They are at the
centre; and with that shift comes a corresponding change in what the
response must accomplish. The goal is not merely to punish the
perpetrator. It is also to empower the victims by guaranteeing and
realising their rights and by ensuring access to the remedies they are
owed.
257. To be clear, a human rights framework to addressing trafficking is
grounded in three propositions. First , victims are rights-holders, i.e.,
persons with legal entitlements arising from the wrong done to them.
Secondly , their needs are not met solely by criminal justice measures.
Thirdly , victims are not a monolithic group. Their needs and interests
are deeply personal and varied. What one victim requires may be
entirely different from what another needs.
258. It is important to clarify what the human rights approach does not
mean. It does not mean abandoning the criminal justice response to
trafficking. Prosecuting traffickers and imposing proportionate
punishment remains necessary. Criminal justice and human rights are
not competing frameworks. Criminal justice is, in fact, an important
component of the broader human rights framework. The human rights
approach insists that prosecution cannot be the sole response; it simply
requires that, alongside arresting traffickers and securing convictions,
Miscellaneous Application No. 530 of 2022 Page 142 of 297
we also guarantee the protection and assistance to those who have been
trafficked.
259. The human rights framework for addressing trafficking also finds
support in core international law instruments, such as the International
Covenant on Civil and Political Rights (“ ICCPR ”). Article 2(3) of ICCPR
obliges every State Party to ensure that persons whose rights are
violated have access to effective remedies. The Human Rights
Committee, in General Comment No. 31, has elaborated on what this
obligation requires. It makes clear that an effective remedy is not limited
to prosecuting the perpetrator. It also encompasses reparation and,
crucially, measures to prevent recurrence of the violation. The
Committee further clarified that reparation need not take a single form.
Depending on the circumstances, it may include restitution,
compensation, rehabilitation, public acknowledgement, and other
measures.
260. In terms of soft law on the right to remedies for victims, the most
important instrument is the Basic Principles and Guidelines on the Right
to a Remedy and Reparation for Victims of Gross Violations of
International Human Rights Law and Serious Violations of
International Humanitarian Law (“ 2006 Basic Principles ”). The 2006
Basic Principles indicate that the concept of remedy includes both
substantive and procedural components. As a procedural matter, often
termed as “access to justice,” individuals whose rights are claimed to
have been violated ought to have effective access to a competent legal
Miscellaneous Application No. 530 of 2022 Page 143 of 297
89
system to seek remedies in the State where the violation occurred. In a
substantive sense, often termed “reparation,” individuals whose rights
have been violated should obtain remedies effective enough to redress
90
the harm. The 2006 Basic Principles also envisage multiple forms of
reparation, including restitution, compensation, rehabilitation,
91
satisfaction, and guarantees of non-repetition.
261. A human rights approach to trafficking, which places victims at its
centre, can find recognition in the Indian legal landscape as well. The
clearest and most fundamental articulation of such an approach can be
found in Articles 21 and 23 of the Constitution respectively.
i. Right to Live with Dignity – What does it include?
262. Article 21 of the Constitution casts an obligation on the State to preserve
92
life. Preservation of human life is of paramount importance because
life, once lost, cannot be given back. On multiple occasions, this Court
has held that the right to life guaranteed under Article 21 cannot be
93
restricted to mere animal existence. The right to life encompasses more
than mere physical survival. It includes the right to live with dignity,
for without dignity, human life is substantially diminished. The right to
89
General Principle No. 12, Basic Principles and Guidelines on the Right to a Remedy and Reparation
for Victims of Gross Violations of International Human Rights Law and Serious Violations of
International Humanitarian Law, G.A. Res. 60/147.
90
General Principle No. 15, Basic Principles and Guidelines on the Right to a Remedy and Reparation
for Victims of Gross Violations of International Human Rights Law and Serious Violations of
International Humanitarian Law, G.A. Res. 60/147.
91
General Principle Nos. 19-22, Basic Principles and Guidelines on the Right to a Remedy and
Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations
of International Humanitarian Law, G.A. Res. 60/147.
92
¶ 7-8, Pt. Parmanand Katara V. Union of India and Ors. , (1989) 4 SCC 286.
93
¶ 7, Francis Coralie Mullin v. Administrator, Union Territory of Delhi , (1981) 1 SCC 608; ¶ 5, Chameli
Singh v. State of U.P., (1996) 2 SCC 549.
Miscellaneous Application No. 530 of 2022 Page 144 of 297
life, thus understood, incorporates the right to dignity. But what does a
life lived with dignity actually require?
263. Dignity is an ambiguous and malleable concept. It is difficult to define,
and is perhaps best left undefined. In a world with so many different
life views and value systems, a single, universal conception of dignity is
impossible to sustain. Dignity’s malleability, however, also means it can
be invoked to support competing positions. This tension was on full
display when this Court considered the permissibility of passive
euthanasia under the constitutional framework in Common Cause v.
Union of India , reported in (2018) 5 SCC 1 , and Harish Rana v. Union
of India , 2026 SCC OnLine SC 358, respectively. Dignity was invoked
to support the view that life must be preserved at all times. At the same
time, it was invoked to support the view that there are circumstances in
which allowing life to end naturally may itself be the dignified choice.
Viewed in this context, the right to live with dignity is open-ended in
nature. It does not prescribe specific content for every context.
264. Despite this ambiguity and open-endedness, certain facets of dignity are
undeniable. This Court has returned to them time and again. First and
94
foremost is the recognition that every person has inherent dignity.
Dignity belongs to every human being simply because they are human.
It does not admit degrees. It cannot be gained or lost. Inherent dignity
is not a contingent feature of a person; it is a necessary one. Every person
possesses it equally, not because they meet some external standard of
what it means to be dignified, but simply because they are human. It is
94
Preamble, Universal Declaration of Human Rights; Preamble, International Covenant on Civil and
Political Rights; ¶ 20 & 26, M. Nagaraj And Others v. Union Of India , 2006 SCC 8 212; ¶ 69 & 70, Dr.
Jaya Thakur v. Government of India , 2026 INSC 97.
Miscellaneous Application No. 530 of 2022 Page 145 of 297
intrinsic to humanity itself. One scholar aptly describes this conception
of dignity as follows:
“to ascribe human dignity to human beings not as empirical matter,
but as a moral matter – that is, to treat it as an inherent aspect of
humanity – is to treat human beings as creatures of intrinsic,
incomparable, and indelible worth, simply as human beings; no
further qualifications are necessary. In this basic sense, dignity is
ascribed to human beings independently of their particular
accomplishments or merits of praiseworthiness. It refers to a kind of
worth that is not contingent on being useful, or attractive, or
95
pleasant or otherwise serving the ends of others.”
(Emphasis Supplied)
265. The concept of inherent dignity furthers the idea that every human
being is an end in themselves and not merely a means to another’s
purposes. This is because the intrinsic dignity of a person consists in
being acknowledged as an independent personality. To treat a person
as an object is to assign to them only the value they hold in another’s
hands. It is, in effect, to say that they have no worth of their own. This
is the essence of objectification. When a person is trafficked for the
purpose of commercial sexual exploitation, this is precisely what occurs.
The entire transaction proceeds as though their humanity is irrelevant
and they are nothing more than mere objects. There is perhaps no act
more directly at odds with the recognition of inherent dignity than these
acts of trafficking, which in essence reduce a person to a thing.
266. This Court has not stopped at recognising the inherent dignity of every
human being. Although every person is born with the same dignity,
many, especially the poor and downtrodden, often struggle to live in
95
Rinie Steinmann, The Core Meaning of Human Dignity , 19 Potchefstroom Elec. L.J. 1, 10 (2016).
Miscellaneous Application No. 530 of 2022 Page 146 of 297
conditions that sustain it. Having dignity as a birthright is not enough.
One must also be able to live in conditions that give it meaning. Dignity,
in this sense, needs sustenance from the material circumstances of a
96
person’s life.
267. This Court gave direct expression to this idea in Francis Coralie Mullin
v. Administrator, Union Territory of Delhi, reported in (1981) 1 SCC
608 by observing thus:
“8. But the question which arises is whether the right to life is limited
only to protection of limb or faculty or does it go further and embrace
something more. We think that the right to life includes the right to
live with human dignity and all that goes along with it, namely, the
bare necessaries of life such as adequate nutrition, clothing and shelter
and facilities for reading, writing and expressing oneself in diverse
forms, freely moving about and mixing and commingling with fellow
human beings. Of course, the magnitude and content of the
components of this right would depend upon the extent of the
economic development of the country, but it must, in any view of the
matter, include the right to the basic necessities of life and also the
right to carry on such functions and activities as constitute the bare
minimum expression of the human-self. Every act which offends
against or impairs human dignity would constitute deprivation pro
tanto of this right to live and it would have to be in accordance with
reasonable, fair and just procedure established by law which stands the
test of other fundamental rights.[...]”
(Emphasis Supplied)
268. The passage above is clear: without a minimum level of basic
necessities, how can life be lived with dignity? This Court has firmly
established that there is an inextricable link between dignity and
97
material well-being. Viewed thus, the right to live with dignity is not
96
Erin Daly, Dignity Rights: Courts, Constitutions, and the Worth of the Human Person 55 (Univ. of
Pa. Press 2012).
97
Also see ¶ 13, Murlidhar Dayandeo Kesekar v. Vishwanath Pandu Barde, 1995 (Supp-2) SCC 549; ¶ 8,
Mohini Jain (Miss) v. State Of Karnataka, 1992 SCC 3 666.
Miscellaneous Application No. 530 of 2022 Page 147 of 297
a static condition. It is shaped by the circumstances a person lives in, i.e.,
the situations they encounter and the conditions they inhabit. These
circumstances can either sustain dignity or erode it.
269. A certain level of material well-being allows a person to exercise real
control over their life. It frees them from the constant pressure of want.
It is also the foundation on which the effective exercise of civil and
political rights depends, i.e., rights that remain theoretical and often
98
inaccessible for those who cannot meet their most basic needs.
Further, this Court has, on multiple occasions, recognised that to make
rights meaningful to the poor and disadvantaged, the State must
99
provide facilities and opportunities to fulfil them.
270. It is important, however, to draw a distinction. The provision of basic
goods promotes dignity and is an aspect of it. But it is not dignity itself.
Inherent dignity is, as discussed earlier, universal and inalienable. It is
not conferred by the State. What the State can do and is constitutionally
obligated to do is to create and sustain the conditions in which a
person’s dignity can be lived . The obligation is not to give dignity, but
to ensure that the conditions for its expression are present.
271. However, it is also important to note the qualification that is present in
this Court’s observation in Francis Coralie ( supra ). What constitutes
bare necessities and to what extent and to whom they should be
provided are aspects which are not fixed. They depend, to a significant
degree, on the extent of the country’s economic development. The
98
Id at ¶ 16; Chameli Singh , Supra note at 93 ¶ 16.
99
¶ 16, Vincent Panikurlangara V. Union of India and Ors., (1987) 2 SCC 165; ¶ 2, Vikram Deo Singh
Tomar v. State of Bihar, 1988 AIR SC 1782; ¶ 16, Charu Khurana And Others v. Union Of India, 2015
SCC 1 192.
Miscellaneous Application No. 530 of 2022 Page 148 of 297
determination of which specific measures are necessary and the
allocation of resources toward them are decisions that fall primarily
within the domain of the legislature and the executive. However, this
does not mean that the Court stands apart entirely. Where the State has
failed to take even the minimum steps necessary to give content to the
rights of its citizens or where it has made commitments it has not
honoured, this Court has consistently held that it is its duty to identify
100
those failures and to call upon the State to remedy them.
272. The linkages between dignity in the form of a certain minimum material
well-being and the right to be free from exploitation are apparent. A
person without material security, i.e., without income, shelter, or the
means of an independent livelihood, is a person exposed to exploitation.
He/she cannot negotiate from a position of choice, and it is this very
desperation that makes them a target. As discussed in the earlier section,
lack of access to the bare basic necessities of life is what makes people
most vulnerable to being trafficked. Thus, for victims trafficked for CSE,
material deprivation of this nature merely doesn’t diminish dignity. It
actively creates conditions in which their dignity can be stripped away
altogether.
273. There is a third dimension to dignity that has received increasing
recognition. Dignity is not only about inherent worth, nor only about
material well-being. To live with dignity, a person must not be
humiliated, must not be excluded from the community they belong to,
and must not be treated as lesser simply because of who they are or
100
¶ 10, Paschim Banga Khet Mazdoor Samity and others V. State of West Bengal and Another , (1996)
4 SCC 37; Centre for Environment & Food Security v. Union of India, (2011) 5 SCC 676.
Miscellaneous Application No. 530 of 2022 Page 149 of 297
101
what they have been through. This is because the harm of indignity is
not only material. It is the humiliation, the frustration and the sense of
102
being told that one is unacceptable as a member of society. Dignity,
in this sense, depends on recognition by the State and society of a person
and their lived experiences.
274. For victims of trafficking for CSE, this third dimension of dignity is
violated in a particularly acute and enduring manner. As will become
evident from the discussion in the succeeding parts of this judgment,
victims of trafficking for CSE carry a deep and pervasive stigma.
Victims find themselves isolated from their families and communities,
excluded from social life, and treated as persons whose suffering is, in
some measure, self-inflicted or undeserving of concern. When victims
of trafficking for CSE are met with stigma and marginalisation, it is their
dignity as persons whose identity and suffering deserve
acknowledgement that is fundamentally undermined.
275. Thus, the right to live with dignity, as this Court has understood it,
broadly includes: (i) the right not to be treated as an object, (ii) access to
the minimum material conditions for a meaningful life, and (iii) the
right to be recognised. For victims trafficked for CSE, the crime violates
their right to live with dignity directly, i.e., it commodifies,
impoverishes, and stigmatises. But the absence of dignity also precedes
the crime, i.e., lack of access to minimum material necessities, is
predominantly what makes victims vulnerable to traffickers in the first
101
¶ 3-4, 132 & 529, Navtej Singh Johar & Ors. v. Union Of India, 2018 SCC 101.
102
As Justice Goldberg writes in Heart of Atlanta Motel, Inc. v. United States : Discrimination is not
simply dollars and cents, hamburgers and movies; it is the humiliation, frustration, and embarrassment that a
person must surely feel when he is told that he is unacceptable as a member of the public because of his race or
color.
Miscellaneous Application No. 530 of 2022 Page 150 of 297
place. When dealing with victims trafficked for CSE, this right to live
with dignity needs to be necessarily read alongside Article 23 of the
Constitution as well. Such a reading opens up a new perspective on
what the law owes to these victims.
ii. Victims’ Right to Rehabilitation
276. Article 23, as we noted earlier in this judgment, is a fundamental right
that guarantees freedom from exploitative structures. It prohibits the
trafficking of human beings and all forms of forced labour. Its sweep is
deliberately wide. It is enforceable not only against the State but also
against private actors.
277. That trafficking constitutes an affront to dignity and life is beyond
question. But the same can be said of many heinous crimes. To protect
against such violations of the right to life, the State establishes a criminal
justice system, one that aims to prevent crime, rescue victims, and
punish perpetrators. However, this Court, on a combined reading of
Articles 21 and 23 respectively, has made clear that the obligations owed
to victims of exploitative structures go beyond this prevention, rescue
and punishment paradigm.
278. A closer look at this Court’s decisions in Bandhua Mukti Morcha
(supra) , Neeraja Chaudhary v. State of M.P , reported in (1984) 3 SCC
243 and Public Union for Civil Liberties v. State of T.N. , reported in
(2004) 12 SCC 381 respectively , makes this clear. This Court identified a
three-fold duty when dealing with victims of exploitative structures: (i)
identification of victims, (ii) their rescue, and (iii) their rehabilitation.
The relevant observations from each of these judgments, which reflect
this understanding, are as follows:
Miscellaneous Application No. 530 of 2022 Page 151 of 297
Bandhua Mukhti Morcha ( supra )
“26. The other question arising out of the implementation of the
Bonded Labour System (Abolition) Act, 1976 is that of rehabilitation
of the released bonded labourers and that is also a question of the
greatest importance, because if the bonded labourers who are identified
and freed, are not rehabilitated, their condition would be much worse
than what it was before during the period of their serfdom and they
would become more exposed to exploitation and slide back once again
into serfdom even in the absence of any coercion. The bonded labourer
who is released would prefer slavery to hunger, a world of “bondage
and (illusory) security” as against a world of freedom and starvation.
The State Governments must therefore concentrate on rehabilitation
of bonded labour and evolve effective programmes for this purpose.
Indeed they are under an obligation to do so under the provisions of
the Bonded Labour System (Abolition Act), 1976. [...]
xxx
28. We may point out that the problem of bonded labourers is a
difficult problem because unless, on being freed from bondage, they are
provided proper and adequate rehabilitation, it would not help to
merely secure their release. Rather in such cases it would be more in
their interest to ensure proper working conditions with full enjoyment
of the benefits of social welfare and labour laws so that they can live a
healthy decent life. But of course this would only be the next best
substitute for release and rehabilitation which must receive the highest
priority.”
(Emphasis Supplied)
Neeraja Chaudhary (supra)
“1.This is yet another case which illustrates forcibly what we have said
on many an occasion that it is not enough merely to identify and
release bonded labourers but it is equally, perhaps more, important
that after identification and release, they must be rehabilitated,
because without rehabilitation, they would be driven by poverty,
helplessness and despair into serfdom once again. Poverty and
destitution are almost perennial features of Indian rural life for large
numbers of unfortunate ill-starred humans in this country and it
Miscellaneous Application No. 530 of 2022 Page 152 of 297
would be nothing short of cruelty and heartlessness to identify and
release bonded labourers merely to throw them at the mercy of the
existing social and economic system which denies to them even the
basic necessities of life such as food, shelter and clothing. It is obvious
that poverty is a curse inflicted on large masses of people by our
malfunctioning socio-economic structure and it has the disastrous
effect of corroding the soul and sapping the moral fibre of a human
being by robbing him of all basic human dignity and destroying in him
the higher values and the finer susceptibilities which go to make up
this wonderful creation of God upon earth, namely, man. It does not
mean mere inability to buy the basic necessities of life but it goes much
deeper; it deprives a man of all opportunities of education and
advancement and increases a thousand fold his vulnerability to
misfortunes which come to him all too often and which he is not able
to withstand on account of lack of social and material resources. We,
who have not experienced poverty and hunger, want and destitution,
talk platitudiously of freedom and liberty but these words have no
meaning for a person who has not even a square meal per day, hardly
a roof over his head and scarcely one piece of cloth to cover his shame.
What use are ‘identification’ and ‘release’ to bonded labourers if after
attaining their so-called freedom from bondage to a master they are
consigned to a life of another bondage, namely, bondage to hunger and
starvation where they have nothing to hope for — not even anything
to die for — and they do not know whether they will be able to secure
even a morsel of food to fill the hungry stomachs of their starving
children. What would they prize more: freedom and liberty with
hunger and destitution staring them in the face or some food to satisfy
their hunger and the hunger of their near and dear ones, even at the
cost of freedom and liberty? The answer is obvious. It is therefore
imperative that neither the Government nor the Court should be
content with merely securing identification and release of bounded
labourers but every effort must be made by them to see that the freed
bonded labourers are properly and suitably rehabilitated after
identification and release.
xxx
5.[...] It is the plainest requirement of Articles 21 and 23 of the
Constitution that bonded labourers must be identified and released
and on release, they must be suitably rehabilitated. The Bonded Labour
System (Abolition) Act, 1976 has been enacted pursuant to the
Directive Principles of State Policy with a view to ensuring basic
Miscellaneous Application No. 530 of 2022 Page 153 of 297
human dignity to the bonded labourers and any failure of action on
the part of the State Government in implementing the provisions of
this legislation would be the clearest violation of Article 21 apart from
Article 23 of the Constitution.
(Emphasis Supplied)
Public Union for Civil Liberties ( supra )
“2. [...] The report correctly pointed out that the implementation of the
Act encompasses three functions, namely, identification, release and
rehabilitation of bonded labour. [...]
xxx
4. After going through the detailed report of the Expert Group,
responses to it by the Governments and that of the learned amicus
curiae, the report of NHRC and the various affidavits-on-record, we
could easily arrive at the conclusion that the major issue that is to be
solved are the aspects relating to rehabilitation of bonded labours.
Once the bonded labourers are identified and released, they have to be
rehabilitated forthwith. It is a sad reality that the rehabilitation and
related aspects of bonded labourers have not been given adequate
consideration till now. If we are now concentrating our attention to
identification and release of bonded labourers, they will languish in
streets, if there are no well-chalked-out corresponding plans for
rehabilitation. Hence, in our considered opinion the primary direction
shall be aimed at evolving and implementing rehabilitation plans.”
(Emphasis Supplied)
279. What emerges from these decisions is that when dealing with victims of
exploitative structures, rehabilitation is not a secondary concern.
Rather, as the Court in Neeraja Chaudhary (supra) recognised, it is
equally, perhaps more, important . The reason is straightforward. Rescue
without rehabilitation returns the victim to the very same conditions of
poverty and vulnerability that made her a target in the first place. As
this Court observed in Bandhua Mukhti Morcha ( supra ), if bonded
labourers are identified and freed but not rehabilitated, their condition
Miscellaneous Application No. 530 of 2022 Page 154 of 297
may well be worse than it was before, as they are more exposed to
exploitation, with no protection and nowhere to turn. The same logic
applies with equal, if not greater, force to victims of trafficking for CSE.
Identification and rescue are necessary, however, they are not sufficient.
280. It may be pointed out that the above decisions of this Court arose in the
context of bonded labour and the Bonded Labour System (Abolition)
Act, 1976. However, in our opinion, it would be impossible to read those
decisions as confined to that context alone. The principle that these cases
establish, i.e., that the constitutional obligations owed to victims of
exploitative structures extend to rehabilitation and not merely to rescue,
flows directly from Articles 21 and 23 respectively. There is no basis, in
law or in reason, to hold that it applies to bonded labourers but not to
victims trafficked for CSE. Both are victims of exploitative structures
and both are protected by Article 23. To draw such a distinction would
be to betray the spirit of this Court’s dictum in each of those cases.
281. The discussion thus far leads to a clear conclusion. A combined reading
of Articles 21 and 23 respectively establishes that victims of trafficking
for CSE have a right to rehabilitation. In recognising this right, the
Constitution adopts, in the clearest possible terms, a human rights
approach to trafficking, i.e., one that places the victim at its centre, and
measures the adequacy of the response to trafficking not only by the
convictions secured but also by the rehabilitation that is afforded.
282. Further, the statutory framework reinforces this conclusion. As we
discussed earlier in this judgment, the ITPA, itself envisages
rehabilitation and protection for victims to some extent. While the BNS
provides for compensation, this Court has consistently held that
Miscellaneous Application No. 530 of 2022 Page 155 of 297
compensation alone does not exhaust the State’s obligations and that
103
victims of crime must be rehabilitated. Significantly, the respondent
no. 1 has also accepted, in its submissions, that victims of trafficking for
CSE are entitled to rehabilitation. Viewed from any angle, the right of
victims of trafficking for CSE to rehabilitation is beyond question.
iii. Scope of the right to rehabilitation of victims of trafficking for
CSE
283. Having established the right to rehabilitation for the victims of
trafficking for CSE, it is necessary to briefly address its scope and
contents. This Court, in the cases discussed above, whilst dealing with
the right to rehabilitation, didn’t expand on its scope or content.
However, as discussed in the previous section on Article 23, it is evident
that, to be in line with this Court’s interpretative approach, the right to
rehabilitation must be understood and be given an expansive meaning.
284. At its most fundamental level, the right to rehabilitation includes the
right to be protected, both from the traffickers and from being trafficked
again. This is because Article 23 promises freedom from exploitative
structures and for freedom to be meaningful, it must also be lasting.
Thus, embedded within this right to protection is a right to be prevented
from further harm. What would such a right exactly include?
285. At the most basic level, the right to be protected from further harm
requires the State to take measures to secure the victim’s physical safety
from her traffickers. In general, the State extends protection to all
citizens through the ordinary mechanisms of the criminal justice
103
¶ 1,3 & 7, Mallikarjun Kodagali v. State of Karnataka , (2019) 2 SCC 752; ¶ 24, Gang-Rape Ordered
by Village Kangaroo Court in W.B., In re, (2014) 4 SCC 786.
Miscellaneous Application No. 530 of 2022 Page 156 of 297
system, i.e., the police, courts, and penal law respectively. However, the
protection owed to victims of trafficking for CSE is qualitatively
different and places a far heavier obligation on the State. Trafficking is
sustained through high levels of violence and intimidation, and the
networks that support it do not dissolve simply because a victim has
been freed from them. In fact, the risk to a victim’s safety can intensify
after rescue.
286. At a further level, the right to protection from further harm should
address the consequences of wrongdoing and place the victim in a
position where she can build a life that is not defined by the wrong she
suffered. To understand what this entails, it is useful to return to the
three dimensions of dignity we recognised earlier. Each dimension tells
us something different about what rehabilitation must accomplish.
Together, they ensure that the right to rehabilitation is not understood
narrowly.
287. The most readily recognised dimension of rehabilitation is the one
corresponding to dignity as material well-being. This encompasses the
provision of goods, shelter, medical care, psychological support,
compensation, and vocational training, i.e., all that is necessary to
enable the victim to sustain herself independently. Without this,
rehabilitation is an empty promise. However, the scope of the right to
rehabilitation cannot stop here.
288. The dignity as recognition dimension (the third dimension) demands
that rehabilitation also include measures that actively work to reduce
the stigma, isolation, and marginalisation that victims of trafficking for
CSE face. Measures that facilitate genuine reintegration into the
Miscellaneous Application No. 530 of 2022 Page 157 of 297
community, i.e., measures that address the social conditions which
perpetuate exclusion or cause humiliation, are therefore as much a part
of rehabilitation as any material provision.
289. The inherent dignity dimension, on the other hand, can be said to entail
not what rehabilitation must include but how it must be carried out. To
respect a victim’s inherent dignity is to refuse to treat her as a passive
object upon whom measures are imposed. It means that rehabilitation
must, to the greatest extent possible, be designed and implemented with
the victim’s own choices, wishes, and specific circumstances at its
centre.
290. The above discussion establishes that the right to rehabilitation imposes
positive obligations on the State. This raises the question: what specific
measures is the State obliged to provide to actualise the right to
rehabilitation of victims of trafficking for CSE? There is no single,
precise answer. Protection and rehabilitation can take many forms, and
the specific measures required will depend on the victim’s
circumstances, available resources, and the structures in place. It is not
the function of this Court to delineate the exact scope of the right and
all that it entails. Those are decisions for the legislature and the
executive to make, after considering a host of factors and perspectives.
This Court’s role is more focused. It is 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. In the next sub-section, we seek
to assess these two factors with respect to the right to rehabilitation of
victims of trafficking for CSE.
Miscellaneous Application No. 530 of 2022 Page 158 of 297
D. Whether the State could be said to have taken “reasonable measures”
to safeguard the right to rehabilitation of the victims of trafficking for
CSE?
291. In order to gauge whether ‘reasonable’ measures are being taken by the
State to guarantee the right to rehabilitation to the victims of trafficking
for CSE, it is important that we go back to the start and refocus on the
reason which impelled the very institution of the original writ petition
– the absence of a comprehensive “ Victim Protection Plan”. The effects of
its void have been long-lasting and reverberating for the victims. This
very lacuna comes with the danger of throwing any and all rescue
efforts wayward because there is no clear, guiding and binding
framework on how the victims are to be dealt with, both during and
after their rescue. Naturally, this would also mean that the manner of
protection and rehabilitation which is to be offered to such victims is
without method and contingent on the will or whims of the person
charged with their care at the ground-level, thereby seriously and
systemically impairing the realisation of the victim’s fundamental
rights.
292. Upon a detailed perusal of all the materials which form a part of the
record of the original writ petition, the first M.A. and the present M.A.
respectively, it can be seen that the necessity of a victim protection plan
which must, in all cases, augment the State’s anti-trafficking efforts, was
duly acknowledged by the respondent no. 1. It was in furtherance of
such an acknowledgement that concerted efforts were taken under the
supervision of this Court to formulate such a plan. This very exercise
was indicative of the fact that ‘reasonable’ measures were yet to be
implemented; those measures which would sufficiently enable the full
Miscellaneous Application No. 530 of 2022 Page 159 of 297
exercise of the victim’s right to rehabilitation. What we are trying to
convey is that it was everyone’s view that much more needs to be done
to secure the aforesaid right for the victims, even at its minimum level.
293. We have tried to recapitulate what was, in the respondent no. 1’s own
opinion, essential to the Victim Protection Plan. This would serve as a
good baseline for what was conceded to be necessary and ‘reasonable’
by the State itself. To begin with, both in the prayer-wise response given
by the respondent no. 1 to the original writ petition dated 30.03.2006 and
the reply affidavit furnished by the MWCD to the additional guidelines
sought by the petitioner respectively, the respondent no. 1 had
expressed agreement with the petitioner on several individual
guidelines which were proposed. This agreement was afforded in a
coherent and exhaustive manner, against each guideline and in two
ways: One, through simpliciter agreement and two, through an
averment that a similar guideline existed under their Protocol for Pre-
rescue, Rescue and Post-rescue operations of child victim of trafficking
for commercial sexual exploitation (hereinafter, the “ Child Protocol ”)
which could be analogously extracted and applied for adult women as
well. These aforesaid guidelines on which both parties saw eye-to-eye
inter-alia included the following:
Stage Guideline
Pre-Rescue providing proper training to the officials forming part
of the rescue team, particularly with respect to
Miscellaneous Application No. 530 of 2022 Page 160 of 297
educating them on victim-appropriate behaviour,
non-coercive rescue methodologies, HIV sensitivity
etc.;
ending the practice of unplanned and publicised
‘mass raids’ as the default method of rescue;
Rescue the inclusion of female police officer(s) and female
member(s) of NGOs in the rescue efforts;
assigning criminal liability on erring police officials
who treat the victims akin to criminals or who commit
any misdemeanors or offences in the course of the
rescue and during the post-rescue period;
rescue of all women/girls from the brothel along with
their children (if any);
ensuring that the rescue team helps the victim in
recovering her belongings, identity documents etc.,
during the time of rescue;
ensuring that the children of the trafficked victim(s)
are also located and placed in safe custody along with
their mothers;
ensuring that the victims and perpetrators are
separated from each other at the place of rescue itself
and are thereafter, not placed together for any reason
including at the police station;
Post-rescue ensuring that police stations meet the minimum
standards required for the reception of victims like
Miscellaneous Application No. 530 of 2022 Page 161 of 297
provision of drinking water and toilet facilities, safe
space to sit, access to translators etc.;
providing adequate training to police officers about the
relevant provisions of the multiple laws which would
cover the offences committed by the perpetrators,
media training to ensure confidentiality, etc.;
transferring the victims from the police station to the
protective homes at the earliest;
deferring the recording of the victim’s statement until
after her safety is ensured and her initial trauma is
overcome;
providing psychological and counselling support to
the victim at all times to ensure that no statement is
taken and no examination is done without her consent;
ensuring that victims are not isolated for any reason,
even for recording their statements and that they are
always accompanied by a female police officer or NGO
worker;
ensuring that age verification is done through
scientifically approved procedures;
producing a rescued child before the CWC
immediately in accordance with the JJ Act without
retaining her at the police station for production before
a court of law;
Miscellaneous Application No. 530 of 2022 Page 162 of 297
securing the privacy of the victim and ensuring that
her identity is kept confidential at all stages;
Rehabilitation extending protection to victims themselves and their
family members (wherever necessary) throughout the
period of their stay at the protective homes and/or trial
due to the persistent risk of attack or interference from
the traffickers;
creating sufficient capacity at rehabilitation homes to
accommodate all victims needing care and protection;
making the protective home victim-friendly in terms of
both its social and physical environment including
adequately trained and sensitive staff, necessary
infrastructure etc.;
providing immediate psychiatric counselling and
medical care including emergent trauma care, de-
addiction and de-toxification support etc., along with
mandating visiting physicians and gynecologists to
check on the victims at the protective homes at regular
intervals;
providing access, with the informed consent of the
victim, to HIV/AIDS management including the
management of opportunistic infections, prevention of
mother to child transmission in case of a pregnant
positive victim, free access to anti-retroviral drugs etc.;
Miscellaneous Application No. 530 of 2022 Page 163 of 297
providing adequate material items like clothing,
toiletries etc., to victims at the protective homes and
ensuring adequate budgetary allocation for the same;
ensuring transparency in the functioning of the
protective homes and putting in place a system for
social audit;
installing safeguarding measures in the protective
homes to prevent intrusion by the traffickers and
ensuring supervised visitation of the victims by
outsiders;
providing basic education and life skills to the victims
through both formal and non-formal systems;
ensuring access to learning livelihood skills that are
suitable in the contemporary job market, keeping in
mind the aptitude and ability of the individual victims;
safeguarding the right to information of all victims by
obligating the counselor in all protective homes to
provide all information including those regarding
legal recourse, entitlement to welfare measures etc.;
Prosecution/Trial provision of free and professional legal aid to the
victims;
sensitising all judicial officers and prosecutors on
victim appropriate behaviour and court procedures;
Miscellaneous Application No. 530 of 2022 Page 164 of 297
involving a trained NGO worker or a PLV at all stages
of judicial proceedings to counsel and support the
victim;
Reintegration/
devising individualized plans for the victim’s
repatriation
reintegration after due consultation with them once the
victim’s evidence has been recorded and/or the case is
concluded. This is to be done in recognition of her right
to self-determination;
if the victim is unwilling to go back to her native state,
protection must be accorded to her to start a
meaningful life at the destination point or State itself;
if the victim is willing to go back to her State of origin,
then the process of her restoration must be effected
under the protective care of police personnel;
obtaining the victims consent and conducting due
diligence through a proper home investigation report
furnished by the probation officer to satisfy the
relevant authorities that the victim will not be abused
or re-trafficked, before she is sent back to her family;
and
conducting a monthly follow-up on the victim for the
first six-months post her reintegration/repatriation at
her village/town/city of origin or at the destination
State and thereafter, at regular intervals for a period of
three years. This supervision must be done by the
CWC or some other competent authority dealing with
Miscellaneous Application No. 530 of 2022 Page 165 of 297
women and children with the cooperation of
recognized welfare organisations.
294. Over the period of time, in an effort to make the anti-trafficking
response more holistic, different stakeholders suggested the creation of
a new legislation altogether which would incorporate the aforesaid
victim protection guidelines within its provisions and/or within the
rules/SOPs which were to be notified under it so that its
implementation could be better and binding.
295. However, having acknowledged the said lacuna, having made an
undertaking before this Court to comprehensively and conscientiously
address it, and having also made several efforts in furtherance of that
undertaking, the respondent no. 1 has now adopted a completely
contradictory stance by stating that a new legislation and thereby, the
victim protection plan that was to be incorporated within it, are not
necessary. It is of the view that existing measures, both legislative and
otherwise, are sufficient and that some developments which have taken
place since the year 2015 obviate the need for any further discussion on
this matter.
296. We must examine to some extent whether this pivot from its original
stance is substantiated by reason. On a plain overview, it can be seen
that not much has changed since the years 2015 (when the original writ
petition was disposed of) or 2018 (when the first M.A. was disposed of)
respectively, except two things. First , an amendment was brought to the
NIA Act in the year 2019 whereby Sections 370 and 370A IPC
respectively were added to its Schedule and therefore, such offences
Miscellaneous Application No. 530 of 2022 Page 166 of 297
were made scheduled offences which could be investigated by the NIA.
Secondly , a new provision on “organised crime” was included within the
legislative scheme of the BNS under Section 111. The former i.e., the
empowerment of the NIA to investigate offences under Sections 370 and
370A IPC respectively, is directly connected to the second prayer of the
petitioner seeking the creation of a pan-India investigative and
coordinating body i.e. the OCIA. Therefore, we will deal with this
specific change in detail in a subsequent section. As far as the latter
change i.e. Section 111 BNS is concerned, the recognition of human
trafficking as an ‘organised crime’ was already made clear through an
104
advisory notification dated 30.04.2012 issued by the MHA. Hence, it
could be said that its inclusion within the BNS regime was a way in
which statutory validation was given to the advisory notification, and a
separate offence along with separate punishment were carved out with
a view enhance investigation and prosecution standards to eradicate
such organised crimes. Moreover, we agree with the averment made by
the respondent no.1 in its last affidavit dated 20.06.2025 that this “ enables
law enforcement agencies to target not merely the individual offenders but the
entire network or syndicate engaged in trafficking, thereby addressing the
systemic nature of this crime ”. However, this inclusion, by itself, cannot
in all conscience be said to have brought any radical change to the
approach that was already taken towards human trafficking for CSE.
297. Apart from what has been pointed out above, all current
efforts/measures are either the same or similar in nature; The ITPA
continues in its original form, Sections 370 and 370A IPC respectively is
104
Ministry of Home Affairs, Government of India, Advisory on Human Trafficking as Organised Crime
dated 30.04.2012, No. 15011/27/2011-ATC. https://www.mha.gov.in/sites/default/files/2022-
12/AdvisorycrimeHumanTrafficking_29092022%5B1%5D.pdf .
Miscellaneous Application No. 530 of 2022 Page 167 of 297
reflected under Sections 143 and 144 BNS respectively without any
significant change, the POSCO, JJ Act and IT Act regimes respectively
largely persist without alteration, and the former Ujjawala homes have
simply been amalgamated into the Shakti Sadan Programme. To put it
simply, what existed in 2015 continues till date and not much has
changed in terms of both the legislative and institutional framework.
Consequentially, the guidelines to which the respondent no. 1 had
expressed its agreement with (which we have tabulated above) have
also not found their way into the present framework in any manner.
Therefore, we can without any doubt, state that the respondent no. 1
seems to have taken a completely contradictory stance when there are
no substantive or demonstrable reasons for it to have reversed its
position. The lacuna has still not been addressed or remedied.
298. Coming to the secondary question of whether, at the least, the pre-
existing efforts are sufficient and/or measuring up to their stated aims
or goals, we are afraid to observe that they are also riddled with several
issues which have resulted in subpar and piecemeal implementation.
The foremost reason behind this is the absence of rules being notified by
all the State governments under the ITPA in exercise of their powers
under Section 23 thereof. Only a handful of States i.e., Orissa, Uttar
Pradesh, Punjab, Andhra Pradesh, Goa, Karnataka, Rajasthan and
Mizoram respectively have made rules. Such rules are crucial to the
scheme of several provisions including Sections 13, 17, 19 and 21 of the
ITPA respectively which largely pertain to the rescue and rehabilitative
efforts which are to be undertaken under the Act. For ready reference,
the relevant sub-sections of Section 23 ITPA are reproduced thus:
Miscellaneous Application No. 530 of 2022 Page 168 of 297
“ 23. Power to make rules . — (1) The State Government may, by
notification in the Official Gazette, make rules for carrying out the
purposes of this Act.
(2) In particular, and without prejudice to the generality of the
foregoing powers, such rules may provide for—
[…]
(b) the placing in custody of persons for whose safe custody orders
have been passed under sub-section (1) of section 17 and their
maintenance;
(c) the detention and keeping in protective homes or, as the case may
be, in corrective institutions of persons under this Act and their
maintenance;
[…]
(e) the delegation of authority to appoint the special police officer
under sub-section (1) of section 13;
[…]
(g)(i) the establishment, maintenance, management and
superintendence of protective homes and corrective institutions
under section 21 and the appointment, powers and duties of persons
employed in such homes or institutions;
(ii) the form in which an application for a licence may be made and
the particulars to be contained in such application;
(iii) the procedure for the issue or renewal of a licence, the time
within which such licence shall be issued or renewed and the
procedure to be followed in making a full and complete
investigation in respect of an application for a licence;
(iv) the form of a licence and the conditions to be specified therein;
(v) the manner in which the accounts of a protective home and a
corrective institution shall be maintained and audited;
(vi) the maintenance of registers and statements by a licensee and
the form of such registers and statements;
Miscellaneous Application No. 530 of 2022 Page 169 of 297
(vii) the care, treatment, maintenance, training, instruction,
control and discipline of the inmates of protective homes and
corrective institutions;
(viii) the visits to and communication with such inmates;
(ix) the temporary detention of persons sentenced to detention in
protective homes or in corrective institutions until arrangements
are made for sending them to such homes or institutions;
(x) the transfer of an inmate from,—
(a) one protective home to another, or to a corrective institution,
(b) one corrective institution to another or to a protective home,
under sub-section (9A) of section 21;
(xi) the transfer in pursuance of an order of the court from a
protective home or a corrective institution to a prison of a
1[person] found to be incorrigible or exercising bad influence upon
other inmates of that protective home or the corrective institution
and the period of his detention in such prison;
(xii) the transfer to a protective home or corrective institution of
persons sentenced under section 7 or section 8 and the period of
their detention in such home or institution;
(xiii) the discharge of inmates from a protective home or corrective
institution either absolutely or subject to conditions, and their
arrest in the event of breach of such conditions;
(xiv) the grant of permission to inmates to absent themselves for
short periods;
(xv) the inspection of protective homes and corrective institutions
and other institutions in which persons may be kept, detained and
maintained;
(h) any other matter which has to be, or may be, prescribed.”
299. Additionally, since “Police” and “Public Order” are State subjects under
the Seventh Schedule of the Constitution, the respondent no. 1 has
issued a few advisories largely pertaining to the law enforcement
Miscellaneous Application No. 530 of 2022 Page 170 of 297
response to human trafficking and optimisation of the efforts of the
AHTUs by the State governments. However, owing to its advisory
nature, such notifications are unfortunately not being readily adopted
and incorporated in real life responses by the concerned authorities at
the different State/UT level, thereby creating a serious divide between
what remains on paper and what is being translated into reality.
300. Moreover, vide order dated 05.05.2025, amongst other queries, we had
requested the respondent no. 1 to procure some additional information
as regards the implementation and functioning of its Mission Shakti
Programme from all the State/UT governments. Without minutely
going into all the complex data that was furnished, we wish to only
highlight some basic inferences that could be drawn from the numbers
provided to us which created cause for some serious concern.
(i) In several States, there is a discrepancy between the number of
approved OSCs and those that are actually functional. For example ,
in Chhattisgarh despite approval for 42 OSCs, only 27 are
functional; in Delhi despite approval for 22, only 11 are functional.
The same is true for States including Arunachal Pradesh, Bihar,
Jharkhand, Nagaland, Rajasthan, Tamil Nadu and Uttar Pradesh
respectively.
(ii) In several States, the common pool of referral staff maintained by
the OSCs for necessary services like legal, psychological and
medical needs, at both the OSCs and the Shakti Sadans are grossly
inadequate. For example , Chhattisgarh, Delhi, Uttar Pradesh, etc.
(iii) In several States, the number of Shakti Sadans which have been
established are also not sufficient. For example , Arunachal Pradesh
has one home, Bihar has five, Chhattisgarh has four, Delhi has two,
Miscellaneous Application No. 530 of 2022 Page 171 of 297
Gujarat has zero, Haryana has zero, Himachal Pradesh has one,
Jharkhand has one, Punjab has two, Uttarakhand has zero and
Uttar Pradesh has zero. When seen from the perspective that these
homes are intended not just for victims of trafficking but for
women who are victims of other crimes or are in distress, these
numbers are quite disappointing.
(iv) In several States, there is admittedly no mental health care, de-
addiction or de-toxification support being provided to victims of
trafficking for CSE at the Shakti Sadan homes. Many States/UTs
including Bihar, Delhi, Goa, Himachal Pradesh, Manipur,
Puducherry and Sikkim respectively which have Shakti Sadan
homes have also stated that no education or vocational training
support has ever been offered to the residents.
(v) Despite the Mission Shakti Guidelines highlighting the importance
of Half-way homes in the phased approach to rehabilitation and
reintegration of victims, no State/UT has provided information on
the number of half-way homes which have been set up by them.
301. In the aforesaid context what becomes clear is that the implementation
of the existing measures on rescue methodology, post-rescue care and
rehabilitation, which according to the respondent no. 1 robustly address
the crime of human trafficking for CSE and the rights of the victims, is
poor and non-uniform across all States.
302. All this leads us to one undeniable conclusion – that the respondent no.
1 along with all the States/UTs have not taken ‘reasonable measures’
which adequately safeguard the right to protection and rehabilitation of
the victims of trafficking for CSE. There are a serious gaps or lacunae in
the measures adopted thus far and even the ones that exist on paper
Miscellaneous Application No. 530 of 2022 Page 172 of 297
have not been completely translated into reality for the want of
necessary and proper implementation.
E. Directions pertaining to the “ Victim Protection Plan ”
i. Exercise of powers under Articles 32 and 142 of the Constitution
respectively for the issuance of guidelines
303. The reasons, both constitutional and otherwise, supporting the
necessity of such a plan are plenty and have sufficiently been identified
by us. Taking into specific consideration the manner in which this
matter has progressed and the unjustified abandonment of efforts to
formulate the said comprehensive plan despite the lacunae in the
existing legislative and policy measures, we are left with no option but
to pass detailed directions in exercise of our powers under Articles 32
and 142 of the Constitution respectively, detailing the manner in which
preventive, protective and rehabilitative measures are to be taken to
safeguard the fundamental rights of the victims of trafficking for CSE.
These guidelines would hold the field until the Parliament enacts a law
on the subject.
304. This Court, in several decisions, has exercised such powers when faced
with issues wherein there were identifiable gaps either in the legislative,
institutional or policy responses of the State under different subject
areas. The landmark decision of Vishaka and Others v. State of
Rajasthan reported in (1997) 6 SCC 241, was concerned with a writ
petition seeking enforcement of the fundamental rights of working
women under Articles 14, 19 and 21 of the Constitution respectively.
While recognising that the primary responsibility to secure rights
through suitable legislation along with the creation of mechanisms for
Miscellaneous Application No. 530 of 2022 Page 173 of 297
its enforcement lay with the legislature and executive respectively,
owing to a vacuum which endangered the rights of working women
including that of gender equality, dignity at the workplace and a safe
working environment protected from sexual harassment and abuse,
detailed guidelines and norms were laid down by this Court. The
relevant observations are thus:
“ 3. […] The primary responsibility for ensuring such safety and
dignity through suitable legislation, and the creation of a mechanism
for its enforcement, is of the legislature and the executive. When,
however, instances of sexual harassment resulting in violation of
fundamental rights of women workers under Articles 14, 19 and 21
are brought before us for redress under Article 32, an effective
redressal requires that some guidelines should be laid down for the
protection of these rights to fill the legislative vacuum.
-xxx-
16. In view of the above, and the absence of enacted law to provide
for the effective enforcement of the basic human right of gender
equality and guarantee against sexual harassment and abuse, more
particularly against sexual harassment at workplaces, we lay down
the guidelines and norms specified hereinafter for due observance at
all workplaces or other institutions, until a legislation is enacted for
the purpose. This is done in exercise of the power available under
Article 32 of the Constitution for enforcement of the fundamental
rights and it is further emphasised that this would be treated as the
law declared by this Court under Article 141 of the Constitution. ”
(Emphasis supplied)
305. In Dr. Ashwani Kumar v. Union of India and Another reported in (2020)
13 SCC 585, a three-judge Bench of this Court had, amongst other
things, emphasised on three important aspects before directions of such
nature could be issued by constitutional courts. First, it was cautioned
that such an exercise must be done exceptionally and only when there
exists a vacuum or non-existing position. Secondly, that such guidelines
would operate as law only until a time the Parliament addresses the
Miscellaneous Application No. 530 of 2022 Page 174 of 297
same through a legislation and that they are interim in nature. Lastly ,
when the issue whether legislative action is required on the subject is
pending consideration by the Parliament, it would be improper for this
Court to act in haste. The relevant observations are thus:
“ 29. […] Secondly, these directions were given subject to the
legislature enacting the law and merely to fill the vacuum until the
legislature takes upon it to legislate. These judgments were based
upon gross violations of fundamental rights which were noticed and
in view of the vacuum or absence of law/guidelines. The directions
were interim in nature and had to be applied till Parliament or the
State Legislature would enact and were a mere stop-gap
arrangement. […]
30. Such directions must be issued with great care and
circumspection and certainly not when the matter is already pending
consideration and debate with the executive or Parliament. This is
not a case which requires Court's intervention to give a suggestion
for need to frame a law as the matter is already pending active
consideration. Any direction at this stage would be interpreted as
judicial participation in the enactment of law. […]
31. […] It is only in exceptional cases where there is a vacuum and
non-existing position that the judiciary, in exercise of its
constitutional power, steps in and provides a solution till the
legislature comes forward to perform its role.
-xxx-
34. When the matter is already pending consideration and is being
examined for the purpose of legislation, it would not be appropriate
for this Court to enforce its opinion, be it in the form of a direction
or even a request, for it would clearly undermine and conflict with
the role assigned to the judiciary under the Constitution. […] ”
(Emphasis supplied)
306. All the three aspects delineated in Dr. Ashwani Kumar (supra) which
have to be kept in mind before this Court can proceed with issuing
directions have duly weighed with us. Since no Bill or law on the subject
is presently under active consideration by the Parliament according to
the submission made by the respondent no.1 and we are of the view that
Miscellaneous Application No. 530 of 2022 Page 175 of 297
the existing vacuum seriously impairs the fundamental rights of the
victims of trafficking for CSE, we have no doubt in our minds that some
directions insofar as the Victim Protection Plan is concerned are
necessary until relevant measures are taken by the legislature.
ii. Precursor – Setting the Context to the Victim Protection Plan
307. Before we formulate the victim protection plan, it is necessary to reflect
upon the broader debates surrounding the following questions: (i) who
is trafficked and who is not? and (ii) who is to be rescued and who is not
to be rescued?
308. Reflecting on these questions is imperative for formulating a clear and
coherent victim protection plan. This is because the contours of the plan
will inevitably be determined by whom it seeks to protect and how it
seeks to protect them. Accordingly, in the succeeding paragraphs, we
examine who is considered a “victim of trafficking for CSE” and how
such persons are identified and protected under the Indian legal
framework. Before doing so, however, we briefly discuss the theoretical
underpinnings that led to the conflation between sex trafficking and
prostitution, as well as the critiques thereof. An understanding of these
debates is necessary to appreciate the design of the ITPA, which, in turn,
would help us evaluate the choices we have when formulating the
Victim Protection Plan.
a. Conflation between Sex Trafficking and Prostitution –
Supporters v. Opponents
309. In earlier parts of this judgment, we had briefly referred to the conflation
that existed between sex trafficking and prostitution and how this was
Miscellaneous Application No. 530 of 2022 Page 176 of 297
reflected in the 1949 Convention and the ITPA respectively. Both the
1949 Convention and the ITPA respectively, treated all forms of
prostitution as inherently exploitative and supported the
criminalisation of all acts associated with it, although prostitution in
itself was not criminalised. As a result, acts done by third parties for the
purpose of prostitution, even with the consent of the person, were
considered to amount to trafficking in persons.
310. To better understand this conflation, it would be instrumental to assess
the viewpoint of the ‘abolitionists’. For the abolitionists, all prostitution
is an abuse of women’s bodies, reflective of violence, male domination,
105
objectification and the most severe form of female oppression. To
those holding this position, prostitution is forced by definition because
of its violent and inhuman subtext, thus making any consideration of
consent irrelevant. In other words, even in the absence of force and
coercion, prostitution undermines the dignity of women. Consequently,
they reject the notion of ‘voluntary prostitution’ and seek to completely
abolish prostitution and penalise all those profiting from sexual
exploitation, except the prostitute herself. Further, for abolitionists, the
dynamics of sex trafficking and prostitution are the same and their
commonalities far overshadow their differences, and thus the difference
106
between the two is at best one of degree and not of kind.
311. Opposing such abolitionists are the sex work advocates, who are
agnostic to the commodification of sex per se. They view sex work as a
105
Joyce Outshoorn, The Trafficking Policy Debates , in Global Human Trafficking: Critical Issues and
Contexts 7, 12-19 (Molly Dragiewicz ed., Routledge 2015); Prabha Kotiswaran, Dangerous Sex, Invisible
Labor: Sex Work and the Law in India 24, 25-29 (Princeton Univ. Press 2011); Also see Andrea Dworkin,
Prostitution and Male Supremacy , 1 Mich. J. Gender & L. 1 (1993).
106
Dorchen A. Leidholdt, Prostitution and Trafficking in Women: An Intimate Relationship , 2 J. Trauma
Prac. 167, 178-179 (2003).
Miscellaneous Application No. 530 of 2022 Page 177 of 297
form of labour, not fundamentally different from other jobs involving
interpersonal and bodily skills. The body is something one has, not
something one is, and selling sexual services no more diminishes the
107
self than any other form of wage labour. As per such advocates,
prostitution itself is not the problem, rather exploitation and abuses
such as forced prostitution, trafficking, and bad working conditions are.
Consequently, they advocate for recognising women’s autonomous
decisions in prostitution and insist on separating consensual sex work
from trafficking and treating sex workers as entitled to the same rights
and protections as other workers. Fundamental to such advocacy is the
emphasis on sex worker agency, even when considering the sub-
optimal circumstances in which sex workers engage in prostitution, i.e.,
due to structural constraints such as poverty and the absence of
108
alternative livelihood options.
312. It is worth briefly noting how each group counters the other’s policy
preferences. Abolitionists argue that legalisation and decriminalisation
only render the harm invisible and lead to an increased demand for
109
sexual services. On the other hand, sex work advocates argue that the
criminalisation of prostitution: (i) pushes sex work into the realm of
unregulated spaces, thereby increasing the risk for sex workers
undertaking it; (ii) causes further stigmatisation of a group which is
already treated with little dignity and respect; and (iii) reduces the
110
already slim number of livelihood options available to poor women.
Sex worker advocates further argue that the criminalisation of
107
See generally , Martha C. Nussbaum, "Whether from Reason or Prejudice": Taking Money for Bodily
Services , 27 J. Legal Stud. 693 (1998).
108
Joyce Outshoorn, Supra note 105; Kotiswaran, Supra note 105 at 20-32.
109
Supra note 106.
110
Supra note 107.
Miscellaneous Application No. 530 of 2022 Page 178 of 297
prostitution adds another layer of criminality to trafficked victims and
111
thereby worsens their already terrible circumstances.
313. Broadly speaking, the two camps are animated by questions of: (i)
whether prostitution is a form of work or violence? (ii) whether
prostitution reflects consent or coercion? and (iii) whether prostitutes
are agents or victims? For the purposes of our discussion, the
perspectives of consent, coercion, agency and victimhood are especially
important.
314. It can be stated that since the abolitionists view prostitution through the
lens of coercion, they perceive all prostitutes to be ‘victims’ who ought
to be ‘rescued.’ On the other hand, since sex work advocates
differentiate between ‘forced’ and ‘voluntary prostitution’, they view
those who engage in prostitution voluntarily, even when compelled by
structural factors such as poverty, as ‘agents’ who are making decisions
to chart their own lives. However, as many scholars point out, the
problem that arises is that the line between forced prostitution and
voluntary sex work is not clear and often shifting. This is because the
difference is based on ‘consent’ and often consent cannot capture the
fluid dynamics of real life. A paradigmatic example of this is the lives of
many women who are trafficked into prostitution but thereafter adopt
and engage in sex work voluntarily. Many even return to prostitution
after being rescued from situations of trafficking. In such situations, do
we view them as ‘victims’ or as ‘agents’? Do we view their engagement
with prostitution as being borne out of coercion, consent, or
compulsion? All of these are extremely difficult questions for which this
111
Id.
Miscellaneous Application No. 530 of 2022 Page 179 of 297
Court has no clear answer, and given our institutional role and
limitations, we should not provide them either.
315. However, one conclusion does emerge from the above discussion:
prostitution and those engaging in it cannot be reduced to simplistic
binaries of victimhood/agency and consent/coercion. The reality is
much more complex. The question then is how do we move beyond
such binaries?
316. It is particularly important to understand the consequences that follow
from placing those engaging in prostitution in binaries of victim and
agent. If we view them simply as ‘victims’ who lack agency, there is a
risk that we might turn a deaf ear to their desires and wishes. On the
other hand, if we view them as ‘agents’, we might not provide any
measures of intervention at all, despite the host of vulnerabilities that
such prostitutes face, both structural and non-structural. Rather, it is
best to view prostitutes as persons in whom vulnerability and agency
112
coexist.
317. In all of us, agency and vulnerability coexist. What varies is the extent
to which one bears upon the other, and this is determined largely by the
circumstances of our lives. For a person who faces poverty, social
exclusion, and the absence of livelihood alternatives, their vulnerability
may significantly narrow the range of choices available to them. But it
does not extinguish choice altogether. Acknowledging this co-existence
has two important implications when it comes to those who engage in
prostitution. First , viewing a woman who has entered prostitution
112
See Giorgia Serughetti, Rethinking Force and Consent, Victimisation and Agency: A Feminist Approach to
Prostitution Policy , 3 Femeris: Revista Multidisciplinar de Estudios de Género 79 (2018).
Miscellaneous Application No. 530 of 2022 Page 180 of 297
voluntarily as an ‘agent’ does not mean that one becomes blind to the
vulnerabilities that shaped and constrained her decision.
Understanding her agency requires understanding the circumstances in
which it was exercised, thereby necessitating measures in cases where
agency is severely constrained. Secondly , viewing a trafficked or coerced
woman as a ‘victim’ does not mean she is without agency. Even within
conditions of exploitation and coercion, she retains the capacity to make
decisions about her present and her future.
b. ITPA – Identifying the ‘victims’ and applicable procedures
318. As discussed in detail in an earlier section, this conflation between sex
trafficking and prostitution is also reflected in the ITPA. This is evident
from the two interrelated features of the Act: First , the manner in which
it defines prostitution, and secondly , the manner in which its offence-
creating provisions are constructed. To explicate:
(i) Section 2(f) defines prostitution as sexual exploitation or sexual
abuse for commercial purposes. Thus, all acts of prostitution, even
those undertaken with consent, are either treated as exploitative or
abusive in nature.
(ii) The conflation established by the definition is solidified by the
offence-creating provisions of Sections 3, 4, 5 and 6 respectively. In
punishing those persons involved in keeping or allowing a
premises to be used as a brothel (section 3), or those living on the
earnings of prostitution (section 4), or those procuring, inducing or
taking persons for the sake of prostitution (section 5), or those
detaining someone in a brothel (section 6), the existence of any
Miscellaneous Application No. 530 of 2022 Page 181 of 297
threat, coercion, force, deception or abuse of power is made
entirely immaterial.
319. Thus, the legal framework under the ITPA penalises all modes of
commercial sex, reflective of the abolitionist position we had delineated
above. However, it is equally important to note that the ITPA does not
abolish or criminalise prostitution in all its forms. Prostitutes who wish
to engage in prostitution for their own benefit without the involvement
of any third party are neither prohibited nor penalised for doing so
(except in instances covered under Sections 7 and 8 respectively). Thus,
whilst defining it to be exploitative or abusive in all its forms and
manifestations, the ITPA leaves, albeit very little scope for an individual
to engage in prostitution without attracting any criminal liability. To
sum up, the ITPA is not endorsing sex work but not abolishing it either,
treating the institutions as exploitative while technically preserving the
individual’s right to sell sex in isolation.
320. Further, it is also important to note that in none of the offence-creating
provisions under the ITPA are the prostitutes themselves made liable
for criminal punishment. In fact, in all cases where a prostitute is
engaging in prostitution within the circumstances described under
Sections 3, 4, 5, and 6 respectively, she will be considered to be a victim
of those offences. Thus, strictly speaking, the ITPA envisages all those
prostitutes engaged in prostitution in circumstances falling within the
offence-creating provisions as victims. While, due to the definition, all
prostitutes could be termed to be in some sense victims, they are not, in
a strict sense, always victims of any offence within the ITPA.
Miscellaneous Application No. 530 of 2022 Page 182 of 297
321. In the above section, we examined at length why, under the current
legal framework, “victims of trafficking for CSE” would include both
victims of offences under the ITPA and victims of offences under
Section 143 BNS respectively. We had reasoned that such an
understanding was necessary, given the legislative framework in place.
The conflation between prostitution and trafficking is, therefore, firmly
embedded in the Indian legislative framework, and thus, the victim
protection plan for ‘victims of trafficking for CSE’ has to be constituted
within this framework itself.
322. Additionally, we had also discussed how all trafficking offences for the
sexual exploitation of others through prostitution falling under the BNS
would inevitably be covered by some provision of the ITPA as well.
Thus, in all cases dealing with victims of trafficking for CSE, the
mechanism that has been put in place to deal with ‘victims’ under the
ITPA would get triggered. Therefore, the victim protection plan must
necessarily take into account the mechanism already established under
the ITPA.
323. By way of context, we may briefly recall how persons interact with the
ITPA’s protective mechanisms. Section 15 contemplates the removal of
persons found on the premises where a search is being carried out.
Under Section 16, a magistrate may direct the removal of a specific
individual from a brothel. Those removed under both these provisions
are then produced before the magistrate, who deals with them as
prescribed under Section 17. Separately, Section 19 provides a voluntary
pathway wherein a person who is carrying on, or is being made to carry
on prostitution may herself approach the magistrate seeking protection.
Thus, depending on the circumstances of her interaction with the
Miscellaneous Application No. 530 of 2022 Page 183 of 297
system, a victim of trafficking for CSE will be dealt with either under
the procedure prescribed by Sections 15 or 16 read with Section 17, or
under Section 19 respectively.
324. A “raid” under Section 15 results in the removal of ‘all persons’ found
in the premises and thus, could include both persons involved in
prostitution voluntarily and those involved in prostitution
involuntarily. Similarly, the removal under Section 16 can encompass
persons who are ‘carrying on prostitution’ of their own choosing, as
well as those who are ‘being made to carry on prostitution’ against their
will. As a result, those produced before the magistrate under Section 17
may include: (i) those who have been trafficked into prostitution against
their will; (ii) those who were initially trafficked but have since
continued to pursue prostitution voluntarily; and (iii) those who have
entered and remain in sex work as a matter of their own choosing,
however structurally constrained that choice may be. As a result of the
conflation we discussed above, all three categories of persons are
clumped together as ‘victims of trafficking for CSE’ and therefore
processed under the same framework in Section 17.
c. Consequences of the Conflation
325. To understand why this might be problematic, let us take a small detour
to try to gauge the complexity involved in prostitution as a
phenomenon and those engaging in it. Extensive ethnographic work
undertaken on prostitution and those involved in it reveals that there is
113
no singular, monolithic version of a ‘prostitute’ or ‘prostitution’.
113
Kotiswaran, Supra note 105 (See Chapter 2-3); Vibhuti Ramachandran, Immoral Traffic: An
Ethnography of Law, NGOs, and the Governance of Prostitution in India (Cambridge Univ. Press 2025);
Miscellaneous Application No. 530 of 2022 Page 184 of 297
Prostitution is undertaken by a variety of persons and across a variety
of institutional settings. For each form and each setting, the factors that
bring a person into prostitution, the persons they interact with, and the
risks they are exposed to differ significantly. The inevitable consequence
of this complexity is that those involved in prostitution do not constitute
114
a homogeneous group with homogeneous interests. Their
experiences and needs are deeply varied.
326. This complexity is further compounded by the deep subjectivity
involved in determining whether a person is engaging in prostitution
with or without consent. As we discussed earlier, consent is not a fixed,
objectively verifiable fact. It is fluid, contextual and subjective, and
therefore incapable of being fully captured or understood by an external
observer through an objective test. The answer, to the extent there is one,
lies within the person herself.
327. Both the above-discussed aspects of complexity and subjectivity have
important consequences on how we deal with ‘victims of trafficking for
CSE’. A one-size-fits-all approach, applied to the heterogeneous group
of ‘victims of trafficking for CSE’, is unlikely to serve their interests
properly. In fact, it might lead to unintended consequences. There is
ample research which has shown that anti-trafficking measures,
especially those dealing with victims of trafficking for CSE, have had
115
negative consequences for those they were intended to benefit. Thus,
Svati P. Shah, Street Corner Secrets: Sex, Work, and Migration in the City of Mumbai (Duke Univ. Press
2014).
114
Id .
115
Mike Dottridge, Introduction , in Collateral Damage: The Impact of Anti-Trafficking Measures on
Human Rights around the World 1 (Mike Dottridge ed., Global Alliance Against Traffic in Women
2007); Ratna Kapur, India , in Collateral Damage: The Impact of Anti-Trafficking Measures on Human
Rights around the World 114 (Mike Dottridge ed., Global Alliance Against Traffic in Women 2007).
Miscellaneous Application No. 530 of 2022 Page 185 of 297
the lesson that we have to be cognisant of is that the wrong approach
applied to victims can be counterproductive and, in fact, violate their
rights and dignity. Further, it helps us gauge that, to the greatest extent
possible, the victims’ choices and desires must be accorded due weight.
328. With this background, we return to the fact that, under Section 17, the
victims who are presented before the magistrate may belong to any of
the three categories we described above. Since heterogeneity and
subjectivity should guide our approach to these victims under Section
17, the victim protection plan should adequately account for them.
Currently, Section 17, broadly, envisages the following:
(i) an inquiry into the following aspects of the victim: (a) age, (b)
character and antecedents, (c) the suitability of the parents,
guardian or husband for taking charge, (d) nature of the influence
which the conditions in the home are likely to have;
(ii) intermediate safe custody of the victims; and
(iii) based on the inquiry, the magistrate is to exercise discretion and
pass a final order. When satisfied that the victim needs care and
protection, the magistrate may order that the victim be placed in a
protective home or in other custody.
329. Section 17, through the aspects of inquiry and magisterial discretion,
does contemplate, to some extent, an individualised approach to
dealing with victims. It envisages that every victim’s case would tell a
different story, and the decision on how to deal with them will depend
on such a story; thus, it is necessary to inquire into the aspects that are
currently mentioned in Section 17(2). However, Section 17: (i) first ,
applies the same framework uniformly to all persons produced before
the magistrate, without necessitating any threshold inquiry into
Miscellaneous Application No. 530 of 2022 Page 186 of 297
whether or not the persons before the magistrate are voluntary adult sex
workers who have no desire to be placed in long term safe custody or
restored to their families; (ii) secondly , the section does not make explicit
that the magistrate must take into account the wishes of the person
before him before passing any order under Section 17(4). Let us deal
with each of these aspects individually.
•
Need for a threshold inquiry for adult voluntary sex workers
330. In order to understand why a threshold inquiry is necessary, it would
be useful to look into the crucial observations made by the Law
Commission of India in its 64th Report as regards whether women who
are voluntarily carrying on prostitution could be brought within the
fold of rescue under Sections 15(4) and 16(1) ITPA respectively. The
relevant observations are thus:
“6.9. Need for amendment.—[…] No doubt, even after the Act is
amended on the above lines, cases of women who are voluntarily
carrying on prostitution will remain outside the provisions for
rescue in Ss. 15(4) and 16(1) or the provision for subsequent custody
contained in S. 17. We do not think that the law could appropriately
make a provision for rescuing such women because, ex hypothesi,
they are carrying on prostitution voluntarily and the question of
their “rescue” cannot arise. Since prostitution in the abstract is not
an offence punishable under the Act, it would not be proper for the
present Act to empower the police or the court to take any action for
116
the removal or custody of such women.”
(Emphasis supplied)
331. In addition to the above, this Court in Budhadev Karmaskar v. State of
W.B. reported in (2022) 20 SCC 220 while issuing certain directions
pertaining to the rehabilitation of sex workers/prostitutes observed that
116
As reproduced in ¶ 27, Vinod @ Vijay Bhagubhai Patel v. State of Gujarat , 2017 SCC OnLine Guj
446.
Miscellaneous Application No. 530 of 2022 Page 187 of 297
the police must refrain from ‘interfering’ if it is found that the sex
worker is an adult participating in the trade with consent and during a
raid on any brothel, voluntary sex workers must not be harassed or
victimised. The relevant observations are thus:
“5.1. Sex workers are entitled to equal protection of the law. Criminal
law must apply equally in all cases, on the basis of “age” and
“consent”. When it is clear that the sex worker is an adult and is
participating with consent, the police must refrain from interfering
or taking any criminal action.
[…]
5.4. Whenever there is a raid on any brothel, since voluntary sex
work is not illegal and only running the brothel is unlawful, the sex
workers concerned should not be arrested or penalised or harassed or
victimised.
(Emphasis supplied)
332. What comes across from the aforesaid is that the Commission had
categorically concluded that the provisions for rescue under Sections
15(4) and 16(1) respectively, and the provision for subsequent custody
under Section 17, would not apply to women who are voluntarily
carrying on prostitution. Its reasoning was simple; since such women
are engaged in prostitution voluntarily, the question of their ‘rescue’
does not arise. Consequently, the Commission was of the view that it
would not be appropriate for the ITPA to empower the police or the
court to take any action for the removal or custody of such women. This
position has been affirmed by this Court in Budhadev Karmaskar
(supra) , where it was unequivocally observed that since voluntary sex
work is not illegal and only the running of a brothel is, voluntary sex
workers found during raids on such brothels must not be victimised, i.e.
be taken into custody and dealt with under Sections 15, 16 and 17 ITPA
respectively. This Court further emphasised that rehabilitation of the
Miscellaneous Application No. 530 of 2022 Page 188 of 297
sex workers will not be coercive in any manner, and it shall be voluntary
on the part of the sex workers.
333. It is amply evident from the above that the intent of Sections 15-17 ITPA
was not to interfere with the lives of voluntary adult sex workers. This
is further reinforced by the clarification issued by the Justice Verma
Committee on the intent of Section 370 IPC as formulated by the
Committee. As per its report, the term exploitation under Section 370
included the word ‘prostitution’ and a clarification was sought by the
National Network of Sex Workers on the intent of Section 370,
particularly whether it would criminalise people in sex work.
Responding to this clarification, the Committee noted:
“The Committee, however, notes your representation on behalf of the
National Network of Sex Workers to the effect that the Section 370,
IPC, after being amended by the Ordinance, could be misused by
police and other governmental authorities to harass (i) sex workers
who engage in prostitution of their own volition, and not pursuant
to inducement, force or coercion, as the amended Section 370
provides, and (ii) the clients of such sex workers, by bringing the act
of gratification for a sex worker’s services under the scope of the
amended Section 370.
The members of the Committee wish to clarify that the thrust of their
intention behind recommending the amendment to Section 370 was
to protect women and children from being trafficked. The Committee
has not intended to bring within the ambit of the amended Section
370 sex workers who practice of their own volition. It is also clarified
that the recast Section 370 ought not to be interpreted to permit law-
enforcement agencies to harass sex workers who undertake activities
of their own free will, and their clients. The Committee hopes that
law enforcement agencies will enforce the amended Section 370, IPC,
in letter and in spirit.”
(Emphasis Supplied)
Miscellaneous Application No. 530 of 2022 Page 189 of 297
334. An intent which is further evident from the observations made by the
law commission report and by this Court in Budhadev Karmaskar
(supra) respectively, is that the principle of non-interference with respect
to adult voluntary sex workers must be manifested at the earliest
possible stage i.e., voluntary adult sex workers who are found during a
raid ought not to be subjected to the machinery of ITPA under Section
17 in the first place. Under Section 15, it is the police who conduct the
search and carry out the removal. It is therefore open to the police, at
the time of such removal, to make a determination as to whether a
particular person is engaged in sex work voluntarily and, on that basis,
refrain from removing her. This is reflected under Section 15(4) where
the legislature has been careful to mention that the special police officer
shall be “ entitled ” to remove therefrom all the persons found in the
premises, indicating that although the officer can potentially remove all
persons, yet it is not a strict and inflexible rule. However, under Section
16, the position is different. Here, the police are acting pursuant to the
magistrate’s specific directions, ordering the removal of a particular
individual. In such a situation, the police cannot exercise any
independent judgment and are bound to carry out the magistrate’s
directions. Consequently, the person must necessarily be produced
before the magistrate.
335. If the intent of non-interference is so evident at the stage of removal
itself, it is only natural that the procedure under Section 17 must also
reflect and give effect to such intent. Under Section 15, while the police
have the latitude to make a determination at the time of removal, rescue
operations are often conducted in difficult and time-sensitive
circumstances. The result is that voluntary sex workers may end up
Miscellaneous Application No. 530 of 2022 Page 190 of 297
being removed and produced before the magistrate, despite the intent
that they should not be subjected to this process. Under Section 16, as
we noted above, no such determination is possible at the removal stage
at all, and all persons will invariably be produced before the magistrate
regardless of their circumstances. It therefore follows, as a matter of
logic, that when persons are produced before the magistrate under
Section 17, the magistrate must conduct an initial threshold inquiry into
whether the person before him is a voluntary adult sex worker who does
not wish to be subjected to long term safe custody.
336. Such a threshold inquiry, while furthering the goal of non-interference,
also serves to ensure that adult voluntary sex workers are not put
through the deeper inquiry contemplated under Section 17(2) and
thereby, spare them the intrusion of a process never meant for them.
The deeper inquiry contemplated under Section 17(2) is extensive. It
involves a detailed examination of the person’s age, character,
antecedents, and family circumstances. Such an inquiry subjects a
voluntary sex worker to an intrusive examination of her personal
circumstances and compels her to remain away from her life and her
family for the duration of the process.
•
Need for Consent to be the driving factor
337. Now, unlike a voluntary adult sex worker, there are victims who are
trafficked into prostitution and thereafter removed/rescued and
subjected to the procedure under Section 17. How should we proceed
with respect to such victims? Should such victims, due to their trafficked
status, be afforded no role in the process of deciding their fate? In other
words, the primary question is this: when the magistrate, after
Miscellaneous Application No. 530 of 2022 Page 191 of 297
completing the inquiry under Section 17, concludes that a victim should
either be placed in a protective home or restored to her family, can he
proceed with that decision without taking into account the victim’s
wishes and consent?
338. As noted above, the bare text of Section 17 does not provide an explicit
answer to the above question. Based on such a textualist reading, one
might argue that the victim’s consent should play no role and that the
magistrate should proceed with his decision of detention or
reintegration without considering it. However, such an approach would
be incorrect because whilst Section 17 explicitly does not state that the
victim’s consent is to be taken into consideration, it does so implicitly.
339. Section 17(4) provides that where the magistrate is satisfied that the
information received is correct and that the person before him is in need
of care and protection, he may order that such person be detained in a
protective home or in such other custody as he considers suitable. The
use of the word ‘may’ is significant as it indicates that even after
reaching the conclusion that a person is in need of care and protection,
the magistrate retains the discretion not to order detention. In other
words, the satisfaction of the two conditions under Section 17(4) does
not automatically lead to a detention order; the decision rests with the
magistrate’s discretion. Now, the question is: what should guide this
discretion? Undoubtedly, the victim’s consent should be a central
consideration. It is the victim’s life, liberty, and future that the order will
determine, and thus it would be incongruous to hold that all of this can
be decided without any regard for what the victim wants.
Miscellaneous Application No. 530 of 2022 Page 192 of 297
340. Support for such an interpretation can be found in the contrast between
Section 17(4) and Section 19 respectively. Under Section 19, a person
who approaches the magistrate voluntarily, seeking care and protection
of her own accord, is dealt with differently. Once the magistrate makes
the requisite determination under Section 19(3), he shall pass an order
directing that the applicant be kept in a protective home or under
appropriate care. Thus, under Section 19, the mandate to pass an order
is absolute because the very act of approaching the magistrate
voluntarily carries with it the person’s consent to undergo the process.
341. Even setting aside these textual nuances, it is important not to lose sight
of the fundamental point that the persons before the magistrate under
Section 17 are victims, not offenders. They are not wrong doers. On the
contrary, it is they who have been wronged and, as a consequence, are
constitutionally entitled to reparation for the harm caused. If the law
recognises them as victims deserving of protection and rehabilitation,
the natural corollary is that it recognises them as persons whose voices
matter. To afford them the status of victims on the one hand, and not to
pay heed to their choices, is a position that cannot be defended.
342. Thus, the answer to the question we started this sub-section with is that
before proceeding with either placing a victim in a protective home or
reintegrating her with her family, the magistrate must take into account
the victim’s consent and wishes. However, this should not be construed
to mean that the victim’s consent/wishes replace the procedure
prescribed under Section 17. The magistrate must still conduct the
inquiry, consider the findings, and satisfy himself that the proposed
course of action is appropriate. For instance , if the inquiry reveals that
the victim’s family is unsuitable or that reintegration would expose her
Miscellaneous Application No. 530 of 2022 Page 193 of 297
to harm, the magistrate cannot order reintegration simply because the
victim wishes it.
343. Having established that the victim’s consent must be taken into account,
the next question is how much weight it should carry. If the magistrate
concludes that detention in a protective home or reintegration with
family is appropriate, but the victim does not consent, should he
proceed regardless? We are of the strong view that if the victim does
not consent to long-term safe custody, the magistrate must not proceed
with it. The victim’s consent should be the primary and governing
consideration when taking such decisions. A departure from the
victim’s expressed wishes must be the exception, not the rule, and any
such departure must be grounded on cogent reasons.
344. To adopt any other position would be to fall back into the very trap we
noted earlier in this section of viewing the victim as a passive object,
bereft of agency. Further, as we noted above, the complexity and
subjectivity involved in these matters are such that the person who, in
most circumstances, is best placed to determine the best path forward is
the victim herself.
345. The rationale for our primacy and emphasis on consent becomes
evident and is further strengthened when we analyse it in the context of
the potential courses of action provided under Section 17. First , there is
the option of reintegration with family. Under Section 17 r/w Section
17A, a magistrate will adopt such a course of option only when,
amongst other things, there are findings to the effect that the family is
genuine, has the capacity to take care of the victim, and the conditions
at home would not have a negative impact on her. However, even where
Miscellaneous Application No. 530 of 2022 Page 194 of 297
all these conditions are met, there may be any number of reasons a
victim may not wish to return, for example , she may have simply built a
stable life in a new city. To send the victim back regardless, on the
grounds that the magistrate has found the conditions suitable, is to
infantilise her and treat her as lost property that is being restored to its
rightful place. Such an action also has an undertone of treating victims
as people incapable of taking care of themselves.
346. Secondly , the other option under Section 17 is to send the victim who
needs care and protection to a protection home and place them in long-
term safe custody. However, it should be noted that the ITPA envisages
these protective homes to be closed, i.e., victims are detained in them
and aren’t allowed to move in and out on their own volition. Further, a
perusal of the state rules formulated under ITPA makes it evident that
these protection homes severely restrict an inmate’s access to the
outside world, including their own family members.
347. In such circumstances, the consequences of placing a victim in a
protective home without her consent are far-reaching and serious.
Among other things, they include the following: first , they displace and
disrupt the family life of the victims, wherein victims are removed from
their homes and separated from those they are close to. Secondly , they
completely curtail the victim’s freedom of movement. Thirdly , the
victim’s privacy ceases to exist in any meaningful sense, as every aspect
of her daily life becomes subject to institutional control. Fourthly , her
ability to earn a livelihood is directly and immediately impaired,
leaving her economically dependent and without the means to support
herself or those who may rely on her. Thus, in other words, such
Miscellaneous Application No. 530 of 2022 Page 195 of 297
detention entails complete control over a victim’s person, time and
place.
348. Setting aside the consequentialist concerns, the forcible imposition of
rehabilitation is also wrong in principle. A victim may have her own
understanding of what rehabilitation means and how she wishes to
pursue it. She should not be merely treated as a passive recipient of care
and protection. The constitutional right to rehabilitation obligates the
State to provide victims with the means and support to pursue
rehabilitation. However, it does not authorise the State to impose a
rehabilitative process upon her against a victim’s will. In fact, our
discussion in the above section clearly establishes that rehabilitation
measures would further the inherent dignity of a victim only when they
are designed and implemented with the victims own choices, wishes,
and specific circumstances at their center. This position also finds
support in international law which recognises that care, protection, and
rehabilitation must be offered to victims of trafficking in a non-coercive
117
manner.
349. In light of all the above, it is beyond doubt that the norm should be that
neither placement in a protective home nor reintegration with family
should proceed without the victim’s consent. Any departure from this
norm must be the exception, permissible only where specific and
identifiable circumstances justify it.
117
Council Directive 2011/36/EU, Article 11 as amended by Directive (EU) 2024/1712, 2024.
Miscellaneous Application No. 530 of 2022 Page 196 of 297
d. Qualifications & Clarifications
350. The above discussion, both on the need for a threshold inquiry for
voluntary adult sex workers and on the primacy of consent, is relevant
only in the context of adult victims of trafficking for CSE. As we have
noted in an earlier part of this judgment, child victims of trafficking for
CSE are to be dealt with by the CWC under the procedure prescribed by
the JJA, 2015. Consequently, they fall outside the scope of the ITPA
procedure prescribed in Section 17, which is concerned solely with adult
victims.
351. It is a known fact that 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. A trafficker may
tutor or coerce a victim into claiming that she is a voluntary sex worker,
or into withholding consent to rehabilitation or reintegration, thereby
ensuring her return into his control under the garb of choice and
consent. The victim protection plan must be aware of this risk and
should seek to implement measures to mitigate it.
352. It is for this reason that while consent must be the norm and the primary
governing factor, the magistrate must retain the discretion, in
exceptional circumstances, to depart from the victim’s expressed
wishes. However, such departure should be permissible only when the
magistrate concludes, on a totality of the circumstances before him, that
(i) proceeding in accordance with the victim’s wishes would expose her
to a risk to her safety; and/or (ii) the consent or wishes expressed by the
Miscellaneous Application No. 530 of 2022 Page 197 of 297
victim are not the product of her own free volition but are the result of
coercion, tutoring, or undue influence. Further, the magistrate must
record his reasons in writing.
353. Moreover, our discussion in the above section should not be read as
suggesting that detention in a protective home or placement in custody
can never be justified in any circumstances where there is no consent.
That is not our position. What we are saying is that such detention,
without the victim’s consent, is not the appropriate or proportionate
response in every case. However, where the circumstances genuinely
warrant it, as in the two scenarios set out in the above paragraph, it may
be justified.
354. It must also be clarified that nothing stated in the above section, in
relation to consent, should be made applicable to the period of interim
safe custody under Section 17(3). Such custody is a necessary and
temporary measure that enables the inquiry to proceed. It is only the
final orders passed by the magistrate relating to detention in a
protective home or restoration to family which we have dealt with.
355. The foregoing discussion was animated by the question of how the law
should treat the diverse range of persons who come within the scope of
the Victim Protection Plan. ITPA, by conflating prostitution and
trafficking, brings within its net a wide and heterogeneous group of
persons, from those trafficked against their will, to those who were
trafficked but continue voluntarily, to those who have chosen sex work
for themselves. All of these persons are, under the current framework,
processed through the same mechanism under Section 17, without
differentiation. We also noted why a one-size-fits-all approach, which
Miscellaneous Application No. 530 of 2022 Page 198 of 297
doesn’t factor in subjectivity, will not be appropriate when dealing with
victims of trafficking for CSE.
356. To avoid the Victim Protective Plan reflecting such an approach, we
identified two measures that, based on the procedure in Section 17,
should be factored into the plan. First , is the need for a threshold inquiry
to identify voluntary adult sex workers at the outset, and spare them the
full machinery of the process, i.e., the principle of non-interference.
Second , is the recognition of the victim’s consent as the governing factor
in the magistrate’s final decisions on detention and reintegration, i.e.
primacy of the victim’s consent. Being cognisant of the nature of the
trafficking offence, we have also identified circumstances in which such
a departure from the principle of non-interference and primacy of the
victim’s consent would be warranted, i.e., situations where the victim’s
safety is at risk, or the consent/wishes expressed by the victim are a
product of threat, coercion or undue influence.
e. Other aspects
357. While the earlier sections have primarily focused on how the Victim
Protection Plan should better enable the procedure under Section 17 to
address the heterogeneity and complexity inherent to the issue, there
are certain broader aspects that also deserve attention and have
accordingly been addressed in the plan. The first among them is the
conduct of raids and rescue operations, which are, regrettably, often
accompanied by humiliation and verbal and physical abuse of those
found on the premises. While it is acknowledged that when dealing
with hidden crimes such as trafficking, rescue operations of this nature
are a necessary feature of enforcement, the punitive and degrading
Miscellaneous Application No. 530 of 2022 Page 199 of 297
manner in which they are frequently conducted cannot be overlooked.
It is therefore imperative that the Victim Protection Plan lays down, in
detail, measures that curb the human rights violations associated with
such operations.
358. Secondly , some research on conditions within protective homes where
victims of trafficking for CSE are housed appears to indicate that such
institutions are marked by severe shortage of funds, lack of material
resources, and an inability to provide meaningful assistance to
118
victims. Protective homes have also been widely criticised for
mirroring penal custodial institutions in their setup, with rules drawn
119
along lines similar to those governing prisons. The consequences of
this approach are well-documented, including instances of residents
attempting to escape, as was evident in proceedings before the Bombay
120
High Court. The Victim Protection Plan, therefore, addresses this
aspect by emphasising the creation of a genuinely supportive
environment in which victims have access to sufficient material
resources and their rights are respected and advanced.
359. Thirdly , the core purpose of placing a victim in long-term safe custody
is to enable her rehabilitation. Central to this process is equipping her
with skills that open up alternative livelihood options. However,
available evidence indicates that the rehabilitative measures currently
provided are neither aligned with the victim’s wishes nor with
118
See, Barnali Das, 'Who Would Like to Live in This Cage?': Voices from a Shelter Home in Assam , 51 Econ.
& Pol. Wkly. 77 (2016); Vibhuti Ramachandran, From 'House of Horrors' to 'Sensitive' Governance: Sex
Workers' Shelter Detention in India , 32 Contemp. S. Asia 223 (2024); Imrana Begum, Getting Back to Society:
Rehabilitation of Trafficking in Assam, India , 6 J. Hum. Trafficking 255 (2020); Kimberly Walters, Moral
Security: Anti-trafficking and the Humanitarian State in South India , 93 Anthropological Q. 289 (2020).
119
Ramachandran, Id .
120
Ms. Purnima Upadhyay v. State of Maharashtra , Bombay High Court, Suo Motu Writ Petition No.
113 of 2012.
Miscellaneous Application No. 530 of 2022 Page 200 of 297
contemporary market realities and, as a result, are of limited value in
121
helping her rebuild her life. The Victim Protection Plan, therefore,
provides the impetus for rehabilitation measures that are responsive to
the victim’s choices and reflective of present economic realities. We are
acutely conscious that rehabilitative measures which do not account for
the socio-economic realities of victims of trafficking for CSE, or for the
economic calculus that may have led a woman to enter prostitution in
the first place, are measures that are unlikely to succeed.
360. Lastly , we are aware of the practical difficulties that victims face in
asserting their rights and accessing the entitlements which are intended
for them. We are equally aware that pursuing such rights and
entitlements, without adequate support, can deepen the debt burden
that many such victims already carry. With this reality in view, the
Victim Protection Plan, at every stage, seeks to ensure that victims are
provided with the legal and social support necessary to meaningfully
access the rights and benefits to which they are entitled.
361. There are many other aspects that have been addressed in the Victim
Protection Plan. For brevity, we do not intend to discuss each such
aspect here. Broadly, the approach that underpins our plan is: (i) our
understanding of the complex and varied realities that define the lives
of those who come within its scope i.e., the heterogeneity of
circumstances, subjectivity inherent in questions of consent and agency,
and the impossibility of any uniform response; and (ii) our conscious
effort to shift the treatment of victims of trafficking for CSE from mere
passive objects to be rescued to that of persons with agency who have
121
Kimberly Walters, Humanitarian Trafficking: Violence of Rescue and (Mis)calculation of Rehabilitation , 51
Econ. & Pol. Wkly. 55 (2016).
Miscellaneous Application No. 530 of 2022 Page 201 of 297
the capacity to make decisions on how they wish to be empowered.
Such an approach would further enable her to exercise her right to
rehabilitation in its truest and fullest sense. It is with such an
understanding and intent that the Victim Protection Plan has been
formulated.
iii. Guidelines on the “Victim Protection Plan”
362. The Victim Protection Plan is as follows:
a. Fundamental Principles:
The following principles shall guide all authorities in the
implementation of this plan:
(i) Primacy of human rights and dignity: All measures taken under
this plan shall be implemented in a manner that places the victim’s
human rights at the centre. No action taken in the name of care,
protection, or rehabilitation shall compromise the dignity of the
victims or adversely affect any of their human rights.
(ii) Non-criminalisation: Victims shall not, at any stage, be treated as
criminals or subjected to measures associated with criminal
liability. All actors shall at all times accord them the status of a
crime victim.
(iii) Informed consent : No measure of care, protection, or rehabilitation
under this plan shall be imposed upon victims without their free
and informed consent, except in exceptional circumstances
concerning their safety and protection, and only upon a specific
and reasoned finding to that effect. Consent once given may be
withdrawn in accordance with lawful procedure.
Miscellaneous Application No. 530 of 2022 Page 202 of 297
(iv) Non-stigmatisation & Non-Discrimination: All actors
implementing this plan shall remain conscious that victims belong
to sections of society that are deeply stigmatised and marginalised
and shall conduct themselves in a manner that does not reinforce
or perpetuate such stigma. Victims and their involvement in
prostitution shall not be the basis for any discrimination, adverse
judgment or diminished respect.
(v) Safety and Protection: Every victim shall be protected from further
exploitation and harm and shall be provided with adequate basic
care at every stage of this plan. Protection shall not be made
conditional upon the victim’s willingness or capacity to cooperate
with law enforcement or to participate in any legal proceedings.
(vi) Privacy & Confidentiality : The privacy of every victim shall be
respected and protected at all stages, to the maximum extent
possible. To this end, there should be no public disclosure of the
victims’ identities or any information relating to them.
(vii) Right to information: All victims shall be informed, promptly and
in a language and manner they understand, of all rights and
entitlements that accrue to them under law.
(viii) Individualised care and protection : All care, protection and
rehabilitation measures shall be tailored to the individual victim’s
situation following a proper assessment of circumstances, needs
and desires. All decisions relating to care and protection must be
made with the active participation of the victim.
(ix) Best interest of the victim: All decisions taken with regard to care,
protection and rehabilitation shall be based on the primary
consideration that they are in the best interest of the victim.
Miscellaneous Application No. 530 of 2022 Page 203 of 297
b. Pre-rescue
• Strengthening the AHTUs
(i) Composition: The Anti-Human Trafficking Unit shall be
comprised of the following members:
•
An officer of the rank of Deputy Superintendent of Police
(“ DSP ”) who would head the AHTU.
•
Such number of inspectors/sub-inspectors of police, head
constables/constables as may be necessary. However, this team
shall mandatorily consist: (a) at least two or more officers who
are designated as “special police officers” under Section 13(1)
ITPA; (b) at least two or more police officers who are women; (c)
one or more Child Welfare Police Officers designated as such
under Section 107, JJ Act; and (d) wherever possible, one or more
police officers from the cybercrime unit or cybercrime police
stations.
• Social workers of that area who (a) form a part of the “non-
official advisory body” advising the special police officer on
questions of general importance regarding the working of the
ITPA as provided under Section 13(3)(b), ITPA, and/or (b) are
members of an NGO recognised as a “welfare institution or
organisation” by the State Government under the explanation to
Section 15(6A), ITPA, and/or (c) are members of an NGO which
is an implementing organisation running a protective home
under Section 21, ITPA or a Shakti Sadan Home under the
Mission Shakti Programme.
• Such number of officials as may be necessary from the
Departments of Women and Child Welfare, Labour, Social
Miscellaneous Application No. 530 of 2022 Page 204 of 297
Welfare, Health, Prosecution and/or any other relevant line
departments existing at the district-level.
(ii) All the members of the AHTU including police, government
officials, NGOs etc., must be given regular training on all aspects
of human trafficking in order to enhance/refresh their knowledge
(of the law, procedures, human rights principles, etc.), skills
(technical and scientific as well as psychosocial methods in
attending to victims/witnesses etc.) and all related aspects.
(iii) The AHTU would be notified by the State Government as a Police
Station for the entire district for registration and investigation of all
cases relating to the crime of human trafficking which would be in
addition to the other police stations in the district.
(iv) The following shall be the broad responsibilities of the AHTUs:
• Ensuring focused attention in dealing with offences of human
trafficking and providing a multidisciplinary approach and a
joint response by all stakeholders.
• Ensuring an ‘organised crime’ perspective in dealing with
trafficking crimes.
• Bringing about inter-departmental collaboration among the
police and all other government agencies and departments, such
as women and child, labour, health etc.
•
Conducting rescue operations with the assistance of NGOs
wherever they receive information about trafficking activities,
either from police sources, NGOs or civil society.
•
Ensuring a victim-centric approach which prioritises the ‘best
interest of the victim’ and prevents secondary victimisation/re-
Miscellaneous Application No. 530 of 2022 Page 205 of 297
victimisation of the victim as well as ensuring a gender sensitive
and child rights sensitive approach in dealing with trafficked
victims.
(v) Developing and sharing a database on traffickers and victims
should be an equal focus area of the AHTUs apart from existing
efforts pertaining to prevention, investigation, rescue and post-
rescue care. Building such a comprehensive database on traffickers
and exploiters (including recruiters, buyers, sellers, harbourers,
transporters, financiers etc.) will help in dismantling their
‘organised crime’ networks. Similarly, a database on victims and
vulnerable persons/communities will help to prevent such
persons from being trafficked or re-trafficked.
(vi) It must be ensured that the DSP heading the AHTU at the district-
level updates, on a monthly basis, the information in such a
database and forwards the same to the Additional Director General
of Police (“ ADGP ”) heading the State-level Anti-Trafficking
Bureau. The Anti-Trafficking Bureau shall thereafter compile such
data into a State-level database and disseminate it to all police
stations within said State so that they can serve as critical
intelligence for commencing prompt investigative and rescue
efforts.
(vii) At the same time, the AHTUs shall send such a database to the
District and State Crime Records Bureau for further transmission
to the National Crime Records Bureau.
Miscellaneous Application No. 530 of 2022 Page 206 of 297
• Initiation of Rescue
(i) Upon receipt of any information that an offence punishable under
the provisions of the ITPA or the relevant sections of the BNS
relating to human trafficking for the purpose of CSE, has been or is
being committed in respect of a person living in any premises
within their jurisdiction, the police station concerned must
forthwith relay the same to the special police officer appointed
under Section 13(1), ITPA within the said jurisdiction (in a district
where an AHTU exists, this special police officer must already be
a member of the AHTU).
(ii) The special police officer shall, without any delay whatsoever,
relay such information to the District Superintendent of Police
(“ DSP ”) (in a district where an AHTU exists, he/she would be
heading the AHTU), the Deputy Commissioner of Police (“ DCP ”)
along with the trafficking Police Nodal Officer of the concerned
State (“ PNO ”) and trafficking Government Nodal Officer of the
concerned State (“ GNO ”).
(iii) If direction that a person be rescued from a brothel is given to a
police officer by the Magistrate in exercise of his powers under
Section 16(1) ITPA, then it shall be responsibility of such police
officer to forthwith inform the DSP, DCP, PNO and GNO
respectively.
(iv) For the purpose of the rescue operation, such special police officer
or the officer authorised by the Magistrate under Section 16(1)
shall, in coordination with the AHTU of the said district (if it
exists), convene the members of the rescue team which shall consist
Miscellaneous Application No. 530 of 2022 Page 207 of 297
such number of members as the situation may require. In areas
where an AHTU already exists, the existing manpower/human
resources of the AHTU can be fully utilised and they shall form the
rescue team.
(v) However, there might be circumstances in which there exists no
AHTU in the area. In such cases, it must be ensured that the rescue
team mandatorily consists of the following members:
•
The special police officer or the officer authorised under Section
16(1) ITPA (who shall be the leader),
•
A Child Welfare Police Officer as specified under Section 107, JJ
Act.
•
Such number of subordinate police officers as specified under
Section 13(3)(a) ITPA,
•
Two women police officers of any rank as specified under
Section 15(6A) ITPA, and
•
a female social worker/an NGO representative, preferably from
the non-official advisory body specified under Section 13(3)(b)
ITPA or , from an NGO recognised as a “welfare institution or
organisation” by the State Government under the explanation to
Section 15(6A) ITPA or, from the implementing organisation
running the protective home to which the rescued persons are to
be transferred.
(vi) The leader of the rescue team or the head of the AHTU shall, based
on the information received, satisfy himself that adequate capacity
is available for the rescued persons (approx. number must be
estimated based on the information received) at the protective
home in which they are intended to be kept in pre-production or
Miscellaneous Application No. 530 of 2022 Page 208 of 297
interim safe custody. If not, he/she shall explore the availability of
capacity at nearby protective homes. It shall be the responsibility
of the Child Welfare Police Officer in the team to ensure the
availability of similar capacity at a suitable Child Care Institution
for the child victims (approx. number to also be estimated based
on the information received).
(vii) The rescue team shall also arrange for adequate transport and
streamline other logistical requirements for both the rescue team
and the estimated number of victims. It needs to be ensured that
the victims are always segregated from the offenders and are
accompanied by police escorts during their travel from the rescue
site.
(viii) Prior recce of the search and rescue area/site should be conducted.
For this purpose, a police official(s) conversant with the local
language must be sent incognito along with local NGO workers.
After obtaining necessary information from the recce and
obtaining an understanding of the layout of the
area/site/building, the leader/head of the rescue team must brief
and assign specific duties to the team members including
cordoning off entry and exit points, locating hide-outs, local crowd
management etc. The utilization of decoys, informants and
conducting pre-rescue confidential interviews of the victims would
be within the discretion of the leader/head of the rescue team
depending on the situation at hand.
Miscellaneous Application No. 530 of 2022 Page 209 of 297
(ix) It is important that all the members of the rescue team be briefed
regarding their respective roles, responsibilities including the do’s
and don’ts during the rescue operations.
(x) The leader/head of the rescue team shall also arrange for two
respectable persons from the locality of the rescue site who will
attend and witness the search in accordance with Section 15(2)
ITPA. Of the two persons, one person must be a woman and as per
the proviso to Section 15(2), it may not be necessary that such a
female witness be from the same locality.
(xi) Once the rescue operation has taken some shape, the leader/head
of the rescue team must again inform all the authorities including
the DSP (where the rescue operation is not conducted by the
AHTU), DCP, PNO and GNO respectively regarding the places to
be visited, proposed time, approximate manpower required, etc.
At the same time, the in-charge of the organisations running the
protective homes/child care institutions shall also be informed
about the approximate number of victims who may be rescued and
the probable time at which they would be brought to the home (if
the rescue operation is conducted by the AHTU, then such persons
in-charge would already be members of the AHTU).
(xii) All persons including the members of the rescue team, authorities
of the protective homes etc., shall be bound to ensure
confidentiality and prevent the leakage of any intelligence or
information to outsiders including to the media.
Miscellaneous Application No. 530 of 2022 Page 210 of 297
c. Rescue
(i) Upon reaching the rescue site, every member of the rescue team
(police officials, NGO members, witnesses) should take their
respective positions as agreed upon during pre-rescue briefing.
The area must be immediately cordoned off and all entry and exit
points must be sealed before entering the premises upon which the
search is to be conducted.
(ii) Officials forming part of the rescue team must keep certain non-
negotiables and mandatory rules in mind at all times. Non-
adherence to the same shall expose them to criminal prosecution
which may be instituted by the victim herself or by any social
worker on behalf of the victim. They are:
• No person shall be abused either verbally or physically.
•
The manner in which the persons are rescued must not involve
elements of unnecessary physical force or ‘man-handling’.
•
No misdemeanours or offences otherwise punishable under the
BNS shall be committed in the course of the rescue.
(iii) The 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, in adherence to the
dictum of this Court in Budhadev Karmaskar (supra).
(iv) The victims may be kept hidden in cubicles, false ceilings,
basements, boxes, attics, wardrobes, toilets and surrounding areas.
The rescue team must make all efforts to locate these hidden places.
Miscellaneous Application No. 530 of 2022 Page 211 of 297
(v) Special attention and care must be given in the course of the rescue
to children, transgender persons, persons with disabilities and
persons who are mentally ill.
(vi) The rescued persons must be allowed to take their possessions and
personal belongings like clothes, valuables, identity documents
etc. at the time of the rescue itself.
(vii) It must be ensured that while photography and videography of the
rescue site is done, the victims are excluded.
(viii) The rescued persons must be treated as victims at all times and no
victim must be arrested.
(ix) The rescued persons must be separated from the offenders at all
times to avoid any threat, pressure or intimidation.
(x) The rescued persons shall be transported to the police station in
vehicles and be escorted by such number of police officers as may
be necessary. However, if they require any emergency
medical/trauma care, they shall be escorted to the nearby
government hospital as soon as possible.
d. Post-rescue
Prior to production before the Magistrate/CWC
(i) At the police station/AHTU, the rescued persons must be kept in
a comfortable place suitable for victims (not be kept in lock-ups or
with other offenders) and provided access to drinking water,
sanitation facilities, food etc. The AHTUs/police stations must be
Miscellaneous Application No. 530 of 2022 Page 212 of 297
allowed to utilise the funds available under their contingency head
for this purpose.
(ii) For the provision of legal assistance to the victims, members of the
DLSA or other lawyers must be made available at the police
station. A list of such lawyers must be prepared and maintained at
all police stations, at all times.
(iii) In the event that the rescued victims do not speak the local
language, the team leader/head must make one or more
translators available who shall assist the victims. Prior assistance
from the NGO forming part of the rescue team may be taken for
this purpose.
(iv) Individualised interviews of the victim must be conducted after
their rescue in the presence of a member of the DLSA/lawyer who
shall inform the victims of their rights, obligations etc., and ensure
that the interview is conducted in a sensitive manner. In the case
of victims who are women, statements shall only be taken by a
woman police officer and if no woman police officer is available,
by any police officer but in the mandatory presence of a female
social worker in accordance with Section 15(6A) ITPA. Such
interview will be necessary to obtain information including the
age, native place, health status, family history etc., of the victim and
the same would thereafter be duly considered in identifying the
victim’s “best interest” for orienting further post-rescue measures.
(v) A victim’s statement must only be recorded once her safety is
ensured and her initial trauma is overcome. Therefore, if the victim
is not in a condition to give a statement, either physically or
Miscellaneous Application No. 530 of 2022 Page 213 of 297
mentally, then upon having consulted the social worker or
counsellor, the officer taking the statement would have the
discretion to conduct another interview after such period as may
be considered necessary.
(vi) The rescue team must identify persons who are less than 18 years
if age so that they can be sent to the CWC as “children in need of
care and protection” under the JJ Act. Such identification shall be
done by the leader/head of the rescue team in consultation with
the social worker, and based on the preliminary interview
conducted along with the prima facie appearance of the victim. If
there is any doubt regarding the age of the person, they shall be
considered to be children and the further call on age determination
must be left to the CWC.
(vii) Upon rescue or removal, every victim shall be produced before the
appropriate authority without delay. If the necessary documents
and reports have been prepared and the appropriate
Magistrate/CWC is in office on the same day, then the adult
victims shall be escorted for production before the Magistrate in
accordance with Section 15(5), 16(2) or 17(1) respectively, and the
child victims shall be escorted to be produced before the CWC.
(viii) In the event that such a production before the Magistrate/CWC is
not possible on the same day, the rescued persons shall be
immediately transferred to the protective homes and/or the child
care institutions by the special police officer and child welfare
police officer respectively. The rescued persons shall not be
Miscellaneous Application No. 530 of 2022 Page 214 of 297
detained over-night at the police station/AHTU under any
circumstance for any reason whatsoever.
[ For child victims, all proceedings relating to their care, protection, and
rehabilitation shall thereafter be governed by the JJA, 2015 and the applicable
rules. Where the victim is an adult, all proceedings shall be conducted in
accordance with the ITPA read with the further directions contained in this
plan.]
Proceedings before the Magistrate
(ix) During the very first production of the adult victim before the
Magistrate, and at every subsequent hearing, the Magistrate shall
ensure that a lawyer who effectively represents the interest of the
victim is present throughout the course of the proceedings. If not,
the Magistrate shall appoint any such lawyer at his/her discretion
or those empanelled by the DLSA to represent the victim. It must
be ensured that the lawyer representing the victim is different from
the lawyer representing the offender(s). No substantive step in the
proceedings shall be taken until such legal representation has been
made available to the victim. Where practicable, a social worker
with experience in working with such victims shall also be present
to assist the victim in understanding the nature of the proceedings.
(x) At the outset, the Magistrate shall inform the victim of her right to
be heard at every stage, and shall ensure that she is given a genuine
and meaningful opportunity to express her views and wishes.
Further, the Magistrate shall ensure that the victim has been
informed about the nature and purpose of the proceedings, the
steps that will follow, and the choices available to her at each stage.
Miscellaneous Application No. 530 of 2022 Page 215 of 297
(xi) The Magistrate shall, at the earliest opportunity, make a prima
facie assessment as to whether the victim produced before her is an
adult or a child. Where the Magistrate has any doubt as to the
victim’s age, she shall be treated as a child at this stage, and the
matter shall be referred to the CWC, which shall deal with the
victim in accordance with the provisions of JJA, 2015. If the CWC
concludes that the victim is an adult, the matter shall be returned
to the Magistrate.
(xii) At the first hearing, the Magistrate shall hear the victim, among
other things, on: (i) whether she considers herself to be engaging in
prostitution on her own volition and without coercion, fraud or
force, whether direct or indirect, and (ii) whether she wishes to be
placed in long-term safe custody by virtue of an order under
Section 17(4), ITPA.
(xiii) Where the victim clearly and unequivocally states that she is
engaging in prostitution voluntarily and does not wish to be placed
in long-term safe custody under Section 17(4), the Magistrate shall
pass an order directing a preliminary inquiry into whether her
engagement in prostitution is voluntary in nature. This specific
inquiry shall be conducted by one or more social workers from the
panel maintained under Section 17(5), ITPA, who have experience
in working with victims of CSE. The preliminary inquiry report
shall be submitted to the Magistrate within 7 (seven) days from the
date of the order. Where the victim makes no such statement, or is
unable to clearly express her position, the matter shall proceed
directly to the deeper inquiry under Paragraph (xviii) of this
section.
Miscellaneous Application No. 530 of 2022 Page 216 of 297
(xiv) The aforesaid inquiry shall be conducted in the victim’s preferred
language, and, if a social worker proficient in that language is
unavailable, an interpreter shall be arranged. The inquiry shall be
held in a private setting, without the presence of the police or any
person who may have influence over the victim.
(xv) Upon completion of the preliminary inquiry, the social worker(s)
tasked with it shall submit a report to the Magistrate, which,
among other things, shall include the following:
a. First, the victim’s own statement on whether she considers
herself to be engaging in prostitution voluntarily.
b. Secondly, the social worker’s assessment of the conditions in
which the victim was undertaking prostitution, including her
manner of entry, her control over her earnings, and her freedom
of movement, and any other indicators which would shed light
on whether the victim is being coerced or forced into
prostitution and/or whether her statement of voluntariness is
manufactured through threats of coercion, force or undue
influence.
c. Thirdly , the social worker’s overall assessment, based on the
victim’s statement and working conditions, of whether the
victim engages in prostitution voluntarily. Where this
assessment differs from the victim’s own statement, the report
shall record specific and concrete reasons for the difference, with
particular reference to any circumstances that would pose a real
risk to the victim’s safety were she to be released and/or which
Miscellaneous Application No. 530 of 2022 Page 217 of 297
indicate that the statement of voluntaries is manufactured
through threats of coercion, force or undue influence.
(xvi) Upon receipt of the report, i.e., after 7 (seven) days from the date
of the order directing the preliminary inquiry, the Magistrate shall
peruse the findings of the report and, before passing any order,
give the victim and her lawyer an opportunity to respond to the
report, particularly where the social worker’s assessment differs
from the victim’s own statement. Thereafter, the Magistrate shall
pass a reasoned order:
a. releasing the victim where the victim affirms her position as
being engaged in prostitution voluntarily, and the social
worker’s report does not contradict this position and does not
specify any circumstances that indicate safety concerns placing
the victim at real and immediate risk if released and/or that the
statement of voluntariness is manufactured through threats of
coercion, force or undue influence;
b. directing a deeper inquiry under Paragraph (xviii), where the
victim herself acknowledges upon reflection or during the
inquiry that she was coerced or forced to engage in prostitution
or where the victim maintains her position as engaging in
prostitution voluntarily, but the social worker’s report identifies
circumstances that indicate safety concerns placing the victim at
real and immediate risk if released and/or that the statement of
voluntariness is manufactured through threats of coercion, force
or undue influence, and the Magistrate, upon consideration,
finds such concerns to be well-founded.
Miscellaneous Application No. 530 of 2022 Page 218 of 297
(xvii) For the purpose of such preliminary inquiry, in all cases, the
victim’s own statement shall be accorded primacy and shall form
the basis for the Magistrate’s decision. This primacy may be
displaced only where the Magistrate finds, for reasons to be
recorded in writing, that there exist cogent grounds to believe that
the victim’s safety would be at risk upon her release or that her
statement of voluntariness is manufactured through threats of
coercion, force or undue influence.
(xviii) Where a deeper inquiry is ordered either directly under this
Paragraph or under Paragraph (xvi)(b) of this section, the
Magistrate shall direct an inquiry as contemplated under Section
17(2), ITPA which shall cover the following aspects: (i) the
circumstances of removal or rescue of the victim including the
veracity of the information received; (ii) character and antecedents
of the victim; (iii) the suitability, capacity and genuineness of the
victim’s parents, guardian or husband to take charge of the victim;
and (iv) the likely influence of the victim’s home environment on
her well-being if she is returned.
(xix) Given the multi-faceted nature of the inquiry under Section 17(2),
ITPA, the Magistrate shall necessarily seek the assistance of a
probation officer appointed under the Probation of Offenders Act,
1958, and a panel of social workers constituted under Section 17(5)
of the ITPA with experience in working with victims of trafficking
for CSE and/or a recognised welfare institution or organisation
under Section 17A.
Miscellaneous Application No. 530 of 2022 Page 219 of 297
(xx) After competition of the deeper inquiry as mentioned under
Paragraph (xviii) of this section, a joint report shall be submitted to
the Magistrate within 21 days of the date of the order (in a case
where no preliminary inquiry had been ordered under Paragraph
(xiii) of this section) and within 14 days of the date of the order (in
a case where a preliminary inquiry had already been completed
and an order for deeper inquiry had been made under Paragraph
(xvi)(b)). Where a preliminary inquiry has already been conducted,
the report prepared thereunder may be referred to in the course of
the deeper inquiry, and the social worker who conducted the
preliminary inquiry may, where appropriate, form part of the
deeper inquiry process.
(xxi) During the course of the deeper inquiry, the victim’s own views,
among other things, shall be sought and recorded on: first, whether
she wishes to return to her family and secondly, whether she
wishes to be placed in long-term safe custody under Section 17(4),
ITPA. The victim’s responses shall form part of the joint inquiry
report and shall be placed before the Magistrate alongside the
findings of the probation officer, the panel, and/or a recognised
welfare institution or organisation under Section 17A.
(xxii) Upon receipt of the joint inquiry report, the Magistrate shall peruse
it and thereafter, hear the victim. No order placing the victim with
her family shall be passed without the victim’s consent. Further,
except where the Magistrate finds that there exists cogent grounds
to conclude that any release would be seriously prejudicial to the
victim’s safety or that the victim withheld consent to be placed in
long-term safe custody under Section 17(4) under the influence of
Miscellaneous Application No. 530 of 2022 Page 220 of 297
threats, coercion, or undue influence, no order shall be passed
placing the victim in a protective home without the victim’s
consent.
(xxiii) Where the victim consents to placement with her family, and the
Magistrate is satisfied, on the basis of the joint inquiry report which
includes the investigation conducted by the recognised welfare
institution or organisation under Section 17A, ITPA, that the family
is genuine, capable and that such placement would not expose the
victim to harm, the Magistrate shall pass an order accordingly.
Where, despite sufficient efforts, the family of the victim cannot be
traced, the Magistrate shall ask the victim whether she wishes to
be placed in long-term safe custody under Section 17(4) and pass
an order in accordance with Paragraphs (xxiv) and (xxv)
respectively.
(xxiv) Where the victim consents to be placed in long-term safe custody,
or where the Magistrate finds, for reasons to be recorded in
writing, that release would be seriously prejudicial to the victim’s
safety or that her consent was withheld under the influence of
threats, coercion, or undue influence, the Magistrate shall pass an
order directing her placement in a protective home or such other
suitable custody, in accordance with Section 17(4), ITPA. Whether
placement in a protective home was ordered with or without the
victim’s consent, the victim may, at any time after 90 days from the
date of the order, make an application to the Magistrate seeking
her release. The Magistrate shall consider such application on its
own merits and pass an appropriate order thereafter. This right to
apply for release before the magistrate is without prejudice to the
Miscellaneous Application No. 530 of 2022 Page 221 of 297
victim’s right to appeal an order made under Section 17(4), ITPA
provided under Section 17(6), ITPA .
(xxv) In scenarios not covered by Paragraphs (xxiii) and (xxiv)
respectively, i.e., where the victim does not wish to be placed with
her family or in long-term safe custody, and wishes to be released,
the Magistrate shall record such a choice and pass an order for
release accordingly. In such a release order, the Magistrate may, if
he deems fit, assign a social worker to help and guide the victim in
availing herself of the benefits to which she may be entitled under
various government schemes.
(xxvi) A victim’s choice not to be placed under long-term safe custody
shall not be treated as an adverse inference against her at any stage,
present or future, and shall not preclude her from making an
application under Section 19, ITPA should she later wish to avail
for herself care, protection, or rehabilitation.
(xxvii) From the date of the first production and throughout the inquiry
process (both the preliminary inquiry under Paragraph (xiii) of this
section and the deeper inquiry under Paragraphs (xvi)(b) and
(xviii) of this section respectively), the Magistrate shall pass
appropriate orders for the interim safe custody of the victim, which
shall provide for the victim to be placed in a protective home under
Section 21, ITPA and be provided with adequate basic care,
including medical attention, psychological support/counselling,
food, and shelter. The provision of such care shall not be contingent
on the outcome of any inquiry and shall not be withheld or
deferred at any stage.
Miscellaneous Application No. 530 of 2022 Page 222 of 297
(xxviii) Every endeavour shall be made to complete the inquiries
contemplated under this plan and to pass an order under Section
17(4) within the maximum period prescribed for interim safe
custody under Section 17(3) ITPA. Where, for any reason, there is
an unreasonable delay in the completion of the inquiry or the
passing of such an order beyond this period, the victim shall be
entitled to file an application before the magistrate bringing such
delay to his notice. Upon receipt of such an application, the
magistrate shall take due cognisance of the delay, record his
reasons for the same, and take all necessary steps to ensure that the
matter is concluded without further delay.
(xxix) Necessary legal and social support shall be made available to every
victim, free of cost, to assist her in filing any application or appeal
contemplated under this plan or under the ITPA.
(xxx) Any victim produced before a Magistrate must be examined by a
registered medical practitioner for the purposes of detection of any
injuries as a result of sexual abuse or for the presence of any
sexually transmitted diseases as per Section 15(5A), ITPA. Such an
examination shall be done with the informed consent of the victim
and without any delay. It must be ensured, as far as possible, that
such examination is done by a female medical practitioner and if
no female practitioner is available, it shall be done in the presence
of a women social worker or counsellor. Arrangements for
specialists like gynaecologists may be made, if required. Male
police officers and attendants must not be present in the
examination room.
Miscellaneous Application No. 530 of 2022 Page 223 of 297
(xxxi) All proceedings before the magistrate, and all orders passed
thereunder, to the extent possible, shall be conducted and
maintained with strict regard to the confidentiality and privacy of
the victim. No information that may lead to the identification of the
victim shall be disclosed to any person not directly involved in the
proceedings.
(xxxii) The concerned AHTU or the police rescue team who rescued the
victims shall keep track of all the victims who have been directed
by the Magistrate to be placed in long term safe-custody and those
who have been placed with their family/guardian/husband
respectively, and forward a list thereof to the PNO and GNO of the
concerned State.
e. Rehabilitation
(i) In the event an order for release is passed by the Magistrate under
Paragraph (xxv) of the previous section, and a social worker is
assigned to provide help and guidance to her in availing social
welfare benefits which she may be entitled to, then such social
worker shall bear the responsibility to aid the victim, in the best
possible manner, in actually and realistically availing such benefits
from different schemes and shall provide such other necessary
assistance as is required to fulfil such responsibility. For the said
purpose, the social worker may liaison with the officials from the
Departments of Women and Child Welfare, Labour, Social
Welfare, Health and/or any other relevant line departments
existing at the district-level who are members of the AHTU in the
concerned district and/or the concerned DLSA.
Miscellaneous Application No. 530 of 2022 Page 224 of 297
(ii) The protection homes at which the victims are placed in interim or
long-term safe custody in consequence of an order passed by the
magistrate under Sections 17(2) and 17(4) respectively, must be
victim-friendly in terms of their environment, both physical and
social. The basic and minimum criteria for the same are delineated
as follows:
•
The protective homes must be victim-friendly and shall not
emulate a jail or lock-up in any manner whatsoever.
•
If, according to the terms and conditions of the licence granted
to the protective home, a capacity to house ‘n’ number of
residents is indicated, it must be ensured that such a number is
not unduly exceeded. Should the need for more homes arise, it
shall be the responsibility of the Department of Women and
Child Welfare of the concerned State to ensure the
establishment of more homes in the area.
•
Each protective home shall have a Management Committee for
the overall management of the home and for monitoring the
progress of every resident.
• Each protective home must have an adequate number of
dormitories, toilets, bathrooms, a sick room/first aid room, a
counselling/guidance room, a kitchen, a dining hall, a store
and a recreation room, at a minimum.
• Each protective home must have sufficient treated drinking
water, ventilation, proper drainage systems, arrangements for
garbage disposal, fire extinguishers, first-aid kits, etc.
•
It shall be the responsibility of the Management Committee of
the protective home to ensure that the physical environment is
hygienic and safe, and that the nutritional needs of the
Miscellaneous Application No. 530 of 2022 Page 225 of 297
residents (especially that of pregnant and lactating mothers)
are being adequately met.
•
The Management Committee shall also draw up a daily routine
for the residents.
•
Unless necessitated by circumstances and deemed fit by the
superintendent of the home on an individual case-by-case basis
for a pre-defined period, there must be no default and strict
rule mandating any form of classification or segregation
amongst the residents. Such rules have the consequence of
perpetuating discrimination and stigmatising the victims of
trafficking for CSE.
•
The Management Committee shall ensure that the staff are
well-trained and sensitive to the diverse needs and
circumstances of their residents, especially the victims of
trafficking for CSE.
(iii) The superintendent of the protective home shall ensure that, upon
the immediate arrival of the victim;
•
A case worker is assigned to each victim.
• Necessary materials such as clothing, toiletries etc. are
provided.
(iv) Each protective home shall maintain a list of empanelled case
workers, who are independent and not associated in any manner
with the NGO or implementing organisation running the
protective home. They must have demonstrated experience in
working with victims of trafficking for CSE. This list shall be
reviewed and updated periodically. In discharging their
responsibilities, case workers shall at all times act as guides and
Miscellaneous Application No. 530 of 2022 Page 226 of 297
facilitators, and shall not, in any manner, seek to influence the
victim’s choices or decisions.
(v) Upon assignment, the case worker shall serve as the victim’s
primary point of contact throughout her stay. The case worker
shall: (i) inform the victim of all entitlements, benefits, and schemes
available to her; (ii) coordinate between all agencies and service
providers involved in delivering care and rehabilitation services to
the victim and provide necessary logistical/managerial support;
(iii) interact with the victim on a regular basis to understand her
evolving needs and wishes; and (iv) ensure that such needs and
wishes are duly communicated to and reflected in the formulation
of the victim’s individual care plan, as laid down in paragraphs
(xviii) and (xix) of this section.
(vi) In all protective homes, a general physician and gynaecologist shall
be made available on call for the regular medical check-up and
treatment of the residents. Such doctors may be chosen from the
common pool of referral staff maintained by the OSCs. A nurse or
a para-medic shall also be available round the clock. The
Management Committee shall maintain a medical record of each
resident and update it on the basis of their regular medical check-
up. The protective home must have a standing liaison with the
nearby district hospital/CHC/PHC in case of any medical
emergencies.
(vii) Every protective home shall make available the services of trained
counsellors/psychiatrists/psychologists either in-house or
through collaboration with external agencies or on a part-time
Miscellaneous Application No. 530 of 2022 Page 227 of 297
basis from the common pool of referral staff maintained by the
OSCs, for specialised and regular individual therapy of the
residents, especially victims of trafficking for CSE.
(viii) Special de-addiction and de-toxification support must be provided
to residents, especially victims of trafficking for CSE who have
been diagnosed with substance abuse issues, including alcoholism,
drug addiction, etc.
(ix) All medicines must be administered to the residents only by
trained medical staff or the nurse or para-medics and strictly, upon
the prescription of doctors and/or psychiatrists.
(x) Every protective home shall provide opportunities for education,
depending on the age and ability of the residents, both inside the
home or outside, as per their requirement. The range of
educational opportunities shall include mainstream inclusive
schools, bridge schools, open schooling, non-formal education etc.
Where necessary and possible, the protective home shall
collaborate with reputed external institutions and organisations
that are willing to provide such services. A sufficient budget
should be allocated for arrangement of materials like books,
stationary etc.
(xi) Every protective home shall provide gainful vocational training to
the residents according to their age, aptitude, interest and ability,
both inside and outside the protective home. It must be ensured
that the provision of life skills, vocational training and skill
development is suitable for employment in the contemporary job
market. For training outside the home, collaborations with
Miscellaneous Application No. 530 of 2022 Page 228 of 297
vocational training institutes recognised by the Directorate General
of Employment and Training under the Ministry of Labour and
Employment or, training partners of the National Skill
Development Council (“NSDC”) may be made.
(xii) The protective home shall, wherever feasible, include indoor and
outdoor recreational activities like games, music, television,
outings, cultural programmes, gardening, reading etc., for the
overall well-being of the residents. Regularity of such activities
shall be maintained with support from other protective homes and
NGOs, if needed.
(xiii) It shall be the duty of the Management Committee to ensure the
allocation of adequate funds for all the aforesaid or to explore
whether the victim may be entitled to monetary or other support
from existing welfare schemes of the State and Central
governments. The superintendent may take assistance from the
DLSA for the said purpose.
(xiv) The protective homes shall allocate a portion of their budget for the
procurement of vehicles or arrangement of safe transport facilities
for the purpose of taking the victims to and from the hospital,
schools, vocational training institutes etc.
(xv) The protective homes must also have a protocol in place for
ensuring supervised visitation of the victims by outsiders. Such
protocol may require visitation under the supervision of the
superintendent or the case worker concerned. The visitors shall
subject themselves to a search at the main gate and women visitors
shall be searched by women staff only. During such a search, it
Miscellaneous Application No. 530 of 2022 Page 229 of 297
must be ensured that the visitors are not carrying any prohibited
articles or substances. No meeting must be permitted with those
persons who have been found to be involved in subjecting the
victim to trafficking, abuse or other forms of exploitation. While
the residents would be entitled to communicate with their lawyers,
it must be ensured that the rules of such a search shall also apply
to them, and any interview with the victim shall take place within
the sight of the case worker or a home official, though at a safe
distance so as to be out of hearing.
(xvi) If any resident does not have legal representation and/or requests
for a lawyer for legal advice and/or consultation, the protective
home must forthwith arrange for a lawyer empanelled with the
DLSA who shall assist the resident.
(xvii) Where police officers (preferably women) of the rescue
team/AHTU wish to conduct an interview for the purpose of
taking the statement of the rescued victim, the same shall be done
with prior intimation to the superintendent of the home, who shall
be responsible for informing the lawyer of the victim and the case
worker concerned. Such a statement shall only be taken in the
presence of the lawyer and/or the case worker.
(xviii) When a victim is placed in a protective home for interim safe-
custody by virtue of an order passed by the Magistrate under
Paragraph (xxvii) of the previous section, the Management
Committee of the home shall forthwith, in consultation with the
concerned case worker, visiting doctor and
counsellor/psychiatrist/psychologist, prepare an individualised
Miscellaneous Application No. 530 of 2022 Page 230 of 297
care plan for the victim, with her consent (wherever necessary
and/or possible), for such interim period. This plan would
predominantly focus on:
•
The nutritional needs of the victim and deviation from the
default diet plan, if necessary.
•
Daily routine and deviation from the default routine, if
necessary.
•
The provision of psychiatric or psychological counselling, de-
addiction and detoxification support, non-emergent medical
care etc.
• For victims who have tested positive for HIV/AIDS and after
obtaining necessary consent in this regard, a management
protocol including the management of opportunistic
infections, prevention of mother to child transmission in case
of a pregnant positive victim, free access to anti-retroviral
drugs etc.;
•
Basic life skills and vocational training which may be
provided within the home.
•
Recreational activities which may be suitable for the victim.
•
A security plan taking into account any immediate threat to
the safety of the victim. This may involve periodic wellness
visits from the police officers of the AHTU/rescue team/local
police station, scrutiny of visitors and supervised visitation
etc.
(xix) When a victim is placed in a protective home for long term safe-
custody by virtue of an order passed by the Magistrate under
Paragraph (xxiv) of the previous section, the Management
Miscellaneous Application No. 530 of 2022 Page 231 of 297
Committee of the home shall forthwith, in consultation with the
concerned case worker, visiting doctor and
counsellor/psychiatrist/psychologist, prepare an individualised
care plan for the victim, with her consent (wherever necessary
and/or possible), for such period as may be necessary. In addition
to the aspects mentioned under the previous Paragraph, such a
plan shall also focus on:
•
The provision of education through formal school systems,
open schools, home schooling and the arrangement for
materials like books etc. for the said purpose.
• The provision of life skills, vocational training and skill
development that is suitable for employment in the
contemporary job market both in-house and outside through
vocational training institutes recognised by the Directorate
General of Employment and Training under the Ministry of
Labour and Employment or, through training partners of the
National Skill Development Council (“ NSDC ”). Priority must
be given to the choice of the victim in deciding what life skills
or training shall be imparted to her.
•
The opening of a bank account in the name of the victim in
which the deposit of a pre-decided amount would be made
every month by the superintendent of the protective home
according to the implementation guidelines of the Mission
Shakti Programme. The amount along with any interest
accrued is intended to act as seed money for the victim at a
time when she leaves the home.
Miscellaneous Application No. 530 of 2022 Page 232 of 297
(xx) Such an individualised care plan for long term residents must be
re-evaluated after a period of 30 days and re-tailored according to
the changing needs of the victim.
(xxi) Such an individualised care plan shall be formulated by offering
the victim a range of options for each aspect of the plan, especially
those relating to vocational and educational skills, which would
help the victim find alternative livelihoods upon release. To
maximise the choices available to the victim, the protective home
shall, wherever necessary, collaborate with reputed external
agencies and organisations.
(xxii) The protective homes must have adequate safeguarding measures
including the installation of CCTVs in the common areas, all entry
and exit points etc., to prevent and monitor intrusion by the
traffickers or other persons who may cause a threat to the safety of
the victim. Security personnel including security guards for
security from outside the home shall be appointed. In case of any
immediate threat to the safety of the victim and/or any other
extenuating circumstances, it must be ensured that such number of
police officers of the AHTU or local police station, as may be
necessary, are deputed outside the protective home.
(xxiii) During the course of their stay in a protective home, if the victim is
required to attend any hearing or court procedures, she shall be
escorted by two police officers, of which one shall mandatorily be
a women police officer.
(xxiv) Every protective home shall evolve a system which ensures that
there is no abuse, neglect and maltreatment of the residents
Miscellaneous Application No. 530 of 2022 Page 233 of 297
including by the staff of the home. Such abuse shall be brought to
the notice of the superintendent and the lawyer of the resident,
who shall take appropriate action including the registration of a
complaint under the relevant provisions of the law before the local
police station. In such circumstances, the resident, through her
lawyer, may to move the Magistrate for an order that she be placed
in a different protective home, wherever feasible.
(xxv) Every protective home shall endeavour to constitute a committee
composed solely of victims currently residing in that home. Such a
committee shall be encouraged to participate in the following
activities: (i) improvement of the condition of the protective home;
(ii) reviewing the standard of care being followed; (iii) developing
educational, vocational and recreational plans; and (iv) reporting
abuse and exploitation. The protective home shall ensure that the
victims’ committee is provided with the necessary support and
materials required for its effective functioning.
(xxvi) The superintendent of the protective home must maintain a
confidential case file of each resident placed in safe custody
(whether interim or long term) and shall produce the same before
the Magistrate in the event of any hearing/proceeding before him.
Such a case file, would contain, amongst other things, a copy of the
FIR, photo ID, medical and psychological/counselling reports,
drug de-addiction progress reports, report of the superintendent
and case worker, report of initial interaction with the resident,
information from family/relatives/friends etc., observation report
from staff members, report of education/vocational training given
and its progress, the individual care plan and its periodic changes,
Miscellaneous Application No. 530 of 2022 Page 234 of 297
complaints/feedback given by the resident, reports of visitors, etc.
The maintenance of all such report should be computerised,
wherever possible.
(xxvii) The Committee headed by the Chief Secretary of each State/UT
tasked with overseeing the implementation of the Mission Shakti
Programme must in coordination with the District-level
Committee headed by the District Magistrate/Collector conduct a
quarterly inspection and social audit of the protective homes for
evaluation and assessment of their functioning. To ensure
transparency, a member of the DLSA shall also be present during
such an inspection. This shall include, amongst other things, the
examination of the books of accounts, conducting anonymous
interviews of the residents as regards their well-being, quality of
their stay, complaints and feedbacks, etc. The district-level
Committee shall also carry out random inspections in the presence
of a member of the DLSA, as and when deemed necessary. Based
on the social audit, the district-level Committee shall make
recommendations for the improvement and development of the
conditions of the home. The district-level Committee shall require
reasons to be furnished by the implementing organisation for
deficiency in any service and/or other complaints, and allow a
fixed period for improvement/rectification/corrective measures.
In the event of failure to comply, the district-level Committee, in
conjunction with the State-level committee, shall take a call on
whether the same shall be considered to be a violation of the terms
and conditions of the licence, leading to its cancellation.
Miscellaneous Application No. 530 of 2022 Page 235 of 297
f. Repatriation/Reintegration
(i) Two months or 60 days before the victim is scheduled to leave the
protective home, it shall be the responsibility of the superintendent
of the protective home along with the case worker and the
members of the AHTU, to prepare an individualised post-release
plan for her reintegration and/or repatriation to the
village/town/city of her home State. During this time, the victim
shall mandatorily be consulted on whether she wishes to be sent
back home or not. Utmost priority shall be given to her consent and
should the victim choose not to go back to the village/town/city
of her home State, a plan for her reintegration shall be made at the
destination State itself.
(ii) In a case where reintegration at the destination State is
contemplated, the individualised plan would include aiding the
victim in finding a job suitable to the skills/vocational training
received during the period of stay, transfer to half-way homes
maintained under the Shakti Sadan programme along with the
period of stay in such half-way homes, exploring accommodation
in existing Working Women Hostels, facilitating micro credit
through SIDBI, Mudra and other relevant schemes of the
Central/State government in case the victim wishes to start any
small-scale industry/business, providing all documents necessary
for accessing the funds in the back account opened in their name
during their stay, making an application for compensation from
Victim Compensation Schemes of the concerned State in
accordance with Section 396, BNSS and providing all information
Miscellaneous Application No. 530 of 2022 Page 236 of 297
on other social security benefits like entitlements to existing
housing schemes etc., amongst other considerations.
(iii) However, if the victim indicates that she wishes to be sent back to
the village/town/city in her home State, then the members of the
AHTU will initiate a due diligence process by conducting a home
investigation to re-convince themselves that the victim would be
safe and not be exposed to abuse or chances of re-trafficking. This
process shall commence before 45 days of the intended release of
the victim and be concluded within 15 days of her intended release.
If the investigation reveals the existence of any danger to the safety
of the victim, then such information shall be disclosed to the victim
by the case worker concerned or a social worker from the AHTU
and efforts shall be made to reintegrate her, with her consent, at
the destination State in accordance with Paragraph (ii) of this
Section.
(iv) However, if the home investigation does not reveal the existence of
any danger to the safety of the victim, then necessary arrangements
for her repatriation shall be made. During the journey to the
village/town/city of her home State, the victim shall be
accompanied by two police personnel (preferably members of the
AHTU) of which one shall compulsorily be a women police officer.
Such officers shall take all measures to ensure that they do not
disclose the circumstances in which the victim was rescued, her
history of engagement in prostitution (whether forced or not), or
any other information that could potentially stigmatise the victim.
Expenses related to the travel of the victim and the police escorts
shall be borne by the AHTU and/or the protective home.
Miscellaneous Application No. 530 of 2022 Page 237 of 297
(v) A list of all the victims of trafficking for CSE who were rescued and
who have either been reintegrated in the destination State or
repatriated to the village/town/city of the home State shall be
forwarded by the AHTU concerned or the police rescue team to the
PNO and GNO of the destination State respectively. This shall also
contain necessary information including where the victim is
presently housed (if she is reintegrated in the destination State), the
village/town/city to which she has been repatriated along with
the names of the police officers who escorted her during her return
etc.
(vi) The NGO members of the AHTU operating in the area where the
victim is reintegrated/repatriated in coordination with the NGO
members of the AHTU who conducted the rescue of the victim
shall conduct a monthly follow-up of the status and well-being of
the victim for the first six months post her reintegration or
repatriation. Thereafter, the frequency of such follow-up shall be
reduced to a quarterly basis and shall continue for a period of three
years post her reintegration or repatriation. During such follow-
ups, the NGO workers shall also ensure that they do not disclose
the circumstances in which the victim was rescued, her history of
engagement in prostitution (whether forced or not), or any other
information that could potentially stigmatise the victim
(vii) After effecting the repatriation or reintegration of the victim, all
efforts must be made by the police officers investigating the crime
of human trafficking and prosecutors alike, to not re-traumatise the
victim by requiring them to give additional statements, physically
attend court proceedings etc.
Miscellaneous Application No. 530 of 2022 Page 238 of 297
g. Prosecution and Trial
(i) All State Governments shall in consultation with the High Court,
re-evaluate the need for establishing special courts under Section
22A, ITPA in any district or metropolitan area for the speedy trial
of offences under the said Act, having particular regard to the
number of cases reported and pending under the ITPA before
different forums of the concerned State.
(ii) The State government must ensure that protection from existing
witness protection schemes which have been prepared and
notified in accordance with Section 398 BNSS is extended to the
victims of human trafficking for CSE and their families.
(iii) During trial, the prosecution shall keep in mind the various
decisions of this Court pertaining to the recording of evidence of
victims of sexual abuse including that of the permissibility of
recording evidence by way of video-conferencing as held in State
of Maharashtra v. Praful B. Desai reported in (2003) 4 SCC 601.
(iv) All the High Courts shall ensure the effective implementation of
Section 395, BNSS i.e., Order to pay compensation, by all trial
courts under their jurisdiction, giving particular regard to sub-
sections 395(1)(b) and 395(3), BNSS respectively.
h. Prevention and training
(i) Police officers and AHTUs must keep vigil at transit areas such as
railways stations, bus stops, etc. to spot trafficked victims and carry
out all steps for timely intervention.
Miscellaneous Application No. 530 of 2022 Page 239 of 297
(ii) The AHTUs must identify vulnerable source areas and initiate
targeted interventions including awareness and empowerment
programmes to prevent trafficking.
(iii) All relevant stakeholders including special police officers, police
officers assisting the special police officer, NGO workers, social
workers, officials of the various departments at the district and
State-level, DLSA members, lawyers, PLVs, medical officers,
counsellors, judicial officers, prosecutors etc., must be given
regular and adequate training on handling victims of human
trafficking and victim-friendly procedures. It must be ensured that
such training is not sporadic and is scheduled at regular intervals.
Such training must not only be conducted at national or State levels
but trickle down to the district-level so as to ensure that such efforts
translate into realistic implementation. It shall be the responsibility
of the Anti-Trafficking Cell under the MHA at the national-level;
the Anti-trafficking Bureau, the PNO and GNO respectively at the
State-level and the AHTU at the district-level to coordinate and
initiate such training activities. They may collaborate with the
Bureau of Police Research and Development (“BPR&D”) State
Police Academies and State Judicial Academies for the purpose of
imparting such training.
(iv) For such training, the Anti-Human Trafficking Cell shall develop
comprehensive and standardised training resource materials
including manuals/SOPs drawing from the best practices of
several State governments. Such standardised resource materials,
manuals or SOPs shall form the foundational base upon which all
training shall be imparted to different stakeholders. Reference can
Miscellaneous Application No. 530 of 2022 Page 240 of 297
also be drawn to manuals already prepared by the MWCD in
collaboration with several organisations.
i. Guidelines for persons making an application under Section 19
ITPA
(i) Where any person who is carrying on or is made to carry on
prostitution makes an application before the magistrate under
Section 19 ITPA for an order that she may be either kept in a
protective home, or be provided care and protection by the court,
it shall be ensured that the following guidelines laid down in the
Victim Protection Plan apply to her case with full force:
• Provision of legal representation and right to a fair and
adequate hearing under Paragraphs (ix) and (x) of the section
on post-rescue;
•
interim safe-custody along with the care, protection and
rehabilitation to be afforded to her in terms of Paragraph
(xxvii) of the section on post-rescue;
• Remedy available to the victim and the procedure to be
followed by the magistrate in the event of delay in passing an
order for final safe custody under Paragraph (xxviii) of the
section on post-rescue;
• Scope to make an application to the magistrate seeking release
from custody at any time after 90 days from the date of the
order of the magistrate under Section 19(3);
•
Provision of necessary legal and social support under
Paragraph (xxix) of the section on post-rescue;
•
Confidentiality of the proceedings under Paragraph (xxxi) of
the section on post-rescue;
Miscellaneous Application No. 530 of 2022 Page 241 of 297
• All guidelines under Paragraphs (ii) to (xvi) and (xviii) to
(xxvii) respectively of the section on rehabilitation; and
• Such other guidelines from the Victim Protection Plan, as may
be applicable.
F. Constitution of the Organised Crime Investigation Agency (OCIA)
363. The setting up of a dedicated pan-India investigative and coordinating
body for the crime of trafficking in the name of the OCIA was one of the
two commitments made by the respondent no. 1 in the second affidavit
which led to the disposal of the original writ petition. However, despite
such an undertaking, it is now the stance of the respondent no. 1 that
the NIA has been empowered to investigate offences under 370 and
370A IPC respectively (corresponding to Sections 143 and 144 BNS
respectively) and having made such an arrangement, there remains no
need to set-up the OCIA. As a consequence, the respondent no. 1 is of
the firm view that there is substantial compliance of its undertaking in
this regard.
i. Reasons due to which the setting up of the OCIA was considered
necessary by all stakeholders
364. The original writ petition largely placed a solitary focus on the “ Victim
Protection Plan ”. It was only through an interim application being I.A.
No. 2 of 2015 that, amongst other things, the petitioner sought the
creation of a multidisciplinary national bureau-like body (similar to the
Narcotics Control Board) which “ evolves and implements interventions on
the lines of the protocol coordinating with all agencies engaged in prevention,
rescue, rehabilitation and re-integration in addition to prosecution ”.
Miscellaneous Application No. 530 of 2022 Page 242 of 297
365. While initially its importance was under-acknowledged by the
respondent no. 1, the several stakeholders involved in the CAC
meetings and other consultative processes highlighted the acute need
for such a body. The predominant reasons that favoured its creation
were as follows: First, the lack of institutional linkage between the
responses at the source, transit and destination areas. Secondly, the lack
of institutional mechanisms facilitating inter-state rescue and inter-state
operations. Thirdly, the lack of institutional mechanisms for monitoring
or facilitating the aftercare of persons rescued in the inter-state
operations. Lastly, the lack of an institutional network between the
NGOs and other service providers with the law enforcement agencies.
366. Therefore, the stakeholders requested the MHA to work-out a proposal
for the creation of the OCIA, which would investigate and provide other
support in respect of human trafficking cases along with other
organised crimes. Due to the fact that the MHA had a wide field
presence across the country through its AHTUs, it was preferred that
the OCIA be constituted as a nodal agency under the aegis of the MHA.
367. This suggestion was positively considered by the respondent no. 1 and
a proposal was drawn up. The proposal stated thus:
“ Human trafficking is a group of crime involving the exploitation of
men, women and children for financial gains which is violation of
fundamental rights. Victims are lured or abducted from their homes
and subsequently forced to work against their wish through various
means in various establishments, indulge in prostitution, begging
and trade in human organs or subjected to various types of
indignities and even killed or incapacitated for the purpose of
begging.
Human trafficking is a borderless organised crime, as declared in the
UN Convention on Transnational Organised Crime (UNCTOC
2000), and its protocol on trafficking in Persons (Trafficking
Miscellaneous Application No. 530 of 2022 Page 243 of 297
Protocol), both ratified by the Government of India. The Action
Research by NHRC on Trafficking in Women and Children in India,
2002-2004, has shown the inter-state ramifications of the problem. It
has also de-mystified the concepts, exposed the fault lines in the
response systems and come out with recommendations in addressing
the issues in a holistic manner. No doubt, human trafficking is one
of the gravest crimes against human rights and human dignity and
therefore, Government of India is concerned about the issues and is
committed to address the issues in the best possible manner.
Therefore, the Ministry of Home Affairs is proposing to set up a
nodal agency against human trafficking to be called Organised
Crime Investigation Agency (OCIA) at New Delhi. The objective of
the Agency will be to collate intelligence, investigate the crime of
Human Trafficking having national and international ramifications
and strengthening of capacity building mechanism. The Agency will
also coordinate rescue and rehabilitation efforts with other
Ministries of the Government of India and State Governments ”
(Emphasis supplied)
368. A reading of this excerpt reveals that the respondent no. 1 took special
note of the fact that human trafficking: (a) is a borderless organised
crime which almost always manifests with inter-state ramifications, and
(b) carries grave human rights implications. Therefore, in furtherance of
its seriousness to launch a targeted attack against such crimes, the OCIA
was proposed to be set up as a nodal agency within the MHA. The broad
responsibilities that were sought to be assigned to the OCIA are as
follows:
(i) Collating intelligence along with knowledge sharing among all
stakeholders;
(ii) Investigating the crime of human trafficking having national and
international ramifications;
(iii) Strengthening of capacity building mechanisms; and
(iv) Coordinating rescue and rehabilitation efforts with other
Ministries of both the Government of India and State governments,
Miscellaneous Application No. 530 of 2022 Page 244 of 297
along with the maintenance of a national database for missing,
found and trafficked persons as well as the traffickers.
369. Therefore, while effective intelligence and investigation of this crime
that transcends borders and is regulated by multiple legislations was
considered necessary, the OCIA was not envisioned with a
unidirectional intent to simply conduct and coordinate investigation.
Several other essential functions were also assigned to its domain.
370. While the proposal for the OCIA did not see much progress thereafter,
the comprehensive legislation on human trafficking which was being
drafted through the Inter-Ministerial Committee took forward the idea
of creating a national-level body and made provisions for it under the
draft legislation. A reading of the minutes of several of its meetings
reveals that the OCIA was temporarily rechristened as the Human
Trafficking Investigation Agency (“ HTIA ”) – a body that would
exercise jurisdiction in respect of inter-State crimes. The triggering
mechanism through which the HTIA would begin investigation was
two-fold i.e., either suo motu or when specifically referred to it by the
122
States/UTs.
371. Later, under the Trafficking of Persons (Prevention, Protection and
Rehabilitation) Bill, 2022 (hereinafter, the “ 2022 Bill ”), it can be seen that
the HTIA was finally renamed as the National Anti-Trafficking Bureau
123
(“ NATB ”) The relevant provisions of the Bill which include the broad
122 st
Summary Record of the 1 meeting of the Inter-Ministerial Committee (IMC) on comprehensive
legislation for tackling various aspects of human trafficking held on 27.01.2016.
123
The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2022, §3.
Miscellaneous Application No. 530 of 2022 Page 245 of 297
functions of the NATB and the manner in which it would carry out
investigations are reproduced thus:
“ 3. National Anti-Trafficking Bureau. - (1) The Central
Government shall, by notification, establish a Bureau to be called the
National Anti-Trafficking Bureau for exercising the powers and
discharging its functions under this Act.
(2) The Bureau shall have police officers and other officers of such
appropriate ranks, as may be necessary, for the discharge of its
functions.
(3) The manner of selection, deputation, functioning and reporting
of the officers and employees of the Bureau shall be in such as may be
prescribed.
4. Functions of Bureau. - The Bureau shall perform the following
functions in relation to trafficking of persons, namely: —
(i) co-ordinate and monitor surveillance and preventive efforts
along with the known or probable routes;
(ii) facilitate surveillance, enforcement and preventive steps at
source, transit and destination points;
(iii) maintain co-ordination between various law enforcement
agencies and non-Governmental organisations and other
stakeholders;
(iv) strengthen the intelligence apparatus to improve the
collection, collation, analysis and dissemination of operational
intelligence;
(v) increase international co-operation and co-ordination with
concerned authorities in foreign countries and international
organisations, in operational and long term intelligence in
investigation, mutual legal assistance, to facilitate universal
action for prevention and suppression and to implement any
obligation under the various international conventions and
protocols that are in force in respect of counter measures;
(vi) co-ordinate actions and enforcement by various bodies or
authorities established under this Act;
(vii) co-ordinate actions taken by the concerned Ministries,
Departments organisations of the Government, especially linking
the source of transit to destination and connecting all
stakeholders;
Miscellaneous Application No. 530 of 2022 Page 246 of 297
(viii) review measures for combating, preventing and formulating
coordinated strategy of action by various law enforcement
agencies;
(ix) make sustained efforts for capacity building and training of
agencies;
(x) bring out resource material including education curriculum
for children, Panchayat Raj institutions, enforcement agencies,
judicial officers and other stakeholders;
(xi) co-ordinate investigating activities among the Districts,
States and with other countries in case of cross-border trafficking
of persons;
(xii) co-ordinate the investigation, where international
ramifications are reported or suspected;
(xiii) co-ordinate investigation, where inter-State ramifications
are reported or suspected across two or more States or Union
territory administrations;
(xiv) undertake and facilitate other investigators for investigating
offences from the organised crime perspective;
(xv) develop and monitor a database on every crime under this
Act;
(xvi) co-ordinate with any national or international investigating
or law enforcement agencies and civil society organisations;
(xvii) facilitate inter-State and international transfer of evidence
in investigation as well as video conferencing in judicial
proceedings;
(xviii) facilitate frequent meetings of the State Police Nodal
Officers to facilitate, monitor and evaluate the establishment and
functioning of Anti-Trafficking Units;
(xix) provide necessary support for investigation by the Anti-
Trafficking Units, where such requests are made;
(xx) undertake steps to enhance the professional skills of Anti-
Trafficking Police Officers, Anti-Trafficking Units and all
concerned with the investigation and prosecution of cases;
(xxi) facilitate inter-State and trans-border transfer of evidence
and materials, witnesses and others for expediting prosecution;
(xxii) protection of witnesses, where referred by any State
Government, victims, complainants and affected families, as the
case may be;
(xxiii) undertake steps for timely and effective action on post-
rescue care and protection of any person who is trafficked,
including steps towards rehabilitation by the concerned agencies,
so that their rights are ensured, and that they are not re-trafficked;
Miscellaneous Application No. 530 of 2022 Page 247 of 297
(xxiv) monitor and facilitate victim and witness protection
protocols, rules and procedures including video conferencing
during trial of offences which have ramifications across States and
beyond borders; and
(xxv) develop minimum standards of care and advice for all
concerned, in matters of compliance.
5. Investigation by Bureau. - (1) The Bureau may take over
investigation of any offence under this Act, where referred to it by
two or more States.
(2) Where an offence is referred to the Bureau under sub-section (1),
the State Government shall not proceed with the investigation of the
offence and shall forthwith transmit the relevant documents and
records to the Bureau.
(3) For the removal of doubts, it is hereby declared that till the Bureau
takes up the investigation of the case, it shall be the duty of the officer-
in-charge of the police station to continue the investigation of an
offence under this Act.
(4) While investigating any offence under this Act, the Bureau,
having regard to the gravity of the offence and other relevant factors,
may—
(a) if it is expedient to do so, request the State Government to
associate with the investigation; or
(b) with the previous approval of the Central Government,
transfer the case to the State Government for investigation and
trial of the offence.
(5) While investigating any offence under this Act, the Bureau may
also investigate any other offence under any law for the time being
in force, which the accused is alleged to have committed, if the offence
is connected with such other offence.
(6) The State Government shall extend assistance and co-operation
to the Bureau for investigation of an offence under this Act.
(7) Save as otherwise provided in this Act, nothing contained in this
Act shall affect the powers of the State Government to investigate
and prosecute any offence under this Act or other offences under any
other law for the time being in force. “
372. A reading of the aforesaid provisions of the 2022 Bill reiterates that the
NATB was assigned multi-various functions in conjunction with the
investigation of offences. Insofar as the scope of its investigative powers
Miscellaneous Application No. 530 of 2022 Page 248 of 297
are concerned, a change from what was conceived for the HTIA was that
the ability to suo motu investigate cases was done away with.
373. Now, in order to understand whether all the multivarious reasons for
which the creation of the OCIA was originally suggested have been
satisfied through other bodies/mechanisms, it is necessary to look
broadly into the powers and functions of the NIA, along with the
manner in which it takes up the investigation of scheduled offences.
ii. The NIA Act and the scope of investigative powers of the NIA
374. The NIA is a specialized body created for the investigation and
prosecution of certain offences specified in the Schedule to the NIA Act
124
(hereinafter, “ scheduled offences ”). In relation to the investigation of
such scheduled offences and the arrest of persons, officers of the NIA
have all the powers, duties, privileges and liabilities which the police
officers would generally have, but with the difference that their
jurisdiction would extend to the whole of India and subject to any
international treaty or domestic law of the outside country, outside
125
India as well. The superintendence of the NIA has been vested with
126
the Central government.
375. Insofar as the investigative process is concerned, it can be commenced
or undertaken by the NIA in two distinct ways: (a) through a direction
from the Central government when a report relating to the commission
of a scheduled offence has been escalated to it by the State government
or, (b) through a suo motu direction by the Central Government. To
124
The National Investigation Agency Act, 2008, § 3(1), No. 34, Acts of Parliament, 2008 (India).
125
Id, § 3(2).
126
Id, § 4(1).
Miscellaneous Application No. 530 of 2022 Page 249 of 297
elaborate, in the first scenario, when the officer-in-charge of a police
station receives and records information under Section 173 BNSS
relating to the commission of any scheduled offence, a report is
127
forthwith forwarded to the State government , which shall in turn be
128
forwarded to the Central government as expeditiously as possible.
Thereafter, within a period of 15 days from the date of receipt of the
report, the Central government would make a determination along two
lines: first, whether the offence in question is a scheduled offence and,
secondly, whether it is a fit case to be investigated by the NIA having
129
regard to its gravity and other relevant factors. The basis of such a
two-pronged determination could either be the information made
available in the said report or that received from other sources as well.
If the aforesaid determination results in the affirmative, then a direction
130
is given to the NIA to investigate the offence. As an alternative to this
process, a suo motu direction could also be given by the Central
Government if it is of the opinion that a scheduled offence which is
131
required to be investigated by the NIA has been committed.
376. Where investigation has been entrusted to the NIA in one of the two
aforesaid ways, the State government or any police officer of the State
government who is investigating the offence is mandatorily required to
pause or halt its investigation and transmit the relevant documents and
132
records forthwith to the NIA. However, this must not be understood
to mean that when a scheduled offence has been committed, the
127
Id, § 6(1).
128
Id, § 6(2).
129
Id, § 6(3).
130
Id, § 6(4).
131
Id, § 6(5).
132
Id, § 6(6).
Miscellaneous Application No. 530 of 2022 Page 250 of 297
concerned police officer does not take up investigation at all. Until the
NIA comes into the picture through a direction issued by the Central
government, the primary duty to continue the investigation rests upon
133
the officer-in-charge of the concerned police station.
377. While investigating any scheduled offence, the NIA may (a) request the
State government to associate itself with the investigation if it is
expedient to do so, or instead (b) transfer the case to the State
government for investigation and trial of the offence with the previous
134
approval of the Central government. The NIA also has wide powers
to investigate into any other offence which the accused is alleged to have
committed if such an offence(s) is connected with the scheduled
135
offence. Having said so, unless such a decision to assign the
investigation of a scheduled offence to the NIA is taken by the Central
government, nothing shall affect the powers of the State government to
136
both investigate and prosecute the scheduled offences.
iii. Could a direction still be issued for the constitution of the OCIA?
378. What is evident from the discussion on the functioning of the NIA is
that, apart from the investigation of offences, no other related or
ancillary functions, for example , undertaking preventive efforts,
coordinating response with other stakeholders, capacity building or
training, post-rescue care and protection etc., have been ordained by the
language of the NIA Act. For that reason, the scope of its functioning
could be said to be narrower than that of the OCIA (or the NATB for
133
Id, § 6(7).
134
Id, § 7.
135
Id, § 8.
136
Id, § 10.
Miscellaneous Application No. 530 of 2022 Page 251 of 297
that matter). However, having said so, we must record that as far as the
investigation of cases of human trafficking is concerned, what was
envisioned by the stakeholders for the OCIA (or the NATB) has been
reflected within the NIA Act. To put it simply, it could be said that the
Parliament has deemed it fit to empower an existing investigative body
with powers similar to that of the OCIA (or NATB) as an alternative to
establishing a parallel body. We are of the view that such parliamentary
wisdom must not be subject to any scrutiny by us.
379. Moreover, the only reason that the petitioner has highlighted for
justifying its persistent plea for an OCIA is that the NIA, owing to its
wide discretion in taking up matters for investigation, has not given
adequate focus to the cases of human trafficking and that therefore, only
a handful of cases have been taken up for investigation by them. At
present, we have no data placed on record before us to substantiate the
veracity of these concerns. However, even assuming it is true, we would
be remiss not to point out that such a grievance vis-à-vis the discretion
to take over any investigation might exist in respect of the OCIA or the
NATB as well. The language adopted under Section 5(1) of the 2022 Bill,
particularly the use of the word “ may ” stands as testament to this. Such
a latitude has been given taking into account a variety of reasons.
Therefore, we are afraid that for this reason alone we would not be able
to accept the contention of the petitioner that a separate body must be
constituted.
380. Even assuming that we found such a ground sufficient on its own, there
exist some obvious institutional limitations vis-à-vis issuing a writ of
mandamus for the creation of a national investigative body, one that has
to inevitably draw its powers from the provisions of some statute.
Miscellaneous Application No. 530 of 2022 Page 252 of 297
Therefore, either a new legislation would have to be enacted or
amendments to an existing one would have to be carried out to
accommodate the OCIA and assign the necessary powers of
investigation etc., to its officers. This can, at best, be conveyed as a
suggestion to the respondent no.1 and cannot assume the nature of a
mandate. We say so by duly taking into consideration the fact that it
was the respondent no. 1 who undertook, in the first place, to create the
OCIA through an affidavit submitted to this Court. However, the
pivotal question before us is not merely whether the respondent no. 1
must be directed to fulfill the terms of its undertaking; rather, it is
whether this Court could issue a writ of mandamus for the non-
compliance of an affidavit furnished by the respondent no.1, giving
careful and particular regard to the nature of the commitments made
therein.
381. Union of India and Others v. K. Pushpavanam and Others reported in
(2023) 20 SCC 736 reiterated that the Parliament cannot be directed to
enact a law on a particular subject in a particular manner and observed
thus:
“ 13. The law regarding power of the writ court to issue a mandate to
the legislature to legislate is well settled. No constitutional court can
issue a writ of mandamus to a legislature to enact a law on a
particular subject in a particular manner. The Court may, at the
highest, record its opinion or recommendation on the necessity of
either amending the existing law or coming out with a new law. The
law has been laid down in this behalf in several decisions including
a decision of this Court in Supreme Court Employees' Welfare
Assn. v. Union of India [Supreme Court Employees' Welfare
Assn. v. Union of India, (1989) 4 SCC 187 : 1989 SCC (L&S) 569]
and State of J&K v. A.R. Zakki [State of J&K v. A.R. Zakki, 1992
Supp (1) SCC 548 : 1992 SCC (L&S) 427] . The only exception is
Miscellaneous Application No. 530 of 2022 Page 253 of 297
where the Court finds that unless a rule-making power is exercised,
the legislation cannot be effectively implemented. ”
(Emphasis supplied)
382. Since efforts on part of the Parliament would also be necessary to set-up
the OCIA, we are afraid that entertaining any prayer for issuing a
direction or a writ in the nature of a mandamus for the creation of the
OCIA, is out of the question.
383. We are conscious that some other functions apart from the power to
investigate cases were additionally assigned to the OCIA. However, all
such functions are already being performed by multiple existing
authorities.
384. In order to provide a more holistic picture, the current nation-wide
response more or less takes the following shape:
(i) At the district-level, the AHTUs which are integrated task forces
comprising of trained police officers, officials of the Women and
Child Welfare Department and other relevant departments like
Labour Department, Social Welfare Department etc., are tasked
with the responsibility to prevent, combat and coordinate all
activities related to trafficking and post-rescue measures. This
would include all investigative efforts, prevention measures,
conducting rescue operations, ensuring provision of post-rescue
care, maintaining a grass-root level database on the traffickers
137
etc. The AHTU is to function under the supervision of a
Superintendent of Police or Deputy Superintendent of Police level-
137
M INISTRY OF H OME A FFAIRS , G OVERNMENT OF I NDIA , Advisory on preventing and combating human
th
trafficking especially during the period of COVID-19 pandemic dated 6 July 2020, No. 24013/4/2020-ATC.
Miscellaneous Application No. 530 of 2022 Page 254 of 297
138
officer. Women help-desks at each police station in the said
district will be responsible to undertake tasks of rescue,
prevention, protection and support the investigation of human
trafficking cases involving women at the police station level, and
perform such duties and activities as directed by the district
139
AHTU. The Mission Shakti Scheme, more particularly the OSCs
and the Shakti Sadans in each district would directly take charge
140
of the rehabilitation measures in coordination with the AHTUs.
A Committee headed by the District Magistrate/District Collector,
meeting at least once every quarter, will oversee the overall
141
implementation of the Mission Shakti Scheme.
(ii) At the State-level, an Anti-Trafficking Bureau headed by an
Additional Director General of Police level officer would oversee
and coordinate all trafficking related measures within the State and
with other States/UTs. The AHTUs would report to this State-
142
Headquarter level Bureau. For the Mission Shakti Programme, a
Committee headed by the Chief Secretary, meeting at least twice a
143
year, will oversee implementation.
(iii) At the national level, there are multiple bodies entrusted with
several functions.
a) As indicated previously, first, the Anti-Human Trafficking
Cell issues guidelines to States/UTs from time to time for
138
M INISTRY OF H OME A FFAIRS , G OVERNMENT OF I NDIA , Institutional mechanism for preventing and
st
countering human trafficking at State level dated 1 December 2020, No. 15011.46/2020-ATC.
139
Id.
140
M INISTRY OF W OMEN AND C HILD D EVELOPMENT , G OVERNMENT OF I NDIA , ‘Mission Shakti’ (Integrated
Women empowerment programme) Umbrella Scheme for Safety, Security and Empowerment of Women: Scheme
Implementation Guidelines, (2022).
https://missionshakti.wcd.gov.in/public/documents/whatsnew/Mission_Shakti_Guidelines.pdf
141
Id.
142
Supra note 138.
143
Supra note 140.
Miscellaneous Application No. 530 of 2022 Page 255 of 297
strengthening law enforcement response, provides assistance
in capacity building efforts to States/UTs, and enters into
bilateral agreements with other countries on the subject.
Moreover, twice a year, meetings would be convened by the
Cell with the Anti-Trafficking Bureaus existing at the
144
State/UT level.
b) Secondly, as far as intelligence gathering, investigation and
prosecution is concerned, there are two pan-India bodies
working simultaneously – one, the NIA, which may
investigate and prosecute offences under Sections 370 and
370A IPC (143 and 144 BNS) and to whom the State
governments are mandatorily directed to escalate a report.
Two, the AHTU unit within the Special Crimes Zone of the
Central Bureau of Investigation (“ CBI ”), Delhi which may
investigate the human trafficking of women and children for
the purpose of begging, prostitution, pornography, forced
145
labour in industries and other forms of exploitation. All
police officers of the rank of Inspector and above have been
designated as “trafficking police officers” under Section 13(4)
of the ITPA for investigating offences under the said Act as
146
well. The AHTU, CBI is also tasked with collecting,
collating and analysing data on kidnapping and abduction of
144
M INISTRY OF H OME A FFAIRS , G OVERNMENT OF I NDIA , Setting up and strengthening Anti Human
Trafficking Units in all Districts of States and UTs under ‘Nirbhaya Fund’ dated 27.12.2019, No.
15011/31/2019-ATC.
145
M INISTRY OF H OME A FFAIRS , G OVERNMENT OF I NDIA , Advisory on human trafficking as Organised crime
dated 30.04.2012, No. 15011/27/2011-ATC. https://www.mha.gov.in/sites/default/files/2022-
12/AdvisorycrimeHumanTrafficking_29092022%5B1%5D.pdf
146
C ENTRAL B UREAU OF I NVESTIGATION , CBI establishes an Anti-Human Trafficking Unit sets up exclusive
th
helpline number, https://cbi.gov.in/press-detail/NDEwNw== (last seen 15 May 2026).
Miscellaneous Application No. 530 of 2022 Page 256 of 297
persons pan-India and developing actionable intelligence to
conduct operations against gangs involved in trafficking.
c) Lastly, for the Mission Shakti programme, a committee
headed by the Secretary, MWCD, that meets at least once a
year, serves as the Apex Committee reviewing the
implementation and monitoring quality norms across
147
India.
385. The suggestion made by the stakeholders that a single nodal agency be
entrusted with all these functions was in the interest of ensuring that
there are no leakages in the response mechanisms due to multiple
institutions working in silos without any coordination. While we see the
merit in aggregating all these efforts within a single nucleus for better
efficiency, the final call on whether this must be done, being a policy
decision, would also be best left to the wisdom of the respondent no. 1.
386. To put it shortly, when there is no “gap or lacuna” as such in the existing
mechanisms as far as both investigation and other functions originally
envisioned for the OCIA are concerned and the only issue seems to be
an allegation regarding the scattered functioning of the multiple
existing systems, the prayer that an altogether new body be formed by
this Court is of a sweeping nature which if entertained would have the
consequence of us transgressing the delicate boundaries of the power
under Articles 32 and 142 respectively. Therefore, for all these reasons,
we are not inclined to issue any directions directing the creation of the
OCIA. Nevertheless, we urge the respondent no. 1 to continue in its
147
Supra note 140.
Miscellaneous Application No. 530 of 2022 Page 257 of 297
efforts to optimise synergy between all these systems in the best possible
manner.
VII. RECOMMENDATIONS AND SUGGESTIONS
387. Before we close this matter, we must address ourselves on a very
important issue i.e., highlighting the urgent need to bring some changes
to the present legislative framework on human trafficking for CSE, on
several aspects.
A. Re-visiting certain provisions in light of the principle of ‘non-
criminalisation’ of victims
388. The Recommended Principles and Guidelines on Human Rights and
Human Trafficking issued by the Office of the High Commissioner for
Human Rights (hereinafter, the “ Recommended Principles ”) has a
significant persuasive and guiding value to member States in setting up
robust anti-trafficking regimes. The Recommended Principles under
Guideline 2, emphasises that a failure to identify a trafficked person
correctly is likely to result in a further denial of that person’s rights and
that therefore, all States must be placed under a strict obligation to
ensure that such identification can and does take place realistically. It
further explains that States must consider having measures “ ensuring
that trafficked persons are not prosecuted for violations of immigration laws or
for the activities they are involved in as a direct consequence of their situation
as trafficked persons ”. Additionally, Guideline 8 deals with ensuring that
“ children who are victims of trafficking are not subjected to criminal procedures
or sanctions for offences related to their situation as trafficked persons ”.
Effectively, what these guidelines cumulatively indicate is that both
adult persons and children respectively, must not be prosecuted for
Miscellaneous Application No. 530 of 2022 Page 258 of 297
offences which may have been committed by them as a consequence of
being trafficked. The existence of Sections 7, 8 and 20, ITPA respectively,
especially in its present form, has a significant impact or rather, tussle
with the aforesaid guidelines. These provisions which seek to target
certain specific actions of prostitutes under the broader theme of
securing ‘public interest’, have the consequence of also subjecting
trafficked persons to prosecution in reality. In most scenarios where a
rescue is conducted, the police officials are quick to register offences or
initiate action under the aforesaid provisions against the rescued
victims, thereby effectively denying and negating their victim-status.
389. At this juncture, we would also like to highlight that, the Immoral
Traffic (Prevention) Amendment Bill, 2006 (hereinafter, the “ 2006
Amendment ”) which was introduced in the Lok Sabha, sought to
remedy such a situation by deleting two of the aforesaid provisions i.e.,
Sections 8 and 20 respectively. The Statement of Objects and Reasons
stated that several representations were received from all corners with
the complain that “ the implementation of the Act is hampered by the existence
of certain provisions of the Act, such as sections 8 and 20, which are the most
commonly invoked provisions for any enforcement being done under the Act,
These provisions are directed towards prosecution of the trafficked persons and
result in further victimizing the victim. It is represented that instead of
prosecuting the trafficker under sections 3, 4, 5 and 6 of the Act, most
prosecutions take place under section 8 of the Act “. However, the said
amendment did not come to fruition.
390. The aforesaid reality of extensive prosecution under Sections 8 and 20,
ITPA respectively, could not be said to have escaped the attention of the
respondent no. 1 even after the lapse of the aforesaid amendment Bill.
Miscellaneous Application No. 530 of 2022 Page 259 of 297
The same was, in fact, acknowledged under an advisory notification
dated 09.09.2009148 issued by the MHA which reads thus:
“ It is generally noticed that Sections 8 and 20 of ITPA, which focuses
on the victims, are more often invoked as a result of which the victim
is re-victimised and the exploiters are not punished. It is, therefore,
advised that sections 3, 6 and 7 which pertains to pimps, brothel
owners, clients who are actual perpetrators of the crimes need to be
invoked rather than sections 8 and 20. Law enforcement agencies
need to adopt a victim centric approach in the investigations.”
(Emphasis supplied)
391. Despite the aforesaid acknowledgement, the ground reality, however,
remains the same. A major reason could be that the solution carved out
for the aforesaid issue is fashioned in the form of a suggestion to the
police officers rather than a legislative mandate. A wide latitude of
discretion is still made available to the police officials and prosecution
alike to book victims under these provisions. Therefore, the scales
continue to be perpetually tilted against the victims.
392. We understand the multivarious considerations and reasons that
continue to justify the existence of the aforesaid three provisions.
However, our appeal would be that the intention of the respondent no.
1 evident under the aforesaid advisory notification be given true force
and for the said purpose, a legislative amendment translating the said
intention onto the letter of the law be considered. This could take the
form of a proviso or qualification within the language of Sections 7, 8
and 20, ITPA respectively, clarifying that the said provisions do not
apply to situations where the prostitute either is or is suspected to be a
victim of human trafficking.
148
Ministry of Home Affairs, Government of India, Advisory on preventing and combating human
trafficking in India dated 09.09.2009, F.No. 15011/6/2009-ATC.
Miscellaneous Application No. 530 of 2022 Page 260 of 297
393. Moreover, the fact that the aforesaid three provisions, at least in terms
of its language, do not expressly exclude children (whether victims of
trafficking or not) from its ambit might also require the careful attention
of the law makers.
B. Reimagining the mode and manner of rehabilitation offered to the
victims – ‘closed shelters’
394. Presently, the protection and rehabilitation framework of the ITPA
strictly subscribes to an institutionalised model. In other words, any
victim who is rescued and who either doesn’t want to be or cannot be
placed in the safe custody of a person, has no other option but to enforce
her fundamental right to rehabilitation against the State by consenting
to placement in a protective home under Section 21, ITPA. Although this
aspect, by itself, is not problematic yet when viewed from the
perspective that such custody in a protective home is mandated for a
fixed period of time by the order of a Magistrate under Section 17(4),
ITPA, some issues as regards the true object of such a placement would
inevitably arise. This is owing to the fact that such mandatory custody
slowly begins to mimic a carceral stay or detention in a borstal
institution.
395. The drafting history of the Palermo Protocol reveals that while no State
argued for recognition of a right to detain victims, most resisted an
explicit prohibition of the same because they feared that it would curtail
their options in dealing with undocumented or otherwise irregular
migrants. Therefore, while the Palermo Protocol is expressly silent on
this aspect, it is only the Recommended Principles which addresses the
issue of shelter-based detention directly. Guideline 1 requires that the
Miscellaneous Application No. 530 of 2022 Page 261 of 297
human rights of the victim be placed at the center of all measures and
further provides that States should consider “ protecting the right of all
persons to freedom of movement and ensuring that anti-trafficking measures
do not infringe this right ”. Guideline 2 further requires States to consider
ensuring that “ trafficked persons are not, in any circumstances, be held in
immigration detention or other forms of custody ”. Therefore, what seems to
be deprecated is the custodial nature of any post-rescue measure. It
must be ensured that even rehabilitation efforts do not result in other
rights violations.
396. If careful attention is paid to the language of Section 17(4), ITPA, the use
of the term “detained” becomes apparent. This is combined with the fact
that such detention is for a period between one to three years. Although,
Section 19(3), ITPA does not use the word “detained” expressly, it also
emulates a detention-type custody model by requiring the Magistrate
passing the order to specify the period for which such an order shall
operate.
397. When such a custody is mandated for any interim period, for instance
under Sections 17(3) or 19(2) ITPA respectively, one could still
realistically argue that the same is justified because the victim must be
given some time to come to terms with the gravity of the crime which
has victimized her or in other words, she must be afforded a ‘reflection
period’. Moreover, more often than not, the victims are psychologically
conditioned and programmed over extended periods of time by the
traffickers and therefore, some time may indeed be necessary for her to
exercise her right to self-determination and autonomy in the truest
sense. However, using the same analogy for making long term custody
under Sections 17(4) and 19(3) ITPA respectively, tethered to a strict
Miscellaneous Application No. 530 of 2022 Page 262 of 297
time-limit, may not in all circumstances be justified. As may have
become evident throughout the course of our discussion in this
judgment, there cannot be a one-size-fits-all approach, especially for
victims of such crimes. Therefore, prescribing even a default minimum
period of ‘detention’ might have very serious consequences.
398. Proponents of shelter detention commonly justify it with reference to
the complexity of the operating environment and the need to protect the
victims of trafficking. Sometimes, the very fact of detention is denied,
and it is asserted that the victims agree to restrictions on both their
freedom of movement and liberty in exchange for protection. Some
other times, it is stated that the victims are required for criminal
prosecution of traffickers and must be prevented from running away.
In the case of migrant victims, their detention may be explained with
reference to the fact that they have no legal status in the country of
destination and cannot be permitted to leave the shelter compound.
399. There are several countries which have adopted an ‘open shelter’ model
and even in countries where victim detention is the norm, alternate
means of looking after trafficked persons exist. On the other hand, there
are laws, for example, in Malaysia, which take measures as extreme as
imposing an additional period of detention for trafficked persons who
escape the place of refuge or defy the protection order, without lawful
authority.149 Some conversation and clarity on where in this spectrum
the Indian model stands, might be necessary. This is more so, in light of
the legislative history of the amendments made to the ITPA and the
149
§55, Anti-Trafficking in Persons and Anti-smuggling of Migrants Act, 2007.
Miscellaneous Application No. 530 of 2022 Page 263 of 297
persons for which a ‘protective home’ under the ITPA was originally
contemplated.
400. In its original form, the ITPA defined a protective home as thus:
“ (g) “protective home” means an institution, by whatever name
called, in which women and girls may be kept in pursuance of this
Act and includes –
(i) a shelter where female undertrials may be kept in pursuance of
this Act; and
(ii) a corrective institution in which women and girls rescued and
detained under this Act may be imparted such training and
instruction and subjected to such disciplinary and moral influences
as are likely to conduce to their reformation and the prevention of
offences under this Act; ”
(Emphasis supplied)
401. On a bare reading of the aforesaid erstwhile Section 2(g), it becomes
evident that a protective home was an institution which was
contemplated to house two categories of persons (i) female undertrials
and (ii) rescued women and girls. However, it must also be noticed that
the treatment of persons falling under category (ii) was significantly
different. In other words, even rescued persons were treated as
individuals who required ‘training’, ‘education’, ‘discipline’ and ‘moral
influences’ to bring about their ‘reformation’ and prevent them from
committing further offences under the ITPA. To put it shortly, rescued
victims were not seen as persons requiring protection and rehabilitation
but reformation and discipline. Therefore, it could be argued that it was
in the aforesaid context that the term “detained” had been originally
used and a fixed period of stay was mandated under sections 17 and 19
ITPA respectively.
402. However, the ITPA underwent a tremendous change, at least insofar as
the aforesaid premise is concerned through the 1978 amendment to the
Miscellaneous Application No. 530 of 2022 Page 264 of 297
Act. Through this amendment, the legislature sought to create two
different institutions instead of one and found it appropriate to create
“corrective institutions” which were different from protective homes.
As evident from Section 2(b), ITPA such an institution is for “ persons
who are in need of correction who may be detained under this Act and includes
a shelter where undertrials may be kept in pursuance of this Act ”. Section 10A,
ITPA goes on to read thus:
“ Detention in a corrective institution – (1) Where –
(a) a female offender is found guilty of an offence under section 7 or
section 8, and
(b) the character, state of health and mental condition of the offender
and the other circumstances of the case are such that it is expedient
that she should be subject to detention for such term and such
instruction and discipline as are conducive to her correction,
it shall be lawful for the court to pass, in lieu of a sentence of
imprisonment, an order for detention in a corrective institution for
such term, not being less than two years and not being more than
five years, as the court thinks fit :”
(Emphasis supplied)
403. In unison with this change, the definition of a protective home was
changed and the same read thus:
“(g) “protective home” means an institution, by whatever name
called (being an institution established or licensed as such under
section 21), in which persons, who are in need of care and
protection, may be kept under this Act and where appropriate
technically qualified persons, equipment and other facilities have
been provided, but does not include—
(i) a shelter where undertrials may be kept in pursuance of this Act,
or
(ii) a corrective institution;”
(Emphasis supplied)
404. What then becomes clear is that not only did the 1978 amendment create
two different institutions i.e., a corrective institution and a protective
Miscellaneous Application No. 530 of 2022 Page 265 of 297
home, but it also reoriented the legislative approach towards victims
rescued under Sections 15 and 16, ITPA respectively. It was clarified that
(a) it is only female undertrials/offenders found guilty under Sections 7
and 8 who would be kept in corrective institutions and (b) it is only such
persons who would require ‘instruction’ and ‘discipline’ for their
‘correction’. On the other hand, as far as a protective home is concerned,
it was (a) completely insulated from a corrective institution and created
solely for rescued victims, and (b) it was recognised that they need “care
and protection” and not correction. Having acknowledged the object of
a protective home to be such, the retention of the words “detained”
under Section 17(4) and the prescription of fixed time periods for an
order under Sections 17(4) and 18(3), ITPA respectively, seems to rather
further some contradiction.
405. Even ignoring the legislative history brought forth above, questions
including whether the State has any prerogative to insist on the long
term detention of a victim and if yes, what are its parameters; Could
compelling policy arguments like criminal justice imperatives, public
order requirements or victim safety needs, justify long term detention
in all circumstances; whether and how the State must secure the
continued consent of victims to remain in a shelter home etc., are all
larger questions which might need some demystifying.
406. We must clarify that we have thought fit to lay such an issue out for
consideration by the respondent no.1 and refrained from expressing any
substantive opinion on the same considering that we are not dealing
with a specific challenge to the aforesaid provisions. Therefore, we hope
that the respondent no. 1 takes a re-look into the strict detention model
of rehabilitation mandated under the ITPA. Even if the detention model
Miscellaneous Application No. 530 of 2022 Page 266 of 297
is insisted, we urge that the respondent no.1 brings out options for
alternate modes of rehabilitation and protection so that the
rehabilitation measures can be tailored to the specific needs of the
victims. When diverse options pertaining to the mode and manner of
rehabilitation are given, especially those that are alternatives to
compulsory detention, then maximum impact can be achieved in terms
of both the number of victims who could be rehabilitated and the quality
of their rehabilitation. To put it simply, if the State offers better modes
and methods of rehabilitation, only then will more people be willing to
identify as victims, adopt such modes of rehabilitation and be successful
in that pursuit.
C. Strengthening the rights framework for voluntary adult sex workers
407. In our discussion of the ITPA in this judgment, what stood out was the
ambivalence with which it addresses prostitution. While defining
prostitution as exploitation or abuse, the Act does not criminalise it in
all its forms. The natural corollary of such a position would have been
to recognise the rights of those engaged in prostitution in the manner
permitted by the Act and to afford them adequate protection. This is
because, despite all the differences that exist between those who argue
for and against prostitution, there is broad agreement that the risk of
exploitation and abuse is inherent to the practice, and that vulnerability
and violation of rights characterise the conditions in which prostitution
occurs.
408. The ITPA’s failure to accord rights and protections to those engaged in
prostitution voluntarily further entrenches the notion that, whilst
prostitution may be exploitative, those engaging in it voluntarily are, in
Miscellaneous Application No. 530 of 2022 Page 267 of 297
some sense, bringing harm upon themselves. Some might argue that the
ITPA, by refraining from criminalising prostitution altogether, is
recognising the agency of voluntary adult sex workers. While this is true
to a limited extent, two difficulties arise with such an argument. First, it
is precisely the approach we had cautioned against in an earlier section
of this judgment, which attaches too much weight to agency without
adequately recognising the vulnerabilities that attend to even voluntary
prostitution. By declining to accord rights or protections to voluntary
adult sex workers, the law effectively turns a blind eye to the conditions
in which their prostitution takes place. Secondly, and relatedly, such an
argument entirely overlooks the deeply unfavourable attitude that the
larger society attaches to prostitution, an attitude whose consequences
for voluntary sex workers are severe and which the absence of legal
protection does nothing to ameliorate.
409. The larger society’s view of sex work is deeply rooted in moral
judgment. Where prostitution is not the result of force or trafficking,
those engaged in it are frequently viewed not as persons deserving of
support or protection but as willing participants in an enterprise
considered immoral. This attitude is perhaps most starkly reflected in
the deeply derogatory terminology that continues to be used in common
parlance in Hindi and English to describe voluntary adult sex workers.
The consequences of this stigma are severe and far-reaching. Voluntary
adult sex workers are isolated, and their concerns are dismissed. More
importantly, the protections that the legal framework nominally
extends to them are rendered inaccessible in practice, as the
enforcement officials to whom such responsibility is entrusted are
themselves biased and prejudiced. All this leads to a compounding of
Miscellaneous Application No. 530 of 2022 Page 268 of 297
the very problem identified above: (i) the law does not adequately
protect voluntary sex workers; (ii) social stigma means that community
support is absent; and (iii) the protections that do exist are, in large
measure, rendered ineffective by the attitudes of those responsible for
their implementation.
410. Further, such notions of ‘immorality’ and ‘decent work’ allow grouping
of those engaged in prostitution into groups of ‘innocent victim’
(trafficked victims) and the ‘guilty participant’ (voluntary adult sex
workers). The former is accorded sympathy and legal protection, whilst
the latter is met with moral disapproval. By characterising a person as
‘immoral’ or ‘fallen’, it becomes easier for law enforcement and for civil
society alike to treat voluntary adult sex workers as people who are less
deserving of dignity and legal protection.
411. Whilst this Court and various courts across the country have put
significant effort into improving the lives of the victims of trafficking of
CSE, including voluntary adult sex workers, judicial records show that
courts too have, in some instances, mirrored such social attitudes
described above.150 References to prostitutes as ‘fallen women’,
observations casting doubt on their suitability for family life, or
characterisations of prostitution as work which is not decent are
observations that may indirectly lend legitimacy to the very stigma that
the law must seek to dismantle.
412. A meaningful starting point in addressing the multifarious difficulties
faced by voluntary adult sex workers is the recognition of their rights
150
¶ 5 & 11, Vishal Jeet v. Union of India , (1990) 3 SCC 318; ¶ 1, Gaurav Jain v. Union of India , (1997)
8 SCC 114; ¶ 7, State of U.P. v. Kaushailiya , AIR 1964 SC 416.
Miscellaneous Application No. 530 of 2022 Page 269 of 297
and the provision of adequate protections to enforce them. While it
would be advisable for the respondent no. 1 to re-examine the conflation
between sex trafficking and prostitution that presently exists in the
legislative framework, even within that framework, there remains
sufficient scope to recognise and protect the rights of voluntary adult
sex workers and to put in place mechanisms for the enforcement of such
rights. It is our hope that such recognition will, to some extent, reduce
the marginalisation, isolation, and stigmatisation that voluntary adult
sex workers presently face, and thereby pave the way for their more
meaningful reintegration into society.
413. To address the issues surrounding prostitution effectively, the law must
first reckon with the reality of it. The widespread existence of
prostitution in India is a fact that cannot be wished away. Yet the current
legislative framework bears little relationship to that reality. The result
is a serious and widening gap between the law as it stands in the books
and the practical conditions in which prostitution is actually carried on,
thereby necessitating a serious re-examination.
D. Introduction of a provision creating an offence for abuse of authority
by police officers
414. Due to the prevalence of complaints against police officers engaging in
abusive behaviour towards the rescued victims, either during the course
of the rescue or during periods post their rescue and also considering
th
the extreme vulnerability of the rescued victims, the 64 Law
Commission Report examined the necessity of introducing a special
provision. It was recognized that the abuse of authority, including
sexual misconduct, by a public servant in various situations has already
Miscellaneous Application No. 530 of 2022 Page 270 of 297
been dealt with under several sections of the IPC. However, having
special regard to the possibility of misconduct in view of the nature of
the duties which police officers have to perform under the ITPA, it was
felt that a specific provision was indeed required. Therefore, it was
recommended that a new section 17-A be inserted. The said provision
read thus:
“ 17-A. If a police officer having the charge or custody of a woman or
girl under this Act, compels or seduces to illicit sexual intercourse
with any such woman or girl, he shall be deemed to be guilty of—
(a) an offence under S. 376 of the Indian Penal Code, if he compels
her to such intercourse,
(b) an offence under S. 376-A of that Code, if he seduces her to such
intercourse .”
415. In addition to the same, the Report also examined whether a provision
penalising police officers who are guilty of delay in production of the
rescued victims before the appropriate Magistrate, is necessary. In order
to give true force to the term “ forthwith ” under Section 17 ITPA, it was
considered desirable to insert another provision punishing such delay.
In doing so, it was considered appropriate to introduce a rebuttable
presumption that such police officer shall be presumed, until the
contrary is proved, to have wrongfully confined the rescued person
within the meaning of Section 340 IPC (now Section 127 BNS) if there is
any delay. To that effect, a new Section 17-B was also recommended.
The same reads thus:
“ 17-B. If a police officer, having removed a woman or girl under sub-
s. (4) of S. 15 or sub-s. (2) of S. 16, fails to produce the woman or
girl—
(a) before the appropriate Magistrate as required by sub-s. (5) of S.
15, or
(b) before the Magistrate issuing the order as required by sub-s. (2)
of S. 16, or
Miscellaneous Application No. 530 of 2022 Page 271 of 297
(c) before the nearest Magistrate as required by sub-s. (1) of S. 17,
it shall be presumed, until the contrary is proved that he has
wrongfully confined the woman or girl within the meaning of S. 340
of the Indian Penal Code.”
416. Considering the continued prevalence of instances of abuse and/or
reports indicating the complicity of police officers in the crime of
trafficking even today, it is necessary that the respondent no. 1
reconsiders the inclusion of the aforesaid provisions within the scheme
of the ITPA.
E. Removing the requirement of a ‘means’ element for children under
the definition of trafficking in BNS
417. As we have highlighted in our discussion on Section 143 BNS, a
concerning anomaly that exists between the definition of human
trafficking under the BNS and the Palermo Protocol is the requirement
that the ‘means’ element be established even for an offence of human
trafficking involving children. The deviation on this aspect from the
Palermo Protocol needs some immediate attention.
418. Guideline 8 of the Recommended Principles also highlight that the
particular physical, psychological and psychosocial harm suffered by
trafficked children and their increased vulnerability to exploitation
require that they be dealt with separately from adult trafficked persons
and therefore, it very clearly, advocates that any evidence of deception,
force, coercion etc., should not form part of the definition of trafficking
where the person involved is a child.
Miscellaneous Application No. 530 of 2022 Page 272 of 297
F. Continued consideration of the need for a comprehensive legislation
on trafficking
419. The history of the present litigation has highlighted the need for a
separate and comprehensive legislation on trafficking not just for sexual
exploitation but for all other forms of exploitation including forced
labor, removal of organs etc. Originally, such a dedicated legislation
was considered important due to several reasons including that the
present legislative framework is spread across several legislations like
the BNS, ITPA, Bonded Labour System (Abolition) Act, 1976, POCSO,
JJ Act, IT Act, PMLA etc.; that the need to protect and rehabilitate
victims of trafficking must be legislatively recognised; that institutional
mechanisms for both investigation and coordination of various
response measures must be created at the national, State and District
level; and that approaching the crime from an ‘organised crime’
perspective was necessary.
420. While we have issued a slew of guidelines in the form of a “Victim
Protection Plan” with specific regard to victims of trafficking for CSE,
the same cannot be said to completely obviate the need for a
comprehensive legislation and therefore, we urge the respondent no. 1
to give some earnest consideration to the same keeping aside the stance
that it has taken in the present litigation.
G. Addressing Cyber-enabled Human Trafficking
421. The democratisation of the internet has also come with some
unintended consequences. Digital platforms have offered safe havens to
criminal elements who exploit such platforms for illicit activities. With
particular reference to the crime of human trafficking, technology has
Miscellaneous Application No. 530 of 2022 Page 273 of 297
become a tool for traffickers to facilitate, organize, network, transact and
evade authorities with greater speed, less cost and more anonymity. In
such a background, instances of CEHT are perpetually on the rise whilst
law enforcement measures to counter the same are still lagging behind.
422. Cyber-enabled CSE or CEHT needs specific attention from all
stakeholders because it has created a radical shift in the exploitation
landscape by capitalising on the anonymity, accessibility, and
interconnectedness of the digital domain to facilitate crimes with
unparalleled efficiency and reach. Anyone using technology is made
vulnerable to victimisation regardless of education, class, caste etc.,
since the predominant focus has now shifted to exploiting the emotional
vulnerability of victims. Websites and applications hosting sexual abuse
material that are accessed through Virtual Private Networks (VPNs)
enable traffickers to produce, distribute and monetize exploitative
content without falling under the radar of authorities. There is a
permanent and ineffaceable trauma that is inflicted on victims of cyber-
enabled CSE because the digital footprint remains permanent and the
fear of circulation of any sexual abuse material or its re-emergence
persists through the victim’s life. Moreover, to camouflage their
organised crime network seamlessly, the perpetrators can manipulate
innocent online identities for financial transactions or communications,
which can significantly complicate investigations.
423. Therefore, the respondent no. 1 is urged to find ways to effectively
address the prevalence of this crime by bringing necessary advisories
guiding the actions of the AHTUs and the other stakeholders including
but not limited to providing training on relevant provisions of the law,
Miscellaneous Application No. 530 of 2022 Page 274 of 297
providing SOPs for coordination with the cyber-crime units/police
stations etc.
H. Other recommendations
424. The following are certain other recommendations which may be
considered by the respondent no. 1:
(i) Bringing the definition of a child under Section 2(aa), ITPA in line
with that of the BNS, POCSO etc.
(ii) Notifying model rules under the ITPA, similar to the Juvenile
Justice (Care and Protection of Children) Model Rules, 2016.
(iii) Providing detailed SOPs for stakeholders including the police
officers, judicial officers, social workers etc., addressing the rescue
of a victim who is a foreign national under the provisions of the
ITPA, and the manner in which (a) information pertaining to her
rescue is escalated to the MHA for initiation of the process of
repatriation in coordination with the Ministry of External Affairs
(“MEA”), (b) the manner in which their case would be dealt with
by the magistrate under Section 17 ITPA, and (c) the manner and
scope of rehabilitative measures to be offered by the State, and all
other aspects on which some clarity may be necessary.
(iv) Research indicates that sex trafficking persists, in large measure,
because of the significant profits it generates for traffickers.
Accordingly, an effective response to trafficking must go beyond
criminal prosecution under the BNS or ITPA and extend to
Miscellaneous Application No. 530 of 2022 Page 275 of 297
strategies that directly target its economic foundations.151 Thus,
enforcement strategies aimed at identifying, attaching, and
recovering the proceeds of trafficking for CSE through necessary
PMLA prosecution needs to be emphasised.
(v) The current emphasis on raid and rescue operations as the primary
method of identifying and rescuing victims of trafficking for CSE
has well-documented limitations and, as we have noted, carries
with it the risk of causing harm to those it is intended to protect.
Therefore, efforts may be directed towards developing more
nuanced and creative identification strategies.
VIII. CONCLUSION
425. A summary of our entire discussion is as follows:
A. The legal landscape surrounding human trafficking for the purposes
of CSE
i. International legal framework – Palermo Protocol
426. The primary goal of the Palermo Protocol is to lay down measures: (i)
to prevent trafficking, (ii) to punish traffickers, and (iii) to protect the
victims of such trafficking, including by protecting their internationally
recognised human rights. These three goals of prevention, punishment,
and protection have commonly been referred to as the 3P’s of the
Palermo Protocol.
151
Siddharth Kara, Sex Trafficking: Inside the Business of Modern Slavery (Columbia Univ. Press 2008)
Miscellaneous Application No. 530 of 2022 Page 276 of 297
427. Article 3 of the protocol defines the term ‘trafficking in persons’, and it
requires the presence of three key elements: (i) action (recruitment,
transportation etc.), (ii) means (threat, force etc.) and, (iii) purpose
(exploitation). Cumulatively, they constitute the crime of human
trafficking. The definition also states that consent of a victim of
trafficking in persons shall be irrelevant where any of the ‘means’ have
been used. However, an exception to the three-element requirement is
carved out when the victim is a child i.e., a person below the age of 18
years. The ‘means’ element is not a pre-requisite when the crime
involves children. It is sufficient to only show that the ‘action’ was done
for the ‘purpose’.
428. In order to ensure that the definition provided in Article 3 was given
effect to in domestic criminal laws, the Protocol under Article 5 obligates
State parties to adopt legislative and other measures as may be
necessary to establish as criminal offences the conduct set forth in
Article 3. Article 6 of the Palermo Protocol deals with the assistance to
and protection of victims of trafficking in persons. The measures
provided under Article 6 seek to protect victims from further harm and
retaliation, support their recovery, minimise stigmatisation, protect
their privacy and physical safety, assist in their rehabilitation and
reintegration, facilitate their participation in legal proceedings, and
enable them to remain informed about proceedings and obtain
compensation for the damages suffered. Other Articles of the Protocol
address repatriation (Article 8), prevention (Article 9), and border
measures to prevent trafficking (Article 11).
ii. Domestic Legal Framework on Human Trafficking for the
purposes of CSE
Miscellaneous Application No. 530 of 2022 Page 277 of 297
429. The legal infrastructure addressing human trafficking for the purposes
of CSE in India is broad but fragmented, comprising multiple statutory
instruments. In this judgment, we have discussed: (i) Article 23; (ii)
ITPA; (iii) BNS; (iii) JJA; and (v) POCSO respectively.
430. Article 23 of the Constitution prohibits traffic in human beings, begar,
and all other similar forms of forced labour. Its sweep is wide and
unlimited, and it strikes against traffic in human beings in whatever
form it is found and is enforceable not only against the State but against
any private person indulging in such practices. When dealing with
Article 23 or legislations enacted to give effect to it, this Court has
consistently adopted a liberal interpretation, presuming and extending
protections and benefits to all those in conditions of exploitation.
431. A short conspectus of our discussion on the provisions of ITPA is as
follows:
a. The ITPA is based on the 1949 Convention. Both the 1949
Convention and the ITPA respectively, proceed on the
understanding that prostitution is inherently exploitative and
incompatible with the dignity and worth of the human person, and
that no person can ever truly consent to it. As a result, all those
involved in the prostitution of others are treated as traffickers, and
the existence of consent is, as a default norm, rendered immaterial.
ITPA aims for the inhibition and abolition of the
‘commercialisation’ of prostitution and the punishment of all those
who profit from it. The abolition of prostitution itself, however, is
not the Act’s principal object.
Miscellaneous Application No. 530 of 2022 Page 278 of 297
b. Prostitution is defined under Section 2(f) as “ the sexual exploitation
or abuse of persons for commercial purposes ”. Thus, all acts of sexual
exploitation or sexual abuse for commercial purposes constitute
prostitution.
c. Keeping true to its object of criminalising the commercialisation
and organisation of prostitution, the ITPA’s offence-creating
provisions cast a wide net over all those who profit from or
facilitate the prostitution of others. Section 3 targets those who
keep, manage, or are associated with a brothel, covering both those
in operational control and those having proprietary control of the
premises. Section 4 covers any person over the age of 18 who
knowingly lives on the earnings of prostitution of another person,
with a presumption operating against those living with or
habitually in the company of a prostitute or exercising control over
her movements. Section 5 addresses those who procure, induce,
transport, or cause persons to carry on prostitution, with or
without their consent. Section 5 renders consent irrelevant without
requiring the existence of traditional ‘means’ as opposed to the
Palermo Protocol. Section 6 brings within its scope any person who
‘detains’ another, with or without their consent, (a) in any brothel
or (b) in any premises with the intention that such person may
have sexual intercourse with an individual who is not their spouse.
Section 9 targets those who abuse a position of authority or trust
to seduce a person under their care or custody into prostitution.
Across all these provisions, save Section 9, the existence of force,
coercion, or deception is not considered necessary. It is the mere
Miscellaneous Application No. 530 of 2022 Page 279 of 297
third-party involvement in prostitution that attracts criminal
liability.
d. A notable departure from the Act’s general stance of targeting
perpetrators rather than prostitutes is found in Sections 7, 8 and 20
respectively. Sections 7 and 8 respectively penalise prostitution,
seduction, or solicitation of prostitution carried on within notified
areas or within 200 metres of public places, even where no
commercialisation by a third party is involved. Section 10A
introduces corrective institutions as an alternative to the
imprisonment of female offenders/undertrials under Section 7
and 8 respectively, envisaging a regime of detention for purposes
of correction, instruction and discipline. Section 20 moves further
still, empowering the magistrate to remove any person found to be
a prostitute from within their jurisdiction.
e. The ITPA envisages three distinct pathways through which
persons are brought within its protective framework. The first is
through a search and removal under Section 15, which empowers
a special police officer or trafficking police officer to enter and
search the premises without a warrant, having reasonable grounds
for believing that an offence punishable under the ITPA has been
or is being committed in respect of a person who is living in the
said premises. All persons found on the premises may be removed
and forthwith produced before the appropriate magistrate. The
second pathway is through a targeted rescue under Section 16,
which empowers the magistrate to direct a police officer to remove
a specific individual from a brothel upon a reasonable belief that
the person is living in, carrying on, or being made to carry on
Miscellaneous Application No. 530 of 2022 Page 280 of 297
prostitution therein. The third pathway, uniquely, is initiated by
the prostitute herself. Section 19 allows a person who is either
carrying on prostitution or is being made to carry on prostitution
to approach the magistrate directly, seeking care and protection.
f. Persons removed under Sections 15 and 16 respectively are dealt
with by the magistrate under Section 17. Pending the inquiry
under Section 17, the magistrate provides for their intermediate
safe custody, which cannot exceed 21 days. The inquiry itself is
wide-ranging, covering the age, character, antecedents and family
circumstances of the removed or rescued person, as well as the
suitability of the home environment. The magistrate may seek the
assistance of a probation officer and a panel of five respectable
persons, at least three of whom shall, wherever practicable, be
women for the said inquiry. Where the magistrate is satisfied that
the information received is correct and that the person is in need
of care and protection, he may pass a final order directing that such
person be detained in a protective home or in other suitable
custody for a period between one and three years.
g. Section 21 of the ITPA provides for the establishment and
maintenance of protective homes, institutions in which persons in
need of care and protection may be kept under the Act. The power
to establish such homes is left to the discretion of the State
governments, who may establish as many homes as they think fit
and maintain them in such manner as may be prescribed by rules
stipulated vide the power vested in them under Section 23.
Miscellaneous Application No. 530 of 2022 Page 281 of 297
h. To put it succinctly, ITPA : (i) seeks to punish all those who profit
by exploiting the prostitution of others, be it the brothel keeper, the
landlord, the procurer, the transporter, the detainer, the pimp or
the middle-man – all of them are considered offenders; (ii) makes
punishment for offences involving children more stringent; and
(iii) designates special police officers, provides mechanisms for
search and rescue, and lays down how such rescued or removed
persons are to be dealt with in law. The rescued or removed
persons are either handed over to the custody of a parent, guardian
or husband, or sent to a protective home, or placed in such other
custody as the magistrate may find suitable. Several particulars on
the minute workings of all the provisions have been left to be filled
in by the rules which may be brought by the respective State
governments under Section 23.
432. A short conspectus of our discussion on Section 143 BNS, is as follows:
a. Section 143(1) of the BNS largely reflects the Palermo Protocol’s
definition, by (i) requiring the fulfilment of the three elements of
acts, means and purpose respectively, in order to constitute the
offence of trafficking; (ii) providing an open-ended list of activities
that would constitute ‘exploitation’ instead of defining it, as is
evident from the use of the word “ include ” in Explanation 1 of
Section 143(1); and (iii) making consent irrelevant in the
determination of the offence of trafficking upon fulfillment of the
‘means’ element. To establish the offence of trafficking under
Section 143: (i) the actus reus element has to be established via the
‘action’ and ‘means’ elements; and (ii) the mens rea element has to
be established via the ‘purpose’ element i.e., the individual
Miscellaneous Application No. 530 of 2022 Page 282 of 297
intended that the action (made possible through one of the means)
would lead to exploitation.
b. While the acts mentioned as constituting the ‘action’ element in
both the protocol and Section 143(1) are one and the same, there
are certain differences in the components forming part of the
‘means’ and ‘purpose’ elements. However, the most important
difference between the two definitions is that, unlike the Palermo
Protocol, under the BNS, all three elements must be established for
the offence of trafficking to be constituted, even for children.
c. Further, explanation 1 to the section states that “exploitation” shall
include “ any form of sexual exploitation ”. The term ‘sexual
exploitation’ is wide in its ambit and would include all forms of
sexual exploitation, including but not limited to trafficking for
prostitution, pedophilia, pornography, cybersex, and other
disguised forms of sexual exploitation.
433. The ITPA, despite having the word ‘trafficking’ in its title, does not
define the term. It instead proceeds on the premise that all prostitution
is exploitative, and on that basis, criminalises all third parties involved
in and all acts done in furtherance of prostitution. Over time, owing to
the association between prostitution and trafficking in popular and
legal discourse, the acts of third parties done in furtherance of
prostitution came to be equated with trafficking itself. This conflation
was further entrenched by the absence, for a long period, of any other
legislative provision dealing with trafficking in India.
434. However, with both Section 143 of the BNS and the ITPA now in force,
we are seemingly confronted with two different understandings of what
Miscellaneous Application No. 530 of 2022 Page 283 of 297
constitutes ‘trafficking for the purposes of CSE’. Under Section 143, for
an act of sexual exploitation to amount to trafficking, all three elements
of act, means, and purpose must be fulfilled. In other words, the act of
bringing a person towards prostitution must have been done through
one of the specified means, such as force, coercion, inducement, or
deception, for it to constitute trafficking. The ITPA, on the other hand,
operates on a fundamentally different logic. The ITPA requires no such
‘means’. Any act done by a third party (‘act’ element) in furtherance of
prostitution (‘purposes’ element) is sufficient to attract liability under
the Act. The result is that under the ITPA, all prostitution involving
third parties is, in effect, treated as trafficking for CSE, regardless of
whether any force, coercion, or inducement was employed. Thus,
conduct that would not qualify as trafficking under Section 143 may
nevertheless constitute an offence under the ITPA.
435. “Victims of trafficking for CSE” would include those persons who have
been identified as victims under the ITPA regime and those persons
who have been victimised by persons alleged to have committed an
offence under Section 143 of the BNS.
436. Under the JJA, a child who has been trafficked for CSE falls squarely
within the category of a “ child in need of care and protection ”. It is the CWC
that is the competent authority to deal with all matters concerning such
a child. Where the victim of trafficking for CSE is a child, the JJA and
the rules framed thereunder become the governing framework in all
respects. This encompasses the entire spectrum of procedural decisions
that follow upon the identification or rescue of such a victim, i.e., the
forum before which the child is to be presented, the authority vested
with the power to make decisions regarding the child’s care, the factors
Miscellaneous Application No. 530 of 2022 Page 284 of 297
to be taken into account while making such decisions, and the nature of
the institutions or homes to which the child may be sent. To the extent
that another legislation, such as the ITPA, prescribes a different
procedure for any of these aspects, it is the JJA that must prevail. Thus,
when dealing with child victims of trafficking for CSE, it is the CWC,
implementing the provisions of the JJA and the rules framed
thereunder, that will conduct the inquiry and decide all questions
relating to custody, placement, rehabilitation, and restoration.
437. When the victim of trafficking for CSE is a child, the provisions of the
POCSO Act may apply alongside Sections 143 and 144 BNS respectively
and/or the provisions of ITPA. The reason for this is two-fold: (i) there
is no ambiguity in Indian law regarding the fact that every act of sexual
exploitation involving a child is non-consensual as a matter of law, and
(ii) the POCSO Act was designed to cover all forms of sexual abuse
against children, including sexual harassment, aggravated sexual
assault, and the production, storage or possession of child sexual abuse
material, among others. Therefore, in all cases where the sexual
exploitation of a child involves acts punishable under the POCSO Act,
the perpetrators would be charged and prosecuted under it. Once the
POCSO Act is attracted, several aspects of the prosecution change
significantly. The procedure for reporting the offence, recording the
victim’s statement, and conducting the medical examination is
governed by the specific provisions of the POCSO Act, which are
designed to be more sensitive and protective of the child’s interests.
438. When dealing with an offence of trafficking for CSE, the applicable legal
provisions are not static. They vary depending on a combination of
factors, such as the age of the victim, the means employed by the
Miscellaneous Application No. 530 of 2022 Page 285 of 297
trafficker, and the specific nature of the exploitative acts to which the
victim was subjected. No single piece of legislation operates in isolation
when it comes to the crime of trafficking for CSE. An investigating
officer must, therefore, approach each case with a holistic appreciation
of the applicable legal framework and remain alive to the full range of
provisions that the facts of a given case may attract.
B. Victims of Trafficking for CSE and Their Right to Rehabilitation
439. A crime control approach to human trafficking treats the protection of
victims as secondary to the prosecution and punishment of
perpetrators. It views trafficking primarily as a crime involving
criminals who must be prosecuted and punished. In this framework, the
victim, though not entirely absent, appears at the margins. A human
rights approach, by contrast, recognises that trafficking is not only a
crime to be prosecuted but also an act that violates the fundamental
rights of real people. It shifts the lens from the perpetrator to the victim,
placing the victim and her needs at the centre of the response. In the
Indian legal landscape, this human rights approach finds its clearest
articulation in Articles 21 and 23 of the Constitution respectively, which,
read together, establish the right to rehabilitation for victims of
trafficking for CSE.
440. A combined reading of Article 21, i.e., the right to live with dignity, and
Article 23, i.e., the right against exploitation, establishes that the
obligations owed to victims of exploitative structures extend well
beyond identification and rescue to include rehabilitation. The reason is
that rescue without rehabilitation returns the victim to the very same
conditions that made her a target in the first place. Thus, it is the plainest
Miscellaneous Application No. 530 of 2022 Page 286 of 297
requirement of Articles 21 and 23 respectively that victims of
exploitative structures must be suitably rehabilitated.
441. The right to rehabilitation, in line with this Court’s interpretative
approach under Article 23, must be understood broadly and
expansively. At its most fundamental sense, it includes the right to be
protected from further harm. At the most basic level, this would require
the State to take measures to protect the victim’s physical safety from
her traffickers. At a further level, it should address the consequences of
wrongdoing and place the victim in a position to build a life that is not
defined by the wrong she suffered. For victims of trafficking for CSE,
this would mean provision of measures that would ensure material
well-being, aid in reducing stigma, help in recognition and, providing a
voice to the victim’s wishes and choices in her rehabilitation.
442. When dealing with the right to rehabilitation of victims of trafficking for
CSE, the primary role of this Court is 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.
C. Whether the State could be said to have taken “reasonable measures”
to safeguard the right to rehabilitation of the victims of trafficking for
CSE?
443. The respondent no. 1, during the course of the original writ petition and
the first M.A., respectively, acknowledged the need for a Victim
Protection Plan and made earnest efforts in formulating the same in
collaboration with several stakeholders under the supervision of this
Court. However, to date, no such plan has been formulated. In fact, the
Miscellaneous Application No. 530 of 2022 Page 287 of 297
respondent no. 1, contrary to its original position, has now taken the
stance that the current legislative framework provides a robust system
for the protection of victims of trafficking for CSE, thereby negating the
need for a separate plan.
444. In assessing whether such an altered stance is backed by reason, we
have found that apart from two changes i.e., the introduction of Sections
370 and 370A IPC respectively in the schedule to the NIA Act and the
inclusion of “organised crime” as a separate offence under Section 111
BNS respectively, the legislative and institutional framework remain the
same or are similar in nature. The ITPA continues in its original form,
Sections 370 and 370A IPC respectively is reflected under Sections 143
and 144 BNS respectively without any significant change, the POSCO,
JJ Act and IT Act regimes respectively largely persist without alteration,
and the former Ujjawala homes have simply been amalgamated into the
Shakti Sadan Programme. To put it simply, it is what existed in 2015
that continues till date.
445. After an exhaustive perusal of the legal framework surrounding the
offence of trafficking for CSE, it is evident that there is no
comprehensive protocol, plan, or policy which clearly delineates how
such victims ought to be protected and how their right to rehabilitation
is to be actualised. The lack of a Victim Protection Plan is a serious
lacuna that carries the risk of derailing any and all rescue efforts, as
there is no clear, guiding, and binding framework for how victims are
to be handled, both during and after rescue. As a consequence, the
manner of protection and rehabilitation to be offered to such victims is
arbitrary and contingent on the will or whims of the person charged
Miscellaneous Application No. 530 of 2022 Page 288 of 297
with their care at the ground level, thereby seriously and systemically
impairing the realisation of the victims’ fundamental rights.
446. Moreover, upon a thorough examination of the existing measures and
the manner of their implementation, which, according to the respondent
no. 1, creates a robust framework for addressing the crime of human
trafficking for CSE, it is apparent that these measures are also riddled
with serious flaws and are non-uniform across all States and Union
Territories.
D. Directions pertaining to the Victim Protection Plan
447. Taking into specific consideration the manner in which this matter has
progressed and the unjustified abandonment of efforts to formulate the
said comprehensive protocol despite the lacunae in the existing
legislative and policy measures, we are left with no option but to pass
detailed directions in exercise of our powers under Articles 32 and 142
of the Constitution respectively, detailing the manner in which
preventive, protective and rehabilitative measures are to be taken to
safeguard the fundamental rights of the victims of trafficking for CSE.
448. Our formulation of the plan was developed being cognizant of the
following pertinent factors:
a. All trafficking offences for the sexual exploitation of others
through prostitution falling under the BNS would inevitably be
covered by some offence creating provision of the ITPA as well.
Thus, in all cases dealing with victims of trafficking for CSE, the
mechanism that has been put in place to deal with ‘victims’ under
ITPA would get triggered. Therefore, the victim protection plan
Miscellaneous Application No. 530 of 2022 Page 289 of 297
must necessarily take into account the mechanism already
established under ITPA.
b. There is no singular, monolithic version of a ‘prostitute’ or
‘prostitution’. Prostitution is undertaken by a variety of persons
and across a variety of institutional settings. For each form and
each setting, the factors that bring a person into prostitution, the
persons they interact with, and the risks they are exposed to differ
significantly. The inevitable consequence of this complexity is that
those involved in prostitution do not constitute a homogeneous
group with homogeneous interests. Their experiences and needs
are deeply varied. Hence, a one-size-fits-all approach, applied to
the heterogeneous group of ‘victims of trafficking for CSE’, is
unlikely to serve their interests properly. In fact, it might lead to
unintended consequences.
c. There is deep subjectivity involved in determining whether a
person is engaging in prostitution with or without consent.
Consent is not a fixed, objectively verifiable fact. It is fluid,
contextual, and subjective, and therefore incapable of being fully
captured or understood by an external observer through an
objective test. The answer, to the extent there is one, lies within the
person herself. Thus, to the greatest extent possible, the victims’
choices and desires must be accorded great weight.
449. ITPA, by conflating prostitution and trafficking, brings within its net a
wide and heterogeneous group of persons, from those trafficked against
their will, to those who were trafficked but continue voluntarily, to
those who have chosen sex work for themselves. All of these persons
Miscellaneous Application No. 530 of 2022 Page 290 of 297
are, under the current framework, processed through the same
mechanism under Section 17, without differentiation.
450. To avoid the victim protective plan reflecting such an approach, we
identified two measures that, based on the procedure in Section 17,
should be factored into the plan. First is the need for a threshold inquiry
to identify voluntary adult sex workers at the outset, and spare them the
full machinery of the process, i.e., the principle of non-intereference.
Second , is the recognition of the victim’s consent as the governing factor
in the magistrate’s final decisions on detention and reintegration, i.e.,
primacy of the victim’s consent. Being cognisant of the nature of the
trafficking offence, we have also identified circumstances in which such
a departure from the principle of non-interference and primacy of the
victim’s consent would be warranted, i.e., situations where the victim’s
safety is at risk, or the consent/wishes expressed by the victim are a
product of threat, coercion or undue influence.
451. Some other pertinent aspects which also deserve attention and have
been addressed in the plan are: (i) conduct of raid and rescue operations;
(ii) conditions that have to be maintained in protective homes and the
obligation to provide sufficient material resources; (iii) rehabilitation
measures that are responsive to the victim’s choices and reflective of
present economic realities; and (iv) provision of legal and social support
to the victims, necessary to meaningfully access the rights and benefits
to which they are entitled.
452. Lastly, the approach that broadly animates our plan is based on our
conscious effort to shift the treatment of victims of trafficking for CSE
from mere passive objects to be rescued to that of persons with agency
Miscellaneous Application No. 530 of 2022 Page 291 of 297
who have the capacity to make decisions on how they wish to be
empowered. Such an approach would further enable her to exercise her
right to rehabilitation in its truest and fullest sense.
453. We have set out a detailed “Victim Protection Plan” covering the pre-
rescue, rescue, post-rescue, rehabilitation, repatriation/reintegration,
prosecution/trial and prevention/training stages in Paragraph 362 of
this judgment for strict compliance by all stakeholders.
E. Constitution of the Organised Crime Investigation Agency (OCIA)
454. Insofar as the prayer regarding the constitution of the OCIA is
concerned, upon an examination of the existing systems in place, we are
of the view that although the functions originally envisioned for the
OCIA are scattered across several existing institutions and/or
authorities, there is no gap or lacuna as such. In such circumstances, we
are not inclined to issue any writ in the nature of mandamus for the
constitution of the OCIA. Nevertheless, considering that the issue we
have dealt with is serious and sensitive, we leave it to the discretion of
the respondent no. 1 to establish such a body, should they consider it
necessary and appropriate in the future.
F. Recommendations and Suggestions
455. We have highlighted the urgent need to bring some changes to the
present legislative framework on human trafficking for CSE on the
following aspects:
a. Sections 7, 8 and 20 of the ITPA respectively, as they presently
stand, have the consequence of subjecting trafficked persons to
prosecution. In most rescue scenarios, police officials invoke these
Miscellaneous Application No. 530 of 2022 Page 292 of 297
provisions against the very victims they are meant to protect,
thereby effectively denying and negating their victim status. In this
light the respondent no. 1 may consider introducing a proviso or
qualification within the language of Sections 7, 8 and 20 ITPA
respectively clarifying that these provisions would not apply to
situations where the prostitute either is, or is suspected to be, a
victim of human trafficking. Additionally, the fact that these
provisions do not expressly exclude children from their ambit also
merits the careful attention of the legislature.
b. The ITPA’s protection and rehabilitation framework subscribes
strictly to an institutionalised, detention-based model. Under this
model, victims placed in protective homes may be detained for a
fixed period between one and three years under an order of the
magistrate. This mandatory, fixed-period custody slowly begins to
mimic a carceral stay. There cannot be a one-size-fits-all approach,
especially for victims of such crimes. We therefore urge the
respondent no. 1 to re-examine this strict detention model of
rehabilitation. Even if the detention model is insisted upon, we
urge that options for alternate modes of rehabilitation be made
available, so that rehabilitative measures can, in the truest sense,
be tailored to the specific needs of the individual victim.
c. The ITPA’s failure to accord rights and protections to those
engaged in prostitution voluntarily, combined with the deep social
stigma attached to sex work, results in voluntary adult sex workers
being isolated, marginalised, and unable to access protections that
the law extends to them. A meaningful starting point in addressing
these difficulties is the recognition of the rights of voluntary adult
Miscellaneous Application No. 530 of 2022 Page 293 of 297
sex workers and the provision of adequate protections to enforce
them. While it would be advisable for the respondent no. 1 to re-
examine the conflation between sex trafficking and prostitution
that presently exists in the legislative framework, even within that
framework, there remains sufficient scope to recognise and protect
the rights of voluntary adult sex workers and to put in place
mechanisms for the enforcement of such rights i.e., the rights of sex
workers can exist without there being a right to sex work.
d. Considering the continued prevalence of instances of abuse and
reports indicating the complicity of police officers in the crime of
trafficking, we recommend that the respondent no. 1 reconsider
the inclusion of two provisions recommended by the 64th Law
Commission Report. The first would create a specific offence for
police officers who compel or seduce a victim in their charge or
custody to illicit sexual intercourse. The second would create a
rebuttable presumption that a police officer who delays the
production of a rescued victim before a magistrate has wrongfully
confined her within the meaning of Section 127 of the BNS.
e. A concerning anomaly exists between the definition of human
trafficking under the BNS and the Palermo Protocol, i.e., the
requirement that the ‘means’ element be established even where
the victim is a child. The deviation on this aspect from the Palermo
Protocol needs immediate attention.
f. The history of the present litigation has highlighted the need for a
separate and comprehensive legislation on trafficking, one that
addresses not only trafficking for CSE but all other forms of
Miscellaneous Application No. 530 of 2022 Page 294 of 297
exploitation. We urge the respondent no. 1 to give earnest
consideration to this, setting aside the stance it has adopted in the
present proceedings.
g. Technology has become a tool for traffickers to facilitate, organise,
network, transact and evade authorities with greater speed, less
cost and more anonymity. In such a background, instances of
CEHT are perpetually on the rise, whilst law enforcement
measures to counter the same are still lagging behind. Cyber-
enabled CSE or CEHT has created a radical shift in the exploitation
landscape by capitalising on the anonymity, accessibility, and
interconnectedness of the digital domain to facilitate crimes with
unparalleled efficiency and reach. The respondent no. 1 is urged to
find ways to effectively address the prevalence of this crime by
bringing necessary advisories guiding the actions of the AHTUs
and the other stakeholders.
456. With a view to give full force to the Victim Protection Plan, we are
inclined to pass the following additional directions:
a. That all the States/UTs notify “recognised welfare institutions or
organisations” in accordance with the explanation to Section
15(6A) ITPA.
b. That all States/UTs prepare a State-wide list of social welfare
workers, with sufficient representation from all districts, who may
be eligible to form a part of the non-official advisory body under
Section 13(3)(b) ITPA.
Miscellaneous Application No. 530 of 2022 Page 295 of 297
c. That all States/UTs designate the ADGP level police officer
heading the Anti-Trafficking Bureau in their respective States/UTs
as the Police Nodal Officers for the purpose of performing the
functions as delineated by us in the Victim Protection Plan.
d. That all States/UTs shall designate the Secretary, Department of
Women and Child Development in their respective States/UTs as
the Government Nodal Officers for the purpose of performing the
functions as delineated by us in the Victim Protection Plan.
457. It shall be the responsibility of the respondent no. 1 to ensure that the
aforesaid directions are duly complied with within a period of three
months from the date of this judgment.
458. For the purpose of reporting compliance with the additional directions
mentioned in Paragraph No. 456, the Registry shall notify this matter
once again sometime in September, 2026.
459. Tackling human trafficking for CSE, with its hidden nature and
multifarious forms, is indeed a very daunting task. However, there is
recognition from all corners that it is an evil which needs urgent and
consistent attention. Various measures have been undertaken by the
multitude of stakeholders involved. However, throughout this
judgment, we have noted that these measures have not yielded concrete
positive results. Thus, there is no hiding away from the fact that much
more needs to be done. By formulating a victim protection plan, we
believe we have taken a major step in that direction. We hope this effort
will have a domino effect, leading to much more sustained and
coordinated action from all stakeholders.
Miscellaneous Application No. 530 of 2022 Page 296 of 297
460. We are aware that a single plan will not be the answer to all the trials
and tribulations victims face. However, our effort here should reflect
more than just the formulation of a plan. It should reflect an endeavour
to give the victim centre stage and to prioritise their needs. It should
reflect an attempt to view victims not as passive beings but as agents in
need of empowerment. Lastly, but most importantly, it should reflect a
commitment to the victims that this Court will accord them the dignity
that was always theirs.
461. We direct the Registry to send one copy of the judgment to:
a. All the High Courts;
b. Home Secretary, Ministry of Home Affairs, Union of India
c. Principal Secretary, Ministry of Women and Child Development,
Union of India.
462. This Miscellaneous Application stands disposed of accordingly in the
aforesaid terms.
……………………………..J.
(J.B. Pardiwala)
……………………………..J.
(R. Mahadevan)
New Delhi.
th
29 May, 2026.
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