What are the Supreme Court guidelines for protecting survivors of human trafficking? | Explained
In a comprehensive judgment on human trafficking and protection of victims of commercial sexual exploitation (CSE) in India, on May 29, the Supreme Court gave
In a comprehensive judgment on human trafficking and protection of victims of commercial sexual exploitation (CSE) in India, on May 29, the Supreme Court gave detailed guidelines on establishing a uniform victim protection protocol for survivors of CSE. Prajwala, an anti-trafficking non-governmental organisation (NGO) based in Hyderabad that runs shelter homes and works extensively on anti-trafficking policy, training, and rehabilitation, filed a writ petition in the Supreme Court highlighting weaknesses in India’s anti-human trafficking framework. In 2015, the Court disposed of the petition after taking note of governmental efforts aimed at strengthening anti-trafficking mechanisms, including proposals for an Organised Crime Investigation Agency (OCIA). Subsequently, the applicants filed a miscellaneous application alleging that the directions issued in 2015 had not been implemented. What does the existing legal framework provide? The Court examined Article 23 of the Constitution and the principal laws dealing with trafficking for commercial sexual exploitation, including the Immoral Traffic (Prevention) Act, 1956 (ITPA), the Bharatiya Nyaya Sanhita, 2023 (BNS), the Juvenile Justice (Care and Protection of Children) Act, 2015, and the Protection of Children from Sexual Offences Act, 2012. The Court held that when Article 23, which prohibits trafficking, is read together with Article 21, which guarantees the right to life and dignity, the State’s obligation does not end with rescuing a trafficking victim. Referring to earlier decisions such as People’s Union for Democratic Rights v. Union of India and Bandhua Mukti Morcha v. Union of India, the Court held that rehabilitation forms an integral part of ensuring a life of dignity. While recognising that several laws and schemes already exist to combat trafficking, including the BNS, the POCSO Act, the JJ Act and the NALSA Victims of Trafficking and Commercial Sexual Exploitation Scheme, 2015, the Court found serious shortcomings in implementation, particularly in relation to rehabilitation. What is the judgment about? Recognising the fragmented nature of the existing anti-trafficking framework, a Division Bench of Justices J.B. Pardiwala and R. Mahadevan held that when Articles 21 and 23 of the Constitution are read together, victims of trafficking for commercial sexual exploitation (CSE) have a right to rehabilitation.
The Court issued a comprehensive “Victim Protection Plan” governing the pre-rescue, rescue, post-rescue, rehabilitation, reintegration and prosecution stages. It also made a series of recommendations aimed at strengthening India’s anti-trafficking legal and institutional framework. For the purposes of the present case, the Court limited its consideration to the trafficking of women and children for CSE, leaving aside other forms of trafficking such as forced labour and organ trafficking. The judgment emphasised that trafficking is driven by structural vulnerabilities such as poverty, deprivation of rights and opportunities, and conflict, which function as “push factors”. These interact with “pull factors”, including aspirations for better livelihoods, with migration often serving as the connecting link. The Court also acknowledged the increasing use of digital platforms for recruitment, grooming and exploitation, resulting in the emergence of cyber-enabled human trafficking. “No single framework is sufficient to address the complexity of the phenomenon, and effective anti-trafficking work requires, at its core, a multidisciplinary approach,” the Court observed. It recommended reconsideration of different sections of ITPA whch exposed trafficked victims to prosecution rather than protection. The Court also criticised detention-oriented rehabilitation models as overly rigid and called for more flexible, survivor-centred alternatives. Separately, it urged stronger legal protections for voluntary adult sex workers to prevent their marginalisation, while emphasising that such protections should not be conflated with an endorsement of trafficking. On accountability, the Court asked the government to revisit Law Commission recommendations for creating a specific offence targeting police officers who abuse their authority over trafficking victims. The Court also pointed to a drafting gap in the BNS with respect to Palermo Protocol 2000, which India ratified in 2011. What is the survivors’ right to rehabilitation? “A framework that does not address the needs and interests of victims concretely cannot be said to have addressed the problem of trafficking at all,” the Court observed. The Court held that a combined reading of Articles 21 and 23 establishes that victims of trafficking for CSE have a right to rehabilitation. Discussing the content of rehabilitation, the Court noted that it includes the provision of shelter, medical care, psychological support, compensation, education, vocational training and livelihood support, all measures necessary to enable a survivor to sustain herself independently.
The BriefWire